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+G,id,id_annotator,depth,Section,text,generic_heading,specific_heading(bart),score_bart,specific_heading(t5),score_t5,proposed_title,rank
+G2,9,0,1,I,"Appellants, who are parents of four schoolchildren in Tunica County, Mississippi, filed a class action on behalf of students throughout Mississippi to enjoin in part the enforcement of the Mississippi textbook lending program. The complaint alleged that certain of the private schools excluded students on the basis of race and that, by supplying textbooks to students attending such private schools, appellees, acting for the State, have provided direct state aid to racially segregated education. It was also alleged that the textbook aid program thereby impeded the process of fully desegregating public schools, in violation of appellants' constitutional rights.
+
+Private schools in Mississippi have experienced a marked growth in recent years. As recently as the 1963-1964 school year, there were only 17 private schools other than Catholic schools; the total enrollment was 2,362 students. In these nonpublic schools 916 students were Negro, and 192 of these were enrolled in special schools for retarded, orphaned, or abandoned children.[1] By September 1970, the number of private non-Catholic schools had increased to 155 with a student population estimated at 42,000, virtually all white. Appellees do not challenge the statement, which is fully documented in appellants' brief, that ""the creation and enlargement of these [private] academies occurred simultaneously with major events in the desegregation of public schools . . . .""[2]
+
+This case does not raise any question as to the right of citizens to maintain private schools with admission limited to students of particular national origins, race, or religion or of the authority of a State to allow such schools. See Pierce v. Society of Sisters, 268 U. S. 510 (1925). The narrow issue before us, rather, is a particular form of tangible assistance the State provides to students in private schools in common with all other students by lending textbooks under the State's 33-year-old program for providing free textbooks to all the children of the State. The program dates back to a 1940 appeal for improved educational facilities by the Governor of Mississippi to the state legislature. The legislature then established a state textbook purchasing board and authorized it to select, purchase, and distribute free textbooks for all schoolchildren through the first eight grades.[3] In 1942, the program was extended to cover all high school students, and, as codified, the statutory authorization remains substantially unchanged. Miss. Code Ann. § 6634 et seq. (1942).
+
+Administration of the textbook program is vested in the Mississippi Textbook Purchasing Board, whose members include the Governor, the State Superintendent of Education, and three experienced educators appointed by the Governor for four-year terms. Id., §§ 6634, 6641. The Board employs a full-time administrator as its Executive Secretary. Textbooks may be purchased only ""for use in those courses set up in the state course of study adopted by the State Board of Education, or courses established by special acts of the Legislature."" Id., § 6646. For each course of study, there is a ""rating committee"" composed of appointed members, id., § 6641 (1) (d), and only those books approved by the relevant rating committee may be purchased from publishers at a price which cannot ""be higher than the lowest prices at which the same books are being sold anywhere in the United States."" Id., § 6646 (1).
+
+The books are kept at a central book repository in Jackson. Id., § 6641 (1) (f). Appellees send to each school district, and, in recent years, to each private school[4] requisition forms listing approved textbooks available from the State for free distribution to students. The local school district or the private school sends a requisition form to the Purchasing Board for approval by the Executive Secretary, who in turn forwards the approved form to the Jackson book repository where the order is routinely filled and the requested books shipped directly to the school district or the private school.
+
+The District Court found that ""34,000 students are presently receiving state-owned textbooks while attending 107 all-white, nonsectarian private schools which have been formed throughout the state since the inception of public school desegregation."" 340 F. Supp., at 1011.[5] During the 1970-1971 school year, these schools held 173,424 books, for which Mississippi paid $490,239. The annual expenditure for replacements or new texts is approximately $6 per pupil, or a total of approximately $207,000 for the students enrolled in the participating private segregated academies, exclusive of mailing costs which are borne by the State as well.
+
+In dismissing the complaint the District Court stressed, first, that the statutory scheme was not motivated by a desire to further racial segregation in the public schools, having been enacted first in 1940, long before this Court's decision in Brown v. Board of Education, 347 U. S. 483 (1954), and consequently, long before there was any occasion to have a policy or reason to foster the development of racially segregated private academies. Second, the District Court took note that providing textbooks to private sectarian schools had been approved by this Court in Board of Education v. Allen, 392 U. S. 236 (1968), and that ""[t]he essential inquiry, therefore, is whether we should apply a more stringent standard for determining what constitutes state aid to a school in the context of the Fourteenth Amendment's ban against denial of the equal protection of the law than the Supreme Court has applied in First Amendment cases."" 340 F. Supp., at 1011. The District Court held no more stringent standard should apply on the facts of this case, since, as in Allen, the books were provided to the students and not to the schools. Finally, the District Court concluded that the textbook loans did not interfere with or impede the State's acknowledged duty to establish a unitary school system under this Court's holding in Green v. County School Board, 391 U. S. 430, 437 (1968), since
+
+""[d]epriving any segment of school children of state-owned textbooks at this point in time is not necessary for the establishment or maintenance of state-wide unitary schools. Indeed, the public schools which plaintiffs acknowledge were fully established as unitary schools throughout the state no later than 1970-71, continue to attract 90% of the state's educable children. There is no showing that any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools."" 340 F. Supp., at 1013.",facts,Mississippi textbook lending program,strongly agree,The Mississippi Textbook Loan Program,strongly agree,The Mississippi Textbook Loan Program to Private School,1
+G2,9,0,1,II,"In Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Court held that a State's role in the education of its citizens must yield to the right of parents to provide an equivalent education for their children in a privately operated school of the parents' choice. In the 1971 Term we reaffirmed the vitality of Pierce, in Wisconsin v. Yoder, 406 U. S. 205, 213 (1972), and there has been no suggestion in the present case that we alter our view of Pierce. Yet the Court's holding in Pierce is not without limits. As MR. JUSTICE WHITE observed in his concurring opinion in Yoder, Pierce ""held simply that while a State may posit [educational] standards, it may not pre-empt the educational process by requiring children to attend public schools."" Id., at 239.
+
+Appellees fail to recognize the limited scope of Pierce when they urge that the right of parents to send their children to private schools under that holding is at stake in this case. The suggestion is made that the rights of parents under Pierce would be undermined were the lending of free textbooks denied to those who attend private schools_x0097_in other words, that schoolchildren who attend private schools might be deprived of the equal protection of the laws were they invidiously classified under the state textbook loan program simply because their parents had exercised the constitutionally protected choice to send the children to private schools.
+
+We do not see the issue in appellees' terms. In Pierce, the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.
+
+The appellees intimate that the State must provide assistance to private schools equivalent to that which it provides to public schools without regard to whether the private schools discriminate on racial grounds. Clearly, the State need not. Even as to church-sponsored schools whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman, 403 U. S. 602 (1971). The Religion Clauses of the First Amendment strictly confine state aid to sectarian education. Even assuming, therefore, that the Equal Protection Clause might require state aid to be granted to private nonsectarian schools in some circumstances_x0097_health care or textbooks, for example_x0097_a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance. See San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973). In the same way, a State's special interest in elevating the quality of education in both public and private schools does not mean that the State must grant aid to private schools without regard to constitutionally mandated standards forbidding state-supported discrimination. That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination.
+",analysis,Pierce v. Society of Sisters,strongly agree,The Right of Parents to Send Their Children to Private Schools,strongly agree,Balancing between the precedent Pierce v. Society of Sisters (1925) and the arguments of the respondents,2
+G2,9,0,1,III,"The District Court's holding therefore raises the question whether and on what terms a State may_x0097_as a matter of legislative policy_x0097_provide tangible assistance to students attending private schools. Appellants assert, not only that the private schools are in fact racially discriminatory, but also that aid to them in any form is in derogation of the State's obligation not to support discrimination in education.
+
+This Court has consistently affirmed decisions enjoining state tuition grants to students attending racially discriminatory private schools.[6] A textbook lending program is not legally distinguishable from the forms of state assistance foreclosed by the prior cases. Free textbooks, like tuition grants directed to private school students, are a form of financial assistance inuring to the benefit of the private schools themselves.[7] An inescapable educational cost for students in both public and private schools is the expense of providing all necessary learning materials. When, as here, that necessary expense is borne by the State, the economic consequence is to give aid to the enterprise; if the school engages in discriminatory practices the State by tangible aid in the form of textbooks thereby gives support to such discrimination. Racial discrimination in state-operated schools is barred by the Constitution and ""[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."" Lee v. Macon County Board of Education, 267 F. Supp. 458, 475-476 (MD Ala. 1967).
+
+We do not suggest that a State violates its constitutional duty merely because it has provided any form of state service that benefits private schools said to be racially discriminatory. Textbooks are a basic educational tool and, like tuition grants, they are provided only in connection with schools; they are to be distinguished from generalized services government might provide to schools in common with others. Moreover, the textbooks provided to private school students by the State in this case are a form of assistance readily available from sources entirely independent of the State_x0097_unlike, for example, ""such necessities of life as electricity, water, and police and fire protection."" Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 173 (1972). The State has neither an absolute nor operating monopoly on the procurement of school textbooks; anyone can purchase them on the open market.
+
+The District Court laid great stress on the absence of a showing by appellants that ""any child enrolled in private school, if deprived of free textbooks, would with-draw from private school and subsequently enroll in the public schools."" 340 F. Supp., at 1013. We can accept this factual assertion; we cannot and do not know, on this record at least, whether state textbook assistance is the determinative factor in the enrollment of any students in any of the private schools in Mississippi. We do not agree with the District Court in its analysis of the legal consequences of this uncertainty, for the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination. ""[D]ecisions on the constitutionality of state involvement in private discrimination do not turn on whether the state aid adds up to 51 percent or adds up to only 49 per cent of the support of the segregated institution."" Poindexter v. Louisiana Financial Assistance Comm'n, 275 F. Supp. 833, 854 (ED La. 1967).[8]
+
+The recurring theme of appellees' argument is a sympathetic one_x0097_that the State's textbook loan program is extended to students who attend racially segregated private schools only because the State sincerely wishes to foster quality education for all Mississippi children, and, to that end, has taken steps to insure that no sub-group of schoolchildren will be deprived of an important educational tool merely because their parents have chosen to enroll them in segregated private schools. We need not assume that the State's textbook aid to private schools has been motivated by other than a sincere interest in the educational welfare of all Mississippi children. But good intentions as to one valid objective do not serve to negate the State's involvement in violation of a constitutional duty. ""The existence of a permissible purpose cannot sustain an action that has an impermissible effect."" Wright v. Council of City of Emporia, 407 U. S. 451, 462 (1972). The Equal Protection Clause would be a sterile promise if state involvement in possible private activity could be shielded altogether from constitutional scrutiny simply because its ultimate end was not discrimination but some higher goal.
+
+The District Court offered as further support for its holding the finding that Mississippi's public schools ""were fully established as unitary schools throughout the state no later than 1970-71 [and] continue to attract 90% of the state's educable children."" 340 F. Supp., at 1013. We note, however, that overall state-wide attendance figures do not fully and accurately reflect the impact of private schools in particular school districts.[9] In any event, the constitutional infirmity of the Mississippi textbook program is that it significantly aids the organization and continuation of a separate system of private schools which, under the District Court holding, may discriminate if they so desire. A State's constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination. That the State's public schools are now fully unitary, as the District Court found, is irrelevant.",analysis,The Textbook Lending Program,agree,The State's Duty to Discriminate,disagree,State assistance in Education and racial discrimination,3
+G2,9,0,1,IV,"Appellees and the District Court also placed great reliance on our decisions in Everson v. Board of Education, 330 U. S. 1 (1947), and Board of Education v. Allen, 392 U. S. 236 (1968). In Everson, we held that the Establishment Clause of the First Amendment did not prohibit New Jersey from ""spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools."" 330 U. S., at 17. Allen, following Everson, sustained a New York law requiring school textbooks to be lent free of charge to all students, including those in attendance at parochial schools, in specified grades.
+
+Neither Allen nor Everson is dispositive of the issue before us in this case. Religious schools ""pursue two goals, religious instruction and secular education."" Board of Education v. Allen, supra, at 245. And, where carefully limited so as to avoid the prohibitions of the ""effect"" and ""entanglement"" tests, States may assist church-related schools in performing their secular functions, Committee for Public Education v. Nyquist, post, at 774, 775; Levitt v. Committee for Public Education, post, at 481, not only because the States have a substantial interest in the quality of education being provided by private schools, see Cochran v. Louisiana Board of Education, 281 U. S. 370, 375 (1930), but more importantly because assistance properly confined to the secular functions of sectarian schools does not substantially promote the readily identifiable religious mission of those schools and it does not interfere with the free exercise rights of others.
+
+Like a sectarian school, a private school_x0097_even one that discriminates_x0097_fulfills an important educational function; however, the difference is that in the context of this case the legitimate educational function cannot be isolated from discriminatory practices_x0097_if such in fact exist. Under Brown v. Board of Education, 347 U. S. 483 (1954), discriminatory treatment exerts a pervasive influence on the entire educational process. The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws. but neither can it call on the Constitution for material aid from the State.
+
+Our decisions under the Establishment Clause reflect the ""internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause,"" Tilton v. Richardson, 403 U. S. 672, 677 (1971). This does not mean, as we have already suggested, that a State is constitutionally obligated to provide even ""neutral"" services to sectarian schools. But the transcendent value of free religious exercise in our constitutional scheme leaves room for ""play in the joints"" to the extent of cautiously delineated secular governmental assistance to religious schools, despite the fact that such assistance touches on the conflicting values of the Establishment Clause by indirectly benefiting the religious schools and their sponsors.
+
+In contrast, although the Constitution does not proscribe private bias, it places no value on discrimination as it does on the values inherent in the Free Exercise Clause. Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment; Congress has made such discrimination unlawful in other significant contexts.[10] However narrow may be the channel of permissible state aid to sectarian schools, Nyquist, supra; Levitt, supra, it permits a greater degree of state assistance than may be given to private schools which engage in discriminatory practices that would be unlawful in a public school system.",analysis,Everson and Allen,agree,Everson and Allen,agree,Establishment Clause and Free Exercice Clause of the First Amendment,4
+G2,9,0,1,V,"At oral argument, appellees expressed concern over the process of determining the scope of relief to be granted should appellants prevail on the merits. That aspect of the case presents problems but the procedural details need not be fully resolved here. The District Court's assumption that textbook loans were permissible, even to racially discriminating private schools, obviated any necessity for that court to determine whether some of the private schools could properly be classified as ""racially discriminatory"" and how that determination might best be made. We construe the complaint as contemplating an individual determination as to each private school in Mississippi whose students now receive textbooks under the State's textbook loan program; relief on an assumption that all private schools were discriminating, thus foreclosing individualized consideration, would not be appropriate.
+
+The proper injunctive relief can be granted without implying a finding that all the private schools alleged to be receiving textbook aid are in fact practicing restrictive admission policies. Private schools are not fungible and the fact that some or even most may practice discrimination does not warrant blanket condemnation. The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. The certification by the school to the Mississippi Textbook Purchasing Board should, among other factors, affirmatively declare its admission policies and practices, state the number of its racially and religiously identifiable minority students and such other relevant data as is consistent with this opinion. The State's certification of eligibility would, of course, be subject to judicial review.
+
+This school-by-school determination may be cumbersome but no more so than the State's process of ascertaining compliance with educational standards. No presumptions flow from mere allegations; no one can be required, consistent with due process, to prove the absence of violation of law.
+
+The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.
+
+So ordered.
+",conclusion,Scope of Relief,strongly agree,Scope of Relief,strongly agree,Scope of Relief,5
+G2,10,0,1,I,"
+
+Prior to 1946, the Patent Act did not authorize the awarding of attorney’s fees to the prevailing party in patent litigation. Rather, the “American Rule” governed: “ ‘[E]ach litigant pa[id] his own attorney’s fees, win or lose . . . .’ ” Marx v. General Revenue Corp., 568 U. S. ___, ___ (2013) (slip op., at 9). In 1946, Congress amended the Patent Act to add a discretionary fee-shifting provision, then codified in §70, which stated that a court “may in its discretion award reasonable attorney’s fees to the prevailing party upon the entry of judgment in any patent case.” 35 U. S. C. §70 (1946 ed.).1
+
+Courts did not award fees under §70 as a matter of course. They viewed the award of fees not “as a penalty for failure to win a patent infringement suit,” but as appropriate “only in extraordinary circumstances.” Park-InTheatres, Inc. v. Perkins, 190 F. 2d 137, 142 (CA9 1951). The provision enabled them to address “unfairness or bad faith in the conduct of the losing party, or some other equitable consideration of similar force,” which made a case so unusual as to warrant fee-shifting. Ibid.; see also Pennsylvania Crusher Co. v. Bethlehem Steel Co., 193 F. 2d 445, 451 (CA3 1951) (listing as “adequate justification[s]” for fee awards “fraud practiced on the Patent Office or vexatious or unjustified litigation”).
+
+Six years later, Congress amended the fee-shifting provision and recodified it as §285. Whereas §70 had specified that a district court could “in its discretion award reasonable attorney’s fees to the prevailing party,” the revised language of §285 (which remains in force today) provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” We have observed, in interpreting the damages provision of the Patent Act, that the addition of the phrase “exceptional cases” to §285 was “for purposes of clarification only.”2 General Motors Corp. v. Devex Corp., 461 U. S. 648, 653, n. 8 (1983); see also id., at 652, n. 6. And the parties agree that the recodification did not substantively alter the meaning of the statute.3
+
+For three decades after the enactment of §285, courts applied it—as they had applied §70—in a discretionary manner, assessing various factors to determine whether a given case was sufficiently “exceptional” to warrant a fee award. See, e.g., True Temper Corp. v. CF&I Steel Corp., 601 F. 2d 495, 508–509 (CA10 1979); Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F. 2d 579, 597 (CA7 1971); Siebring v. Hansen, 346 F. 2d 474, 480–481 (CA8 1965).
+
+In 1982, Congress created the Federal Circuit and vested it with exclusive appellate jurisdiction in patent cases. 28 U. S. C. §1295. In the two decades that followed, the Federal Circuit, like the regional circuits before it, instructed district courts to consider the totality of the circumstances when making fee determinations under §285. See, e.g., Rohm & Haas Co. v. Crystal Chemical Co., 736 F. 2d 688, 691 (1984) (“Cases decided under §285 have noted that ‘the substitution of the phrase “in exceptional cases” has not done away with the discretionary feature’ ”); Yamanouchi Pharmaceutical Co., Ltd. v. Danbury Phar­ macal, Inc., 231 F. 3d 1339, 1347 (2000) (“In assessing whether a case qualifies as exceptional, the district court must look at the totality of the circumstances”).
+
+In 2005, however, the Federal Circuit abandoned that holistic, equitable approach in favor of a more rigid and mechanical formulation. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005), the court held that a case is “exceptional” under §285 only “when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions.” Id., at 1381. “Absent misconduct in conduct of the litigation or in securing the patent,” the Federal Circuit continued, fees “may be imposed against the patentee only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless.” Ibid. The Federal Circuit subsequently clarified that litigation is objectively baseless only if it is “so unreasonable that no reasonable litigant could believe it would succeed,” iLOR, LLC v. Google, Inc., 631 F. 3d 1372, 1378 (2011), and that litigation is brought in subjective bad faith only if the plaintiff “actually know[s]” that it is objectively baseless, id., at 1377.4
+
+Finally, Brooks Furniture held that because “[t]here is a presumption that the assertion of infringement of a duly granted patent is made in good faith[,] . . . the underlying improper conduct and the characterization of the case as exceptional must be established by clear and convincing evidence.” 393 F. 3d, at 1382.
+
+The parties to this litigation are manufacturers of exercise equipment. The respondent, ICON Health & Fitness, Inc., owns U. S. Patent No. 6,019,710 (’710 patent), which discloses an elliptical exercise machine that allows for adjustments to fit the individual stride paths of users. ICON is a major manufacturer of exercise equipment, but it has never commercially sold the machine disclosed in the ’710 patent. The petitioner, Octane Fitness, LLC, also manufactures exercise equipment, including elliptical machines known as the Q45 and Q47.
+
+ICON sued Octane, alleging that the Q45 and Q47 infringed several claims of the ’710 patent. The District Court granted Octane’s motion for summary judgment, concluding that Octane’s machines did not infringe ICON’s patent. 2011 WL 2457914 (D Minn., June 17, 2011). Octane then moved for attorney’s fees under §285. Applying the Brooks Furniture standard, the District Court denied Octane’s motion. 2011 WL 3900975 (D Minn., Sept. 6, 2011). It determined that Octane could show neither that ICON’s claim was objectively baseless nor that ICON had brought it in subjective bad faith. As to objective baselessness, the District Court rejected Octane’s ——————
+
+inference of bad faith to establish exceptionality under §285, unless the
+
+circumstances as a whole show a lack of recklessness on the patentee’s
+
+part.” Id., at 1314. Chief Judge Rader wrote a concurring opinion that
+
+sharply criticized Brooks Furniture, 738 F. 3d, at 1318–1320; the court,
+
+he said, “should have remained true to its original reading of” §285, id.,
+
+at 1320.
+
+argument that the judgment of noninfringement “should have been a foregone conclusion to anyone who visually inspected” Octane’s machines. Id., *2. The court explained that although it had rejected ICON’s infringement arguments, they were neither “frivolous” nor “objectively baseless.” Id., *2–*3. The court also found no subjective bad faith on ICON’s part, dismissing as insufficient both “the fact that [ICON] is a bigger company which never commercialized the ’710 patent” and an e-mail exchange between two ICON sales executives, which Octane had offered as evidence that ICON had brought the infringement action “as a matter of commercial strategy.”5 Id., *4.
+
+ICON appealed the judgment of noninfringement, and Octane cross-appealed the denial of attorney’s fees. The Federal Circuit affirmed both orders. 496 Fed. Appx. 57 (2012). In upholding the denial of attorney’s fees, it rejected Octane’s argument that the District Court had “applied an overly restrictive standard in refusing to find the case exceptional under §285.” Id., at 65. The Federal Circuit declined to “revisit the settled standard for exceptionality.” Ibid.
+
+We granted certiorari, 570 U. S. __ (2013), and now reverse.
+",introduction,Propriety of Attorney’s Fees Award,disagree,The Patent Act and the Fee-Shifting Provision,strongly agree,"Dispute regarding district courts’ discretion to award attorney’s fees in patent litigation
+",1
+G2,10,0,2,A,"Prior to 1946, the Patent Act did not authorize the awarding of attorney’s fees to the prevailing party in patent litigation. Rather, the “American Rule” governed: “ ‘[E]ach litigant pa[id] his own attorney’s fees, win or lose . . . .’ ” Marx v. General Revenue Corp., 568 U. S. ___, ___ (2013) (slip op., at 9). In 1946, Congress amended the Patent Act to add a discretionary fee-shifting provision, then codified in §70, which stated that a court “may in its discretion award reasonable attorney’s fees to the prevailing party upon the entry of judgment in any patent case.” 35 U. S. C. §70 (1946 ed.).1
+
+Courts did not award fees under §70 as a matter of course. They viewed the award of fees not “as a penalty for failure to win a patent infringement suit,” but as appropriate “only in extraordinary circumstances.” Park-InTheatres, Inc. v. Perkins, 190 F. 2d 137, 142 (CA9 1951). The provision enabled them to address “unfairness or bad faith in the conduct of the losing party, or some other equitable consideration of similar force,” which made a case so unusual as to warrant fee-shifting. Ibid.; see also Pennsylvania Crusher Co. v. Bethlehem Steel Co., 193 F. 2d 445, 451 (CA3 1951) (listing as “adequate justification[s]” for fee awards “fraud practiced on the Patent Office or vexatious or unjustified litigation”).
+
+Six years later, Congress amended the fee-shifting provision and recodified it as §285. Whereas §70 had specified that a district court could “in its discretion award reasonable attorney’s fees to the prevailing party,” the revised language of §285 (which remains in force today) provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” We have observed, in interpreting the damages provision of the Patent Act, that the addition of the phrase “exceptional cases” to §285 was “for purposes of clarification only.”2 General Motors Corp. v. Devex Corp., 461 U. S. 648, 653, n. 8 (1983); see also id., at 652, n. 6. And the parties agree that the recodification did not substantively alter the meaning of the statute.3
+
+For three decades after the enactment of §285, courts applied it—as they had applied §70—in a discretionary manner, assessing various factors to determine whether a given case was sufficiently “exceptional” to warrant a fee award. See, e.g., True Temper Corp. v. CF&I Steel Corp., 601 F. 2d 495, 508–509 (CA10 1979); Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F. 2d 579, 597 (CA7 1971); Siebring v. Hansen, 346 F. 2d 474, 480–481 (CA8 1965).
+
+In 1982, Congress created the Federal Circuit and vested it with exclusive appellate jurisdiction in patent cases. 28 U. S. C. §1295. In the two decades that followed, the Federal Circuit, like the regional circuits before it, instructed district courts to consider the totality of the circumstances when making fee determinations under §285. See, e.g., Rohm & Haas Co. v. Crystal Chemical Co., 736 F. 2d 688, 691 (1984) (“Cases decided under §285 have noted that ‘the substitution of the phrase “in exceptional cases” has not done away with the discretionary feature’ ”); Yamanouchi Pharmaceutical Co., Ltd. v. Danbury Phar­ macal, Inc., 231 F. 3d 1339, 1347 (2000) (“In assessing whether a case qualifies as exceptional, the district court must look at the totality of the circumstances”).
+
+In 2005, however, the Federal Circuit abandoned that holistic, equitable approach in favor of a more rigid and mechanical formulation. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005), the court held that a case is “exceptional” under §285 only “when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions.” Id., at 1381. “Absent misconduct in conduct of the litigation or in securing the patent,” the Federal Circuit continued, fees “may be imposed against the patentee only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless.” Ibid. The Federal Circuit subsequently clarified that litigation is objectively baseless only if it is “so unreasonable that no reasonable litigant could believe it would succeed,” iLOR, LLC v. Google, Inc., 631 F. 3d 1372, 1378 (2011), and that litigation is brought in subjective bad faith only if the plaintiff “actually know[s]” that it is objectively baseless, id., at 1377.4
+
+Finally, Brooks Furniture held that because “[t]here is a presumption that the assertion of infringement of a duly granted patent is made in good faith[,] . . . the underlying improper conduct and the characterization of the case as exceptional must be established by clear and convincing evidence.” 393 F. 3d, at 1382.",facts,The Fee-Shifting Provision of the Patent Act,disagree,The Patent Act,strongly agree,Legislative history of the Patent Act and its interpretation by the courts,1
+G2,10,0,2,B,"The parties to this litigation are manufacturers of exercise equipment. The respondent, ICON Health & Fitness, Inc., owns U. S. Patent No. 6,019,710 (’710 patent), which discloses an elliptical exercise machine that allows for adjustments to fit the individual stride paths of users. ICON is a major manufacturer of exercise equipment, but it has never commercially sold the machine disclosed in the ’710 patent. The petitioner, Octane Fitness, LLC, also manufactures exercise equipment, including elliptical machines known as the Q45 and Q47.
+
+ICON sued Octane, alleging that the Q45 and Q47 infringed several claims of the ’710 patent. The District Court granted Octane’s motion for summary judgment, concluding that Octane’s machines did not infringe ICON’s patent. 2011 WL 2457914 (D Minn., June 17, 2011). Octane then moved for attorney’s fees under §285. Applying the Brooks Furniture standard, the District Court denied Octane’s motion. 2011 WL 3900975 (D Minn., Sept. 6, 2011). It determined that Octane could show neither that ICON’s claim was objectively baseless nor that ICON had brought it in subjective bad faith. As to objective baselessness, the District Court rejected Octane’s ——————
+
+inference of bad faith to establish exceptionality under §285, unless the
+
+circumstances as a whole show a lack of recklessness on the patentee’s
+
+part.” Id., at 1314. Chief Judge Rader wrote a concurring opinion that
+
+sharply criticized Brooks Furniture, 738 F. 3d, at 1318–1320; the court,
+
+he said, “should have remained true to its original reading of” §285, id.,
+
+at 1320.
+
+argument that the judgment of noninfringement “should have been a foregone conclusion to anyone who visually inspected” Octane’s machines. Id., *2. The court explained that although it had rejected ICON’s infringement arguments, they were neither “frivolous” nor “objectively baseless.” Id., *2–*3. The court also found no subjective bad faith on ICON’s part, dismissing as insufficient both “the fact that [ICON] is a bigger company which never commercialized the ’710 patent” and an e-mail exchange between two ICON sales executives, which Octane had offered as evidence that ICON had brought the infringement action “as a matter of commercial strategy.”5 Id., *4.
+
+ICON appealed the judgment of noninfringement, and Octane cross-appealed the denial of attorney’s fees. The Federal Circuit affirmed both orders. 496 Fed. Appx. 57 (2012). In upholding the denial of attorney’s fees, it rejected Octane’s argument that the District Court had “applied an overly restrictive standard in refusing to find the case exceptional under §285.” Id., at 65. The Federal Circuit declined to “revisit the settled standard for exceptionality.” Ibid.
+
+We granted certiorari, 570 U. S. __ (2013), and now reverse.
+",facts,The Parties and Procedural History,strongly agree,"ICON Health & Fitness, Inc.",disagree,Motion for attorney's fees and exceptionality standard under §285 of the Patent Act,2
+G2,10,0,1,II,"The framework established by the Federal Circuit in Brooks Furniture is unduly rigid, and it impermissibly encumbers the statutory grant of discretion to district courts.
+
+Our analysis begins and ends with the text of §285: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” This text is patently clear. It imposes one and only one constraint on district courts’ discretion to award attorney’s fees in patent litigation: The power is reserved for “exceptional” cases.
+
+The Patent Act does not define “exceptional,” so we construe it “ ‘in accordance with [its] ordinary meaning.’ ” Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 6); see also Bilski v. Kappos, 561 U. S. 593, ___ (2010) (slip op., at 6) (“In patent law, as in all statutory construction, ‘[u]nless otherwise defined, “words will be interpreted as taking their ordinary, contemporary, common meaning” ’ ”). In 1952, when Congress used the word in §285 (and today, for that matter), “[e]xceptional” meant “uncommon,” “rare,” or “not ordinary.” Webster’s New International Dictionary 889 (2d ed. 1934); see also 3 Oxford English Dictionary 374 (1933) (defining “exceptional” as “out of the ordinary course,” “unusual,” or “special”); Merriam-Webster’s Collegiate Dictionary 435 (11th ed. 2008) (defining “exceptional” as “rare”); Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 771 F. 2d 521, 526 (CADC 1985) (R. B. Ginsburg, J., joined by Scalia, J.) (interpreting the term “exceptional” in the Lanham Act’s identical fee-shifting provision, 15 U. S. C. §1117(a), to mean “uncommon” or “not run-of-the-mill”).
+
+We hold, then, that an “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances.6 As in the comparable context of the Copyright Act, “ ‘[t]here is no precise rule or formula for making these determinations,’ but instead equitable discretion should be exercised ‘in light of the considerations we have identified.’ ” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994).
+
+
+
+
+The Federal Circuit’s formulation is overly rigid. Under the standard crafted in Brooks Furniture, a case is “exceptional” only if a district court either finds litigation-related misconduct of an independently sanctionable magnitude or determines that the litigation was both “brought in subjective bad faith” and “objectively baseless.” 393 F. 3d, at 1381. This formulation superimposes an inflexible framework onto statutory text that is inherently flexible.
+
+For one thing, the first category of cases in which the Federal Circuit allows fee awards—those involving litigation misconduct or certain other misconduct—appears to extend largely to independently sanctionable conduct. See ibid. (defining litigation-related misconduct to include “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions”). But sanctionable conduct is not the appropriate benchmark. Under the standard announced today, a district court may award fees in the rare case in which a party’s unreasonable conduct—while not necessarily independently sanctionable—is nonetheless so “exceptional” as to justify an award of fees.
+
+The second category of cases in which the Federal Circuit allows fee awards is also too restrictive. In order for a case to fall within this second category, a district court must determine both that the litigation is objectively baseless and that the plaintiff brought it in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee award. Cf. Noxell, 771 F. 2d, at 526 (“[W]e think it fair to assume that Congress did not intend rigidly to limit recovery of fees by a [Lanham Act] defendant to the rare case in which a court finds that the plaintiff ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons’ . . . . Something less than ‘bad faith,’ we believe, suffices to mark a case as ‘exceptional’ ”).
+
+ICON argues that the dual requirement of “subjective bad faith” and “objective baselessness” follows from this Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49 (1993) (PRE), which involved an exception to the NoerrPennington doctrine of antitrust law. It does not. Under the Noerr-Pennington doctrine—established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), and Mine Workers v. Penning­ ton, 381 U. S. 657 (1965)—defendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decisionmaking by the government. PRE, 508 U. S., at 56. But under a “sham exception” to this doctrine, “activity ‘ostensibly directed toward influencing governmental action’ does not qualify for Noerr immunity if it ‘is a mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor.’ ” Id., at 51. In PRE, we held that to qualify as a “sham,” a “lawsuit must be objectively baseless” and must “concea[l] ‘an attempt to interfere directly with the business relationships of a competitor . . . .’ ” Id., at 60–61 (emphasis deleted). In other words, the plaintiff must have brought baseless claims in an attempt to thwart competition (i.e., in bad faith).
+
+In Brooks Furniture, the Federal Circuit imported the PRE standard into §285. See 393 F. 3d, at 1381. But the PRE standard finds no roots in the text of §285, and it makes little sense in the context of determining whether a case is so “exceptional” as to justify an award of attorney’s fees in patent litigation. We crafted the Noerr-Pennington doctrine—and carved out only a narrow exception for “sham” litigation—to avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances. See PRE, 508 U. S., at 56 (“Those who petition government for redress are generally immune from antitrust liability”). But to the extent that patent suits are similarly protected as acts of petitioning, it is not clear why the shifting of fees in an “exceptional” case would diminish that right. The threat of antitrust liability (and the attendant treble damages, 15 U. S. C. §15) far more significantly chills the exercise of the right to petition than does the mere shifting of attorney’s fees. In the Noerr-Pennington context, defendants seek immunity from a judicial declaration that their filing of a lawsuit was actually unlawful; here, they seek immunity from a far less onerous declaration that they should bear the costs of that lawsuit in exceptional cases.
+
+We reject Brooks Furniture for another reason: It is so demanding that it would appear to render §285 largely superfluous. We have long recognized a common-law exception to the general “American rule” against feeshifting—an exception, “inherent” in the “power [of] the courts” that applies for “ ‘willful disobedience of a court order’ ” or “when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 258–259 (1975). We have twice declined to construe fee-shifting provisions narrowly on the basis that doing so would render them superfluous, given the background exception to the American rule, see Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 419 (1978); Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, n. 4 (1968) (per curiam), and we again decline to do so here.
+
+Finally, we reject the Federal Circuit’s requirement that patent litigants establish their entitlement to fees under §285 by “clear and convincing evidence,” Brooks Furniture, 393 F. 3d, at 1382. We have not interpreted comparable fee-shifting statutes to require proof of entitlement to fees by clear and convincing evidence. See, e.g., Fogerty, 510 U. S., at 519; Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990); Pierce v. Underwood, 487 U. S. 552, 558 (1988). And nothing in §285 justifies such a high standard of proof. Section 285 demands a simple discretionary inquiry; it imposes no specific evidentiary burden, much less such a high one. Indeed, patent-infringement litigation has always been governed by a preponderance of the evidence standard, see, e.g., Béné v. Jeantet, 129 U. S. 683, 688 (1889), and that is the “standard generally applicable in civil actions,” because it “allows both parties to ‘share the risk of error in roughly equal fashion,’ ” Herman & MacLean v. Huddleston, 459 U. S. 375, 390 (1983).",analysis,Brooks Furniture,strongly agree,The Federal Circuit’s Framework,strongly agree,"Refusal to apply Federal Circuit case law Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc. (2005) ",2
+G2,10,0,2,A,"Our analysis begins and ends with the text of §285: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” This text is patently clear. It imposes one and only one constraint on district courts’ discretion to award attorney’s fees in patent litigation: The power is reserved for “exceptional” cases.
+
+The Patent Act does not define “exceptional,” so we construe it “ ‘in accordance with [its] ordinary meaning.’ ” Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 6); see also Bilski v. Kappos, 561 U. S. 593, ___ (2010) (slip op., at 6) (“In patent law, as in all statutory construction, ‘[u]nless otherwise defined, “words will be interpreted as taking their ordinary, contemporary, common meaning” ’ ”). In 1952, when Congress used the word in §285 (and today, for that matter), “[e]xceptional” meant “uncommon,” “rare,” or “not ordinary.” Webster’s New International Dictionary 889 (2d ed. 1934); see also 3 Oxford English Dictionary 374 (1933) (defining “exceptional” as ��out of the ordinary course,” “unusual,” or “special”); Merriam-Webster’s Collegiate Dictionary 435 (11th ed. 2008) (defining “exceptional” as “rare”); Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 771 F. 2d 521, 526 (CADC 1985) (R. B. Ginsburg, J., joined by Scalia, J.) (interpreting the term “exceptional” in the Lanham Act’s identical fee-shifting provision, 15 U. S. C. §1117(a), to mean “uncommon” or “not run-of-the-mill”).
+
+We hold, then, that an “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances.6 As in the comparable context of the Copyright Act, “ ‘[t]here is no precise rule or formula for making these determinations,’ but instead equitable discretion should be exercised ‘in light of the considerations we have identified.’ ” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994).
+",analysis,The Lanham Act’s Fee Shifting Provision,strongly disagree,“Exceptional” Cases,strongly agree,Interpretation of the notion of “exceptional case” in §285 of the Patent Act,1
+G2,10,0,2,B,"
+
+The Federal Circuit’s formulation is overly rigid. Under the standard crafted in Brooks Furniture, a case is “exceptional” only if a district court either finds litigation-related misconduct of an independently sanctionable magnitude or determines that the litigation was both “brought in subjective bad faith” and “objectively baseless.” 393 F. 3d, at 1381. This formulation superimposes an inflexible framework onto statutory text that is inherently flexible.
+
+For one thing, the first category of cases in which the Federal Circuit allows fee awards—those involving litigation misconduct or certain other misconduct—appears to extend largely to independently sanctionable conduct. See ibid. (defining litigation-related misconduct to include “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions”). But sanctionable conduct is not the appropriate benchmark. Under the standard announced today, a district court may award fees in the rare case in which a party’s unreasonable conduct—while not necessarily independently sanctionable—is nonetheless so “exceptional” as to justify an award of fees.
+
+The second category of cases in which the Federal Circuit allows fee awards is also too restrictive. In order for a case to fall within this second category, a district court must determine both that the litigation is objectively baseless and that the plaintiff brought it in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee award. Cf. Noxell, 771 F. 2d, at 526 (“[W]e think it fair to assume that Congress did not intend rigidly to limit recovery of fees by a [Lanham Act] defendant to the rare case in which a court finds that the plaintiff ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons’ . . . . Something less than ‘bad faith,’ we believe, suffices to mark a case as ‘exceptional’ ”).
+
+ICON argues that the dual requirement of “subjective bad faith” and “objective baselessness” follows from this Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49 (1993) (PRE), which involved an exception to the NoerrPennington doctrine of antitrust law. It does not. Under the Noerr-Pennington doctrine—established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), and Mine Workers v. Penning­ ton, 381 U. S. 657 (1965)—defendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decisionmaking by the government. PRE, 508 U. S., at 56. But under a “sham exception” to this doctrine, “activity ‘ostensibly directed toward influencing governmental action’ does not qualify for Noerr immunity if it ‘is a mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor.’ ” Id., at 51. In PRE, we held that to qualify as a “sham,” a “lawsuit must be objectively baseless” and must “concea[l] ‘an attempt to interfere directly with the business relationships of a competitor . . . .’ ” Id., at 60–61 (emphasis deleted). In other words, the plaintiff must have brought baseless claims in an attempt to thwart competition (i.e., in bad faith).
+
+In Brooks Furniture, the Federal Circuit imported the PRE standard into §285. See 393 F. 3d, at 1381. But the PRE standard finds no roots in the text of §285, and it makes little sense in the context of determining whether a case is so “exceptional” as to justify an award of attorney’s fees in patent litigation. We crafted the Noerr-Pennington doctrine—and carved out only a narrow exception for “sham” litigation—to avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances. See PRE, 508 U. S., at 56 (“Those who petition government for redress are generally immune from antitrust liability”). But to the extent that patent suits are similarly protected as acts of petitioning, it is not clear why the shifting of fees in an “exceptional” case would diminish that right. The threat of antitrust liability (and the attendant treble damages, 15 U. S. C. §15) far more significantly chills the exercise of the right to petition than does the mere shifting of attorney’s fees. In the Noerr-Pennington context, defendants seek immunity from a judicial declaration that their filing of a lawsuit was actually unlawful; here, they seek immunity from a far less onerous declaration that they should bear the costs of that lawsuit in exceptional cases.
+
+We reject Brooks Furniture for another reason: It is so demanding that it would appear to render §285 largely superfluous. We have long recognized a common-law exception to the general “American rule” against feeshifting—an exception, “inherent” in the “power [of] the courts” that applies for “ ‘willful disobedience of a court order’ ” or “when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 258–259 (1975). We have twice declined to construe fee-shifting provisions narrowly on the basis that doing so would render them superfluous, given the background exception to the American rule, see Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 419 (1978); Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, n. 4 (1968) (per curiam), and we again decline to do so here.
+
+Finally, we reject the Federal Circuit’s requirement that patent litigants establish their entitlement to fees under §285 by “clear and convincing evidence,” Brooks Furniture, 393 F. 3d, at 1382. We have not interpreted comparable fee-shifting statutes to require proof of entitlement to fees by clear and convincing evidence. See, e.g., Fogerty, 510 U. S., at 519; Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990); Pierce v. Underwood, 487 U. S. 552, 558 (1988). And nothing in §285 justifies such a high standard of proof. Section 285 demands a simple discretionary inquiry; it imposes no specific evidentiary burden, much less such a high one. Indeed, patent-infringement litigation has always been governed by a preponderance of the evidence standard, see, e.g., Béné v. Jeantet, 129 U. S. 683, 688 (1889), and that is the “standard generally applicable in civil actions,” because it “allows both parties to ‘share the risk of error in roughly equal fashion,’ ” Herman & MacLean v. Huddleston, 459 U. S. 375, 390 (1983).",analysis,Brooks Furniture,strongly disagree,Fee-Shifting Provisions,strongly disagree,Rejection of the Federal Circuit's reasoning,2
+G2,10,0,3,1,"The Federal Circuit’s formulation is overly rigid. Under the standard crafted in Brooks Furniture, a case is “exceptional” only if a district court either finds litigation-related misconduct of an independently sanctionable magnitude or determines that the litigation was both “brought in subjective bad faith” and “objectively baseless.” 393 F. 3d, at 1381. This formulation superimposes an inflexible framework onto statutory text that is inherently flexible.
+
+For one thing, the first category of cases in which the Federal Circuit allows fee awards—those involving litigation misconduct or certain other misconduct—appears to extend largely to independently sanctionable conduct. See ibid. (defining litigation-related misconduct to include “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions”). But sanctionable conduct is not the appropriate benchmark. Under the standard announced today, a district court may award fees in the rare case in which a party’s unreasonable conduct—while not necessarily independently sanctionable—is nonetheless so “exceptional” as to justify an award of fees.
+
+The second category of cases in which the Federal Circuit allows fee awards is also too restrictive. In order for a case to fall within this second category, a district court must determine both that the litigation is objectively baseless and that the plaintiff brought it in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee award. Cf. Noxell, 771 F. 2d, at 526 (“[W]e think it fair to assume that Congress did not intend rigidly to limit recovery of fees by a [Lanham Act] defendant to the rare case in which a court finds that the plaintiff ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons’ . . . . Something less than ‘bad faith,’ we believe, suffices to mark a case as ‘exceptional’ ”).
+
+ICON argues that the dual requirement of “subjective bad faith” and “objective baselessness” follows from this Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49 (1993) (PRE), which involved an exception to the NoerrPennington doctrine of antitrust law. It does not. Under the Noerr-Pennington doctrine—established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), and Mine Workers v. Penning­ ton, 381 U. S. 657 (1965)—defendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decisionmaking by the government. PRE, 508 U. S., at 56. But under a “sham exception” to this doctrine, “activity ‘ostensibly directed toward influencing governmental action’ does not qualify for Noerr immunity if it ‘is a mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor.’ ” Id., at 51. In PRE, we held that to qualify as a “sham,” a “lawsuit must be objectively baseless” and must “concea[l] ‘an attempt to interfere directly with the business relationships of a competitor . . . .’ ” Id., at 60–61 (emphasis deleted). In other words, the plaintiff must have brought baseless claims in an attempt to thwart competition (i.e., in bad faith).
+
+In Brooks Furniture, the Federal Circuit imported the PRE standard into §285. See 393 F. 3d, at 1381. But the PRE standard finds no roots in the text of §285, and it makes little sense in the context of determining whether a case is so “exceptional” as to justify an award of attorney’s fees in patent litigation. We crafted the Noerr-Pennington doctrine—and carved out only a narrow exception for “sham” litigation—to avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances. See PRE, 508 U. S., at 56 (“Those who petition government for redress are generally immune from antitrust liability”). But to the extent that patent suits are similarly protected as acts of petitioning, it is not clear why the shifting of fees in an “exceptional” case would diminish that right. The threat of antitrust liability (and the attendant treble damages, 15 U. S. C. §15) far more significantly chills the exercise of the right to petition than does the mere shifting of attorney’s fees. In the Noerr-Pennington context, defendants seek immunity from a judicial declaration that their filing of a lawsuit was actually unlawful; here, they seek immunity from a far less onerous declaration that they should bear the costs of that lawsuit in exceptional cases.",analysis,The Federal Circuit’s Standard,agree,The Federal Circuit’s Formulation,agree,Federal Circuit's interpretation considered too restrictive,1
+G2,10,0,3,2,"We reject Brooks Furniture for another reason: It is so demanding that it would appear to render §285 largely superfluous. We have long recognized a common-law exception to the general “American rule” against feeshifting—an exception, “inherent” in the “power [of] the courts” that applies for “ ‘willful disobedience of a court order’ ” or “when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 258–259 (1975). We have twice declined to construe fee-shifting provisions narrowly on the basis that doing so would render them superfluous, given the background exception to the American rule, see Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 419 (1978); Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, n. 4 (1968) (per curiam), and we again decline to do so here.",analysis,Brooks Furniture,strongly disagree,Fee-Shifting Exception,strongly disagree,Federal Circuit's interpretation considered too demanding,2
+G2,10,0,3,3,"Finally, we reject the Federal Circuit’s requirement that patent litigants establish their entitlement to fees under §285 by “clear and convincing evidence,” Brooks Furniture, 393 F. 3d, at 1382. We have not interpreted comparable fee-shifting statutes to require proof of entitlement to fees by clear and convincing evidence. See, e.g., Fogerty, 510 U. S., at 519; Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990); Pierce v. Underwood, 487 U. S. 552, 558 (1988). And nothing in §285 justifies such a high standard of proof. Section 285 demands a simple discretionary inquiry; it imposes no specific evidentiary burden, much less such a high one. Indeed, patent-infringement litigation has always been governed by a preponderance of the evidence standard, see, e.g., Béné v. Jeantet, 129 U. S. 683, 688 (1889), and that is the “standard generally applicable in civil actions,” because it “allows both parties to ‘share the risk of error in roughly equal fashion,’ ” Herman & MacLean v. Huddleston, 459 U. S. 375, 390 (1983).",analysis,Proof of Entitlement to Fees,agree,Proof of Entitlement to Fees,agree,"Rejection of the ""clear and convincing evidence"" requirement of the Federal Circuit",3
+G2,10,0,1,*,"For the foregoing reasons, the judgment of the United States Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.",conclusion,Remand for Further Proceedings.,agree,The Appeals of the United States Court of Appeals for the Federal Circuit.,strongly disagree,Supreme Court's holding,3
+G2,12,0,1,I,"Shell Oil Company (Shell) is a unitary business,[1] incorporated in Delaware. Its activities include producing, transporting, and marketing oil and gas and the products that are made from them. Shell extracts oil and gas not only within various States but also on the OCS, which is defined by the OCSLA as all those submerged lands three or more geographical miles from the United States coastline.[2] Between 1977 and 1980, the tax years at issue in this case, a portion of Shell's gross revenues was derived from the sale of oil and gas extracted from the OCS and the sale of products made from OCS oil and gas.
+
+During the years at issue, Shell sold all of its OCS natural gas directly at the wellhead platform located above the OCS. Nearly all of its OCS crude oil, by contrast, was transferred via pipelines to the continental United States, where Shell either sold it to third parties or refined it. The refining process typically involves the commingling of OCS crude oil with crude oil purchased or drawn by Shell from other places. Thus, the original source of oil in any Shell-refined product is indeterminable.
+
+Shell's principal business in the State of Iowa during the years at issue was the sale of oil and chemical products which it had manufactured and refined outside of Iowa. These products included OCS crude oil that had been commingled with non-OCS crude oil.
+
+Iowa imposes an income tax on corporations doing business in Iowa. Iowa Code § 422.33(2) (1987). For a unitary business like Shell, that income tax is determined by a single-factor apportionment formula based on sales. Under that formula, Iowa taxes the share of a corporation's overall net income that is ""reasonably attributable to the trade or business within the state."" Ibid.[3] We have previously upheld Iowa's sales-based apportionment formula against Due Process and Commerce Clause challenges in Moorman Manufacturing Co. v. Bair, 437 U. S. 267 (1978).
+
+Between 1977 and 1980, Shell filed Iowa tax returns in which it adjusted the Iowa formula to exclude a figure which it stated reflected ""income earned"" from the OCS.[4] The Iowa Department of Revenue audited Shell's returns and rejected this modification. Accordingly, the Iowa Department of Revenue found Shell's tax payment deficient. Shell challenged that determination, claiming at a hearing before the Iowa Department of Revenue that inclusion of OCS-derived income in the tax base of Iowa's apportionment formula violated the OCSLA. The hearing officer rejected that contention. Shell appealed to the Polk County District Court, which affirmed the administrative decision, No. AA952 (Oct. 3, 1986), App. to Juris. Statement 15a (Polk County opinion), and to the Iowa Supreme Court, which also affirmed. Kelly-Springfield Tire Co. v. Iowa State Board of Tax Review, 414 N. W. 2d 113 (1987).[5] Both courts concluded, based upon an examination of the text and history of the OCSLA, that the OCSLA did not pre-empt Iowa's apportionment formula. We noted probable jurisdiction, 484 U. S. 1058 (1988), and now affirm.",facts,Shell Oil Company,strongly agree,Shell Oil Company,strongly agree,Petition for violation of the Outer Continental Shelf Lands Act (OCSLA) by Iowa's apportionment formula,1
+G2,12,0,1,II,"We have previously held that Iowa's apportionment formula is permissible under the Commerce Clause. Moorman Manufacturing Co. v. Bair, supra. Shell's argument here is purely one of federal statutory pre-emption. It contends that, in passing the OCSLA, Congress intended to impose stricter requirements on a taxing State's apportionment formula than those imposed by the operation of the Commerce Clause alone. Shell points to the text and history of the OCSLA which it believes evince a clear congressional intent to preclude States from including in their apportionment formulas income arising from the sale of OCS oil and gas. In assessing this claim, we review first the text and then the history of the OCSLA.
+
+Shell's argument is that the plain language of the OCSLA enacts an ""absolute and categorical"" prohibition on state taxation of income arising from sales of OCS gas and oil. Brief for Appellant 13. Shell relies specifically on subsections 1333(a)(2)(A) and (a)(3) which provide, in pertinent part, as follows:
+
+""(2)(A) To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations . . . , the civil and criminal laws of each adjacent State . . . are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf. . . . All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. State taxation laws shall not apply to the outer Continental Shelf.
+.....
+""(3) The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom."" 43 U. S. C. §§ 1333(a)(2)(A) and (a)(3) (emphasis added).
+It is, of course, well settled that ""when a federal statute unambiguously forbids the States to impose a particular kind of tax . . . , courts need not look beyond the plain language of the federal statute to determine whether a state statute that imposes such a tax is pre-empted."" Aloha Airlines, Inc. v. Director of Taxation of Hawaii, 464 U. S. 7, 12 (1983). But the meaning of words depends on their context.[6] Shell reads the italicized language above without reference to the statutory context when it argues that these statutory words ban States from including income from OCS oil and gas in an apportionment formula.
+
+We believe that § 1333(a)(2)(A), read in its entirety, supports a narrower interpretation. Subsection 1333(a)(2)(A) begins by clarifying which laws will apply to offshore activity on the OCS. It declares that the civil and criminal laws of the States adjacent to OCS sites will apply. Subsection 1333(a)(2)(A) goes on to create an exception to this general incorporation. It is highly significant to us that § 1333(a)(2)(A) refers specifically to ""adjacent State[s],"" 43 U. S. C. § 1333(a)(2)(A) (emphasis added). The subsequent reference in the subsection to ""state taxation laws"" can only be read in light of this antecedent reference to ""adjacent State[s]."" It is clearly included lest this federal incorporation be deemed to incorporate as well the tax codes of adjacent States.
+
+The ensuing subsection, 1333(a)(3), was similarly drafted to prevent tax claims by adjacent States. It states that the incorporation of state law ""as the law of the United States"" is never to be interpreted by the States whose law has been incorporated to give them jurisdiction over the property or revenues of the OCS.[7] Reading the statutory provisions in the context of the entire section in which they appear, we therefore believe that in enacting subsections 1333(a)(2)(A) and 1333(a)(3), Congress had the more limited purpose of prohibiting adjacent States from claiming that it followed from the incorporation of their civil and criminal law that their tax codes were also directly applicable to the OCS.
+
+The background and legislative history of the OCSLA confirm this textual reading and refute Shell's view of broader pre-emption. The OCSLA grew out of a dispute, which first developed in the 1930's, between the adjacent States and the Federal Government over territorial jurisdiction and ownership of the OCS and, particularly, the right to lease the submerged lands for oil and gas exploration. S. Rep. No. 133, 83d Cong., 1st Sess., 21 (1953). The adjacent States claimed jurisdiction over the submerged lands and their rich oil, gas, and mineral deposits, id., at 6, and some had even extended their territorial boundaries as far as the outer edge of the OCS. Id., at 11. After this Court, in a series of opinions, ruled that the Federal Government, and not the adjacent States, had exclusive jurisdiction over the OCS, United States v. Louisiana, 339 U. S. 699, 705 (1950); United States v. Texas, 339 U. S. 707, 717-718 (1950); United States v. California, 332 U. S. 19, 38-39 (1947), Congress, in 1953, passed the OCSLA.
+
+In passing the OCSLA, Congress intended to provide ""for the orderly development of offshore resources."" United States v. Maine, 420 U. S. 515, 527 (1975). Congress was concerned with defining territorial jurisdiction between the adjacent States and the Federal Government as to the submerged lands, particularly with reference to leasing oil and gas rights. The OCSLA states that ""the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition. . . ."" 43 U. S. C. § 1332. Thus, ""[b]y passing the OCS Act, Congress `emphatically implemented its view that the United States has paramount rights to the seabed beyond the three-mile limit . . . .' "" Maryland v. Louisiana, 451 U. S. 725, 752-753, n. 26 (1981) (quoting United States v. Maine, supra, at 526).
+
+Once the Court ruled that the OCS was subject to the exclusive jurisdiction and control of the Federal Government, Congress was faced with the problem of which civil and criminal laws should govern activity on the OCS sites. The Constitution and the laws of the United States were extended to cover the OCS. 43 U. S. C. § 1333(a)(2)(A). Congress recognized, however, that because of its interstitial nature, federal law would not provide a sufficiently detailed legal framework to govern life on ""the miraculous structures which will rise from the sea bed of the [OCS]."" Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 Stan. L. Rev. 23, 37 (1953).[8] The problem before Congress was to incorporate the civil and criminal laws of the adjacent States, and yet, at the same time, reflect the strong congressional decision against allowing the adjacent States a direct share in the revenues of the OCS, by making it clear that state taxation codes were not to be incorporated. Id., at 37, 41.
+
+In debates over the OCSLA, representatives of the adjacent States had argued that, despite exclusive federal jurisdiction over the OCS, their States should retain an interest in direct revenues from the OCS, and that they should be allowed the power to tax OCS production and activity extra-territorially. In particular, Senator Long of Louisiana argued that the adjacent States should have a share of OCS revenues since they would be providing services to OCS workers. S. Rep. No. 411, 83d Cong., 1st Sess., 67 (1953) (minority report of Sen. Long); see also 99 Cong. Rec. 7261 (1953) (remarks of Sen. Long).
+
+Opponents of such adjacent-state extraterritorial taxation argued that extending the adjacent States' power to tax beyond their borders would be ""unconstitutional,"" 99 Cong. Rec. 2506 (1953) (remarks of Rep. Celler); id., at 2524 (remarks of Rep. Machrowicz); id., at 2571-2572 (remarks of Rep. Keating), and that it would confer a windfall benefit upon the few adjacent States at the expense of the inland States. Id., at 2523 (remarks of Rep. Rodino); id., at 2524 (remarks of Rep. Machrowicz).
+
+In the House, the Representatives of the adjacent States pressed for the inclusion of language in the OCSLA authorizing them to collect severance and production taxes. The House version of the bill, as reported out of Subcommittee No. 1 of the House Judiciary Committee, contained the present language prohibiting direct taxation by adjacent States. See 99 Cong. Rec. 2571 (1953) (remarks of Rep. Keating). The House Judiciary Committee amended the subsection to allow adjacent States to collect severance and production taxes. Ibid. See also, H. R. 4198, 83d Cong., 1st Sess. § 8(a) (1953). On the House floor, however, that provision was deleted and replaced by the prohibition on state taxation which appears in 43 U. S. C. § 1333(a)(2)(A). 99 Cong. Rec. 2569, 2571-2573 (1953).
+
+There is no reliable support in the legislative history of the OCSLA for Shell's view that state income taxes are pre-empted. During a long speech criticizing the OCSLA because it prevented the adjacent States from imposing severance and production taxes, Senator Long mentioned, in passing, that employers on the OCS would not be subject to the state corporate profits tax. See S. Rep. No. 411, supra, at 67; see also 99 Cong. Rec. 7261 (1953). Shell, however, is unable to point to any other reference in the legislative history to corporate income taxes beyond this one remark by a vocal opponent of the OCSLA. This Court does not usually accord much weight to the statements of a bill's opponents. "" `[T]he fears and doubts of the opposition are no authoritative guide to the construction of legislation.' "" Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 483 (1981) (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 394 (1951)). Moreover, Senator Long's remarks were apparently premised on the assumption that the private lessees on the OCS would not also engage in business activities within the taxing State's borders. See 99 Cong. Rec. 7261 (1953); S. Rep. No. 411, supra, at 67. Finally, it is entirely possible that Senator Long was referring to a corporate income tax which, unlike Iowa's, was not measured by an apportionment formula. See Texas Co. v. Cooper, 236 La. 380, 107 So. 2d 676 (1958) (Louisiana tax collector has statutory power to determine an oil company's income by separate accounting rather than statutory apportionment method). We therefore find that Shell's reliance on an isolated statement by Senator Long is misplaced.
+
+In sum, the language, background, and history of the OCSLA leave no doubt that Congress was exclusively concerned with preventing the adjacent States from asserting, on the basis of territorial claims, jurisdiction to assess direct taxes on the OCS.[9] We believe that Congress primarily intended to prohibit those direct taxes commonly imposed by States adjacent to offshore production sites: for example, severance and production taxes. See Maryland v. Louisiana, 451 U. S., at 753, n. 26 (""It is clear that a State has no valid interest in imposing a severance tax on federal OCS land"").[10] This prohibition is a far cry from prohibiting a State from including income from OCS-derived oil and gas in a constitutionally permissible apportionment scheme.
+
+Shell's argument hinges on the mistaken premise that including OCS-derived income in the preapportionment tax base is tantamount to the direct taxation of OCS production. But income that is included in the preapportionment tax base is not, by virtue of that inclusion, taxed by the State. Only the fraction of total income that the apportionment formula determines (by multiplying the income tax base by the apportionment fraction) to be attributable to Iowa's taxing jurisdiction is taxed by Iowa. As our Commerce Clause analysis of apportionment formulas has made clear, the inclusion of income in the preapportioned tax base of a state apportionment formula does not amount to extraterritorial taxation. This Court has repeatedly emphasized that the function of an apportionment formula is to determine the portion of a unitary business' income that can be fairly attributed to in-state activities. Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S. 207, 219 (1980); Mobil Oil Corp. v. Commissioner of Taxes of Vermont, 445 U. S. 425, 440 (1980). Thus, Shell's claim that Iowa is taxing income attributable to the OCS cannot be squared with its concession that Iowa's apportionment formula is consistent with the Commerce Clause.
+
+A contrary result _x0097_ forbidding the inclusion of income from OCS-derived oil and gas in Iowa's apportionment formula _x0097_ would give oil companies doing business on the OCS a significant exemption from corporate income taxes in all States which measure corporate income with an apportionment formula. Congress has the power to confer such an exemption, of course, but we find no evidence that it intended to do so in the OCSLA.
+
+Finally, we reject a secondary argument made by Shell. It argues that even if the OCSLA allows a State to include in its preapportioned tax base the sales of OCS crude oil which occur off the OCS, the taxing State may not include in that base income from the natural gas sales made at the OCS wellhead. On its face, the OCSLA makes no such distinction and, in general, it is irrelevant for the makeup of the apportionment formula's unitary tax base that third-party sales occur outside of the State. See Exxon Corp., supra, at 228-229. Actual sales on the OCS (as opposed to internal accounting sales) are not taxed directly by any State because they are not included in the numerator of the sales ratio. See n. 3, supra. From the inclusion of such sales in the apportionment formula's tax base, it does not follow that the dollar amount derived from the formula (which is a fraction of the unitary tax base) includes income not fairly attributable to Iowa.
+",analysis,Iowa's apportionment formula is subject to the Commerce Clause.,agree,The OCSLA's Plain Language,agree,Rejection of Shell Oil Company's claim,2
+G2,12,0,1,III,"For the reasons set out above, we reject Shell's argument that Congress intended, when it passed the OCSLA, to prohibit the inclusion, in a constitutionally permissible apportionment formula, of income from OCS oil and gas. We hold that the OCSLA prevents any State, adjacent or inland, from asserting extraterritorial taxing jurisdiction over OCS lands but that the inclusion of income derived from the OCS in the unitary tax base of a constitutionally permissible apportionment formula does not amount to extraterritorial taxation by the taxing State. Accordingly, the judgment of the Iowa Supreme Court is hereby affirmed.
+
+It is so ordered.",conclusion,The OCSLA,disagree,The OCSLA,disagree,Supreme Court's holding,3
+G2,13,0,1,I,"Mrs. Mitchell and Mrs. Sims. The Commissioner of Internal Revenue determined deficiencies against Anne Goyne Mitchell and Jane Isabell Goyne Sims for the tax years 1955-1959, inclusive. These were for federal income tax and for additions to tax under § 6651 (a) (failure to file return), § 6653 (a) (underpayment due to negligence or intentional disregard of rules and regulations), and § 6654 (underpayment of estimated tax) of the Internal Revenue Code of 1954, 26 U.S. C. §§ 6651 (a), 6653 (a), and 6654. Mrs. Sims is the sister of Mrs. Mitchell. The determinations as to her were made under § 6901 as Mrs. Mitchell's transferee without consideration.
+
+Anne Goyne and Emmett Bell Mitchell, Jr., were married in 1946. They lived in Louisiana. In July 1960, however, they began to live separately and apart. In August 1961 Mrs. Mitchell sued her husband in state court for separation. Upon his default, she was granted this relief. A final decree of divorce was entered in October 1962. In her separation suit Mrs. Mitchell prayed that she be allowed to accept the community of acquets and gains with benefit of inventory. However, taking advantage of the privilege granted her by Art. 2410 of the Louisiana Civil Code,[1] she formally renounced the community on September 18, 1961. As a consequence, she received neither a distribution of community property nor a property settlement upon dissolution of her marriage. This renunciation served to exonerate her of ""debts contracted during the marriage.""
+
+Mrs. Mitchell earned $4,200 as a teacher during 1955 and 1956. From these earnings tax was withheld. Mr. Mitchell enjoyed taxable income during the five years in question. All income realized by both spouses during this period was community income.
+
+Mrs. Mitchell had little knowledge of her husband's finances. She rarely knew the balance in the family bank account. She possessed a withdrawal privilege on that account, and occasionally exercised it. Her husband was in charge of the couple's financial affairs and did not usually consult his wife about them. She was aware of fiscal irresponsibility on his part. She questioned him each year about tax returns. She knew returns were required, but relied on his assurances that he was filing timely returns and paying the taxes due. She signed no return herself and assumed that he had signed her name for her. In July 1960 she learned that, in fact, no returns had ever been filed for 1955-1959.
+
+The deficiencies determined against Mrs. Mitchell were based upon half the community income. The Commissioner sought to collect the deficiencies from property Mrs. Mitchell inherited from her mother in 1964 and immediately transferred, without consideration, to Mrs. Sims.
+
+Mrs. Mitchell sought redetermination in the Tax Court. Judge Forrester held that under Louisiana community property law Mrs. Mitchell possessed an immediate vested ownership interest in half the community property income and was personally responsible for the tax on her share. He also ruled that this tax liability was not affected by her Art. 2410 renunciation. Mitchell v. Commissioner, 51 T.C. 641 (1969).
+
+On appeal, the Fifth Circuit reversed, holding that by the renunciation Mrs. Mitchell avoided any federal income tax liability on the community income. Mitchell v. Commissioner, 430 F.2d 1 (CA5 1970).[2] Judge Simpson dissented on the basis of Judge Forrester's opinion in the Tax Court. 430 F.2d, at 7.
+
+Mrs. Angello. Throughout the calendar years 1959-1961 Mrs. Angello, who was then Frances Sparacio, lived with her husband, Jack Sparacio, in Louisiana. Community income was realized by the Sparacios during those years, but neither the husband nor the wife filed any returns. In 1965 the District Director made assessments against them for taxes, penalties, and interest, filed a notice of lien, and addressed a notice of levy to the Metropolitan Life Insurance Company, which had a policy outstanding on Mr. Sparacio's life. The insured died in March 1966 and the notice of levy (for that amount of tax and interest resulting from imputing to Mrs. Sparacio half the community's income for the tax years in question) attached to the proceeds of the policy. The widow, who was the named beneficiary, sued the Metropolitan in state court to recover the policy proceeds. The United States intervened to assert and protect its lien. The case was then removed to federal court. The Metropolitan paid the proceeds into the court registry and was dismissed from the case.
+
+Each side then moved for summary judgment. Judge Christenberry granted the Government's motion and denied Mrs. Angello's. Despite the absence of any formal renunciation by Mrs. Angello under Art. 2410, the Government did not contend that she had accepted any benefits of the community. On appeal, the Court of Appeals reversed, relying on the same panel's decision in the Mitchell case. Angello v. Metropolitan Life Ins. Co., 430 F.2d 7 (CA5 1970). Judge Simpson again dissented.
+
+We granted certiorari in both cases, 400 U.S. 1008 (1971), on a single petition filed under our Rule 23 (5).",facts,Mrs. Mitchell and Mrs. Sims,strongly agree,tax years 1955-1959,disagree,Dispute over Tax Liability of Women taxpayers,1
+G2,13,0,1,II,"Sections 1 and 3 of the 1954 Code, 26 U.S. C. §§ 1 and 3, as have all of their predecessors since the Revenue Act of 1917,[3] impose a tax on the taxable income ""of every individual."" The statutes, however, have not specified what that phrase includes.
+
+Forty years ago this Court had occasion to consider the phrase in the face of various state community property laws and of §§ 210 and 211 of the Revenue Act of 1926. A husband and wife, residents of the State of Washington, had income in 1927 consisting of the husband's salary and of amounts realized from real and personal property of the community. The spouses filed separate returns for 1927 and each reported half the community income. Mr. Justice Roberts, in speaking for a unanimous Court (two Justices not participating) upholding this tax treatment, said:
+
+""These sections lay a tax upon the net income of every individual. The Act goes no farther, and furnishes no other standard or definition of what constitutes an individual's income. The use of the word `of' denotes ownership. It would be a strained construction, which, in the absence of further definition by Congress, should impute a broader significance to the phrase."" Poe v. Seaborn, 282 U.S. 101, 109 (1930).
+The Court thus emphasized ownership. It looked to the law of the State as to the ownership of community property and of community income. It concluded that in Washington the wife has ""a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both."" Id., at 111. It noted that, in contrast, in an earlier case, United States v. Robbins, 269 U.S. 315 (1926), the opposite result had been reached under the then California law. But:
+
+""In the Robbins case, we found that the law of California, as construed by her own courts, gave the wife a mere expectancy and that the property rights of the husband during the life of the community were so complete that he was in fact the owner."" 282 U.S., at 116.
+In companion cases the Court came to the same conclusion, as it had reached in Seaborn, with respect to the community property laws of Arizona, Texas, and Louisiana. Goodell v. Koch, 282 U.S. 118 (1930); Hopkins v. Bacon, 282 U.S. 122 (1930); Bender v. Pfaff, 282 U.S. 127 (1930). In the Louisiana case it was said:
+
+""If the test be, as we have held it is, ownership of the community income, this case is probably the strongest of those presented to us, in favor of the wife's ownership of one-half of that income."" 282 U.S., at 131.
+The Court then reviewed the relevant Louisiana statutes and the power of disposition possessed by each spouse. It noted that, while the husband is the manager of the affairs of the marital partnership, the limitations upon the wrongful exercise of his power over community property are more stringent than in many other States. It concluded:
+
+""Inasmuch, therefore, as, in Louisiana, the wife has a present vested interest in community property equal to that of her husband, we hold that the spouses are entitled to file separate returns, each treating one-half of the community income as income of each `of' them as an `individual' as those words are used in §§ 210 (a) and 211 (a) of the Revenue Act of 1926."" 282 U.S., at 132.
+Two months later the Court arrived at the same conclusion with respect to California community property law and federal income tax under the 1928 Act, with the Government conceding the effectiveness, in this respect, of amendments made to the California statutes since the Robbins decision. United States v. Malcolm, 282 U.S. 792 (1931). Significantly, the Court there answered in the affirmative, citing Seaborn, Koch, and Bacon, the following certified question:
+
+""Has the wife under § 161 (a) of the Civil Code of California such an interest in the community income that she should separately report and pay tax on one-half of such income?"" 282 U.S., at 794.
+This affirmative answer to a question phrased in terms of ""should,"" not ""may,"" clearly indicates that the wife had the obligation, not merely the right, to report half the community income.
+
+The federal courts since Malcolm consistently have held that the wife is required to report half the community income and that the husband is taxable only on the other half. Gilmore v. United States, 154 Ct. Cl. 365, 290 F.2d 942 (1961), rev'd on other grounds, 372 U.S. 39 (1963); Van Antwerp v. United States, 92 F.2d 871 (CA9 1937); Simmons v. Cullen, 197 F. Supp. 179 (ND Cal. 1961); Dillin v. Commissioner, 56 T.C. 228 (1971); Kimes v. Commissioner, 55 T.C. 774 (1971); Hill v. Commissioner, 32 T.C. 254 (1959); Hunt v. Commissioner, 22 T.C. 228 (1954); Freundlich v. Commissioner, T. C. Memo. 1955-177; Cavanagh v. Commissioner, 42 B. T. A. 1037, 1044 (1940), aff'd, 125 F.2d 366 (CA9 1942). There were holdings from the Fifth Circuit to this apparent effect with respect to Louisiana taxpayers. Commissioner v. Hyman, 135 F.2d 49, 50 (1943); Saenger v. Commissioner, 69 F.2d 633 (1934); Smith v. Donnelly, 65 F. Supp. 415 (ED La. 1946). See Henderson's Estate v. Commissioner, 155 F.2d 310 (CA5 1946), and Gonzalez v. National Surety Corp., 266 F.2d 667, 669 (CA5 1959).
+
+Thus, with respect to community income, as with respect to other income, federal income tax liability follows ownership. Blair v. Commissioner, 300 U.S. 5, 11-14 (1937). See Hoeper v. Tax Comm'n, 284 U.S. 206 (1931). In the determination of ownership, state law controls. ""The state law creates legal interests but the federal statute determines when and how they shall be taxed."" Burnet v. Harmel, 287 U.S. 103, 110 (1932); Morgan v. Commissioner, 309 U.S. 78, 80-81 (1940); Helvering v. Stuart, 317 U.S. 154, 162 (1942); Commissioner v. Harmon, 323 U.S. 44, 50-51 (1944) (DOUGLAS, J., dissenting); see Commissioner v. Estate of Bosch, 387 U.S. 456 (1967). The dates of the cited cases indicate that these principles are long established in the law of taxation.",analysis,The Relevant Statutes and Precedents,strongly agree,The Taxation of Income of Every Individual,agree,Interpretation of companion cases for community property and federal income tax liability,2
+G2,13,0,1,III,"This would appear to foreclose the issue for the present cases. Nevertheless, because respondents and the Court of Appeals stress the evanescent nature of the wife's interest in community property in Louisiana, a review of the pertinent Louisiana statutes and decisions is perhaps in order.
+
+Every marriage contracted in Louisiana ""superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary."" La. Civ. Code Ann., Art. 2399 (1971). ""This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. . . ."" Art. 2402. The debts contracted during the marriage ""enter into the partnership or community of gains, and must be acquitted out of the common fund . . . ."" Art. 2403. ""The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife."" Also ""he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons."" Art. 2404. The same article, however, denies him the power of conveyance, ""by a gratuitous title,"" of community immovables, or of the whole or a quota of the movables, unless for the children; and if the husband has sold or disposed of the common property in fraud of the wife, she has an action against her husband's heirs. At the dissolution of a marriage ""all effects which both husband and wife reciprocally possess, are presumed common effects or gains . . . ."" Art. 2405. At dissolution, ""The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and the wife, or between their heirs . . . ."" Art. 2406. ""It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution."" Art. 2409. Then the wife and her heirs or assigns may ""exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains."" Art. 2410. And the wife ""who renounces, loses every sort of right to the effects of the partnership or community of gains"" except that ""she takes back all her effects, whether dotal or extradotal."" Art. 2411.
+
+The Louisiana court has described and forcefully stated the nature of the community interest. In Phillips v. Phillips, 160 La. 813, 825-826, 107 So. 584, 588 (1926), it was said:
+
+""The wife's half interest in the community property is not a mere expectancy during the marriage; it is not transmitted to her by or in consequence of a dissolution of the community. The title for half of the community property is vested in the wife the moment it is acquired by the community or by the spouses jointly, even though it be acquired in the name of only one of them. . . . There are loose expressions, appearing in some of the opinions rendered by this court, to the effect that the wife's half interest in the community property is only an expectancy, or a residuary interest, until the community is dissolved and liquidated. But that is contrary to the provisions of the Civil Code . . . and is contrary to the rule announced in every decision of this court since the error was first committed . . . .""
+Later, in Succession of Wiener, 203 La. 649, 14 So. 2d 475 (1943), a state inheritance tax case, the court, after referring to Arts. 2399 and 2402 of the Civil Code, said:
+
+""That this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired, is well settled in this state . . . .""
+""The conclusion we have reached in this case is in keeping with the decision of the United States Supreme Court in the case of Bender v. Pfaff, supra, where that court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income. . . ."" 203 La., at 657 and 662, 14 So. 2d, at 477 and 479.
+After reviewing joint tenancy and tenancy by the entirety known to the common law, the court observed:
+
+""In Louisiana, the situation is entirely different, for here the civil law prevails, and the theory of the civil law is that the acquisition of all property during the marriage is due to the joint or common efforts, labor, industry, economy, and sacrifices of the husband and wife; in her station the wife is just as much an agency in acquiring this property as is her husband. In Louisiana, therefore, the wife's rights in and to the community property do not rest upon the mere gratuity of her husband; they are just as great as his and are entitled to equal dignity. . . . She is the half-partner and owner of all acquisitions made during the existence of the community, whether they be property or income. . . .
+""It is true that in weaving this harmonious commercial partnership around the intimate and sacred marital relationship, the framers of our law and its codifiers saw fit, in their wisdom, to place the husband at the head of the partnership, but this did not in any way affect the status of the property or the wife's ownership of her half thereof. . . . And the husband was made the managing partner of the community and charged with the administration of its effects, as well as with the alienation of its effects and revenues by onerous title, because he was deemed the best qualified to act."" 203 La., at 665-667, 14 So. 2d, at 480-481.
+The court then outlined in detail the various protections afforded by Louisiana law to the wife and concluded:
+
+""It is obvious, therefore, that the wife's interest in the community property in Louisiana does not spring from any fiction of the law or from any gift or act of generosity on the part of her husband but, instead, from an express legal contract of partnership entered into at the time of the marriage. There is no substantial difference between her interest therein and the interest of an ordinary member of a limited or ordinary partnership, the control and management of whose affairs has, by agreement, been entrusted to a managing partner. The only real difference is that the limitations placed on the managing partner in the community partnership are fixed by law, while those placed on the managing partner in an ordinary or limited partnership are fixed by convention or contract."" 203 La., at 669, 14 So. 2d, at 481-482.
+The husband thus is the manager and agent of the Louisiana community, but his powers as manager do not serve to defeat the ownership rights of the wife.
+
+These principles repeatedly have found expression in Louisiana cases. United States Fidelity & Guaranty Co. v. Green, 252 La. 227, 232-233, 210 So. 2d 328, 330 (1968); Gebbia v. City of New Orleans, 249 La. 409, 415-416, 187 So. 2d 423, 425 (1966); Azar v. Azar, 239 La. 941, 946, 120 So. 2d 485, 487 (1960); Messersmith v. Messersmith, 229 La. 495, 507, 86 So. 2d 169, 173 (1956); Dixon v. Dixon's Executors, 4 La. 188 (1932).
+
+This Court recognized these Louisiana community property principles in the Wiener estate's federal estate tax litigation. Fernandez v. Wiener, 326 U.S. 340 (1945). There the inclusion in the decedent's gross estate of the entire community property was upheld for purposes of the federal estate tax which is an excise tax. Mr. Chief Justice Stone noted the respective interests of the spouses when, in the following language, he spoke of the effect of death:
+
+""As we have seen, the death of the husband of the Louisiana marital community not only operates to transfer his rights in his share of the community to his heirs or those taking under his will. It terminates his expansive and sometimes profitable control over the wife's share, and for the first time brings her half of the property into her full and exclusive possession, control and enjoyment. The cessation of these extensive powers of the husband, even though they were powers over property which he never `owned,' and the establishment in the wife of new powers of control over her share, though it was always hers, furnish appropriate occasions for the imposition of an excise tax.
+""Similarly, with the death of the wife, her title or ownership in her share of the community property ends, and passes to her heirs or other appointees. More than this, her death, by ending the marital community, liberates her husband's share from the restrictions which the existence of the community had placed upon his control of it. . . .
+""This redistribution of powers and restrictions upon power is brought about by death notwithstanding that the rights in the property subject to these powers and restrictions were in every sense `vested' from the moment the community began. . . ."" 326 U.S., at 355-356.
+Thus the Louisiana statutes and cases also seem to foreclose the claims advanced by the respondents.",analysis,Louisiana Statutes and Decisions,strongly agree,Louisiana Statutes and Decisions,strongly agree,Louisiana marriage and community property principles,3
+G2,13,0,1,IV,"Despite all this, despite the concession that the wife's interest in the community property is not a mere expectancy,[4] and despite the further concession that she has a vested title in, and is the owner of, a half share of the community income,[5] respondents take the position that somehow the wife's interest is insufficient to make her liable for federal income tax computed on that half of the community income.
+
+It is said that her right to renounce the community and to place herself in the same position as if it had never existed is substantive; that the wife is not personally liable for a community debt; that it is really the community as an entity, not the husband or the wife, that owns the property; and that Seaborn and its companion cases were concerned only with the right to split income, not with the obligation so to do. It is also said that the wife's dominion over the community property is nonexistent in Louisiana; that the husband administers the community's affairs as he sees fit; that he is not required to account to the wife, even for mismanagement, unless he enriches his estate at her expense by fraud; that she has no way to terminate the community other than by suit for separation, and then only by showing mismanagement on his part that threatens her separate estate; that her status is imposed by law, as contrasted with a commercial partnership where status is consensual; that she has no legal right to obtain the information necessary to file a tax return or to obtain the funds with which to pay the tax; and that Robbins authorizes taxing the whole of the community income to the husband. The same arguments, however, were advanced in Seaborn, 282 U. S., at 103-105, and in its companion cases, 282 U.S., at 119, 123, and 128, and were unavailing there, 282 U.S., at 111-113. They do not persuade us here. Specifically, the power to renounce, granted by Article 2410, is of no comfort to the wife-taxpayer. As Judge Forrester aptly expressed it, 51 T.C., at 646, Mrs. Mitchell's renunciation ""came long after her liabilities for the annual income taxes here in issue had attached."" Further, ""[t]his right of the wife to renounce or repudiate must not be misconstrued as an indication that she had never owned and possessed her share, for that fact was not denied; but she did have, under the principles of community property, the right to revoke her ownership and possession. . . ."" 1 W. deFuniak, Principles of Community Property § 218, p. 621 (1943).
+
+The results urged by the respondents might follow, of course, in connection with a tax or other obligation the collection of which is controlled by state law. But an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy.
+
+Section 6321 of the 1954 Code imposes a lien for the income tax ""upon all property and rights to property . . . belonging to"" the person liable for the tax. Section 6331 (a) authorizes levy ""upon all property and rights to property . . . belonging to such person . . . ."" What is exempt from levy is specified in § 6334 (a). Section 6334 (c) provides, ""Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)."" This language is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy under state law. United States v. Bess, 357 U.S. 51, 56-57 (1958); Shambaugh v. Scofield, 132 F.2d 345 (CA5 1942); United States v. Heffron, 158 F.2d 657 (CA9), cert. denied, 331 U.S. 831 (1947); Treas. Reg. § 301.6334-1 (c). See Birch v. Dodt, 2 Ariz. App. 228, 407 P.2d 417 (1965). As a consequence, state law which exempts a husband's interest in community property from his premarital debts does not defeat collection of his federal income tax liability for premarital tax years from his interest in the community. United States v. Overman, 424 F.2d 1142, 1145 (CA9 1970); In re Ackerman, 424 F.2d 1148 (CA9 1970). The result as to Mrs. Mitchell and Mrs. Angello is no different.
+
+It must be conceded that these cases are ""hard"" cases and exceedingly unfortunate for the two women taxpayers.[6] Mrs. Mitchell loses the benefit of her inheritance from her mother, an inheritance that ripened after the dissolution of her marriage. Mrs. Angello loses her beneficiary interest in her deceased husband's life insurance policy. This takes place with each wife not really aware of the community tax situation, and not really in a position to ascertain the details of the community income. The law, however, is clear. The taxes were due. They were not paid. Returns were not even filed. The ""fault,"" if fault there be, lies with the four taxpayers and flows from the settled principles of the community property system. If the wives were to prevail here, they would have the best of both worlds.
+
+The remedy is in legislation. An example is Pub. L. 91-679 of January 12, 1971, 84 Stat. 2063, adding to the Code subsection (e) of § 6013 and the final sentence of § 6653 (b). These amendments afford relief to an innocent spouse, who was a party to a joint return, with respect to omitted income and fraudulent underpayment. Relief of that kind is the answer to the respondents' situation.
+
+The judgment in each case is reversed.
+
+It is so ordered.",analysis,The Wife's Interest in the Community,agree,The wife's interest in the community property is sufficient to make her liable for federal income,strongly agree,Tax liability for community debt of Wives-taxpayer,4
+G2,14,0,1,I,"The HMT, enacted as part of the Water Resources Development Act of 1986, 26 U. S. C. §§ 4461-4462, imposes a uniform charge on shipments of commercial cargo through the Nation's ports. The charge is currently set at 0.125 percent of the cargo's value. Exporters, importers, and domestic shippers are liable for the HMT, § 4461(c)(1), which is imposed at the time of loading for exports and unloading for other shipments, § 4461(c)(2). The HMT is collected by the Customs Service and deposited in the Harbor Maintenance Trust Fund (Fund). Congress may appropriate amounts from the Fund to pay for harbor maintenance and development projects, including costs associated with the St. Lawrence Seaway, or related expenses. § 9505.
+
+Respondent United States Shoe Corporation (U. S. Shoe) paid the HMT for articles the company exported during the period April to June 1994 and then filed a protest with the Customs Service alleging the unconstitutionality of the toll to the extent it applies to exports. The Customs Service responded with a form letter stating that the HMT is a statutorily mandated fee assessment on port users, not an unconstitutional tax on exports. On November 3, 1994, U. S. Shoe brought this action against the Government in the Court of International Trade (CIT). The company sought a refund on the ground that the HMT is unconstitutional as applied to exports.
+
+Sitting as a three-judge court, the CIT held that its jurisdiction was properly invoked under 28 U. S. C. § 1581(i); on the merits, the CIT agreed with U. S. Shoe that the HMT qualifies as a tax. 907 F. Supp. 408 (1995). Rejecting the Government's characterization of the HMT as a user fee rather than a tax, the CIT reasoned: ""The Tax is assessed ad valorem directly upon the value of the cargo itself, not upon any services rendered for the cargo . . . . Congress could not have imposed the Tax any closer to exportation, or more immediate to the articles exported."" Id., at 418. Relying on the Export Clause, the CIT entered summary judgment for U. S. Shoe.
+
+The Court of Appeals for the Federal Circuit, sitting as a five-judge panel, affirmed. 114 F. 3d 1564 (1997). On auxiliary questions, the Federal Circuit upheld the CIT's exercise of jurisdiction under § 1581(i) and agreed with the lower court that the HMT applied to goods in export transit.[1] Concluding that the HMT is not based on a fair approximation of port use, the Federal Circuit also agreed that the HMT imposes a tax, not a user fee. In making this determination, the Court of Appeals emphasized that the HMT does not depend on the amount or manner of port use, but is determined solely by the value of cargo. Judge Mayer dissented; in his view, Congress properly designed the HMT as a user fee, a toll on shippers that supplies funds not for the general support of government, but exclusively for the facilitation of commercial navigation.
+
+Numerous cases challenging the constitutionality of the HMT as applied to exports are currently pending in the CIT and the Court of Federal Claims.[2] We granted certiorari, 522 U. S. 944 (1997), to review the Federal Circuit's determination that the HMT violates the Export Clause.",facts,The HMT,strongly agree,The HMT,strongly agree,Protest against the Harbor Maintenance Tax (HMT),1
+G2,14,0,1,II,"As an initial matter, we conclude that the CIT properly entertained jurisdiction in this case. The complaint alleged exclusive original jurisdiction in that tribunal under 28 U. S. C. § 1581(a) or, alternatively, § 1581(i). App. 26. We agree with the CIT and the Federal Circuit that § 1581(i) is the applicable jurisdictional prescription. The key directive is stated in 26 U. S. C. § 4462(f)(2), which instructs that for jurisdictional purposes, the HMT ""shall be treated as if such tax were a customs duty.""
+
+Section 1581(a) surely concerns customs duties. It confers exclusive original jurisdiction on the CIT in ""any civil action commenced to contest the [Customs Service's] denial of a protest."" A protest, as indicated in 19 U. S. C. § 1514, is an essential prerequisite when one challenges an actual Customs decision. As to the HMT, however, the Federal Circuit correctly noted that protests are not pivotal, for Customs ""performs no active role,"" it undertakes ""no analysis [or adjudication],"" ""issues no directives,"" ""imposes no liabilities""; instead, Customs ""merely passively collects"" HMT payments. 114 F. 3d, at 1569.
+
+Section 1581(i) describes the CIT's residual jurisdiction over
+
+""any civil action commenced against the United States.. . that arises out of any law of the United States providing for _x0097_
+""(1) revenue from imports or tonnage;
+
+. . . . .
+
+""(4) administration and enforcement with respect to the matters referred to in paragraphs (1)_x0097_(3) of this subsection . . . .""
+This dispute, as the Federal Circuit stated, ""involve[s] the `administration and enforcement' of a law providing for revenue from imports because the HMT statute, although applied to exports here, does apply equally to imports."" 114 F. 3d, at 1571. True, § 1581(i) does not use the word ""exports."" But that is hardly surprising in view of the Export Clause, which confines customs duties to imports. Revenue from imports and revenue from customs duties are thus synonymous in this setting. In short, as the CIT correctly concluded and the Federal Circuit correctly affirmed, ""Congress [in § 4462(f)(2)] directed [that] the [HMT] be treated as a customs duty for purposes of jurisdiction. Such duties, by their very nature, provide for revenue from imports, and are encompassed within [§ ]1581(i)(1)."" 907 F. Supp., at 421. Accordingly, CIT jurisdiction over controversies regarding the administration and enforcement of the HMT accords with § 1581(i)(4).[3]",jurisdiction,The CIT's Jurisdiction,strongly agree,The CIT's Jurisdictional Prescription,strongly agree,Jurisdiction of the  Court of International Trade (CIT),2
+G2,14,0,1,III,"Two Terms ago, in IBM, this Court considered the question whether a tax on insurance premiums paid to protect exports against loss violated the Export Clause. Distinguishing case law developed under the Commerce Clause, 517 U. S., at 850-852, and the Import-Export Clause, id., at 857-861, the Court held that the Export Clause allows no room for any federal tax, however generally applicable or nondiscriminatory, on goods in export transit. Before this Court's decision in IBM, the Government argued that the HMT, even if characterized as a ""tax"" rather than a ""user fee,"" should survive constitutional review ""because it applies without discrimination to exports, imports and domestic commerce alike."" Reply Brief for United States 9, n. 2. Recognizing that IBM ""rejected an indistinguishable contention,"" the Government now asserts only that HMT is ""`a permissible user fee,' "" Reply Brief for United States 9, n. 2, a toll within the tolerance of Export Clause precedent. Adhering to the Court's reasoning in IBM, we reject the Government's current position.
+
+The HMT bears the indicia of a tax. Congress expressly described it as ""a tax on any port use,"" 26 U. S. C. § 4461(a) (emphasis added), and codified the HMT as part of the Internal Revenue Code. In like vein, Congress provided that, for administrative, enforcement, and jurisdictional purposes, the HMT should be treated ""as if [it] were a customs duty."" §§ 4462(f)(1), (2). However, ""we must regard things rather than names,"" Pace v. Burgess, 92 U. S., at 376, in determining whether an imposition on exports ranks as a tax. The crucial question is whether the HMT is a tax on exports in operation as well as nomenclature or whether, despite the label Congress has put on it, the exaction is instead a bona fide user fee.
+
+In arguing that the HMT constitutes a user fee, the Government relies on our decisions in United States v. Sperry Corp., 493 U. S. 52 (1989), Massachusetts v. United States, 435 U. S. 444 (1978), and Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972). In those cases, this Court upheld flat and ad valorem charges as valid user fees. See United States v. Sperry Corp., 493 U. S., at 62 (1[1]20442 percent ad valorem fee applied to awards certified by the Iran-United States Claims Tribunal qualifies as a user fee and is not so excessive as to violate the Takings Clause); Massachusetts v. United States, 435 U. S., at 463_x0097_ 467 (flat federal registration fee imposed annually on all civil aircraft meets genuine user fee standards and, as applied to state-owned aircraft, does not dishonor State's immunity from federal taxation); Evansville-Vanderburgh Airport Authority, 405 U. S., at 717-721 (flat charge for each passenger enplaning, levied for the maintenance of State's airport facilities, does not run afoul of the dormant Commerce Clause). Those decisions involved constitutional provisions other than the Export Clause, however, and thus do not govern here.
+
+IBM plainly stated that the Export Clause's simple, direct, unqualified prohibition on any taxes or duties distinguishes it from other constitutional limitations on governmental taxing authority. The Court there emphasized that the ""text of the Export Clause . . . expressly prohibits Congress from laying any tax or duty on exports."" 517 U. S., at 852; see also id. , at 861 (""[T]he Framers sought to alleviate . . . concerns [that Northern States would tax exports to the disadvantage of Southern States] by completely denying to Congress the power to tax exports at all.""). Accordingly, the Court reasoned in IBM, ""[o]ur decades-long struggle over the meaning of the nontextual negative command of the dormant Commerce Clause does not lead to the conclusion that our interpretation of the textual command of the Export Clause is equally fluid."" Id., at 851; see also id., at 857 (""We have good reason to hesitate before adopting the analysis of our recent Import-Export Clause cases into our Export Clause jurisprudence. . . . [M]eaningful textual differences exist [between the two Clauses] and should not be overlooked.""). In Sperry, moreover, we noted that the Takings Clause imposes fewer constraints on user fees than does the dormant Commerce Clause. See 493 U. S., at 61, n. 7 (analysis under Takings Clause is less ""exacting"" than under the dormant Commerce Clause). A fortiori, therefore, the Takings Clause is less restrictive than the Export Clause.
+
+The guiding precedent for determining what constitutes a bona fide user fee in the Export Clause context remains our time-tested decision in Pace. Pace involved a federal excise tax on tobacco. Congress provided that the tax would not apply to tobacco intended for export. To prevent fraud, however, Congress required that tobacco the manufacturer planned to export carry a stamp indicating that intention. Each stamp cost 25 cents (later 10 cents) per package of tobacco. Congress did not limit the quantity or value of the tobacco packaged for export or the size of the stamped package; ""[t]hese were unlimited, except by the discretion of the exporter or the convenience of handling."" 92 U. S., at 375.
+
+The Court upheld the charge, concluding that it was ""in no sense a duty on exportation,"" but rather ""compensation given for services [in fact] rendered."" Ibid. In so ruling, the Court emphasized two characteristics of the charge: It ""bore no proportion whatever to the quantity or value of the package on which [the stamp] was affixed""; and the fee was not excessive, taking into account the cost of arrangements needed both ""to give to the exporter the benefit of exemption from taxation, and . . . to secure . . . against the perpetration of fraud."" Ibid.
+
+Pace establishes that, under the Export Clause, the connection between a service the Government renders and the compensation it receives for that service must be closer than is present here. Unlike the stamp charge in Pace, the HMT is determined entirely on an ad valorem basis. The value of export cargo, however, does not correlate reliably with the federal harbor services used or usable by the exporter. As the Federal Circuit noted, the extent and manner of port use depend on factors such as the size and tonnage of a vessel, the length of time it spends in port, and the services it requires, for instance, harbor dredging. See 114 F. 3d, at 1572.
+
+In sum, if we are ""to guard against . . . the imposition of a [tax] under the pretext of fixing a fee,"" Pace v. Burgess, 92 U. S., at 376, and resist erosion of the Court's decision in IBM, we must hold that the HMT violates the Export Clause as applied to exports. This does not mean that exporters are exempt from any and all user fees designed to defray the cost of harbor development and maintenance. It does mean, however, that such a fee must fairly match the exporters' use of port services and facilities.",analysis,The HMT as a User Fee,disagree,The HMT is a User Fee,strongly disagree,Harbor Maintenance Tax (HMT) imposes a tax and not a user fee,3
+G2,14,0,1,*,"For the foregoing reasons, the judgment of the Court of Appeals for the Federal Circuit is
+
+Affirmed.",conclusion,The Court of Appeals for the Federal Circuit is Affirmed.,strongly agree,The Judgment of the Federal Circuit,strongly disagree,Supreme Court's holding,4
+G2,15,0,1,I,"In 1981, petitioner informed respondent, a black employee of the University's Agricultural Extension Service, that he would be discharged for inadequate work performance and misconduct on the job. Respondent requested a hearing under the Tennessee Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-101 et seq. (1985), to contest his proposed termination. Prior to the start of the hearing, respondent also filed suit in the United States District Court for the Western District of Tennessee, alleging that his proposed discharge was racially motivated and seeking relief under Title VII and other civil rights statutes, including 42 U. S. C. § 1983.[1] The relief sought included damages, an injunction prohibiting respondent's discharge, and classwide relief from alleged patterns of discrimination by petitioner.
+
+The District Court initially entered a temporary restraining order prohibiting the University from taking any job action against respondent, but later lifted this order and permitted the state administrative proceeding to go forward. App. to Pet. for Cert. A27. There followed a hearing at which an administrative assistant to the University's Vice President for Agriculture presided as an Administrative Law Judge (ALJ). The focus of the hearing was on 10 particular charges that the University gave as grounds for respondent's discharge. Respondent denied these charges, which he contended were motivated by racial prejudice, and also argued that the University's subjecting him to the charges violated his rights under the Constitution, Title VII, and other federal statutes. The ALJ held that he lacked jurisdiction to adjudicate respondent's federal civil rights claims, but did allow respondent to present, as an affirmative defense, evidence that the charges against him were actually motivated by racial prejudice and hence not a proper basis for his proposed discharge. Id., at A44-45.
+
+After hearing extensive evidence,[2] the ALJ found that the University had proved some but not all of the charges against respondent, and that the charges were not racially motivated. Id., at A177-179. Concluding that the proposed discharge of respondent was too severe a penalty, the ALJ ordered him transferred to a new assignment with supervisors other than those with whom he had experienced conflicts. Id., at A179-181. Respondent appealed to the University's Vice President for Agriculture, who affirmed the ALJ's ruling. Id., at A33-35. The Vice President stated that his review of the record persuaded him that the proposed discharge of respondent had not been racially motivated. Id., at A34.
+
+Respondent did not seek review of these administrative proceedings in the Tennessee courts; instead, he returned to federal court to pursue his civil rights claims. There, petitioner moved for summary judgment on the ground that respondent's suit was an improper collateral attack on the ALJ's ruling, which petitioner contended was entitled to preclusive effect. The District Court agreed, holding that the civil rights statutes on which respondent relied ""were not intended to afford the plaintiff a means of relitigating what plaintiff has heretofore litigated over a five-month period."" Id., at A32.
+
+Respondent appealed to the United States Court of Appeals for the Sixth Circuit, which reversed the District Court's judgment. 766 F. 2d 982 (1985). As regards respondent's Title VII claim, the Court of Appeals looked for guidance to our decision in Kremer v. Chemical Construction Corp., 456 U. S. 461 (1982).[3] While Kremer teaches that final state-court judgments are entitled to full faith and credit in Title VII actions, it indicates that unreviewed determinations by state agencies stand on a different footing. The Sixth Circuit found the following passage from Kremer directly on point:
+
+""EEOC review [pursuant to 42 U. S. C. § 2000e-5(b)] of discrimination charges previously rejected by state agencies would be pointless if the federal courts were bound by such agency decisions. Batiste v. Furnco Constr. Corp., 503 F. 2d 447, 450, n. 1 (CA7 1974), cert. denied, 420 U. S. 928 (1975). Nor is it plausible to suggest that Congress intended federal courts to be bound further by state administrative decisions than by decisions of the EEOC. Since it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a State's own courts. Garner v. Giarrusso, 571 F. 2d 1330 (CA5 1978), Batiste v. Furnco Constr. Corp., supra; Cooper v. Philip Morris, Inc., 464 F. 2d 9 (CA6 1972); Voutsis v. Union Carbide Corp., 452 F. 2d 889 (CA2 1971), cert. denied, 406 U. S. 918 (1972)."" Id., at 470, n. 7.
+The court accordingly held that res judicata did not foreclose a trial de novo on respondent's Title VII claim.
+
+The Sixth Circuit found the question of applying preclusion principles to respondent's claims under § 1983 and other civil rights statutes a more difficult question. It held that 28 U. S. C. § 1738,[4] which concerns the preclusive effect of ""judicial proceedings of any [state] court,"" does not require that federal courts be bound by the unreviewed findings of state administrative agencies. The court also declined to fashion a federal common law of preclusion, declaring that ""[a]t least implicit in the legislative history of section 1983 is the recognition that state determination of issues relevant to constitutional adjudication is not an adequate substitute for full access to federal court."" 766 F. 2d, at 992. The court recognized that a similar argument for denying res judicata effect to state-court judgments in subsequent § 1983 actions was rejected in Allen v. McCurry, 449 U. S. 90 (1980), and Migra v. Warren City School District Board of Education, 465 U. S. 75 (1984), but distinguished those cases as based on the explicit command of § 1738.
+
+We granted certiorari to consider petitioner's contention that the Sixth Circuit erred in holding that state administrative factfinding is never entitled to preclusive effect in actions under Title VII or the Reconstruction civil rights statutes. 474 U. S. 1004 (1985).",facts,Tennessee Administrative Proceedings,disagree,The Tennessee Administrative Proceedings,disagree,Litigation regarding racially motivated discharge in violation of Title VII of the Civil Rights Act of 1964,1
+G2,15,0,1,II,"Title 28 U. S. C. § 1738 governs the preclusive effect to be given the judgments and records of state courts, and is not applicable to the unreviewed state administrative factfinding at issue in this case. However, we have frequently fashioned federal common-law rules of preclusion in the absence of a governing statute. See e. g., Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979); Blonder-Tongue Laboratories, Inc., v. University of Illinois Foundation, 402 U. S. 313 (1971); Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); Stoll v. Gottlieb, 305 U. S. 165 (1938); Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 289-291 (1906). Although § 1738 is a governing statute with regard to the judgments and records of state courts, because § 1738 antedates the development of administrative agencies it clearly does not represent a congressional determination that the decisions of state administrative agencies should not be given preclusive effect. Accordingly, we will consider whether a rule of preclusion is appropriate, first with respect to respondent's Title VII claim, and next with respect to his claims under the Constitution and the Reconstruction civil rights statutes.",analysis,Title VII and the Reconstruction Civil Rights Statutes,strongly agree,Preclusion of the State Administrative Factfinding,agree,Rule of Preclusion,2
+G2,15,0,1,III,"Under 42 U. S. C. § 2000e-5(b), the Equal Employment Opportunity Commission (EEOC), in investigating discrimination charges, must give ""substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local [employment discrimination] law."" As we noted in Kremer, 456 U. S., at 470, n. 7, it would make little sense for Congress to write such a provision if state agency findings were entitled to preclusive effect in Title VII actions in federal court.
+
+Moreover, our decision in Chandler v. Roudebush, 425 U. S. 840 (1976), strongly supports respondent's contention that Congress intended one in his position to have a trial de novo on his Title VII claim. In Chandler, we held that a federal employee whose discrimination claim was rejected by her employing agency after an administrative hearing was entitled to a trial de novo in federal court on her Title VII claim. After reviewing in considerable detail the language of Title VII and the history of the 1972 amendments to the statute, we concluded:
+
+""The legislative history of the 1972 amendments reinforces the plain meaning of the statute and confirms that Congress intended to accord federal employees the same right to a trial de novo [following administrative proceedings] as is enjoyed by private-sector employees and employees of state governments and political subdivisions under the amended Civil Rights Act of 1964."" Id., at 848.
+Like the plaintiff in Chandler, the respondent in this case pursued his Title VII action following an administrative proceeding at which the employing agency rejected a discrimination claim. It would be contrary to the rationale of Chandler to apply res judicata to deny respondent a trial de novo on his Title VII claim.
+
+Invoking the presumption against implied repeal, petitioner distinguishes Chandler as involving a federal agency determination not entitled to full faith and credit under § 1738. Reply Brief for Petitioners 16. This argument is based on the erroneous premise that § 1738 applies to state administrative proceedings. See Part II, supra. The question actually before us is whether a common-law rule of preclusion would be consistent with Congress' intent in enacting Title VII. On the basis of our analysis in Kremer and Chandler of the language and legislative history of Title VII, we conclude that the Sixth Circuit correctly held that Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims.[5]",analysis,Federal Agency Findings,agree,The Effect of the EEOC's Preclusion on Title VII Claims,agree,Rule of Preclusion and Title VII of the Civil Rights Act of 1964,3
+G2,15,0,1,IV,"This Court has held that § 1738 requires that state-court judgments be given both issue and claim preclusive effect in subsequent actions under 42 U. S. C. § 1983. Allen v. McCurry, supra (issue preclusion); Migra v. Warren City School District Board of Education, supra (claim preclusion). Those decisions are not controlling in this case, where § 1738 does not apply; nonetheless, they support the view that Congress, in enacting the Reconstruction civil rights statutes, did not intend to create an exception to general rules of preclusion. As we stated in Allen:
+
+""[N]othing in the language of § 1983 remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of the predecessor of 28 U. S. C. § 1738. . . .
+""Moreover, the legislative history of § 1983 does not in any clear way suggest that Congress intended to repeal or restrict the traditional doctrines of preclusion."" 449 U. S., at 97-98.
+The Court's discussion in Allen suggests that it would have reached the same result even in the absence of § 1738. We also see no reason to suppose that Congress, in enacting the Reconstruction civil rights statutes, wished to foreclose the adaptation of traditional principles of preclusion to such subsequent developments as the burgeoning use of administrative adjudication in the 20th century.
+
+We have previously recognized that it is sound policy to apply principles of issue preclusion to the factfinding of administrative bodies acting in a judicial capacity. In a unanimous decision in United States v. Utah Construction & Mining Co., 384 U. S. 394 (1966), we held that the factfinding of the Advisory Board of Contract Appeals was binding in a subsequent action in the Court of Claims involving a contract dispute between the same parties. We explained:
+
+""Although the decision here rests upon the agreement of the parties as modified by the Wunderlich Act, we note that the result we reach is harmonious with general principles of collateral estoppel. Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."" Id., at 421-422 (1966) (footnotes omitted).
+Thus, Utah Construction, which we subsequently approved in Kremer v. Chemical Construction Co., 456 U. S., at 484-485, n. 26, teaches that giving preclusive effect to administrative factfinding serves the value underlying general principles of collateral estoppel: enforcing repose.[6] This value, which encompasses both the parties' interest in avoiding the cost and vexation of repetitive litigation and the public's interest in conserving judicial resources, Allen v. McCurry, 449 U. S., at 94, is equally implicated whether factfinding is done by a federal or state agency.
+
+Having federal courts give preclusive effect to the factfinding of state administrative tribunals also serves the value of federalism. Significantly, all of the opinions in Thomas v. Washington Gas Light Co., 448 U. S. 261 (1980), express the view that the Full Faith and Credit Clause compels the States to give preclusive effect to the factfindings of an administrative tribunal in a sister State. Id., at 281 (opinion of STEVENS, J.); 287-289 (WHITE, J., concurring in judgment); 291-292 (REHNQUIST, J., dissenting). The Full Faith and Credit Clause is of course not binding on federal courts, but we can certainly look to the policies underlying the Clause in fashioning federal common-law rules of preclusion. ""Perhaps the major purpose of the Full Faith and Credit Clause is to act as a nationally unifying force,"" id., at 289 (WHITE, J., concurring in judgment), and this purpose is served by giving preclusive effect to state administrative factfinding rather than leaving the courts of a second forum, state or federal, free to reach conflicting results.[7] Accordingly, we hold that when a state agency ""acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,"" Utah Construction & Mining Co., supra, at 422, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.[8]
+
+The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.",analysis,Application of Res Judicata Principles to Administrative Proceedings,agree,Issue and Claim Preclusion,agree,Rule of Preclusion and Reconstruction Civil Rights Statutes,4
+G2,16,0,1,I,"The two respondents, William Dotson and Rogerico Johnson, are currently serving lengthy terms in Ohio prisons. Dotson began to serve a life sentence in 1981. The parole board rejected his first parole request in 1995; and a parole officer, after reviewing Dotson's records in the year 2000, determined that he should not receive further consideration for parole for at least five more years. In reaching this conclusion about Dotson's parole eligibility, the officer used parole guidelines first adopted in 1998, after Dotson began to serve his term. Dotson claims that the retroactive application of these new, harsher guidelines to his preguidelines case violates the Constitution's Ex Post Facto and Due Process Clauses. He seeks a federal-court declaration to that effect as well as a permanent injunction ordering prison officials to grant him an ""immediate parole hearing in accordance with the statutory laws and administrative rules in place when [he] committed his crimes."" App. 20 (Dotson Complaint, Prospective Declaratory and Injunctive Relief, ¶ 3).
+
+Johnson began to serve a 10- to 30-year prison term in 1992. The parole board considered and rejected his first parole request in 1999, finding him unsuitable for release. In making this determination, the board applied the new 1998 guidelines. Johnson too claims that the application of these new, harsher guidelines to his preguidelines case violated the Constitution's Ex Post Facto Clause. He also alleges that the parole board's proceedings (by having too few members present and by denying him an adequate opportunity to speak) violated the Constitution's Due Process Clause. Johnson's complaint seeks a new parole hearing conducted under constitutionally proper procedures and an injunction ordering the State to comply with constitutional due process and ex post facto requirements in the future.
+
+Both prisoners brought § 1983 actions in federal court. In each case, the Federal District Court concluded that a § 1983 action does not lie and that the prisoner would have to seek relief through a habeas corpus suit. Dotson v. Wilkinson, No. 3:00 CV 7303 (ND Ohio, Aug. 7, 2000); Johnson v. Ghee, No. 4:00 CV 1075 (ND Ohio, July 16, 2000). Each prisoner appealed. The Court of Appeals for the Sixth Circuit ultimately consolidated the two appeals and heard both cases en banc. The court found that the actions could proceed under § 1983, and it reversed the lower courts. 329 F. 3d 463, 472 (2003). Ohio parole officials then petitioned for certiorari, and we granted review.",facts,Dotson and Johnson,strongly agree,The Respondents,strongly agree,Challenge to Parole Board proceedings in violation of Ex Post Facto and Due Process Clauses,1
+G2,16,0,1,II,"This Court has held that a prisoner in state custody cannot use a § 1983 action to challenge ""the fact or duration of his confinement."" Preiser v. Rodriguez, 411 U. S. 475, 489 (1973); see also Wolff v. McDonnell, 418 U. S. 539, 554 (1974); Heck v. Humphrey, 512 U. S. 477, 481 (1994); Edwards v. Balisok, 520 U. S. 641, 648 (1997). He must seek federal habeas corpus relief (or appropriate state relief) instead.
+
+Ohio points out that the inmates in these cases attack their parole-eligibility proceedings (Dotson) and parole-suitability proceedings (Johnson) only because they believe that victory on their claims will lead to speedier release from prison. Consequently, Ohio argues, the prisoners' lawsuits, in effect, collaterally attack the duration of their confinement; hence, such a claim may only be brought through a habeas corpus action, not through § 1983.
+
+The problem with Ohio's argument lies in its jump from a true premise (that in all likelihood the prisoners hope these actions will help bring about earlier release) to a faulty conclusion (that habeas is their sole avenue for relief). A consideration of this Court's case law makes clear that the connection between the constitutionality of the prisoners' parole proceedings and release from confinement is too tenuous here to achieve Ohio's legal door-closing objective.
+
+The Court initially addressed the relationship between § 1983 and the federal habeas statutes in Preiser v. Rodriguez, supra. In that case, state prisoners brought civil rights actions attacking the constitutionality of prison disciplinary proceedings that had led to the deprivation of their good-time credits. Id., at 476. The Court conceded that the language of § 1983 literally covers their claims. See § 1983 (authorizing claims alleging the deprivation of constitutional rights against every ""person"" acting ""under color of"" state law). But, the Court noted, the language of the federal habeas statutes applies as well. See 28 U. S. C. § 2254(a) (permitting claims by a person being held ""in custody in violation of the Constitution""). Moreover, the Court observed, the language of the habeas statute is more specific, and the writ's history makes clear that it traditionally ""has been accepted as the specific instrument to obtain release from [unlawful] confinement."" Preiser, 411 U. S., at 486. Finally, habeas corpus actions require a petitioner fully to exhaust state remedies, which § 1983 does not. Id., at 490-491; see also Patsy v. Board of Regents of Fla., 457 U. S. 496, 507 (1982). These considerations of linguistic specificity, history, and comity led the Court to find an implicit exception from § 1983's otherwise broad scope for actions that lie ""within the core of habeas corpus."" Preiser, 411 U. S., at 487.
+
+Defining the scope of that exception, the Court concluded that a § 1983 action will not lie when a state prisoner challenges ""the fact or duration of his confinement,"" id., at 489, and seeks either ""immediate release from prison,"" or the ""shortening"" of his term of confinement, id., at 482. Because an action for restoration of good-time credits in effect demands immediate release or a shorter period of detention, it attacks ""the very duration of ... physical confinement,"" id., at 487-488, and thus lies at ""the core of habeas corpus,"" id., at 487. Therefore, the Court held, the Preiser prisoners could not pursue their claims under § 1983.
+
+In Wolff v. McDonnell, supra, the Court elaborated the contours of this habeas corpus ""core."" As in Preiser, state prisoners brought a § 1983 action challenging prison officials' revocation of good-time credits by means of constitutionally deficient disciplinary proceedings. 418 U. S., at 553. The Court held that the prisoners could not use § 1983 to obtain restoration of the credits because Preiser had held that ""an injunction restoring good time improperly taken is foreclosed."" 418 U. S., at 555. But the inmates could use § 1983 to obtain a declaration (""as a predicate to"" their requested damages award) that the disciplinary procedures were invalid. Ibid. They could also seek ""by way of ancillary relief[,] an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations."" Ibid. (emphasis added). In neither case would victory for the prisoners necessarily have meant immediate release or a shorter period of incarceration; the prisoners attacked only the ""wrong procedures, not ... the wrong result (i. e., [the denial of] good-time credits)."" Heck, supra, at 483 (discussing Wolff).
+
+In Heck, the Court considered a different, but related, circumstance. A state prisoner brought a § 1983 action for damages, challenging the conduct of state officials who, the prisoner claimed, had unconstitutionally caused his conviction by improperly investigating his crime and destroying evidence. 512 U. S., at 479. The Court pointed to ""the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments."" Id., at 486. And it held that where ""establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction,"" id., at 481-482, a § 1983 action will not lie ""unless ... the conviction or sentence has already been invalidated,"" id., at 487. The Court then added that, where the § 1983 action, ""even if successful, will not demonstrate the invalidity of any outstanding criminal judgment ..., the action should be allowed to proceed."" Ibid. (footnote omitted).
+
+Finally, in Edwards v. Balisok, supra, the Court returned to the prison disciplinary procedure context of the kind it had addressed previously in Preiser and Wolff. Balisok sought ""a declaration that the procedures employed by state officials [to deprive him of good-time credits] violated due process, ... damages for use of the unconstitutional procedures, [and] an injunction to prevent future violations."" 520 U. S., at 643. Applying Heck, the Court found that habeas was the sole vehicle for the inmate's constitutional challenge insofar as the prisoner sought declaratory relief and money damages, because the ""principal procedural defect complained of,"" namely, deceit and bias on the part of the decisionmaker, ""would, if established, necessarily imply the invalidity of the deprivation of [Balisok's] good-time credits."" 520 U. S., at 646. Hence, success on the prisoner's claim for money damages (and the accompanying claim for declaratory relief) would ""necessarily imply the invalidity of the punishment imposed."" Id., at 648. Nonetheless, the prisoner's claim for an injunction barring future unconstitutional procedures did not fall within habeas' exclusive domain. That is because ""[o]rdinarily, a prayer for such prospective relief will not `necessarily imply' the invalidity of a previous loss of good-time credits."" Ibid.
+
+Throughout the legal journey from Preiser to Balisok, the Court has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement _x0097_ either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody. Thus, Preiser found an implied exception to § 1983's coverage where the claim seeks _x0097_ not where it simply ""relates to"" _x0097_ ""core"" habeas corpus relief, i. e., where a state prisoner requests present or future release. Cf. post, at 92 (KENNEDY, J., dissenting) (arguing that Preiser covers challenges that ""relate ... to"" the duration of confinement). Wolff makes clear that § 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner. Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence. And Balisok, like Wolff, demonstrates that habeas remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily vitiate the legality of (not previously invalidated) state confinement. These cases, taken together, indicate that a state prisoner's § 1983 action is barred (absent prior invalidation) _x0097_ no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) _x0097_ if success in that action would necessarily demonstrate the invalidity of confinement or its duration.
+
+Applying these principles to the present case, we conclude that respondents' claims are cognizable under § 1983, i. e., they do not fall within the implicit habeas exception. Dotson and Johnson seek relief that will render invalid the state procedures used to deny parole eligibility (Dotson) and parole suitability (Johnson). See Wolff, supra, at 554-555. Neither respondent seeks an injunction ordering his immediate or speedier release into the community. See Preiser, 411 U. S., at 500; Wolff, 418 U. S., at 554. And as in Wolff, a favorable judgment will not ""necessarily imply the invalidity of [their] conviction[s] or sentence[s]."" Heck, supra, at 487. Success for Dotson does not mean immediate release from confinement or a shorter stay in prison; it means at most new eligibility review, which at most will speed consideration of a new parole application. Success for Johnson means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term. See Ohio Rev. Code Ann. § 2967.03 (Lexis 2003) (describing the parole authority's broad discretionary powers); Inmates of Orient Correctional Inst. v. Ohio State Adult Parole Auth., 929 F. 2d 233, 236 (CA6 1991) (same); see also Tr. of Oral Arg. 18 (petitioners' counsel conceding that success on respondents' claims would not inevitably lead to release). Because neither prisoner's claim would necessarily spell speedier release, neither lies at ""the core of habeas corpus."" Preiser, supra, at 489. Finally, the prisoners' claims for future relief (which, if successful, will not necessarily imply the invalidity of confinement or shorten its duration) are yet more distant from that core. See Balisok, supra, at 648.
+
+The dissent disagrees with our legal analysis and advocates use of a different legal standard in critical part because, in its view, (1) a habeas challenge to a sentence (a ""core"" challenge) does not necessarily produce the prisoner's ""release"" (so our standard ""must be ... wrong""), see post, at 88, 91; and (2) Heck's standard is irrelevant because Heck concerned only damages, see post, at 91. As to the first, we believe that a case challenging a sentence seeks a prisoner's ""release"" in the only pertinent sense: It seeks invalidation (in whole or in part) of the judgment authorizing the prisoner's confinement; the fact that the State may seek a new judgment (through a new trial or a new sentencing proceeding) is beside the point. As to the second, Balisok applied Heck's standard and addressed a claim seeking not only damages, but also a separate declaration that the State's procedures were unlawful. See 520 U. S., at 643, 647-648.
+",analysis,The Duration of the Prisoner's Confinement,disagree,The Federal Habeas Claim,disagree,Distinction between a § 1983 action Civil Rights Act of 1871 and a federal habeas corpus action,2
+G2,16,0,1,III,"Ohio makes two additional arguments. First, Ohio points to language in Heck indicating that a prisoner's § 1983 damages action cannot lie where a favorable judgment would ""necessarily imply the invalidity of his conviction or sentence."" 512 U. S., at 487 (emphasis added). Ohio then argues that its parole proceedings are part of the prisoners' ""sentence[s]"" _x0097_ indeed, an aspect of the ""sentence[s]"" that the § 1983 claims, if successful, will invalidate.
+
+We do not find this argument persuasive. In context, Heck uses the word ""sentence"" to refer not to prison procedures, but to substantive determinations as to the length of confinement. See Muhammad v. Close, 540 U. S. 749, 751, n. 1 (2004) (per curiam) (""[T]he incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction""). Heck uses the word ""sentence"" interchangeably with such other terms as ""continuing confinement"" and ""imprisonment."" 512 U. S., at 483, 486; see also Balisok, supra, at 645, 648 (referring to the invalidity of ""the judgment"" or ""punishment imposed""). So understood, Heck is consistent with other cases permitting prisoners to bring § 1983 challenges to prison administrative decisions. See, e. g., Wolff, supra, at 554-555; Muhammad, 540 U. S., at 754; see also ibid. (rejecting ""the mistaken view ... that Heck applies categorically to all suits challenging prison disciplinary proceedings""). Indeed, this Court has repeatedly permitted prisoners to bring § 1983 actions challenging the conditions of their confinement _x0097_ conditions that, were Ohio right, might be considered part of the ""sentence."" See, e. g., Cooper v. Pate, 378 U. S. 546 (1964) (per curiam); Wilwording v. Swenson, 404 U. S. 249, 251 (1971) (per curiam). And this interpretation of Heck is consistent with Balisok, where the Court held the prisoner's suit Heck-barred not because it sought nullification of the disciplinary procedures but rather because nullification of the disciplinary procedures would lead necessarily to restoration of good-time credits and hence the shortening of the prisoner's sentence. 520 U. S., at 646.
+
+Second, Ohio says that a decision in favor of respondents would break faith with principles of federal/state comity by opening the door to federal court without prior exhaustion of state-court remedies. Our earlier cases, however, have already placed the States' important comity considerations in the balance, weighed them against the competing need to vindicate federal rights without exhaustion, and concluded that prisoners may bring their claims without fully exhausting state-court remedies so long as their suits, if established, would not necessarily invalidate state-imposed confinement. See Part II, supra. Thus, we see no reason for moving the line these cases draw _x0097_ particularly since Congress has already strengthened the requirement that prisoners exhaust state administrative remedies as a precondition to any § 1983 action. See 42 U. S. C. § 1997e(a); Porter v. Nussle, 534 U. S. 516, 524 (2002).
+
+For these reasons, the Sixth Circuit's judgment is affirmed, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.",analysis,Ohio's Other Arguments,strongly agree,The Invalidity of the Prisoner's Conviction or Sentence,agree,Rejection of the Petitioner's other arguments,3
+G2,17,0,1,I,"Gloria Zafiro, Jose Martinez, Salvador Garcia, and Alfonso Soto were accused of distributing illegal drugs in the Chicago area, operating primarily out of Soto's bungalow in Chicago and Zafiro's apartment in Cicero, a nearby suburb. One day, Government agents observed Garcia and Soto place a large box in Soto's car and drive from Soto's bungalow to Zafiro's apartment. The agents followed the two as they carried the box up the stairs. When the agents identified themselves, Garcia and Soto dropped the box and ran into the apartment. The agents entered the apartment in pursuit and found the four petitioners in the living room. The dropped box contained 55 pounds of cocaine. After obtaining a search warrant for the apartment, agents found approximately 16 pounds of cocaine, 25 grams of heroin, and 4 pounds of marijuana inside a suitcase in a closet. Next to the suitcase was a sack containing $22,960 in cash. Police officers also discovered 7 pounds of cocaine in a car parked in Soto's garage.
+
+The four petitioners were indicted and brought to trial together. At various points during the proceeding, Garcia and Soto moved for severance, arguing that their defenses were mutually antagonistic. Soto testified that he knew nothing about the drug conspiracy. He claimed that Garcia had asked him for a box, which he gave Garcia, and that he (Soto) did not know its contents until they were arrested. Garcia did not testify, but his lawyer argued that Garcia was innocent: The box belonged to Soto and Garcia was ignorant of its contents.
+
+Zafiro and Martinez also repeatedly moved for severance on the ground that their defenses were mutually antagonistic. Zafiro testified that she was merely Martinez's girlfriend and knew nothing of the conspiracy. She claimed that Martinez stayed in her apartment occasionally, kept some clothes there, and gave her small amounts of money. Although she allowed Martinez to store a suitcase in her closet, she testified, she had no idea that the suitcase contained illegal drugs. Like Garcia, Martinez did not testify. But his lawyer argued that Martinez was only visiting his girlfriend and had no idea that she was involved in distributing drugs.
+
+The District Court denied the motions for severance. The jury convicted all four petitioners of conspiring to possess cocaine, heroin, and marijuana with the intent to distribute. 21 U.S. C. § 846. In addition, Garcia and Soto were convicted of possessing cocaine with the intent to distribute, § 841(a)(1), and Martinez was convicted of possessing cocaine, heroin, and marijuana with the intent to distribute, ibid.
+
+Petitioners appealed their convictions. Garcia, Soto, and Martinez claimed that the District Court abused its discretion in denying their motions to sever. (Zafiro did not appeal the denial of her severance motion, and thus, her claim is not properly before this Court.) The Court of Appeals for the Seventh Circuit acknowledged that ""a vast number of cases say that a defendant is entitled to a severance when the `defendants present mutually antagonistic defenses' in the sense that `the acceptance of one party's defense precludes the acquittal of the other defendant.' "" 945 F.2d 881, 885 (1991) (quoting United States v. Keck, 773 F.2d 759, 765 (CA7 1985)). Noting that ""mutual antagonism . . . and other. . . characterizations of the effort of one defendant to shift the blame from himself to a codefendant neither control nor illuminate the question of severance,"" 945 F.2d, at 886, the Court of Appeals found that the defendants had not suffered prejudice and affirmed the District Court's denial of severance. We granted the petition for certiorari, 503 U.S. 935 (1992), and now affirm the judgment of the Court of Appeals.
+",facts,Proceedings in the District Court,agree,The Drug Conspiracy,agree,Respondents' Motion for severance under Rule 14 regarding their drug conspiracy conviction,1
+G2,17,0,1,II,"Rule 8(b) states that ""[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."" There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials ""play a vital role in the criminal justice system."" Richardson v. Marsh, 481 U.S. 200, 209 (1987). They promote efficiency and ""serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts."" Id., at 210. For these reasons, we repeatedly have approved of joint trials. See ibid.; Opper v. United States, 348 U.S. 84, 95 (1954); United States v. Marchant, 12 Wheat. 480 (1827); cf. 1 C. Wright, Federal Practice and Procedure § 223 (2d ed. 1982) (citing lower court opinions to the same effect). But Rule 14 recognizes that joinder, even when proper under Rule 8(b), may prejudice either a defendant or the Government. Thus, the Rule provides:
+
+""If it appears that a defendant or the government is prejudiced by a joinder of .. . defendants . . . for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."" In interpreting Rule 14, the Courts of Appeals frequently have expressed the view that ""mutually antagonistic"" or ""irreconcilable"" defenses may be so prejudicial in some circumstances as to mandate severance. See, e. g., United States v. Benton, 852 F.2d 1456, 1469 (CA6), cert. denied, 488 U.S. 993 (1988); United States v. Smith, 788 F.2d 663, 668 (CA10 1986); Keck, supra, at 765; United States v. Magdaniel-Mora, 746 F.2d 715, 718 (CA11 1984); United States v. Berkowitz, 662 F.2d 1127, 1133-1134 (CA5 1981); United States v. Haldeman, 181 U. S. App. D. C. 254, 294-295, 559 F.2d 31, 71-72 (1976), cert. denied, 431 U.S. 933 (1977). Notwithstanding such assertions, the courts have reversed relatively few convictions for failure to grant a severance on grounds of mutually antagonistic or irreconcilable defenses. See, e. g., United States v. Tootick, 952 F.2d 1078 (CA9 1991); United States v. Rucker, 915 F.2d 1511, 1512-1513 (CA11 1990); United States v. Romanello, 726 F.2d 173 (CA5 1984). The low rate of reversal may reflect the inability of defendants to prove a risk of prejudice in most cases involving conflicting defenses.
+Nevertheless, petitioners urge us to adopt a bright-line rule, mandating severance whenever codefendants have conflicting defenses. See Brief for Petitioners i. We decline to do so. Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion. See, e. g., United States v. Lane, 474 U.S. 438, 449, n. 12 (1986); Opper, supra, at 95.
+
+We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U.S. 750, 774-775 (1946). Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U.S. 123 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e. g., Tifford v. Wainwright, 588 F.2d 954 (CA5 1979) (per curiam) . The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U.S., at 211.
+
+Turning to the facts of this case, we note that petitioners do not articulate any specific instances of prejudice. Instead they contend that the very nature of their defenses, without more, prejudiced them. Their theory is that when two defendants both claim they are innocent and each accuses the other of the crime, a jury will conclude (1) that both defendants are lying and convict them both on that basis, or (2) that at least one of the two must be guilty without regard to whether the Government has proved its case beyond a reasonable doubt.
+
+As to the first contention, it is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. See, e. g., United States v. Martinez, 922 F.2d 914, 922 (CA1 1991); United States v. Manner, 281 U. S. App. D. C. 89, 98, 887 F.2d 317, 324 (1989), cert. denied, 493 U.S. 1062 (1990). Rules 8(b) and 14 are designed ""to promote economy and efficiency and to avoid a multiplicity of trials, [so long as] these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial."" Bruton, 391 U. S., at 131, n. 6 (internal quotation marks omitted). While ""[a]n important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence,"" ibid. (emphasis added), a fair trial does not include the right to exclude relevant and competent evidence. A defendant normally would not be entitled to exclude the testimony of a former codefendant if the district court did sever their trials, and we see no reason why relevant and competent testimony would be prejudicial merely because the witness is also a codefendant.
+
+As to the second contention, the short answer is that petitioners' scenario simply did not occur here. The Government argued that all four petitioners were guilty and offered sufficient evidence as to all four petitioners; the jury in turn found all four petitioners guilty of various offenses. Moreover, even if there were some risk of prejudice, here it is of the type that can be cured with proper instructions, and ""juries are presumed to follow their instructions."" Richard- son, supra, at 211. The District Court properly instructed the jury that the Government had ""the burden of proving beyond a reasonable doubt"" that each defendant committed the crimes with which he or she was charged. Tr. 864. The court then instructed the jury that it must ""give separate consideration to each individual defendant and to each separate charge against him. Each defendant is entitled to have his or her case determined from his or her own conduct and from the evidence [that] may be applicable to him or to her."" Id., at 865. In addition, the District Court admonished the jury that opening and closing arguments are not evidence and that it should draw no inferences from a defendant's exercise of the right to silence. Id., at 862-864. These instructions sufficed to cure any possibility of prejudice. See Schaffer v. United States, 362 U.S. 511, 516 (1960).
+
+Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts. Because petitioners have not shown that their joint trial subjected them to any legally cognizable prejudice, we conclude that the District Court did not abuse its discretion in denying petitioners' motions to sever. The judgment of the Court of Appeals is
+
+Affirmed.",analysis,Joinder and Severance,agree,Joint Trials,disagree,Refusal to grant motion for severance to co-defendants without proven risk of prejudice from a joint trial,2
+G6,1,0,1,I,"The facts are not in dispute. Respondent Perini North River Associates (Perini) contracted to build the foundation of a sewage treatment plant that extends approximately 700 feet over the Hudson River between 135th and 145th Streets in Manhattan. The project required that Perini place large, hollow circular pipes called caissons in the river, down to embedded rock, fill the caissons with concrete, connect the caissons together above the water with concrete beams, and place precast concrete slabs on the beams. The caissons were delivered by rail to the shore, where they were loaded onto supply barges and towed across the river to await unloading and installation.
+
+The injured worker, Raymond Churchill, was an employee of Perini in charge of all work performed on a cargo barge used to unload caissons and other materials from the supply barges and to set caissons in position for insertion into the embedded rock. Churchill was on the deck of the cargo barge giving directions to a crane operator engaged in unloading a caisson from a supply barge when a line used to keep the caissons in position snapped and struck Churchill. He sustained injuries to his head, leg, and thumb.[4]
+
+Churchill filed a claim for compensation under the LHWCA. Perini denied that Churchill was covered by the Act, and after a formal hearing pursuant to § 19 of the Act, 33 U.S. C. § 919 (1976 ed. and Supp. V), an Administrative Law Judge determined that Churchill was not ""engaged in maritime employment"" under § 2(3) of the Act because his job lacked ""some relationship to navigation and commerce on navigable waters."" App. to Pet. for Cert. 31a. Churchill and the Director, Office of Workers' Compensation Programs *301 (Director), appealed to the Benefits Review Board, pursuant to § 21(b)(3) of the Act, 33 U.S. C. § 921(b)(3). The Board affirmed the Administrative Law Judge's denial of coverage, on the theory that marine construction workers involved in building facilities not ultimately used in navigation or commerce upon navigable waters are not engaged in ""maritime employment."" 12 BRBS 929, 933 (1980).[5] One Board Member dissented, arguing that ""all injuries sustained in the course of employment by employees over `navigable waters' as that term was defined prior to the 1972 Amendments, are covered under the [amended] Act."" Id., at 935.[6]
+
+Churchill then sought review of the Board's decision in the Court of Appeals for the Second Circuit, under § 21(c) of the Act, 33 U.S. C. § 921(c).[7] The Director participated as respondent, and filed a brief in support of Churchill's position. The Second Circuit denied Churchill's petition, relying on its decision in Fusco v. Perini North River Associates, 622 F.2d 1111 (1980), cert. denied, 449 U.S. 1131 (1981). According to the Second Circuit, Churchill was not in ""maritime employment"" because his employment lacked a "" `significant relationship to navigation or to commerce on navigable waters.' "" Churchill v. Perini North River Associates, 652 F.2d 255, 256, n. 1 (1981). The Director now seeks review of the Second Circuit denial of Churchill's petition. The Director agrees with the position taken by the dissenting member of the Benefits Review Board: the LHWCA does not require *302 that an employee show that his employment possesses a ""significant relationship to navigation or to commerce,"" where, as here, the employee is injured while working upon the actual navigable waters in the course of his employment, and would have been covered under the pre-1972 LHWCA.[8]",facts,the accident and the lhwca,agree,The LHWCA Claim,strongly agree,Petitioner's Claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA),1
+G6,1,0,1,II,"Before we consider whether Churchill is covered by the Act, we must address Perini's threshold contention that the Director does not have standing to seek review of the decision below. According to Perini, the Director's only interest in this case is in furthering a different interpretation of the Act than the one rendered by the Administrative Law Judge, the Benefits Review Board, and the Court of Appeals.[9]
+
+Perini's claim ignores the procedural posture in which this case comes before the Court. That posture makes it unnecessary for us to consider whether the Director, as the agency *303 official ""responsible for the administration and enforcement"" of the Act,[10] has standing as an aggrieved party to seek review of the decision below.[11] The Director is not alone in arguing that Churchill is covered under the LHWCA. Churchill, the injured employee, is before the Court as well. He has filed a brief in support of the Director's request for a writ of certiorari, and a brief addressing the merits of his claim, in which he presents the same arguments presented by the Director. But, for some reason that is not entirely clear, Churchill has not elected to seek review as a petitioner, and by virtue of the Rules of this Court, he is considered a party *304 respondent.[12] It is in this procedural context that Perini's challenge to Art. III standing must be considered. Perini concedes that the Director was a proper party respondent before the Court of Appeals in this litigation.[13] As party respondent below, the Director is entitled under 28 U.S. C. § 1254(1) to petition for a writ of certiorari. Although the Director has statutory authority to seek review in this Court, he may not have Art. III standing to argue the merits of Churchill's claim because the Director's presence does not guarantee the existence of a justiciable controversy with respect to the merits of Churchill's coverage under the LHWCA. However, the Director's petition makes Churchill an automatic respondent under our Rule 19.6, and in that capacity, Churchill ""may seek reversal of the judgment of the Court of Appeals on any ground urged in that court."" O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 783-784, n. 14 (1980). The Director's petition, filed under 28 *305 U. S. C. § 1254(1), brings Churchill before this Court, and there is no doubt that Churchill, as the injured employee, has a sufficient interest in this question to give him standing to urge our consideration of the merits of the Second Circuit decision.
+
+The constitutional dimension of standing theory requires, at the very least, that there be an ""actual injury redressable by the court."" Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976). This requirement is meant ""to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action,"" as well as to assure ""an actual factual setting in which the litigant asserts a claim of injury in fact."" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). The presence of Churchill as a party respondent arguing for his coverage under the Act assures that an admittedly justiciable controversy is now before the Court.",analysis,Art. III Standing,disagree,The Director's Standing,strongly agree,The Director's Standing to Seek Review,2
+G6,1,0,1,III,"The question of Churchill's coverage is an issue of statutory construction and legislative intent. For reasons that we explain below, there is no doubt that Churchill, as a marine construction worker injured upon actual navigable waters in the course of his employment upon those waters, would have been covered by the LHWCA before Congress amended it in 1972. In deciding whether Congress intended to restrict the scope of coverage by adding the § 2(3) status requirement, we must consider the scope of coverage under the pre-1972 Act and our cases construing the relevant portions of that Act. We must then focus on the legislative history and purposes of the 1972 Amendments to the LHWCA to determine their effect on pre-existing coverage.
+
+*306 Beginning with our decision in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), we held that there were certain circumstances in which States could not, consistently with Art. III, § 2, of the Constitution, provide compensation to injured maritime workers.[14] If the employment of an injured worker was determined to have no ""direct relation"" to navigation or commerce, and ""the application of local law [would not] materially affect"" the uniformity of maritime law, then the employment would be characterized as ""maritime but local,"" and the State could provide a compensation remedy. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477 (1922). See also Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921). If the employment could not be characterized as ""maritime but local,"" then the injured employee would be left without a compensation remedy.
+
+After several unsuccessful attempts to permit state compensation remedies to apply to injured maritime workers whose employment was not local,[15] Congress passed the LHWCA in 1927, 44 Stat. (part 2) 1424. Under the original statutory scheme, a worker had to satisfy five primary conditions in order to be covered under the Act. First, the worker had to satisfy the ""negative"" definition of ""employee"" contained in § 2(3) of the 1927 Act in that he could not be a ""master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."" Id., at 1425.[16] Second, the *307 worker had to suffer an ""injury"" defined by § 2(2) as ""accidental injury or death arising out of and in the course of employment. . . ."" Ibid. Third, the worker had to be employed by a statutory ""employer,"" defined by § 2(4) as ""an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock)."" Ibid.[17] Fourth, the worker had to meet a ""situs"" requirement contained in § 3(a) of the Act that limited coverage to workers whose ""disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock)."" Id., at 1426. Fifth, § 3(a) precluded federal compensation unless ""recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law."" Ibid.
+
+Federal compensation under the LHWCA did not initially extend to all maritime employees injured on the navigable waters in the course of their employment. As mentioned, § 3(a) of the 1927 Act permitted federal compensation only if compensation ""may not validly be provided by State law."" Ibid. This language was interpreted to exclude from LHWCA coverage those employees whose employment was ""maritime but local."" See, e. g., Crowell v. Benson, 285 U.S. 22 (1932). Application of the ""maritime but local"" doctrine required case-by-case determinations, and a worker was often required to make a perilous jurisdictional ""guess"" as to which of two mutually exclusive compensation schemes was applicable to cover his injury. Employers faced uncertainty as to whether their contributions to a state insurance fund would be sufficient to protect them from liability.
+
+In Davis v. Department of Labor, 317 U.S. 249 (1942), this Court recognized that despite its many cases involving the *308 ""maritime but local"" doctrine, it had ""been unable to give any guiding, definite rule to determine the extent of state power in advance of litigation . . . ."" Id., at 253. Employees and employers alike were thrust on ""[t]he horns of [a] jurisdictional dilemma."" Id., at 255.[18]Davis involved an employee *309 who was injured while dismantling a bridge from a standing position on a barge. We upheld the application of the state compensation law in Davis not because the employee was engaged in ""maritime but local"" employment, but because we viewed the case as in a ""twilight zone"" of concurrent jurisdiction where LHWCA coverage was available and where the applicability of state law was difficult to determine. We held that doubt concerning the applicability of state compensation Acts was to be resolved in favor of the constitutionality of the state remedy. Relying in part on Davis, the Court in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), created further overlap between federal and state coverage for injured maritime workers. In Calbeck, we held that the LHWCA was ""designed to ensure that a compensation remedy existed for all injuries sustained by employees [of statutory employers] on navigable waters, and to avoid uncertainty as to the source, state or federal, of that remedy."" Id., at 124. Our examination in Calbeck of the ""complete legislative history"" of the 1927 LHWCA revealed that Congress did not intend to incorporate the ""maritime but local"" doctrine in the Act. Id., at 120. ""Congress used the phrase `if recovery . . . may not validly be provided by State law' in a sense consistent with the delineation of coverage as reaching injuries occurring on navigable waters."" Id., at 126.[19]
+
+Before 1972, there was little litigation concerning whether an employee was ""in maritime employment"" for purposes of being the employee of a statutory employer: ""Workers who *310 are not seamen but who nevertheless suffer injury on navigable waters are no doubt (or so the courts have been willing to assume) engaged in `maritime employment.' "" G. Gilmore & C. Black, Law of Admiralty 428 (2d ed. 1975) (Gilmore & Black). One case in which we did discuss the maritime employment requirement was Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941). In Parker, the injured worker, hired as a janitor, was drowned while riding in one of his employer's motorboats keeping lookout for hidden objects under the water. When the employee's beneficiary sought LHWCA compensation, the employer argued that the employment was "" `so local in character' "" that the State could validly have provided a remedy, and the § 3(a) language (""if recovery . . . may not validly be provided by State law"") precluded federal relief. Id., at 246. A unanimous Court rejected the employer's argument, and held that the employee was engaged in maritime employment and that LHWCA coverage extended to an employee injured on the navigable waters in the course of his employment, without any further inquiry whether the injured worker's employment had a direct relation to navigation or commerce.[20] In abolishing the ""jurisdictional dilemma"" created by the ""maritime but local"" doctrine, Calbeck relied heavily on Parker, see 370 U.S., at 127-128.
+
+*311 It becomes clear from this discussion that the 1927 Act, as interpreted by Parker, Davis, and Calbeck, provided coverage to those employees of statutory ""employers,"" injured while working upon navigable waters in the course of their employment. Indeed, the consistent interpretation given to the LHWCA before 1972 by the Director, the Deputy Commissioners, the courts, and the commentators was that (except for those workers specifically excepted in the statute), any worker injured upon navigable waters in the course of employment was ""covered . . . without any inquiry into what he was doing (or supposed to be doing) at the time of his injury."" Gilmore & Black, at 429-430.[21] As a marine construction *312 worker required to work upon navigable waters, and injured while performing his duties on navigable waters, there can be no doubt that Churchill would have been covered under the 1927 LHWCA.
+
+In its ""first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it,"" Congress amended the LHWCA in 1972. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977). The purposes of the 1972 Amendments were to raise the amount of compensation available under the LHWCA, to extend coverage of the Act to include certain contiguous land areas, to eliminate the longshoremen's strict-liability seaworthiness remedy against shipowners, to eliminate shipowner's claims for indemnification from stevedores, and to promulgate certain administrative reforms. See S. Rep. No. 92-1125, p. 1 (1972) (hereinafter S. Rep.); H. R. Rep. No. 92-1441 (1972) (hereinafter H. R. Rep.).
+For purposes of the present inquiry, the important changes effected by the 1972 Amendments concerned the definition of ""employee"" in § 2(3), 33 U.S. C. § 902(3), and the description of coverage in § 3(a), 33 U.S. C. § 903(a). These amended sections provide:
+""The term `employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."" § 2(3), 33 U.S. C. § 902(3).""Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel) . . . ."" § 3(a), as set forth in 33 U.S. C. § 903(a).[22]
+""The 1972 Amendments thus changed what had been essentially only a `situs' test of eligibility for compensation to one looking to both the `situs' of the injury and the `status' of the injured."" Northeast Marine Terminal Co., supra, at 264-265. In expanding the covered situs in § 3(a), Congress also removed the requirement, present in § 3(a) of the 1927 Act, that federal compensation would be available only if recovery ""may not validly be provided by State law."" The definition of ""injury"" remained the same,[23] and the definition of ""employer"" was changed to reflect the new definition of ""employee"" in § 2(3).[24]
+The Director and Churchill claim that when Congress added the status requirement in § 3(a), providing that a covered employee must be ""engaged in maritime employment,"" it intended to restrict or define the scope of the increased coverage provided by the expanded situs provision in § 3(a), but that Congress had no intention to exclude from coverage workers, like Churchill, who were injured upon actual navigable waters, i. e., navigable waters as previously defined, in the course of their employment upon those waters.
+According to Perini, Congress intended to overrule legislatively this Court's decision in Calbeck, and the status requirement was added to ensure that both the landward coverage and seaward coverage would depend on the nature of the employee's duties at the time he was injured. Perini's theory, adopted by the court below, is that all coverage under the amended LHWCA requires employment having a ""significant relationship to navigation or to commerce on navigable waters.""[25] Perini argues further that Churchill cannot meet the status test because he was injured while working on the construction of a foundation for a sewage treatment plant — an activity not typically associated with navigation or commerce on navigable waters.
+We agree with the Director and Churchill. We are unable to find any congressional intent to withdraw coverage of the LHWCA from those workers injured on navigable waters in the course of their employment, and who would have been covered by the Act before 1972. As we have long held, ""[t]his Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results."" Voris v. Eikel, 346 U.S. 328, 333 (1953). See also Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414 (1932); Northeast Marine Terminal Co., 432 U. S., at 268.
+It is necessary to consider the context in which the 1972 Amendments were passed, especially as that context relates directly to the coverage changes that were effected. Despite the fact that Calbeck extended protection of the LHWCA to all employees injured upon navigable waters in the course of their employment, LHWCA coverage still stopped at the water's edge — a line of demarcation established by Jensen. In Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969), we held that the LHWCA did not extend to longshoremen whose injuries occurred on the pier attached to the land. We recognized that there was much to be said for the uniform treatment of longshoremen irrespective of whether they were performing their duties upon the navigable waters (in which case they would be covered under Calbeck), or whether they were performing those same duties on a pier. We concluded, however, that although Congress could exercise its authority to cover land-based maritime activity, ""[t]he invitation to move that [Jensen] line landward must be addressed to Congress, not to this Court."" 396 U.S., at 224. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 216 (1971).
+""Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972."" P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73 (1979). The 1972 Amendments were enacted after Committees in both the House and Senate prepared full Reports that summarized the general purposes of the legislation and contained an analysis of the changes proposed for each section. See S. Rep., supra; H. R. Rep., supra. These legislative Reports indicate clearly that Congress intended to ""extend coverage to protect additional workers."" S. Rep., at 1 (emphasis added).[26] Although the legislative history surrounding the addition of the status requirement is not as clear as that concerning the reasons for the extended situs, it is clear that ""with the definition of `navigable waters' expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate."" Northeast Marine Terminal Co., supra, at 264. This necessity gave rise to the status requirement: ""The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity."" S. Rep., at 13; H. R. Rep., at 11. This comment indicates that Congress intended the status requirement to define the scope of the extended landward coverage.[27]
+There is nothing in these comments, or anywhere else in the legislative Reports, to suggest, as Perini claims, that Congress intended the status language to require that an employee injured upon the navigable waters in the course of his employment had to show that his employment possessed a direct (or substantial) relation to navigation or commerce in order to be covered. Congress was concerned with injuries on land, and assumed that injuries occurring on the actual navigable waters were covered, and would remain covered.[28] In discussing the added status requirement, the Senate Report states explicitly that the ""maritime employment"" requirement in § 3(a) was not meant to ""exclude other employees traditionally covered."" S. Rep., at 16. We may presume ""that our elected representatives, like other citizens, know the law,"" Cannon v. University of Chicago, 441 U.S. 677, 696-697 (1979), and that their use of ""employees traditionally covered"" was intended to refer to those employees included in the scope of coverage under Parker, Davis, and Calbeck.[29]
+Other aspects of the statutory scheme support our understanding of the ""maritime employment"" status requirement. Congress removed from § 3(a) the requirement that, as a prerequisite to federal coverage, there can be no valid recovery under state law.[30] As we noted in our discussion in Part III-A, supra, the continued use of the ""maritime but local"" doctrine occurred after passage of the 1927 Act because the original coverage section contained this requirement that Congress explicitly deleted in 1972. Surely, if Congress wished to repeal Calbeck and other cases legislatively, it would do so by clear language and not by removing from the statute the exact phrase that Calbeck found was responsible for continued emphasis on the ""maritime but local"" doctrine.[31]
+Congressional intent to adhere to Calbeck is also indicated by the fact that the legislative Reports clearly identified those decisions that Congress wished to overrule by the 1972 Amendments. As mentioned above, the 1972 Amendments had other purposes apart from an expansion of coverage to shoreside areas. Two other purposes involved the elimination of a strict-liability unseaworthiness remedy against a vessel owner afforded to longshoremen by Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and an indemnity claim against the stevedore by the vessel owner afforded by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124 (1956). The legislative Reports explicitly identified these decisions as intended to be overruled legislatively by the 1972 Amendments. See S. Rep., at 8-12; H. R. Rep., at 4-8. It is, therefore, highly unlikely that Congress would have intended to return to the ""jurisdictional monstrosity"" that Calbeck sought to lay to rest without at least some indication of its intent to do so.
+In considering the scope of the status test as applied to land-based employees in Northeast Marine Terminal Co., we rejected the ""point of rest"" theory proposed by the employer, under which landward coverage under the 1972 Amendments would include only the portion of the unloading process that takes place before longshoremen place the cargo onto the dock. We reasoned that the ""point of rest"" concept is ""[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage . . . ."" The absence of the concept, ""claimed to be so well known in the industry is both conspicuous and telling."" 432 U.S., at 278-279, 275. In the same sense, the absence of even the slightest congressional allusion to the ""maritime but local"" doctrine, a concept that plagued maritime compensation law for over 40 years and that would have the effect of restricting coverage in the face of congressional intent not to ""exclude other employees traditionally covered,"" is equally conspicuous and telling.
+Finally, we note that our conclusion concerning the continued coverage of employees injured on actual navigable waters in the course of their employment is consistent with, and supported by, our recent decision in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). In Sun Ship, the issue before the Court was whether extended shoreside coverage under the 1972 Amendments had the effect of displacing concurrent state remedies for landward injuries. After a review of the development of the ""maritime but local"" doctrine, and review of certain portions of the legislative history of the 1972 Amendments, we concluded that those Amendments were not intended to resurrect the dilemma, created by mutually exclusive spheres of jurisdiction, that Calbeck and Davis eliminated. Our reasoning was based, in part, on the removal by Congress of the language in the 1927 Act that made federal compensation available if recovery could not validly be provided by state law: ""[T]he deletion of that language in 1972 — if it indicates anything — may logically only imply acquiescence in Calbec[k] . . . ."" 447 U.S., at 721.
+Sun Ship held that with respect to land-based injuries, ""the . . . extension of federal jurisdiction supplements, rather than supplants, state compensation law."" Id., at 720. If we were to hold that the addition of the status requirement was meant to exclude from coverage some employees injured on the actual navigable waters in the course of their employment, a most peculiar result would follow. Concurrent jurisdiction will exist with respect to the class of employees to whom Congress extended protection in 1972, while employees ""traditionally covered"" before 1972 would be faced with a hazardous pre-Davis choice of two exclusive jurisdictions from which to seek compensation. Such an anomalous result could not have been intended by Congress. We also note that a return to exclusive spheres of jurisdiction for workers injured upon the actual navigable waters would be inconsistent with express congressional desire to extend LHWCA jurisdiction landward in light of the inadequacy of most state compensation systems. See S. Rep., at 12; H. R. Rep., at 10.
+In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the ""maritime employment"" language.[32] We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3), and is covered under the LHWCA, providing, of course, that he is the employee of a statutory ""employer,"" and is not excluded by any other provision of the Act.[33] We consider these employees to be ""engaged in maritime employment"" not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters.[34]",analysis,Statutory Construction and Legislative Intent,strongly agree,The scope of coverage under the LHWCA,agree,Analysis and verification of Longshoremen's and Harbor Workers' Compensation Act (LHWCA) requirements in the specific case,3
+G6,1,0,2,B,"In its ""first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it,"" Congress amended the LHWCA in 1972. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977). The purposes of the 1972 Amendments were to raise the amount of compensation available under the LHWCA, to extend coverage of the Act to include certain contiguous land areas, to eliminate the longshoremen's strict-liability seaworthiness remedy against shipowners, to eliminate shipowner's claims for indemnification from stevedores, and to promulgate certain administrative reforms. See S. Rep. No. 92-1125, p. 1 (1972) (hereinafter S. Rep.); H. R. Rep. No. 92-1441 (1972) (hereinafter H. R. Rep.).
+For purposes of the present inquiry, the important changes effected by the 1972 Amendments concerned the definition of ""employee"" in § 2(3), 33 U.S. C. § 902(3), and the description of coverage in § 3(a), 33 U.S. C. § 903(a). These amended sections provide:
+""The term `employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."" § 2(3), 33 U.S. C. § 902(3).""Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel) . . . ."" § 3(a), as set forth in 33 U.S. C. § 903(a).[22]
+""The 1972 Amendments thus changed what had been essentially only a `situs' test of eligibility for compensation to one looking to both the `situs' of the injury and the `status' of the injured."" Northeast Marine Terminal Co., supra, at 264-265. In expanding the covered situs in § 3(a), Congress also removed the requirement, present in § 3(a) of the 1927 Act, that federal compensation would be available only if recovery ""may not validly be provided by State law."" The definition of ""injury"" remained the same,[23] and the definition of ""employer"" was changed to reflect the new definition of ""employee"" in § 2(3).[24]
+The Director and Churchill claim that when Congress added the status requirement in § 3(a), providing that a covered employee must be ""engaged in maritime employment,"" it intended to restrict or define the scope of the increased coverage provided by the expanded situs provision in § 3(a), but that Congress had no intention to exclude from coverage workers, like Churchill, who were injured upon actual navigable waters, i. e., navigable waters as previously defined, in the course of their employment upon those waters.
+According to Perini, Congress intended to overrule legislatively this Court's decision in Calbeck, and the status requirement was added to ensure that both the landward coverage and seaward coverage would depend on the nature of the employee's duties at the time he was injured. Perini's theory, adopted by the court below, is that all coverage under the amended LHWCA requires employment having a ""significant relationship to navigation or to commerce on navigable waters.""[25] Perini argues further that Churchill cannot meet the status test because he was injured while working on the construction of a foundation for a sewage treatment plant — an activity not typically associated with navigation or commerce on navigable waters.
+We agree with the Director and Churchill. We are unable to find any congressional intent to withdraw coverage of the LHWCA from those workers injured on navigable waters in the course of their employment, and who would have been covered by the Act before 1972. As we have long held, ""[t]his Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results."" Voris v. Eikel, 346 U.S. 328, 333 (1953). See also Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414 (1932); Northeast Marine Terminal Co., 432 U. S., at 268.
+It is necessary to consider the context in which the 1972 Amendments were passed, especially as that context relates directly to the coverage changes that were effected. Despite the fact that Calbeck extended protection of the LHWCA to all employees injured upon navigable waters in the course of their employment, LHWCA coverage still stopped at the water's edge — a line of demarcation established by Jensen. In Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969), we held that the LHWCA did not extend to longshoremen whose injuries occurred on the pier attached to the land. We recognized that there was much to be said for the uniform treatment of longshoremen irrespective of whether they were performing their duties upon the navigable waters (in which case they would be covered under Calbeck), or whether they were performing those same duties on a pier. We concluded, however, that although Congress could exercise its authority to cover land-based maritime activity, ""[t]he invitation to move that [Jensen] line landward must be addressed to Congress, not to this Court."" 396 U.S., at 224. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 216 (1971).
+""Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972."" P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73 (1979). The 1972 Amendments were enacted after Committees in both the House and Senate prepared full Reports that summarized the general purposes of the legislation and contained an analysis of the changes proposed for each section. See S. Rep., supra; H. R. Rep., supra. These legislative Reports indicate clearly that Congress intended to ""extend coverage to protect additional workers."" S. Rep., at 1 (emphasis added).[26] Although the legislative history surrounding the addition of the status requirement is not as clear as that concerning the reasons for the extended situs, it is clear that ""with the definition of `navigable waters' expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate."" Northeast Marine Terminal Co., supra, at 264. This necessity gave rise to the status requirement: ""The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity."" S. Rep., at 13; H. R. Rep., at 11. This comment indicates that Congress intended the status requirement to define the scope of the extended landward coverage.[27]
+There is nothing in these comments, or anywhere else in the legislative Reports, to suggest, as Perini claims, that Congress intended the status language to require that an employee injured upon the navigable waters in the course of his employment had to show that his employment possessed a direct (or substantial) relation to navigation or commerce in order to be covered. Congress was concerned with injuries on land, and assumed that injuries occurring on the actual navigable waters were covered, and would remain covered.[28] In discussing the added status requirement, the Senate Report states explicitly that the ""maritime employment"" requirement in § 3(a) was not meant to ""exclude other employees traditionally covered."" S. Rep., at 16. We may presume ""that our elected representatives, like other citizens, know the law,"" Cannon v. University of Chicago, 441 U.S. 677, 696-697 (1979), and that their use of ""employees traditionally covered"" was intended to refer to those employees included in the scope of coverage under Parker, Davis, and Calbeck.[29]
+Other aspects of the statutory scheme support our understanding of the ""maritime employment"" status requirement. Congress removed from § 3(a) the requirement that, as a prerequisite to federal coverage, there can be no valid recovery under state law.[30] As we noted in our discussion in Part III-A, supra, the continued use of the ""maritime but local"" doctrine occurred after passage of the 1927 Act because the original coverage section contained this requirement that Congress explicitly deleted in 1972. Surely, if Congress wished to repeal Calbeck and other cases legislatively, it would do so by clear language and not by removing from the statute the exact phrase that Calbeck found was responsible for continued emphasis on the ""maritime but local"" doctrine.[31]
+Congressional intent to adhere to Calbeck is also indicated by the fact that the legislative Reports clearly identified those decisions that Congress wished to overrule by the 1972 Amendments. As mentioned above, the 1972 Amendments had other purposes apart from an expansion of coverage to shoreside areas. Two other purposes involved the elimination of a strict-liability unseaworthiness remedy against a vessel owner afforded to longshoremen by Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and an indemnity claim against the stevedore by the vessel owner afforded by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124 (1956). The legislative Reports explicitly identified these decisions as intended to be overruled legislatively by the 1972 Amendments. See S. Rep., at 8-12; H. R. Rep., at 4-8. It is, therefore, highly unlikely that Congress would have intended to return to the ""jurisdictional monstrosity"" that Calbeck sought to lay to rest without at least some indication of its intent to do so.
+In considering the scope of the status test as applied to land-based employees in Northeast Marine Terminal Co., we rejected the ""point of rest"" theory proposed by the employer, under which landward coverage under the 1972 Amendments would include only the portion of the unloading process that takes place before longshoremen place the cargo onto the dock. We reasoned that the ""point of rest"" concept is ""[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage . . . ."" The absence of the concept, ""claimed to be so well known in the industry is both conspicuous and telling."" 432 U.S., at 278-279, 275. In the same sense, the absence of even the slightest congressional allusion to the ""maritime but local"" doctrine, a concept that plagued maritime compensation law for over 40 years and that would have the effect of restricting coverage in the face of congressional intent not to ""exclude other employees traditionally covered,"" is equally conspicuous and telling.
+Finally, we note that our conclusion concerning the continued coverage of employees injured on actual navigable waters in the course of their employment is consistent with, and supported by, our recent decision in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). In Sun Ship, the issue before the Court was whether extended shoreside coverage under the 1972 Amendments had the effect of displacing concurrent state remedies for landward injuries. After a review of the development of the ""maritime but local"" doctrine, and review of certain portions of the legislative history of the 1972 Amendments, we concluded that those Amendments were not intended to resurrect the dilemma, created by mutually exclusive spheres of jurisdiction, that Calbeck and Davis eliminated. Our reasoning was based, in part, on the removal by Congress of the language in the 1927 Act that made federal compensation available if recovery could not validly be provided by state law: ""[T]he deletion of that language in 1972 — if it indicates anything — may logically only imply acquiescence in Calbec[k] . . . ."" 447 U.S., at 721.
+Sun Ship held that with respect to land-based injuries, ""the . . . extension of federal jurisdiction supplements, rather than supplants, state compensation law."" Id., at 720. If we were to hold that the addition of the status requirement was meant to exclude from coverage some employees injured on the actual navigable waters in the course of their employment, a most peculiar result would follow. Concurrent jurisdiction will exist with respect to the class of employees to whom Congress extended protection in 1972, while employees ""traditionally covered"" before 1972 would be faced with a hazardous pre-Davis choice of two exclusive jurisdictions from which to seek compensation. Such an anomalous result could not have been intended by Congress. We also note that a return to exclusive spheres of jurisdiction for workers injured upon the actual navigable waters would be inconsistent with express congressional desire to extend LHWCA jurisdiction landward in light of the inadequacy of most state compensation systems. See S. Rep., at 12; H. R. Rep., at 10.
+In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the ""maritime employment"" language.[32] We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3), and is covered under the LHWCA, providing, of course, that he is the employee of a statutory ""employer,"" and is not excluded by any other provision of the Act.[33] We consider these employees to be ""engaged in maritime employment"" not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters.[34]",facts,The 1972 Amendments to the LHWCA,strongly agree,1972 Amendments to the LHWCA,strongly agree,Historical review of the amendments of the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA),2
+G6,1,0,1,IV,"In conclusion, we are unable to find anything in the legislative history or in the 1972 Amendments themselves that indicate that Congress intended to withdraw coverage from employees injured on the navigable waters in the course of their employment as that coverage existed before the 1972 Amendments. On the contrary, the legislative history indicates that Congress did not intend to ""exclude other employees traditionally covered."" Moreover, Congress explicitly deleted the language from § 3(a) that we found in Calbeck to be responsible for the ""jurisdictional dilemma"" caused by two mutually exclusive spheres of jurisdiction over maritime injuries. Accordingly, the decision of the Court of Appeals is hereby reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
+
+It is so ordered.",conclusion,Legislative History and 1972 Amendments,strongly disagree,The 1972 Amendments and the Court of Appeals' Decision,strongly disagree,Conclusion and resolution of the case,4
+G6,2,0,1,I,"Federal jurisdiction over cases commenced by federal agencies is conferred by 28 U.S. C. § 1345. That section provides:
+
+*85 ""Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.""
+Three limits on this grant of jurisdiction are plain from its text. It applies only to civil litigation ""commenced"" by the federal party; it requires that the agency be ""expressly authorized to sue""; and it is subject to such exceptions as may be ""otherwise provided by Act of Congress."" In view of the fact that this case was commenced by the FSLIC, and the fact that the FSLIC is expressly authorized to sue and be sued,[3] § 1345 supports federal jurisdiction unless another statute otherwise provides. The question, then, is whether 12 U.S. C. § 1730(k)(1) is such a statute.
+
+",analysis,Federal Jurisdiction Over Civil Litigation Committed by Federal Agencies,disagree,Federal Jurisdiction Over Civil Litigation commenced by Federal Agency,strongly agree,Federal Jurisdiction Over Civil Litigation Commenced by Federal Agency,1
+G6,2,0,1,II,"The text of § 1730(k)(1)[4] indicates that it is a statute that confirms and enlarges federal-court jurisdiction over cases to which the FSLIC is a party. It does so in two ways.
+
+Prior to the enactment of § 1730(k)(1) in 1966, at least one court had expressed some doubt concerning the FSLIC's status as an agency of the United States for purposes of asserting jurisdiction under § 1345. See Acron Investments, Inc. v. FSLIC, 363 F.2d 236 (CA9), cert. denied, 385 U.S. 970 (1966). Clause (A) of the statute removed that doubt. The manifest purpose of enacting clause (A) was to foreclose the possible argument that § 1345 does not confer federal agency jurisdiction in cases brought by the FSLIC. Thus, clause (A) lends added support to the jurisdictional basis found in § 1345.
+
+*86 In addition, clause (B) enlarges the category of FSLIC litigation over which federal courts have jurisdiction because it covers all civil cases in which the FSLIC ""shall be a party,"" whereas § 1345 applies only to those ""commenced"" by the FSLIC. Thus, the grant of federal jurisdiction in § 1345 is expanded to include cases in which the FSLIC is named as a defendant as well as those in which it intervenes after proceedings are underway. Clause (C) further enlarges federal jurisdiction in cases involving the FSLIC by giving the agency the right to remove civil proceedings from state court to the appropriate federal district court. Thus, placing the proviso to one side for the moment, it is evident that each of the three clauses of § 1730(k)(1) was intended to buttress the FSLIC's access to a federal forum.
+
+There is no doubt that the proviso imposes a limit on this broad grant of federal jurisdiction. It is equally clear, however, that the proviso does not extend to clause (A) and the agency jurisdiction conferred by § 1345. Clause (B) provides that any civil suit in which the FSLIC is a party ""shall be deemed to arise under the laws of the United States."" Clause (C), in turn, permits the FSLIC to remove ""any such action"" to federal court. Accordingly, these jurisdictional grants are predicated on the congressional finding that actions to which the FSLIC is a party ""shall be deemed to arise under the laws of the United States."" The proviso qualifies this finding by describing a subcategory of cases to which the FSLIC is a party that ""shall not be deemed to arise under the laws of the United States."" (Emphasis supplied.) Clause (A), however, does not rely on the presence of a federal question as a jurisdictional prerequisite, but rather confirms that the party-based jurisdiction of § 1345 is applicable in cases brought by the FSLIC. As a result, the proviso's partial retraction of federal-question jurisdiction *87 has no effect on clause (A), and, a fortiori, no effect on § 1345.[5]
+
+The Court of Appeals suggested that notwithstanding the plain language of the statute, Congress must have intended that the proviso apply to clause (A). 832 F.2d, at 1443-1444. The court reasoned that because clause (B) applies to all civil cases in which the FSLIC is a party _x0097_ whether as plaintiff or defendant _x0097_ and because Congress intended to limit this grant of jurisdiction in the manner set out in the proviso, Congress must have intended that the proviso apply to clause (A) as well. To read the proviso otherwise, the court explained, would allow clause (A) ""to grant jurisdiction indirectly in those cases that were deliberately and specifically excluded from the jurisdiction granted by part B."" Id., at 1444. The problem with this argument is that in an attempt to give the proviso full effect as applied to each class of cases that might fall within clause (B), the court renders clause (A) entirely redundant. Moreover, reading the proviso so as not to apply to clause (A) does not fail to give the proviso full effect as applied to clause (B). Clause (B) provides federal-question jurisdiction in any case in which the FSLIC is a party and the proviso limits this grant. The fact that clause (A) and § 1345 may provide agency jurisdiction in some of these same cases does not change the fact that the proviso has a real effect _x0097_ it removes one basis of jurisdiction. We thus conclude that the language of § 1730(k)(1) not only plainly provides that the proviso does not apply to clause (A), but also is given its fullest effect by so reading the statute.
+
+Because the proviso does not apply to clause (A), § 1730 (k)(1) is not an Act of Congress that has ""otherwise provided"" a limitation on the jurisdictional grant in § 1345. Accordingly, *88 the District Court has federal agency jurisdiction over the FSLIC's action.[6]
+
+The judgment of the Court of Appeals is reversed.
+
+It is so ordered.",analysis,The Provisions of Section 1730(k)(1),strongly agree,The Statute's Interpretation of the Statute,strongly disagree,Analysis and Interpretation of the The Provisions of Section 1730(k)(1) by the Supreme Court,2
+G6,4,0,1,I,"Respondent, Sharon Pfennig, holds a credit card initially issued by petitioner Household Credit Services, Inc. (Household), but in which petitioner MBNA America Bank, N. A., now holds an interest through the acquisition of Household's credit card portfolio. Although the terms of respondent's credit card agreement set respondent's credit limit at $2,000, respondent was able to make charges exceeding that limit, subject to a $29 ""over-limit fee"" for each month in which her balance exceeded $2,000.
+
+TILA regulates, inter alia, the substance and form of disclosures that creditors offering ""open end consumer credit plans"" (a term that includes credit card accounts) must make to consumers, § 1637(a), and provides a civil remedy for consumers who suffer damages as a result of a creditor's failure to comply with TILA's provisions, § 1640.[1] When a creditor and a consumer enter into an open-end consumer credit plan, the creditor is required to provide to the consumer a statement for each billing cycle for which there is an outstanding balance due. § 1637(b). The statement must include the account's outstanding balance at the end of the billing period, § 1637(b)(8), and ""[t]he amount of any finance charge added to the account during the period, itemized to show the amounts, if any, due to the application of percentage rates and the amount, if any, imposed as a minimum or fixed charge,"" § 1637(b)(4). A ""finance charge"" is an amount ""payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit."" § 1605(a). The Board has interpreted this definition to exclude ""[c]harges . . . for exceeding a credit limit."" See 12 CFR § 226.4(c)(2) (2004) (Regulation Z). Thus, although respondent's billing statement disclosed the imposition of an over-limit fee when she exceeded her $2,000 credit limit, consistent with Regulation Z, the amount was not included as part of the ""finance charge.""
+
+On August 24, 1999, respondent filed a complaint in the United States District Court for the Southern District of Ohio on behalf of a purported nationwide class of all consumers who were charged or assessed over-limit fees by petitioners. Respondent alleged in her complaint that petitioners allowed her and each of the other putative class members to exceed their credit limits, thereby subjecting them to over-limit fees. Petitioners violated TILA, respondent alleged, by failing to classify the over-limit fees as ""finance charges"" and thereby ""misrepresented the true cost of credit"" to respondent and the other class members. Class Action Complaint in No. C2-99 815, ¶¶ 34-39, App. to Pet. for Cert. A39-A40. Petitioners moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that Regulation Z specifically excludes over-limit fees from the definition of ""finance charge."" 12 CFR § 226.4(c)(2) (2004). The District Court agreed and granted petitioners' motion to dismiss.
+
+On appeal, respondent argued, and the Court of Appeals agreed, that Regulation Z's explicit exclusion of over-limit fees from the definition of ""finance charge"" conflicts with the plain language of 15 U. S. C. § 1605(a). The Court of Appeals first noted that, as a remedial statute, TILA must be liberally interpreted in favor of consumers. 295 F. 3d 522, 528 (CA6 2002). The Court of Appeals then concluded that the over-limit fees in this case were imposed ""incident to the extension of credit"" and therefore fell squarely within § 1605's definition of ""finance charge."" Id., at 528-529. The Court of Appeals' conclusion turned on the distinction between unilateral acts of default and acts of default resulting from consumers' requests for additional credit, exceeding a predetermined credit limit, that creditors grant. Under the Court of Appeals' reasoning, a penalty imposed due to a unilateral act of default would not constitute a ""finance charge."" Id., at 530-531. Respondent alleged in her complaint, however, that petitioners ""allowed [her] to make charges and/or assessed [her] charges that allowed her balance to exceed her credit limit of two thousand dollars,"" App. to Pet. for Cert. A39, ¶ 34, putting her actions under the category of acts of default resulting from consumers' requests for additional credit, exceeding a predetermined credit limit, that creditors grant. The Court of Appeals held that because petitioners ""made an additional extension of credit to [respondent] over and above the alleged `credit limit,'"" id., ¶ 35, and charged the over-limit fee as a condition of this additional extension of credit, the over-limit fee clearly and unmistakably fell under the definition of a ""finance charge."" 295 F. 3d, at 530. Based on its reading of respondent's allegations, the Court of Appeals limited its holding to ""those instances in which the creditor knowingly permits the credit card holder to exceed his or her credit limit and then imposes a fee incident to the extension of that credit."" Id., at 532, n. 5.[2]",facts,Over-limit Fees,agree,Respondent's Credit Card Agreement,agree,Interpretation of Regulation Z as conflicting with 15 U.S.C. § 1605(a) by the Sixth Circuit Court of Appeals,1
+G6,4,0,1,II,"Congress has expressly delegated to the Board the authority to prescribe regulations containing ""such classifications, differentiations, or other provisions"" as, in the judgment of the Board, ""are necessary or proper to effectuate the purposes of [TILA], to prevent circumvention or evasion thereof, or to facilitate compliance therewith."" § 1604(a). Thus, the Court has previously recognized that ""the [Board] has played a pivotal role in `setting [TILA] in motion. . . .'"" Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 566 (1980) (quoting Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315 (1933)). Indeed, ""Congress has specifically designated the [Board] and staff as the primary source for interpretation and application of truth-in-lending law."" 444 U. S., at 566. As the Court recognized in Ford Motor Credit Co., twice since the passage of TILA, Congress has made this intention clear: first by providing a good-faith defense to creditors who comply with the Board's rules and regulations, 88 Stat. 1518, codified at 15 U. S. C. § 1640(f), and, second, by expanding this good-faith defense to creditors who conform to ""any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board to issue such interpretations or approvals,"" 90 Stat. 197, codified as amended, at § 1640(f). 444 U. S., at 566-567.
+
+Respondent does not challenge the Board's authority to issue binding regulations. Thus, in determining whether *239 Regulation Z's interpretation of TILA's text is binding on the courts, we are faced with only two questions. We first ask whether ""Congress has directly spoken to the precise question at issue."" Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). If so, courts, as well as the agency, ""must give effect to the unambiguously expressed intent of Congress."" Id., at 842-843. However, whenever Congress has ""explicitly left a gap for the agency to fill,"" the agency's regulation is ""given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute."" Id., at 843-844.
+
+
+
+TILA itself does not explicitly address whether over-limit fees are included within the definition of ""finance charge."" Congress defined ""finance charge"" as ""all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit."" § 1605(a). The Court of Appeals, however, made no attempt to clarify the scope of the critical term ""incident to the extension of credit."" The Court of Appeals recognized that, ""`[i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.'"" 295 F. 3d, at 529-530 (quoting K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988)). However, the Court of Appeals failed to examine TILA's other provisions, or even the surrounding language in § 1605, before reaching its conclusion. Because petitioners would not have imposed the over-limit fee had they not ""granted [respondent's] request for additional credit, which resulted in her exceeding her credit limit,"" the Court of Appeals held that the over-limit fee in this case fell squarely within § 1605(a)'s definition of ""finance charge."" 295 F. 3d, at 528-529. Thus, the Court of Appeals rested *240 its holding primarily on its particular characterization of the transaction that led to the over-limit charge in this case.[3]
+
+The Court of Appeals' characterization of the transaction in this case, however, is not supported even by the facts as set forth in respondent's complaint. Respondent alleged in her complaint that the over-limit fee is imposed for each month in which her balance exceeds the original credit limit. App. to Pet. for Cert. A39, ¶ 35. If this were true, however, the over-limit fee would be imposed not as a direct result of an extension of credit for a purchase that caused respondent to exceed her $2,000 limit, but rather as a result of the fact that her charges exceeded her $2,000 limit at the time respondent's monthly charges were officially calculated. Because over-limit fees, regardless of a creditor's particular billing practices, are imposed only when a consumer exceeds his credit limit, it is perfectly reasonable to characterize an over-limit fee not as a charge imposed for obtaining an extension of credit over a consumer's credit limit, but rather as a penalty for violating the credit agreement.
+
+The Court of Appeals thus erred in resting its conclusion solely on this particular characterization of the details of credit card transactions, a characterization that is not clearly compelled by the terms and definitions of TILA, and one with which others could reasonably disagree. Certainly, regardless of how the fee is characterized, there is at least some connection between the over-limit fee and an extension of credit. But, this Court has recognized that the phrase *241 ""incident to or in conjunction with"" implies some necessary connection between the antecedent and its object, although it ""does not place beyond rational debate the nature or extent of the required connection."" Holly Farms Corp. v. NLRB, 517 U. S. 392, 403, n. 9 (1996) (internal quotation marks omitted). In other words, the phrase ""incident to"" does not make clear whether a substantial (as opposed to a remote) connection is required. Thus, unlike the Court of Appeals, we cannot conclude that the term ""finance charge"" unambiguously includes over-limit fees. That term, standing alone, is ambiguous.
+
+Moreover, an examination of TILA's related provisions, as well as the full text of § 1605 itself, casts doubt on the Court of Appeals' interpretation of the statute. A consumer holding an open-end credit plan may incur two types of charges _x0097_ finance charges and ""other charges which may be imposed as part of the plan."" §§ 1637(a)(1)-(5). TILA does not make clear which charges fall into each category. But TILA's recognition of at least two categories of charges does make clear that Congress did not contemplate that all charges made in connection with an open-end credit plan would be considered ""finance charges."" And where TILA does explicitly address over-limit fees, it defines them as fees imposed ""in connection with an extension of credit,"" § 1637(c)(1)(B)(iii), rather than ""incident to the extension of credit,"" § 1605(a). Furthermore, none of § 1605's specific examples of charges that fall within the definition of ""finance charge"" includes over-limit or comparable fees. See, e. g., § 1605(a)(2) (""[s]ervice or carrying charge""); § 1605(a)(3) (loan fee or similar charge); § 1605(a)(6) (mortgage broker fees).[4]
+
+*242 As our prior discussion indicates, the best interpretation of the term ""finance charge"" may exclude over-limit fees. But § 1605(a) is, at best, ambiguous, because neither § 1605(a) nor its surrounding provisions provides a clear answer. While we acknowledge that there may be some fees not explicitly addressed by § 1605(a)'s definition of ""finance charge"" but which are unambiguously included in or excluded by that definition, over-limit fees are not such fees.
+
+Because § 1605 is ambiguous, the Board's regulation implementing § 1605 ""is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute."" United States v. Mead Corp., 533 U. S. 218, 227 (2001).
+
+Regulation Z's exclusion of over-limit fees from the term ""finance charge"" is in no way manifestly contrary to § 1605. Regulation Z defines the term ""finance charge"" as ""the cost of consumer credit."" 12 CFR § 226.4 (2004). It specifically excludes from the definition of ""finance charge"" the following:
+
+""(1) Application fees charged to all applicants for credit, whether or not credit is actually extended.
+""(2) Charges for actual unanticipated late payment, for exceeding a credit limit, or for delinquency, default, or a similar occurrence.
+""(3) Charges imposed by a financial institution for paying items that overdraw an account, unless the payment of such items and the imposition of the charge were previously agreed upon in writing.
+""(4) Fees charged for participation in a credit plan, whether assessed on an annual or other periodic basis.
+*243 ""(5) Seller's points.
+""(6) Interest forfeited as a result of an interest reduction required by law on a time deposit used as security for an extension of credit.
+""(7) [Certain fees related to real estate.]
+""(8) Discounts offered to induce payment for a purchase by cash, check, or other means, as provided in section 167(b) of the Act."" § 226.4(c) (emphasis added).
+The Board adopted the regulation to emphasize ""disclosures that are relevant to credit decisions, as opposed to disclosures related to events occurring after the initial credit choice,"" because ""the primary goals of [TILA] are not particularly enhanced by regulatory provisions relating to changes in terms on outstanding obligations and on the effects of the failure to comply with the terms of the obligation."" 45 Fed. Reg. 80649 (1980). The Board's decision to emphasize disclosures that are most relevant to a consumer's initial credit decisions reflects an understanding that ""[m]eaningful disclosure does not mean more disclosure,"" but instead ""describes a balance between `competing considerations of complete disclosure . . . and the need to avoid . . . [informational overload].'"" Ford Motor Credit Co., 444 U. S., at 568 (quoting S. Rep. No. 96-73, p. 3 (1979)). Although the fees excluded from the term ""finance charge"" in Regulation Z (e. g., application charges, late payment charges, and over-limit fees) might be relevant to a consumer's credit decision, the Board rationally concluded that these fees _x0097_ which are not automatically recurring or are imposed only when a consumer defaults on a credit agreement _x0097_ are less relevant to determining the true cost of credit. Because over-limit fees, which are imposed only when a consumer breaches the terms of his credit agreement, can reasonably be characterized as a penalty for defaulting on the credit agreement, the Board's decision to exclude them from the term ""finance charge"" is surely reasonable.
+
+*244 In holding that Regulation Z conflicts with § 1605's definition of the term ""finance charge,"" the Court of Appeals ignored our warning that ""judges ought to refrain from substituting their own interstitial lawmaking for that of the [Board]."" Ford Motor Credit Co., supra, at 568. Despite the Board's rational decision to adopt a uniform rule excluding from the term ""finance charge"" all penalties imposed for exceeding the credit limit, the Court of Appeals adopted a case-by-case approach contingent on whether an act of default was ""unilateral."" Putting aside the lack of textual support for this approach, the Court of Appeals' approach would prove unworkable to creditors and, more importantly, lead to significant confusion for consumers. Under the Court of Appeals' rule, a consumer would be able to decipher if a charge is considered a ""finance charge"" or an ""other charge"" each month only by recalling the details of the particular transaction that caused the consumer to exceed his credit limit. In most cases, the consumer would not even know the relevant facts, which are contingent on the nature of the authorization given by the creditor to the merchant. Moreover, the distinction between ""unilateral"" acts of default and acts of default where a consumer exceeds his credit limit (but has not thereby renegotiated his credit limit and is still subject to the over-limit fee) is based on a fundamental misunderstanding of the workings of the credit card industry. As the Board explained below, a creditor's ""authorization"" of a particular point-of-sale transaction does not represent a final determination that a particular transaction is within a consumer's credit limit because the authorization system is not suited to identify instantaneously and accurately over-limit transactions. Brief for Board of Governors of Federal Reserve System as Amicus Curiae in No. 00-4213 (CA6), pp. 7-9.
+
+Congress has authorized the Board to make ""such classifications, differentiations, or other provisions, and [to] provide for such adjustments and exceptions for any class of transactions, *245 as in the judgment of the Board are necessary or proper to effectuate the purposes of [TILA], to prevent circumvention or evasion thereof, or to facilitate compliance therewith."" § 1604(a). Here, the Board has accomplished all of these objectives by setting forth a clear, easy to apply (and easy to enforce) rule that highlights the charges the Board determined to be most relevant to a consumer's credit decisions. The judgment of the Court of Appeals is therefore reversed.
+
+It is so ordered.",facts,The Board's Authority to Issue Binding Regulations,strongly disagree,The Board's Authority to Issue Binding Regulations,strongly disagree,Interpretation of § 1605 of Truth in Lending Act (TILA) for over-limit fees,2
+G6,4,0,2,A,"TILA itself does not explicitly address whether over-limit fees are included within the definition of ""finance charge."" Congress defined ""finance charge"" as ""all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit."" § 1605(a). The Court of Appeals, however, made no attempt to clarify the scope of the critical term ""incident to the extension of credit."" The Court of Appeals recognized that, ""`[i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.'"" 295 F. 3d, at 529-530 (quoting K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988)). However, the Court of Appeals failed to examine TILA's other provisions, or even the surrounding language in § 1605, before reaching its conclusion. Because petitioners would not have imposed the over-limit fee had they not ""granted [respondent's] request for additional credit, which resulted in her exceeding her credit limit,"" the Court of Appeals held that the over-limit fee in this case fell squarely within § 1605(a)'s definition of ""finance charge."" 295 F. 3d, at 528-529. Thus, the Court of Appeals rested *240 its holding primarily on its particular characterization of the transaction that led to the over-limit charge in this case.[3]
+
+The Court of Appeals' characterization of the transaction in this case, however, is not supported even by the facts as set forth in respondent's complaint. Respondent alleged in her complaint that the over-limit fee is imposed for each month in which her balance exceeds the original credit limit. App. to Pet. for Cert. A39, ¶ 35. If this were true, however, the over-limit fee would be imposed not as a direct result of an extension of credit for a purchase that caused respondent to exceed her $2,000 limit, but rather as a result of the fact that her charges exceeded her $2,000 limit at the time respondent's monthly charges were officially calculated. Because over-limit fees, regardless of a creditor's particular billing practices, are imposed only when a consumer exceeds his credit limit, it is perfectly reasonable to characterize an over-limit fee not as a charge imposed for obtaining an extension of credit over a consumer's credit limit, but rather as a penalty for violating the credit agreement.
+
+The Court of Appeals thus erred in resting its conclusion solely on this particular characterization of the details of credit card transactions, a characterization that is not clearly compelled by the terms and definitions of TILA, and one with which others could reasonably disagree. Certainly, regardless of how the fee is characterized, there is at least some connection between the over-limit fee and an extension of credit. But, this Court has recognized that the phrase *241 ""incident to or in conjunction with"" implies some necessary connection between the antecedent and its object, although it ""does not place beyond rational debate the nature or extent of the required connection."" Holly Farms Corp. v. NLRB, 517 U. S. 392, 403, n. 9 (1996) (internal quotation marks omitted). In other words, the phrase ""incident to"" does not make clear whether a substantial (as opposed to a remote) connection is required. Thus, unlike the Court of Appeals, we cannot conclude that the term ""finance charge"" unambiguously includes over-limit fees. That term, standing alone, is ambiguous.
+
+Moreover, an examination of TILA's related provisions, as well as the full text of § 1605 itself, casts doubt on the Court of Appeals' interpretation of the statute. A consumer holding an open-end credit plan may incur two types of charges _x0097_ finance charges and ""other charges which may be imposed as part of the plan."" §§ 1637(a)(1)-(5). TILA does not make clear which charges fall into each category. But TILA's recognition of at least two categories of charges does make clear that Congress did not contemplate that all charges made in connection with an open-end credit plan would be considered ""finance charges."" And where TILA does explicitly address over-limit fees, it defines them as fees imposed ""in connection with an extension of credit,"" § 1637(c)(1)(B)(iii), rather than ""incident to the extension of credit,"" § 1605(a). Furthermore, none of § 1605's specific examples of charges that fall within the definition of ""finance charge"" includes over-limit or comparable fees. See, e. g., § 1605(a)(2) (""[s]ervice or carrying charge""); § 1605(a)(3) (loan fee or similar charge); § 1605(a)(6) (mortgage broker fees).[4]
+
+*242 As our prior discussion indicates, the best interpretation of the term ""finance charge"" may exclude over-limit fees. But § 1605(a) is, at best, ambiguous, because neither § 1605(a) nor its surrounding provisions provides a clear answer. While we acknowledge that there may be some fees not explicitly addressed by § 1605(a)'s definition of ""finance charge"" but which are unambiguously included in or excluded by that definition, over-limit fees are not such fees.",analysis,The Court of Appeals' Interpretation of the Over-Limit Fee,strongly agree,The Over-Limited Fee,agree,Rejection of § 1605 Truth in Lending Act (TILA) interpretation by the Court of Appeal,1
+G6,4,0,2,B,"Because § 1605 is ambiguous, the Board's regulation implementing § 1605 ""is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute."" United States v. Mead Corp., 533 U. S. 218, 227 (2001).
+
+Regulation Z's exclusion of over-limit fees from the term ""finance charge"" is in no way manifestly contrary to § 1605. Regulation Z defines the term ""finance charge"" as ""the cost of consumer credit."" 12 CFR § 226.4 (2004). It specifically excludes from the definition of ""finance charge"" the following:
+
+""(1) Application fees charged to all applicants for credit, whether or not credit is actually extended.
+""(2) Charges for actual unanticipated late payment, for exceeding a credit limit, or for delinquency, default, or a similar occurrence.
+""(3) Charges imposed by a financial institution for paying items that overdraw an account, unless the payment of such items and the imposition of the charge were previously agreed upon in writing.
+""(4) Fees charged for participation in a credit plan, whether assessed on an annual or other periodic basis.
+*243 ""(5) Seller's points.
+""(6) Interest forfeited as a result of an interest reduction required by law on a time deposit used as security for an extension of credit.
+""(7) [Certain fees related to real estate.]
+""(8) Discounts offered to induce payment for a purchase by cash, check, or other means, as provided in section 167(b) of the Act."" § 226.4(c) (emphasis added).
+The Board adopted the regulation to emphasize ""disclosures that are relevant to credit decisions, as opposed to disclosures related to events occurring after the initial credit choice,"" because ""the primary goals of [TILA] are not particularly enhanced by regulatory provisions relating to changes in terms on outstanding obligations and on the effects of the failure to comply with the terms of the obligation."" 45 Fed. Reg. 80649 (1980). The Board's decision to emphasize disclosures that are most relevant to a consumer's initial credit decisions reflects an understanding that ""[m]eaningful disclosure does not mean more disclosure,"" but instead ""describes a balance between `competing considerations of complete disclosure . . . and the need to avoid . . . [informational overload].'"" Ford Motor Credit Co., 444 U. S., at 568 (quoting S. Rep. No. 96-73, p. 3 (1979)). Although the fees excluded from the term ""finance charge"" in Regulation Z (e. g., application charges, late payment charges, and over-limit fees) might be relevant to a consumer's credit decision, the Board rationally concluded that these fees _x0097_ which are not automatically recurring or are imposed only when a consumer defaults on a credit agreement _x0097_ are less relevant to determining the true cost of credit. Because over-limit fees, which are imposed only when a consumer breaches the terms of his credit agreement, can reasonably be characterized as a penalty for defaulting on the credit agreement, the Board's decision to exclude them from the term ""finance charge"" is surely reasonable.
+
+*244 In holding that Regulation Z conflicts with § 1605's definition of the term ""finance charge,"" the Court of Appeals ignored our warning that ""judges ought to refrain from substituting their own interstitial lawmaking for that of the [Board]."" Ford Motor Credit Co., supra, at 568. Despite the Board's rational decision to adopt a uniform rule excluding from the term ""finance charge"" all penalties imposed for exceeding the credit limit, the Court of Appeals adopted a case-by-case approach contingent on whether an act of default was ""unilateral."" Putting aside the lack of textual support for this approach, the Court of Appeals' approach would prove unworkable to creditors and, more importantly, lead to significant confusion for consumers. Under the Court of Appeals' rule, a consumer would be able to decipher if a charge is considered a ""finance charge"" or an ""other charge"" each month only by recalling the details of the particular transaction that caused the consumer to exceed his credit limit. In most cases, the consumer would not even know the relevant facts, which are contingent on the nature of the authorization given by the creditor to the merchant. Moreover, the distinction between ""unilateral"" acts of default and acts of default where a consumer exceeds his credit limit (but has not thereby renegotiated his credit limit and is still subject to the over-limit fee) is based on a fundamental misunderstanding of the workings of the credit card industry. As the Board explained below, a creditor's ""authorization"" of a particular point-of-sale transaction does not represent a final determination that a particular transaction is within a consumer's credit limit because the authorization system is not suited to identify instantaneously and accurately over-limit transactions. Brief for Board of Governors of Federal Reserve System as Amicus Curiae in No. 00-4213 (CA6), pp. 7-9.
+
+Congress has authorized the Board to make ""such classifications, differentiations, or other provisions, and [to] provide for such adjustments and exceptions for any class of transactions, *245 as in the judgment of the Board are necessary or proper to effectuate the purposes of [TILA], to prevent circumvention or evasion thereof, or to facilitate compliance therewith."" § 1604(a). Here, the Board has accomplished all of these objectives by setting forth a clear, easy to apply (and easy to enforce) rule that highlights the charges the Board determined to be most relevant to a consumer's credit decisions. The judgment of the Court of Appeals is therefore reversed.
+
+It is so ordered.",analysis,The Board's Regulation Z,strongly agree,Regulation Z,strongly agree,Rejection of Federal Reserve Board's regulation Z interpretation by the Court of Appeal,2
+G6,6,0,1,I,"In 1963, White Motor Corp. and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn. (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining.
+
+Under the 1971 collective-bargaining contract, the Pension Plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 Plan provided that ""[p]ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund."" App. 155.[2] The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability_x0097_ the excess of accrued liability over the present value of the assets of the Fund_x0097_was to be met through contributions by the employer from its continuing operations.[3]
+
+Section 10.02 of the Plan provided that ""[t]he Company shall have the sole right at any time to terminate the entire plan."" During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan.[4] By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund.
+
+Appellee exercised its contractual right to terminate the Pension Plan on May 1, 1974.[5] A few weeks before, however, the Pension Act had been enacted. This statute imposed ""a pension funding charge"" directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had ""vested"" within the terms of the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years' service full payment of their accrued pension benefits.
+
+Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Pension Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court.
+
+Appellee's complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA,[6] as amended, 29 U.S. C. § 151 et seq., because it ""interferes with the right of Plaintiffs to free collective bargaining under federal law and . . . vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume."" App. A-9_x0097_A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the pre-emption claim.
+
+Distinguishing Teamsters v. Oliver, 358 U.S. 283 (1959), and relying on evidence of congressional intent contained in the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), 72 Stat. 997, as amended, 76 Stat. 35, 29 U.S. C. § 301 et seq., the District Court held that the Pension Act was not pre-empted by federal law. 412 F. Supp. 372 (Minn. 1976). On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was pre-empted by federal labor law, and reversed the District Court. 545 F.2d 599 (1976). The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: It granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for post-termination payments to the pension fund beyond those specifically guaranteed. This, the court ruled, the State could not do; for if, under Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976), ""states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining."" 545 F.2d, at 606. Further, as the court understood the opinion in Oliver, supra, ""a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement."" 545 F.2d, at 608. Finally, the Court of Appeals found that the pre-emption disclaimer in the Disclosure Act relied on by the District Court related only
+
+""to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements."" Id., at 609.",facts,The Pension Plan and the Pension Act,strongly agree,The Pension Plan,agree,The Pension Act preemption issue by a federal law,1
+G6,6,0,1,II,"It is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. ""The purpose of Congress is the ultimate touchstone."" Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). Often Congress does not clearly state in its legislation whether it intends to pre-empt state laws; and in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante, at 157-158; Jones v. Rath Packing Co., 430 U.S. 519, 525, 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). ""We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States."" Motor Coach Employees v. Lockridge, 403 U.S. 274, 289 (1971). The Pension Act ""leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible."" Garner v. Teamsters, 346 U.S. 485, 488 (1953). Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective-bargaining process.
+
+There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension plans, that may be the subject of collective bargaining. If the Pension Act is pre-empted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should not be made here and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plans is to be found in § 10 of the Disclosure Act. Section 10 (b) provided:
+
+""The provisions of this Act, except subsection (a) of this section and section 13 and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law.""
+Also, § 10 (a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected:
+
+""Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan.""
+Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here.[7]
+
+Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that
+
+""Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries.""[8]
+In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded:
+
+""The most serious single weakness in this private social insurance complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them."" S. Rep. No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S. Rep.).
+As a first step toward protection of the workers' interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia,
+
+""the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan . . . ,""
+as well as a valuation of the assets of the fund.
+
+The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained:
+
+""[T]he legislation proposed is not a regulatory statute. It is a disclosure statute and by design endeavors to leave regulatory responsibility to the States."" S. Rep. 18.
+This objective was reflected in §§ 10 (a) and 10 (b), quoted above. As the Senate Report explained, the statute was designed ""to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations."" S. Rep. 19. There was ""no desire to get the Federal Government involved in the regulation of these plans but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions."" Id., at 18.
+
+There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers ""covered by collective bargaining agreements."" The problems that Congress had identified were characteristic of bargained-for plans as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established through the collective-bargaining process. S. Rep. 8; H. R. Rep. No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H. R. Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collective-bargaining agreement. S. Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans ""whether or not they have been brought into existence through collective bargaining."" 104 Cong. Rec. 16420 (1958) (remarks of Cong. Lane); id., at 16425 (remarks of Cong. Wolverton); see id., at 7049-7052 (remarks of Sen. Kennedy). Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would ""require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining."" S. Rep. 34 (minority view of Sen. Allott); accord, H. R. Rep. 25 (minority views).[9] Yet neither the bill as enacted nor its legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States.
+
+Appellee argues that the Disclosure Act's allocation of regulatory responsibility to the States is irrelevant here because the Disclosure Act was ""enacted to deal with corruption and mismanagement of funds."" Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age.
+
+The Senate Report specifically stated: ""Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans."" S. Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. Ibid. The Senate Committee also observed: ""Trusteed pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust."" Id., at 15. As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. Ibid.[10] The Senate Report also showed an awareness of the problems posed by vesting requirements[11] and expressed concern that ""employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination."" Id., at 8. Thus, Congress was concerned with many of the same issues as are involved in this case_x0097_unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws ""affecting the operation or administration of employee welfare or pension benefit plans,"" 72 Stat. 1003, Congress indicated that the States had and were to have authority to deal with these problems.
+
+Moreover, it should be emphasized that § 10 of the Disclosure Act referred specifically to the ""future,"" as well as ""present"" laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans.[12] The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought ""to provide adequate information in disclosure legislation for possible later State . . . regulatory laws."" H. R. Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues:
+
+""The objective of the bill is to provide more adequate protection for the employee-beneficiaries of these plans through a uniform Federal disclosure act which will . . . make the facts available not only to the participants and the Federal Government but to the States, in order that any desired State regulation can be more effectively accomplished."" 104 Cong. Rec. 7050 (1958).
+See also S. Rep. 18. Senator Kennedy had ""no doubt that this [was] an area in which the States [were] going to begin to move."" 104 Cong. Rec. 7053 (1958).
+
+The aim of the Disclosure Act was perhaps best summarized by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated:
+
+""It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee-beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them.
+""This present bill provides for far more than anticorruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. . . .
+""This policy could very well lead to the establishment of mandatory standards by which these plans must be governed."" Id., at 7517.
+It is also clear that Congress contemplated that the primary responsibility for developing such ""mandatory standards"" would lie with the States.
+
+Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly pre-empted by the collective-bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned. Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that the assets and prospective income of the plan are sufficient to guarantee the benefits promised_x0097_exactly the kind of problems which the 85th Congress hoped that the States would solve.
+
+This conclusion is consistent with the Court's decision in Teamsters v. Oliver, 358 U.S. 283 (1959), which concerned a claimed conflict between a state antitrust law and the terms of a collective-bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental for the use of their vehicles. An Ohio court had invalidated this portion of the collective-bargaining agreement under Ohio antitrust law. This Court reversed, noting that ""[t]he application [of the Ohio law] would frustrate the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here."" Id., at 296.
+
+The Oliver opinion contains broad language affirming the independence of the collective-bargaining process from state interference:
+
+""Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty . . . and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide . . . . We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties' agreement can provide to the problems of wages and working conditions."" Ibid. (citations omitted).
+The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result:
+
+""The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 307-312."" Ibid.[13]
+As we understand the 1958 Disclosure Act and its legislative history, the collective-bargaining provisions at issue here dealt with precisely the sort of subject matter ""which Congress . . . indicated may be left to [regulation] by the several states."" Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from Oliver in sustaining the Minnesota statute.
+
+",analysis,Legislative Intent of Congress,strongly agree,The Supremacy Clause and the Pension Act,strongly agree,The Supremacy Clause and the Pension Act,2
+G6,6,0,1,III,"Insofar as the Supremacy Clause issue is concerned, no different conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp. agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective-bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee's argument, they are not material to the resolution of the pre-emption issue since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted.[14]
+
+Our decision in this case is, of course, limited to appellee's claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee's other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due process in violation of the United States Constitution. Without intimating any views on the merits of those questions,[15] we note that appellee's claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal preemption of the Minnesota Pension Act should be and hereby is
+
+Reversed.",conclusion,Preemption of the Minnesota Pension Act,disagree,Retroactive Impact of the Minnesota Pension Act,strongly agree,Retroactive Impact of the Minnesota Pension Act,3
+G6,8,0,1,I,"
+
+The CSRA “establishes a framework for evaluating personnel actions taken against federal employees.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012). For “particularly serious” actions, “for example, a removal from employment or a reduction in grade or pay,” “the affected employee has a right to appeal the agency’s decision to the MSPB.” Ibid. (citing §§1204, 7512, 7701). Such an appeal may present a civil-service claim only. Typically, the employee may allege that “the agency had insufficient cause for taking the action under the CSRA.” Id., at 44. An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute, for example, Title VII of the Civil Rights Act of 1964, 42 U.S. C. §2000e et seq., or the Age Discrimination in Employment Act of 1967, 29 U.S. C. §621 et seq. See 5 U.S. C. §7702(a)(1); Kloeckner, 568 U.S., at 44.
+
+In Kloeckner, we explained, “[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’ ” Ibid. (quoting 29 CFR §1614.302 (2012)). See also §1614.302(a)(2) (2016) (defining “mixed case appeal” as one in which an employee “alleges that an appealable agency action was effected, in whole or in part, because of discrimination”). For mixed cases, “[t]he CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures . . . different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory.” Kloeckner, 568 U.S., at 44–45.
+
+As Kloeckner detailed, the CSRA provides diverse procedural routes for an employee’s pursuit of a mixed case. The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office, “much as an employee challenging a personnel practice not appealable to the MSPB could do.” Id., at 45 (citing 5 CFR §1201.154(a) (2012); 29 CFR §1614.302(b) (2012)); see §7702(a)(2). “If the agency [EEO office] decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court.” Kloeckner, 568 U.S., at 45 (citing 5 CFR §1201.154(b); 29 CFR §1614.302(d)(1)(i)); see §7702(a)(2). “Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges.” Kloeckner, 568 U.S., at 45 (citing 5 CFR §1201.154(a); 29 CFR §1614.302(b)); see §7702(a)(1).
+
+Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB’s jurisdiction in mixed-case appeals that bypass an agency’s EEO office, §7702(a)(1) states in relevant part:
+
+“[I]n the case of any employee . . . who—
+
+“(A) has been affected by an action which the em-
+
+ployee . . . may appeal to the [MSPB], and
+
+“(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination
+
+statutes], . . .
+
+“the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s ap-
+
+pellate procedures . . . .”2
+
+Section 7702(a)(2) similarly authorizes a mixed-case appeal to the MSPB from an agency EEO office’s decision. Then, “[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review.” Kloeckner, 568 U.S., at 45 (citing §7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303).
+
+Section 7703(b) designates the proper forum for judicial review of MSPB decisions. Section 7703(b)(1)(A) provides the general rule: “[A] petition to review a . . . final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) states the exception here relevant, governing “[c]ases of discrimination subject to the provisions of [§]7702.” See Kloeckner, 568 U.S., at 46 (“The ‘cases of discrimination’ in §7703(b)(2)’s exception . . . are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB.”). Such cases “shall be filed under [the enforcement sections of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Fair Labor Standards Act of 1938, 29 U.S. C. §201 et seq.], as applicable.” §7703(b)(2). Those enforcement provisions “all authorize suit in federal district court.” Kloeckner, 568 U.S., at 46 (citing, inter alia, 42 U.S. C. §§2000e–16(c), 2000e–5(f); 29 U.S. C. §633a(c); §216(b)). Thus, if the MSPB decides against the employee on the merits of a mixed case, the statute instructs her to seek review in federal district court under the enforcement provision of the relevant antidiscrimination laws. §7703(b)(2); see Kloeckner, 568 U.S., at 56, n. 4.3
+
+Federal district court is also the proper forum for judicial review, we held in Kloeckner, when the MSPB dismisses a mixed case on procedural grounds. Id., at 50, 56. We rested that conclusion on this syllogism: “Under §7703(b)(2), ‘cases of discrimination subject to [§7702]’ shall be filed in district court.” Id., at 50 (alteration in original). Further, “[u]nder §7702(a)(1), [mixed cases qualify as] ‘cases of discrimination subject to [§7702].’ ” Ibid. (third alteration in original). Thus, “mixed cases shall be filed in district court.” Ibid. That syllogism, we held, holds true whether the dismissal rests on procedural grounds or on the merits, for “nowhere in the [CSRA’s] provisions on judicial review” is a distinction drawn between MSPB merits decisions and procedural rulings. Id., at 51.
+
+The instant case presents this question: Where does an employee seek judicial review when the MSPB dismisses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction?
+
+Anthony Perry worked at the U. S. Census Bureau until 2012. 829 F.3d 760, 762 (CADC 2016). In 2011, Perry received notice that he would be terminated because of spotty attendance. Ibid. Later that year, Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. Ibid. The agreement required Perry to dismiss discrimination claims he had separately filed with the EEOC. Ibid.
+After retiring, Perry appealed his suspension and retirement to the MSPB. Ibid. He alleged discrimination on grounds of race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. Ibid. The settlement, he maintained, did not stand in the way, because the Bureau coerced him into signing it. Ibid.
+An MSPB administrative law judge (ALJ) eventually determined that Perry had failed to prove that the settlement was coerced. Perry v. Department of Commerce, No. DC–0752–12–0486–B–1 etc. (Dec. 23, 2013) (initial decision), App. to Pet. for Cert. 32a, 47a. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. Id., at 33a, 47a. Voluntary actions are not appealable to the MSPB, the ALJ observed, hence, the ALJ concluded, the Board lacked jurisdiction to entertain Perry’s claims. Id., at 51a.
+The MSPB affirmed the ALJ’s decision. See Perry v. Department of Commerce, 2014 WL 5358308, *1 (Aug. 6, 2014) (final order). The settlement agreement, the Board recounted, provided that Perry would waive his Board appeal rights with respect to his suspension and retirement. Ibid. Because Perry did not prove that the agreement was involuntary, the Board determined (in accord with the ALJ) that his separation should be deemed voluntary, hence not an adverse action subject to the Board’s jurisdiction under §7702(a)(1). Id., at *3–*4. If dissatisfied with the MSPB’s ruling, the Board stated in its decision, Perry could seek judicial review in the Federal Circuit. Id., at *4.
+Perry instead filed a pro se petition for review in the D. C. Circuit. 829 F.3d, at 763. The court ordered jurisdictional briefing and appointed counsel to argue for Perry. Ibid. By the time the court heard argument, the parties had agreed that the D. C. Circuit lacked jurisdiction, but disagreed on whether the proper forum for judicial review was the Federal Circuit, as the Government contended, or federal district court, as Perry maintained. Ibid.
+The D. C. Circuit held that the Federal Circuit had jurisdiction over Perry’s petition and transferred his case to that court under 28 U.S. C. §1631. 829 F.3d, at 763. The court’s disposition was precedent-bound: In a prior decision, Powell v. Department of Defense, 158 F.3d 597, 598 (1998), the D. C. Circuit had held that the Federal Circuit is the proper forum for judicial review of MSPB decisions dismissing mixed cases “on procedural or threshold grounds.” See 829 F.3d, at 764, 767–768. Notably, Powell ranked as a “procedural or threshold matter” “the Board’s view of its jurisdiction.” 158 F.3d, at 599 (internal quotation marks omitted).
+The D. C. Circuit rejected Perry’s argument that Powell was undermined by this Court’s intervening decision in Kloeckner, which held MSPB procedural dispositions of mixed cases reviewable in district court. 829 F.3d, at 764–768. Kloeckner, the D. C. Circuit observed, repeatedly tied its decision to dismissals on “procedural grounds,” 568 U.S., at 44, 46, 49, 52, 54, 55. See 829 F.3d, at 765. Jurisdictional dismissals differ from procedural dismissals, the D. C. Circuit concluded, given the CSRA’s reference to mixed cases as those “which the employee . . . may appeal to the [MSPB].” Id., at 766–767 (quoting §7702(a)(1)(A); emphasis added). A jurisdictional dismissal, the court said, rests on the Board’s determination that the employee may not appeal his case to the MSPB. Id., at 766–767. In contrast, a dismissal on procedural grounds, e.g., untimely resort to the MSPB, leaves the employee still “affected by an action which [she] may appeal to the MSPB.” Ibid. (quoting §7702(a)(1)(A); alteration in original).
+We granted certiorari to review the D. C. Circuit’s decision, 580 U. S. ___ (2017), which accords with the Federal Circuit’s decision in Conforto v. Merit Systems Protection Bd., 713 F.3d 1111 (2013).",introduction,Perry’s Civil-Service Claim,agree,Perry’s CSRA Claim,agree,Presentation of the Civil Service Reform Act of 1978 (CSRA) and the facts of the case,1
+G6,8,0,2,A,"The CSRA “establishes a framework for evaluating personnel actions taken against federal employees.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012). For “particularly serious” actions, “for example, a removal from employment or a reduction in grade or pay,” “the affected employee has a right to appeal the agency’s decision to the MSPB.” Ibid. (citing §§1204, 7512, 7701). Such an appeal may present a civil-service claim only. Typically, the employee may allege that “the agency had insufficient cause for taking the action under the CSRA.” Id., at 44. An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute, for example, Title VII of the Civil Rights Act of 1964, 42 U.S. C. §2000e et seq., or the Age Discrimination in Employment Act of 1967, 29 U.S. C. §621 et seq. See 5 U.S. C. §7702(a)(1); Kloeckner, 568 U.S., at 44.
+
+In Kloeckner, we explained, “[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’ ” Ibid. (quoting 29 CFR §1614.302 (2012)). See also §1614.302(a)(2) (2016) (defining “mixed case appeal” as one in which an employee “alleges that an appealable agency action was effected, in whole or in part, because of discrimination”). For mixed cases, “[t]he CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures . . . different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory.” Kloeckner, 568 U.S., at 44–45.
+
+As Kloeckner detailed, the CSRA provides diverse procedural routes for an employee’s pursuit of a mixed case. The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office, “much as an employee challenging a personnel practice not appealable to the MSPB could do.” Id., at 45 (citing 5 CFR §1201.154(a) (2012); 29 CFR §1614.302(b) (2012)); see §7702(a)(2). “If the agency [EEO office] decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court.” Kloeckner, 568 U.S., at 45 (citing 5 CFR §1201.154(b); 29 CFR §1614.302(d)(1)(i)); see §7702(a)(2). “Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges.” Kloeckner, 568 U.S., at 45 (citing 5 CFR §1201.154(a); 29 CFR §1614.302(b)); see §7702(a)(1).
+
+Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB’s jurisdiction in mixed-case appeals that bypass an agency’s EEO office, §7702(a)(1) states in relevant part:
+
+“[I]n the case of any employee . . . who—
+
+“(A) has been affected by an action which the em-
+
+ployee . . . may appeal to the [MSPB], and
+
+“(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination
+
+statutes], . . .
+
+“the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s ap-
+
+pellate procedures . . . .”2
+
+Section 7702(a)(2) similarly authorizes a mixed-case appeal to the MSPB from an agency EEO office’s decision. Then, “[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review.” Kloeckner, 568 U.S., at 45 (citing §7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303).
+
+Section 7703(b) designates the proper forum for judicial review of MSPB decisions. Section 7703(b)(1)(A) provides the general rule: “[A] petition to review a . . . final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) states the exception here relevant, governing “[c]ases of discrimination subject to the provisions of [§]7702.” See Kloeckner, 568 U.S., at 46 (“The ‘cases of discrimination’ in §7703(b)(2)’s exception . . . are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB.”). Such cases “shall be filed under [the enforcement sections of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Fair Labor Standards Act of 1938, 29 U.S. C. §201 et seq.], as applicable.” §7703(b)(2). Those enforcement provisions “all authorize suit in federal district court.” Kloeckner, 568 U.S., at 46 (citing, inter alia, 42 U.S. C. §§2000e–16(c), 2000e–5(f); 29 U.S. C. §633a(c); §216(b)). Thus, if the MSPB decides against the employee on the merits of a mixed case, the statute instructs her to seek review in federal district court under the enforcement provision of the relevant antidiscrimination laws. §7703(b)(2); see Kloeckner, 568 U.S., at 56, n. 4.3
+
+Federal district court is also the proper forum for judicial review, we held in Kloeckner, when the MSPB dismisses a mixed case on procedural grounds. Id., at 50, 56. We rested that conclusion on this syllogism: “Under §7703(b)(2), ‘cases of discrimination subject to [§7702]’ shall be filed in district court.” Id., at 50 (alteration in original). Further, “[u]nder §7702(a)(1), [mixed cases qualify as] ‘cases of discrimination subject to [§7702].’ ” Ibid. (third alteration in original). Thus, “mixed cases shall be filed in district court.” Ibid. That syllogism, we held, holds true whether the dismissal rests on procedural grounds or on the merits, for “nowhere in the [CSRA’s] provisions on judicial review” is a distinction drawn between MSPB merits decisions and procedural rulings. Id., at 51.
+
+The instant case presents this question: Where does an employee seek judicial review when the MSPB dismisses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction?",analysis,The CSRA and the MSPB,strongly agree,CSRA and EEOC Regulations,disagree,Description of the contents of the Civil Service Reform Act of 1978 (CSRA),1
+G6,8,0,2,B,"Anthony Perry worked at the U. S. Census Bureau until 2012. 829 F.3d 760, 762 (CADC 2016). In 2011, Perry received notice that he would be terminated because of spotty attendance. Ibid. Later that year, Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. Ibid. The agreement required Perry to dismiss discrimination claims he had separately filed with the EEOC. Ibid.
+After retiring, Perry appealed his suspension and retirement to the MSPB. Ibid. He alleged discrimination on grounds of race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. Ibid. The settlement, he maintained, did not stand in the way, because the Bureau coerced him into signing it. Ibid.
+An MSPB administrative law judge (ALJ) eventually determined that Perry had failed to prove that the settlement was coerced. Perry v. Department of Commerce, No. DC–0752–12–0486–B–1 etc. (Dec. 23, 2013) (initial decision), App. to Pet. for Cert. 32a, 47a. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. Id., at 33a, 47a. Voluntary actions are not appealable to the MSPB, the ALJ observed, hence, the ALJ concluded, the Board lacked jurisdiction to entertain Perry’s claims. Id., at 51a.
+The MSPB affirmed the ALJ’s decision. See Perry v. Department of Commerce, 2014 WL 5358308, *1 (Aug. 6, 2014) (final order). The settlement agreement, the Board recounted, provided that Perry would waive his Board appeal rights with respect to his suspension and retirement. Ibid. Because Perry did not prove that the agreement was involuntary, the Board determined (in accord with the ALJ) that his separation should be deemed voluntary, hence not an adverse action subject to the Board’s jurisdiction under §7702(a)(1). Id., at *3–*4. If dissatisfied with the MSPB’s ruling, the Board stated in its decision, Perry could seek judicial review in the Federal Circuit. Id., at *4.
+Perry instead filed a pro se petition for review in the D. C. Circuit. 829 F.3d, at 763. The court ordered jurisdictional briefing and appointed counsel to argue for Perry. Ibid. By the time the court heard argument, the parties had agreed that the D. C. Circuit lacked jurisdiction, but disagreed on whether the proper forum for judicial review was the Federal Circuit, as the Government contended, or federal district court, as Perry maintained. Ibid.
+The D. C. Circuit held that the Federal Circuit had jurisdiction over Perry’s petition and transferred his case to that court under 28 U.S. C. §1631. 829 F.3d, at 763. The court’s disposition was precedent-bound: In a prior decision, Powell v. Department of Defense, 158 F.3d 597, 598 (1998), the D. C. Circuit had held that the Federal Circuit is the proper forum for judicial review of MSPB decisions dismissing mixed cases “on procedural or threshold grounds.” See 829 F.3d, at 764, 767–768. Notably, Powell ranked as a “procedural or threshold matter” “the Board’s view of its jurisdiction.” 158 F.3d, at 599 (internal quotation marks omitted).
+The D. C. Circuit rejected Perry’s argument that Powell was undermined by this Court’s intervening decision in Kloeckner, which held MSPB procedural dispositions of mixed cases reviewable in district court. 829 F.3d, at 764–768. Kloeckner, the D. C. Circuit observed, repeatedly tied its decision to dismissals on “procedural grounds,” 568 U.S., at 44, 46, 49, 52, 54, 55. See 829 F.3d, at 765. Jurisdictional dismissals differ from procedural dismissals, the D. C. Circuit concluded, given the CSRA’s reference to mixed cases as those “which the employee . . . may appeal to the [MSPB].” Id., at 766–767 (quoting §7702(a)(1)(A); emphasis added). A jurisdictional dismissal, the court said, rests on the Board’s determination that the employee may not appeal his case to the MSPB. Id., at 766–767. In contrast, a dismissal on procedural grounds, e.g., untimely resort to the MSPB, leaves the employee still “affected by an action which [she] may appeal to the MSPB.” Ibid. (quoting §7702(a)(1)(A); alteration in original).
+We granted certiorari to review the D. C. Circuit’s decision, 580 U. S. ___ (2017), which accords with the Federal Circuit’s decision in Conforto v. Merit Systems Protection Bd., 713 F.3d 1111 (2013).",facts,Anthony Perry,agree,Anthony Perry,agree,Jurisdiction issue from the Merit Systems Protection Board on mixed cases,2
+G6,8,0,1,II,"Federal employees, the Government acknowledges, have a right to pursue claims of discrimination in violation of federal law in federal district court. Nor is there any doubt that the Federal Circuit lacks authority to adjudicate such claims. See §7703(c) (preserving “right to have the facts subject to trial de novo by the reviewing court” in any “case of discrimination” brought under §7703(b)(2)). The sole question here disputed: What procedural route may an employee in Perry’s situation take to gain judicial review of the MSPB’s jurisdictional disposition of a complaint that alleges adverse action taken under the CSRA in whole or in part due to discrimination proscribed by federal law?
+
+The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court for adjudication of their discrimination claims. As Perry sees it, one stop is all he need make. Exclusively competent to adjudicate “[c]ases of discrimination,” §7703(b)(2), the district court alone can resolve his entire complaint, Perry urges; the CSRA, he maintains, forces no bifurcation of his case.
+
+Section 7702(a)(1), the Government contends, marks a case as mixed only if the employee “has been affected by an action which the employee . . . may appeal to the [MSPB].” Brief for Respondent 15, 17–19, 21. An MSPB finding of nonappealability removes a case from that category, the Government asserts, and hence, from the purview of “[c]ases of discrimination” described in §7703(b)(2). Id., at 21. Only this reading of the CSRA’s provisions on judicial review—one ordering Federal Circuit review of any and all MSPB appealability determinations—the Government maintains, can ensure nationwide uniformity in answering questions arising under the CSRA. Id., at 26–32.
+
+Perry emphasizes in response that §7702(a)(1)(A)’s language, delineating cases in which an employee “has been affected by an action which the employee . . . may appeal to the [MSPB],” is not confined to cases an employee may successfully appeal to the Board. Brief for Petitioner 19. The MSPB’s adverse ruling on the merits of his claim that the settlement was coerced, Perry argues, “did not retroactively divest the MSPB of jurisdiction to render that decision.” Id., at 21. The key consideration, according to Perry, is not what the MSPB determined about appealability; it is instead the nature of an employee’s claim that he had been “affected by an action [appealable] to the [MSPB]” (here, suspension for more than 14 days and involuntary removal, see §7512(1), (2)). See id., at 11, 23–24. Perry draws support for this argument from our recognition that “a party [may] establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements,” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537 (1995). See Brief for Petitioner 21–22.
+
+Perry, we hold, advances the more sensible reading of the statutory prescriptions. The Government’s procedurejurisdiction distinction, we conclude, is no more tenable than “the merits-procedure distinction” we rejected in Kloeckner, 568 U.S., at 51.
+
+As just noted, a nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case. See Jerome B. Grubart, Inc., 513 U.S., at 537. See also Bell v. Hood, 327 U.S. 678, 682–683 (1946) (To invoke federal-question jurisdiction, allegations in a complaint must simply be more than “insubstantial or frivolous,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”). So too here: whether an employee “has been affected by an action which [she] may appeal to the [MSPB],” §7702(a) (1)(A), turns on her well-pleaded allegations. Kloeckner, EEOC regulations, and Courts of Appeals’ decisions are corroborative.
+
+We announced a clear rule in Kloeckner: “[M]ixed cases shall be filed in district court.” 568 U.S., at 50. An employee brings a mixed case, we explained, when she “complains of a personnel action serious enough to appeal to the MSPB,” e.g., suspension for more than 14 days, §7512(2), “and alleges that the action was based on discrimination.” Id., at 44 (emphasis deleted). The key to district court review, we said, was the employee’s “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1).” Id., at 56 (emphasis added).
+
+EEOC regulations, see supra, at 3, are in accord: The defining feature of a “mixed case appeal,” those regulations instruct, is the employee’s “alleg[ation] that an appealable agency action was effected, in whole or in part, because of discrimination.” 29 CFR §1614.302(a)(2) (2016) (emphasis added). Several Courts of Appeals have similarly described mixed-case appeals as those alleging an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. See, e.g., Downey v. Runyon, 160 F.3d 139, 143 (CA2 1998) (“Mixed appeals to the MSPB are those appeals alleging an appealable action affected in whole or in part by prohibited discrimination.” (emphasis added)); Powell, 158 F.3d, at 597 (defining mixed-case appeal as “an appeal alleging both a Board-jurisdictional agency action and a claim of unlawful discrimination” (emphasis added)). See also Conforto, 713 F.3d, at 1126–1127, n. 5 (Dyk, J., dissenting).4
+
+Because Perry “complain[ed] of a personnel action serious enough to appeal to the MSPB” (in his case, a 30-day suspension and involuntary removal, see supra, at 6; §7512(1), (2)) and “allege[d] that the [personnel] action was based on discrimination,” he brought a mixed case. Kloeckner, 568 U.S., at 44.5 Judicial review of such a case lies in district court. Id., at 50, 56.
+
+
+The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other.6 The distinction has multiple infirmities.
+
+“If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit,” we observed in Kloeckner, “it could just have said so.” Id., at 52. The same observation could be made about bifurcating judicial review here, sending the MSPB’s merits and procedural decisions to district court, but its jurisdictional dismissals to the Federal Circuit.7
+
+The Government’s attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. In Kloeckner, the Government agreed with the employee that there was “no basis” for a procedure-jurisdiction distinction. Brief for Respondent, O. T. 2012, No. 11–184, p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No. 11–184, pp. 1–2 (stating employee’s agreement with the Government that procedural and jurisdictional dismissals should travel together). Issues of both kinds, the Government there urged, should go to the Federal Circuit. Drawing such a distinction, the Government observed, would be “difficult and unpredictable.” Brief in Opposition in Kloeckner, O. T. 2012, No. 11–184, p. 15 (internal quotation marks omitted). Now, in light of our holding in Kloeckner that procedural dismissals should go to district court, the Government has changed course, contending that MSPB procedural and jurisdictional dismissals should travel different paths.8
+
+A procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies, as both parties recognized in Kloeckner, would be perplexing and elusive. If a 30-day suspension followed by termination becomes nonappealable to the MSPB when the Board credits a release signed by the employee, one may ask why a determination that the employee complained of such adverse actions (suspension and termination) too late, i.e., after a Board-set deadline, does not similarly render the complaint nonappealable. In both situations, the Board disassociates itself from the case upon making a threshold determination. This Court, like others, we note, has sometimes wrestled over the proper characterization of timeliness questions. Compare Bowles v. Russell, 551 U.S. 205, 209–211, 215 (2007) (timely filing of notice of appeal in civil cases is “jurisdictional”), with id., at 217–219 (Souter, J., dissenting) (timeliness of notice of appeal is a procedural issue).
+
+Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap. See Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341 (CA Fed. 2001) (“recogniz[ing] that the MSPB’s jurisdiction and the merits of an alleged involuntary separation are inextricably intertwined” (internal quotation marks omitted)). This case fits that bill. The MSPB determined that it lacked jurisdiction over Perry’s civil-service claims on the ground that he voluntarily released those claims by entering into a valid settlement with his employing agency, the Census Bureau. See App. to Pet. for Cert. 27a.9 But the validity of the settlement is at the heart of the dispute on the merits of Perry’s complaint. In essence, the MSPB ruled that it lacked jurisdiction because Perry’s claims fail on the merits. See Shoaf, 260 F.3d, at 1341 (If it is established that an employee’s “resignation or retirement was involuntary and thus tantamount to forced removal,” then “not only [does the Board] ha[ve] jurisdiction, but also the employee wins on the merits and is entitled to reinstatement.” (internal quotation marks omitted)). See also Conforto, 713 F.3d, at 1126 (Dyk, J., dissenting) (“[I]t cannot be that [the Federal Circuit] lack[s] jurisdiction to review the ‘merits’ of mixed cases but nevertheless may review ‘jurisdictional’ issues that are identical to the merits . . . .”).10
+
+Distinguishing between MSPB jurisdictional rulings and the Board’s procedural or substantive rulings for purposes of allocating judicial review authority between district court and the Federal Circuit is problematic for a further reason: In practice, the distinction may be unworkable. The MSPB sometimes rules on alternate grounds, one typed “jurisdictional,” another either procedural or substantive. See, e.g., Davenport v. Postal Service, 97 MSPR 417 (2004) (dismissing “for lack of jurisdiction and as untimely filed” (emphasis added)). To which court does appeal lie? Or, suppose that the Board addresses a complaint that encompasses multiple claims, dismissing some for want of jurisdiction, others on procedural or substantive grounds. See, e.g., Donahue v. Postal Service, 2006 WL 859448, *1, *3 (ED Pa., Mar. 31, 2006). Tellingly, the Government is silent on the proper channeling of appeals in such cases.
+
+Desirable as national uniformity may be,11 it should not override the expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights. Perry’s comprehension of the complex statutory text, we are persuaded, best serves “[t]he CSRA’s objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin, 567 U.S., at 14. See also United States v. Fausto, 484 U.S. 439, 444–445 (1988).12 Perry asks us not to “tweak” the statute, see post, at 1, but to read it sensibly, i.e., to refrain from reading into it the appeal-splitting bifurcation sought by the Government. Accordingly, we hold: (1) the Federal Circuit is the proper review forum when the MSPB disposes of complaints arising solely under the CSRA; and (2) in mixed cases, such as Perry’s, in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review.",analysis,Judicial Review of the CSRA,strongly disagree,Jurisdiction to Adjucate Claims,strongly disagree,Proper review forum for a mixed case,2
+G6,8,0,2,A,"As just noted, a nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case. See Jerome B. Grubart, Inc., 513 U.S., at 537. See also Bell v. Hood, 327 U.S. 678, 682–683 (1946) (To invoke federal-question jurisdiction, allegations in a complaint must simply be more than “insubstantial or frivolous,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”). So too here: whether an employee “has been affected by an action which [she] may appeal to the [MSPB],” §7702(a) (1)(A), turns on her well-pleaded allegations. Kloeckner, EEOC regulations, and Courts of Appeals’ decisions are corroborative.
+
+We announced a clear rule in Kloeckner: “[M]ixed cases shall be filed in district court.” 568 U.S., at 50. An employee brings a mixed case, we explained, when she “complains of a personnel action serious enough to appeal to the MSPB,” e.g., suspension for more than 14 days, §7512(2), “and alleges that the action was based on discrimination.” Id., at 44 (emphasis deleted). The key to district court review, we said, was the employee’s “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1).” Id., at 56 (emphasis added).
+
+EEOC regulations, see supra, at 3, are in accord: The defining feature of a “mixed case appeal,” those regulations instruct, is the employee’s “alleg[ation] that an appealable agency action was effected, in whole or in part, because of discrimination.” 29 CFR §1614.302(a)(2) (2016) (emphasis added). Several Courts of Appeals have similarly described mixed-case appeals as those alleging an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. See, e.g., Downey v. Runyon, 160 F.3d 139, 143 (CA2 1998) (“Mixed appeals to the MSPB are those appeals alleging an appealable action affected in whole or in part by prohibited discrimination.” (emphasis added)); Powell, 158 F.3d, at 597 (defining mixed-case appeal as “an appeal alleging both a Board-jurisdictional agency action and a claim of unlawful discrimination” (emphasis added)). See also Conforto, 713 F.3d, at 1126–1127, n. 5 (Dyk, J., dissenting).4
+
+Because Perry “complain[ed] of a personnel action serious enough to appeal to the MSPB” (in his case, a 30-day suspension and involuntary removal, see supra, at 6; §7512(1), (2)) and “allege[d] that the [personnel] action was based on discrimination,” he brought a mixed case. Kloeckner, 568 U.S., at 44.5 Judicial review of such a case lies in district court. Id., at 50, 56.
+",analysis,Mixed-Case Appeals,agree,The Merits of a Mixed Case,agree,Qualification of the Petitioner's claim as a mixed claim,1
+G6,8,0,2,B,"The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other.6 The distinction has multiple infirmities.
+
+“If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit,” we observed in Kloeckner, “it could just have said so.” Id., at 52. The same observation could be made about bifurcating judicial review here, sending the MSPB’s merits and procedural decisions to district court, but its jurisdictional dismissals to the Federal Circuit.7
+
+The Government’s attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. In Kloeckner, the Government agreed with the employee that there was “no basis” for a procedure-jurisdiction distinction. Brief for Respondent, O. T. 2012, No. 11–184, p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No. 11–184, pp. 1–2 (stating employee’s agreement with the Government that procedural and jurisdictional dismissals should travel together). Issues of both kinds, the Government there urged, should go to the Federal Circuit. Drawing such a distinction, the Government observed, would be “difficult and unpredictable.” Brief in Opposition in Kloeckner, O. T. 2012, No. 11–184, p. 15 (internal quotation marks omitted). Now, in light of our holding in Kloeckner that procedural dismissals should go to district court, the Government has changed course, contending that MSPB procedural and jurisdictional dismissals should travel different paths.8
+
+A procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies, as both parties recognized in Kloeckner, would be perplexing and elusive. If a 30-day suspension followed by termination becomes nonappealable to the MSPB when the Board credits a release signed by the employee, one may ask why a determination that the employee complained of such adverse actions (suspension and termination) too late, i.e., after a Board-set deadline, does not similarly render the complaint nonappealable. In both situations, the Board disassociates itself from the case upon making a threshold determination. This Court, like others, we note, has sometimes wrestled over the proper characterization of timeliness questions. Compare Bowles v. Russell, 551 U.S. 205, 209–211, 215 (2007) (timely filing of notice of appeal in civil cases is “jurisdictional”), with id., at 217–219 (Souter, J., dissenting) (timeliness of notice of appeal is a procedural issue).
+
+Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap. See Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341 (CA Fed. 2001) (“recogniz[ing] that the MSPB’s jurisdiction and the merits of an alleged involuntary separation are inextricably intertwined” (internal quotation marks omitted)). This case fits that bill. The MSPB determined that it lacked jurisdiction over Perry’s civil-service claims on the ground that he voluntarily released those claims by entering into a valid settlement with his employing agency, the Census Bureau. See App. to Pet. for Cert. 27a.9 But the validity of the settlement is at the heart of the dispute on the merits of Perry’s complaint. In essence, the MSPB ruled that it lacked jurisdiction because Perry’s claims fail on the merits. See Shoaf, 260 F.3d, at 1341 (If it is established that an employee’s “resignation or retirement was involuntary and thus tantamount to forced removal,” then “not only [does the Board] ha[ve] jurisdiction, but also the employee wins on the merits and is entitled to reinstatement.” (internal quotation marks omitted)). See also Conforto, 713 F.3d, at 1126 (Dyk, J., dissenting) (“[I]t cannot be that [the Federal Circuit] lack[s] jurisdiction to review the ‘merits’ of mixed cases but nevertheless may review ‘jurisdictional’ issues that are identical to the merits . . . .”).10
+
+Distinguishing between MSPB jurisdictional rulings and the Board’s procedural or substantive rulings for purposes of allocating judicial review authority between district court and the Federal Circuit is problematic for a further reason: In practice, the distinction may be unworkable. The MSPB sometimes rules on alternate grounds, one typed “jurisdictional,” another either procedural or substantive. See, e.g., Davenport v. Postal Service, 97 MSPR 417 (2004) (dismissing “for lack of jurisdiction and as untimely filed” (emphasis added)). To which court does appeal lie? Or, suppose that the Board addresses a complaint that encompasses multiple claims, dismissing some for want of jurisdiction, others on procedural or substantive grounds. See, e.g., Donahue v. Postal Service, 2006 WL 859448, *1, *3 (ED Pa., Mar. 31, 2006). Tellingly, the Government is silent on the proper channeling of appeals in such cases.
+
+Desirable as national uniformity may be,11 it should not override the expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights. Perry’s comprehension of the complex statutory text, we are persuaded, best serves “[t]he CSRA’s objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin, 567 U.S., at 14. See also United States v. Fausto, 484 U.S. 439, 444–445 (1988).12 Perry asks us not to “tweak” the statute, see post, at 1, but to read it sensibly, i.e., to refrain from reading into it the appeal-splitting bifurcation sought by the Government. Accordingly, we hold: (1) the Federal Circuit is the proper review forum when the MSPB disposes of complaints arising solely under the CSRA; and (2) in mixed cases, such as Perry’s, in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review.",analysis,The Procedure-Jurisdiction Distinction,agree,The Procedure-Jurisdiction Distinction,agree,A review route of a mixed case is before the District Court,2
+G6,8,0,1,*,"For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.",conclusion,Remand for Further Proceedings,disagree,The District Court's Decision,strongly disagree,Supreme Court's holding,3
+G6,14,0,1,I,"Section 14 (b) (2) of the Bankruptcy Act, 11 U. S. C. § 32 (b) (2), provides that, upon the expiration of the time fixed by the court for filing of objections, ""the court shall discharge the bankrupt if no objection has been filed and if the filing fees required to be paid by this title have been paid in full."" Section 14 (c), 11 U. S. C. § 32 (c), similarly provides that the court ""shall grant the discharge unless satisfied that the bankrupt. . . (8) has failed to pay the filing fees required to be paid by this title in full."" Section 59 (g), 11 U. S. C. § 95 (g), relates to the dismissal of a petition in bankruptcy and states that ""in the case of a dismissal for failure to pay the costs,"" notice to creditors shall not be required. Three separate sections of the Act thus contemplate the imposition of fees and condition a discharge upon payment of those fees.
+
+Three charges are imposed: $37 for the referee's salary and expense fund, $10 for compensation of the trustee,[1] and $3 for the clerk's services. §§ 40 (c) (1), 48 (c), and 52 (a), 11 U. S. C. §§ 68 (c) (1), 76 (c), and 80 (a). These total $50.[2] The fees are payable upon the filing of the petition. Section 40 (c) (1), however, contains a proviso that in cases of voluntary bankruptcy, all the fees ""may be paid in installments, if so authorized by General Order of the Supreme Court of the United States.""
+
+The Court's General Order in Bankruptcy No. 35 (4), as amended June 23, 1947, 331 U. S. 873, 876-877, 11 U. S. C. App., p. 2210, complements § 40 (c) (1) and provides that, upon a proper showing by the bankrupt, the fees may be paid in installments within a six-month period, which may be extended not to exceed three months.[3]",analysis,Fees and Discharge,strongly disagree,The Bankruptcy Act and the General Order in Bankruptcy,strongly agree,Description of the contents of the Bankruptcy Act,1
+G6,14,0,1,II,"Robert William Kras presented his voluntary petition in bankruptcy to the United States District Court for the Eastern District of New York on May 28, 1971. The petition was accompanied by Kras' motion for leave to file and proceed in bankruptcy without payment of any of the filing fees as a condition precedent to discharge. The motion was supported by Kras' affidavit containing the following allegations that have not been controverted by the Government:
+
+1. Kras resides in a 2 1/2-room apartment with his wife, two children, ages 5 years and 8 months, his mother, and his mother's 6-year-old daughter. His younger child suffers from cystic fibrosis and is undergoing treatment in a medical center.
+
+2. Kras has been unemployed since May 1969 except for odd jobs producing about $300 in 1969 and a like amount in 1970. His last steady job was as an insurance agent with Metropolitan Life Insurance Company. He was discharged by Metropolitan in 1969 when premiums he had collected were stolen from his home and he was unable to make up the amount to his employer. Metropolitan's claim against him has increased to over $1,000 and is one of the debts listed in his bankruptcy petition. He has diligently sought steady employment in New York City, but, because of unfavorable references from Metropolitan, he has been unsuccessful. Mrs. Kras was employed until March 1970, when she was forced to stop because of pregnancy. All her attention now will be devoted to caring for the younger child who is coming out of the hospital soon.
+
+3. The Kras household subsists entirely on $210 per month public assistance received for Kras' own family and $156 per month public assistance received for his mother and her daughter. These benefits are all expended for rent and day-to-day necessities. The rent is $102 per month. Kras owns no automobile and no asset that is non-exempt under the bankruptcy law. He receives no unemployment or disability benefit. His sole assets are wearing apparel and $50 worth of essential household goods that are exempt under § 6 of the Act, 11 U. S. C. § 24, and under New York Civil Practice Laws and Rules § 5205 (1963). He has a couch of negligible value in storage on which a $6 payment is due monthly.
+
+4. Because of his poverty, Kras is wholly unable to pay or promise to pay the bankruptcy fees, even in small installments. He has been unable to borrow money. The New York City Department of Social Services refuses to allot money for payment of the fees. He has no prospect of immediate employment.
+
+5. Kras seeks a discharge in bankruptcy of $6,428.69 in total indebtedness in order to relieve himself and his family of the distress of financial insolvency and creditor harassment and in order to make a new start in life. It is especially important that he obtain a discharge of his debt to Metropolitan soon ""because until that is cleared up Metropolitan will continue to falsely charge me with fraud and give me bad references which prevent my getting employment.""
+
+The District Court's opinion contains an order, 331 F. Supp., at 1215, granting Kras' motion for leave to file his petition in bankruptcy without prepayment of fees. He was adjudged a bankrupt on September 13, 1971. Later, the referee, upon consent of the parties, entered an order allowing Kras to conduct all necessary proceedings in bankruptcy up to but not including discharge. The referee stayed the discharge pending disposition of this appeal.",facts,Robert William Kras,strongly agree,Robert William Kras,strongly agree,Voluntary Petition for discharge in bankruptcy,2
+G6,14,0,1,III,"In the District Court Kras first presented a statutory argument_x0097_and, alternatively, one based in common law_x0097_that he was entitled to relief from payment of the bankruptcy charges because of the provisions of 28 U. S. C. § 1915 (a).[4] This is the in forma pauperis statute that has its origin in the Act of July 20, 1892, c. 209, 27 Stat. 252. See also 28 U. S. C. §§ 832-836 (1940 ed.).
+
+The District Court rejected the argument despite the seeming facial application of § 1915 (a) to a bankruptcy proceeding as well as to any other. It reached this result by noting that § 51 (2) of the Bankruptcy Act, as originally adopted in 1898, 30 Stat. 558, had provided for a waiver of fees upon the filing of an affidavit of inability to pay; that by the passage of the Referees' Salary Bill in 1946, 60 Stat. 326, bankruptcy petitions in forma pauperis were abolished, H. R. Rep. No. 1037, 79th Cong., 1st Sess., 6 (1945); S. Rep. No. 959, 79th Cong., 2d Sess., 7 (1946); and that the 1946 statute, being later and having a positive and specific provision for postponement of fees in cases of indigency, overrode the earlier general provisions of § 1915 (a). 331 F. Supp., at 1209-1210. To the same effect are In re Garland, 428 F. 2d, at 1186-1187, and In re Smith, 323 F. Supp. 1082, 1084-1085 (Colo. 1971), the reasoning of which the District Court adopted. So also is In re Smith, 341 F. Supp. 1297, 1298 (ND Ill. 1972).
+
+The appellee may well have abandoned the argument on this appeal. Tr. of Oral Arg. 44-45. In any event, we agree, for the reasons stated by the District Court and by the courts in Garland and in the two Smith cases, supra, that § 1915 (a) is not now available in bankruptcy. See 2 W. Collier, Bankruptcy ¶ 51.01, pp. 1873-1874 (14th ed. 1971). Neither do we perceive any common-law right to proceed without payment of fees. Congress, of course, sometime might conclude that § 1915 (a) should be made applicable to bankruptcy and legislate accordingly.
+
+The District Court went on to hold, however, 331 F. Supp., at 1210-1215, that the prescribed fees, payment of which was required as a condition precedent to discharge, served to deny Kras ""his Fifth Amendment right of due process, including equal protection."" Id., at 1212. It held that a discharge in bankruptcy was a ""fundamental interest"" that could be denied only when a ""compelling government interest"" was demonstrated. It noted, id., at 1213, that provision should be made by the referee for the survival, beyond bankruptcy, of the bankrupt's obligation to pay the fees. The court rested its decision primarily upon Boddie v. Connecticut, 401 U. S. 371 (1971), which came down after the First Circuit's decision in Garland, supra. A number of other district courts and bankruptcy referees have reached the same result.[5]
+
+Kras contends that his case falls squarely within Boddie. The Government, on the other hand, stresses the differences between divorce (with which Boddie was concerned) and bankruptcy, and claims that Boddie is not controlling and that the fee requirements constitute a reasonable exercise of Congress' plenary power over bankruptcy.",facts,The Bankruptcy Proceeding,strongly agree,The In Forma Pauperis Argument,strongly agree,Bankruptcy Proceedings before the District Court,3
+G6,14,0,1,IV,"Boddie was a challenge by welfare recipients to certain Connecticut procedures, including the payment of court fees and costs, that allegedly restricted their access to the courts for divorce. The plaintiffs, simply by reason of their indigency, were unable to bring their actions. The Court reversed a district court judgment that a State could limit access to its courts by fees ""which effectively bar persons on relief from commencing actions therein."" 286 F. Supp. 968, 972. Mr. Justice Harlan, writing for the Court, stressed state monopolization of the means for legally dissolving marriage and identified the would-be indigent divorce plaintiff with any other action's impoverished defendant forced into court by the institution of a lawsuit against him. He declared that ""a meaningful opportunity to be heard"" was firmly imbedded in our due process jurisprudence, 401 U. S., at 377, and that this was to be protected against denial by laws that operate to jeopardize it for particular individuals, id., at 379-380. The Court then concluded that Connecticut's refusal to admit these good-faith divorce plaintiffs to its courts equated with the denial of an opportunity to be heard and, in the absence of a sufficient countervailing justification for the State's action, a denial of due process, id., at 380-381.
+
+But the Court emphasized that ""we go no further than necessary to dispose of the case before us."" Id., at 382.
+
+""We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship. The requirement that these appellants resort to the judicial process is entirely a state-created matter. Thus we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so."" Id., at 382-383.
+MR. JUSTICE DOUGLAS, concurring in the result, rested his conclusion on equal protection rather than due process. ""I do not see the length of the road we must follow if we accept my Brother HARLAN'S invitation."" Id., at 383, 385. MR. JUSTICE BRENNAN concurred in part, for he discerned no distinction between divorce and ""any other right arising under federal or state law"" and he, also, found a denial of equal protection. Id., at 386, 387. Mr. Justice Black dissented, id., at 389, feeling that the Connecticut court costs were barred by neither the Due Process Clause nor the Equal Protection Clause of the Fourteenth Amendment.
+
+Just two months after Boddie was decided, the Court denied certiorari in Garland. 402 U. S. 966. MR. JUSTICE BRENNAN was of the opinion that certiorari should have been granted. Mr. Justice Black, in an opinion applicable to Garland and to seven other then-pending cases, 402 U. S. 954, dissented and would have heard argument in all eight cases ""or reverse them outright on the basis of the decision in Boddie."" Id., at 955. For him ""the need . . . to file for a discharge in bankruptcy seem[ed] . . . more `fundamental' than a person's right to seek a divorce."" Id., at 958. And MR. JUSTICE DOUGLAS similarly dissented from the denial of certiorari in Garland and in four other cases because ""obtaining a fresh start in life through bankruptcy proceedings . . . seemingly come[s] within the Equal Protection Clause."" 402 U. S. 960, 961.
+
+Thus, although a denial of certiorari normally carries no implication or inference, Chessman v. Teets, 354 U. S. 156, 164 n. 13 (1957); Brown v. Allen, 344 U. S. 443 (1953), the pointed dissents of Mr. Justice Black and MR. JUSTICE DOUGLAS to the denial in Garland so soon after Boddie, and Mr. Justice Harlan's failure to join the dissenters, surely are not without some significance as to their and the Court's attitude about the application of the Boddie principle to bankruptcy fees.",analysis,The Boddie Decision,strongly agree,The Court's Decision on Boddie,strongly agree,Supreme Court's precedent Boddie v. Connecticut (1971),4
+G6,14,0,1,V,"We agree with the Government that our decision in Boddie does not control the disposition of this case and that the District Court's reliance upon Boddie is misplaced.
+
+A. Boddie was based on the notion that a State cannot deny access, simply because of one's poverty, to a ""judicial proceeding [that is] the only effective means of resolving the dispute at hand."" 401 U. S., at 376. Throughout the opinion there is constant and recurring reference to Connecticut's exclusive control over the establishment, enforcement, and dissolution of the marital relationship. The Court emphasized that ""marriage involves interests of basic importance in our society,"" ibid., and spoke of ""state monopolization of the means for legally dissolving this relationship,"" id., at 374. ""[R]esort to the state courts [was] the only avenue to dissolution of . . . marriages,"" id., at 376, which was ""not only the paramount dispute-settlement technique, but, in fact, the only available one,"" id., at 377. The Court acknowledged that it knew ""of no instance where two consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the State's judicial machinery,"" id., at 376. In the light of all this, we concluded that resort to the judicial process was ""no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court"" and we resolved the case ""in light of the principles enunciated in our due process decisions that delimit rights of defendants compelled to litigate their differences in the judicial forum,"" id., at 376-377.
+
+B. The appellants in Boddie, on the one hand, and Robert Kras, on the other, stand in materially different postures. The denial of access to the judicial forum in Boddie touched directly, as has been noted, on the marital relationship and on the associational interests that surround the establishment and dissolution of that relationship. On many occasions we have recognized the fundamental importance of these interests under our Constitution. See, for example, Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535 (1942); Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Meyer v. Nebraska, 262 U. S. 390 (1923). The Boddie appellants' inability to dissolve their marriages seriously impaired their freedom to pursue other protected associational activities. Kras' alleged interest in the elimination of his debt burden, and in obtaining his desired new start in life, although important and so recognized by the enactment of the Bankruptcy Act, does not rise to the same constitutional level. See Dandridge v. Williams, 397 U. S. 471 (1970); Richardson v. Belcher, 404 U. S. 78 (1971). If Kras is not discharged in bankruptcy, his position will not be materially altered in any constitutional sense. Gaining or not gaining a discharge will effect no change with respect to basic necessities.[6] We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.
+
+C. Nor is the Government's control over the establishment, enforcement, or dissolution of debts nearly so exclusive as Connecticut's control over the marriage relationship in Boddie. In contrast with divorce, bankruptcy is not the only method available to a debtor for the adjustment of his legal relationship with his creditors. The utter exclusiveness of court access and court remedy, as has been noted, was a potent factor in Boddie. But ""[w]ithout a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts. . . ."" 401 U. S., at 376.
+
+However unrealistic the remedy may be in a particular situation, a debtor, in theory, and often in actuality, may adjust his debts by negotiated agreement with his creditors. At times the happy passage of the applicable limitation period, or other acceptable creditor arrangement, will provide the answer. Government's role with respect to the private commercial relationship is qualitatively and quantitatively different from its role in the establishment, enforcement, and dissolution of marriage.
+
+Resort to the court, therefore, is not Kras' sole path to relief. Boddie's emphasis on exclusivity finds no counterpart in the bankrupt's situation. See Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 547-555 (1949).
+
+D. We are also of the opinion that the filing fee requirement does not deny Kras the equal protection of the laws. Bankruptcy is hardly akin to free speech or marriage or to those other rights, so many of which are imbedded in the First Amendment, that the Court has come to regard as fundamental and that demand the lofty requirement of a compelling governmental interest before they may be significantly regulated. See Shapiro v. Thompson, 394 U. S. 618, 638 (1969). Neither does it touch upon what have been said to be the suspect criteria of race, nationality, or alienage. Graham v. Richardson, 403 U. S. 365, 375 (1971). Instead, bankruptcy legislation is in the area of economics and social welfare. See Dandridge v. Williams, 397 U. S., at 484-485; Richardson v. Belcher, 404 U. S., at 81; Lindsey v. Normet, 405 U. S. 56, 74 (1972); Jefferson v. Hackney, 406 U. S. 535, 546 (1972). This being so, the applicable standard, in measuring the propriety of Congress' classification, is that of rational justification. Flemming v. Nestor, 363 U. S. 603, 611-612 (1960); Dandridge v. Williams, 397 U. S., at 485-486; Richardson v. Belcher, 404 U. S., at 81.
+
+E. There is no constitutional right to obtain a discharge of one's debts in bankruptcy. The Constitution, Art. I, § 8, cl. 4, merely authorizes the Congress to ""establish. . . uniform Laws on the subject of Bankruptcies throughout the United States."" Although the first bankruptcy law in England was enacted in 1542, 34 & 35 Hen. 8, c. 4, and a discharge provision first appeared in 1705, 4 Anne, c. 17, primarily as a reward for cooperating debtors, J. MacLachlan, Bankruptcy 20-21 (1956), voluntary bankruptcy was not known in this country at the adoption of the Constitution. Indeed, for the entire period prior to the present Act of 1898, the Nation was without a federal bankruptcy law except for three short periods aggregating about 15 1/2 years. The first statute was the Act of April 4, 1800, c. 19, 2 Stat. 19, and it was repealed by the Act of December 19, 1803, c. 6, 2 Stat. 248. The second was the Act of August 19, 1841, c. 9, 5 Stat. 440, repealed less than two years later by the Act of March 3, 1843, c. 82, 5 Stat. 614. The third was the Act of March 2, 1867, c. 176, 14 Stat. 517; it was repealed by the Act of June 7, 1878, c. 160, 20 Stat. 99. Voluntary petitions were permitted under the 1841 and 1867 Acts. See 1 W. Collier, Bankruptcy ¶¶ 0.03-0.05, pp. 6-9 (14th ed. 1971). Professor MacLachlan has said that the development of the discharge ""represents an independent. . . public policy in favor of extricating an insolvent debtor from what would otherwise be a financial impasse."" J. MacLachlan, Bankruptcy 88 (footnote omitted). But this obviously is a legislatively created benefit, not a constitutional one, and, as noted, it was a benefit withheld, save for three short periods, during the first 110 years of the Nation's life. The mere fact that Congress has delegated to the District Court supervision over the proceedings by which a petition for discharge is processed does not convert a statutory benefit into a constitutional right of access to a court. Then, too, Congress might have delegated the responsibility to an administrative agency.
+
+F. The rational basis for the fee requirement is readily apparent. Congressional power over bankruptcy, of course, is plenary and exclusive. Kalb v. Feuerstein, 308 U. S. 433, 438-439 (1940). By the 1946 Amendment, 60 Stat. 326, Congress, as has been noted, abolished the theretofore existing practices of the pauper petition and of compensating the referee from the fees he collected. It replaced that system with one for salaried referees and for fixed fees for every petition filed and a specified percentage of distributable assets. It sought to make the system self-sustaining and paid for by those who use it rather than by tax revenues drawn from the public at large. H. R. Rep. No. 1037, 79th Cong., 1st Sess., 4-6 (1945); S. Rep. No. 959, 79th Cong., 2d Sess. 2, 5-6 (1946).[7] The propriety of the requirement that the fees be paid ultimately has been recognized even by those district courts that have held the payment of the fee as a precondition to a discharge to be unconstitutional, for those courts would make the payments survive the bankruptcy as a continuing obligation of the bankrupt. In re Smith, 323 F. Supp., at 1093; In re Ottman, 336 F. Supp. 746, 748 (ED Wis. 1972). See O'Brien v. Trevethan, 336 F. Supp. 1029, 1034 (Conn. 1972).
+
+Further, the reasonableness of the structure Congress produced, and congressional concern for the debtor, are apparent from the provisions permitting the debtor to file his petition without payment of any fee, with consequent freedom of subsequent earnings and of after-acquired assets (with the rare exception specified in § 70 (a) of the Act, 11 U. S. C. § 110 (a)) from the claims of then-existing obligations. These provisions, coupled with the bankrupt's ability to obtain a stay of all debt enforcement actions pending at the filing of the petition or thereafter commenced, §§ 11 (a) and 2 (a) (15), 11 U. S. C. §§ 29 (a) and 11 (a) (15); 1A W. Collier, Bankruptcy ¶ 11.03 (14th ed. 1972); 1 id., ¶ 2.62 [4] (14th ed. 1971), enable a bankrupt to terminate his harassment by creditors, to protect his future earnings and property, and to have his new start with a minimum of effort and financial obligation. They serve also, as an incidental effect, to promote and not to defeat the purpose of making the bankruptcy system financially self-sufficient. Cf. Lindsey v. Normet, 405 U. S., at 74-79.
+
+G. If the $50 filing fees are paid in installments over six months as General Order No. 35 (4) permits on a proper showing, the required average weekly payment is $1.92. If the payment period is extended for the additional three months as the Order permits, the average weekly payment is lowered to $1.28.[8] This is a sum less than the payments Kras makes on his couch of negligible value in storage, and less than the price of a movie and little more than the cost of a pack or two of cigarettes. If, as Kras alleges in his affidavit, a discharge in bankruptcy will afford him that new start he so desires, and the Metropolitan then no longer will charge him with fraud and give him bad references,[9] and if he really needs and desires that discharge, this much available revenue should be within his able-bodied reach when the adjudication in bankruptcy has stayed collection and has brought to a halt whatever harassment, if any, he may have sustained from creditors.",analysis,The District Court's Reliance on Boddie,strongly agree,The District Court's Reliance on Boddie,strongly agree,Comparison of the Boddie precedent with the present case,5
+G6,14,0,1,VI,"Mr. Justice Harlan, in his opinion for the Court in Boddie, meticulously pointed out, as we have noted above, that the Court went ""no further than necessary to dispose of the case before us"" and did ""not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual."" 401 U. S., at 382-383. The Court obviously stopped short of an unlimited rule that an indigent at all times and in all cases has the right to relief without the payment of fees.
+
+We decline to extend the principle of Boddie to the no-asset bankruptcy proceeding. That relief, if it is to be forthcoming, should originate with Congress. See Shaeffer, Proceedings in Bankruptcy In Forma Pauperis, 69 Col. L. Rev. 1203 (1969).
+
+Reversed.",analysis,The Right to Relief.,strongly disagree,The Boddie Principle,strongly disagree,Rejection of the application of the Boddie precedent to the case,6
+G6,16,0,1,I,"In 1997 a Georgia jury convicted petitioner, Marion Wilson, of murder and related crimes. After a sentencing hearing, the jury sentenced Wilson to death. In 1999 the Georgia Supreme Court affirmed Wilson’s conviction and sentence, Wilson v. State, 271 Ga. 811, 525 S. E. 2d 339 (1999), and this Court denied his petition for certiorari, Wilson v. Georgia, 531 U. S. 838 (2000).
+
+Wilson then filed a petition for habeas corpus in a state court, the Superior Court for Butts County. Among other things, he claimed that his counsel was “ineffective” during his sentencing, in violation of the Sixth Amendment. See Strickland v. Washington, 466 U. S. 668, 687 (1984) (setting forth “two components” of an ineffectiveassistance-of-counsel claim: “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense”). Wilson identified new evidence that he argued trial counsel should have introduced at sentencing, namely, testimony from various witnesses about Wilson’s childhood and the impairment of the frontal lobe of Wilson’s brain.
+
+After a hearing, the state habeas court denied the petition in relevant part because it thought Wilson’s evidence did not show that counsel was “deficient,” and, in any event, counsel’s failure to find and present the new evidence that Wilson offered had not prejudiced Wilson. Wilson v. Terry, No. 2001–v–38 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. 60–61. In the court’s view, that was because the new evidence was “inadmissible on evidentiary grounds,” was “cumulative of other testimony,” or “otherwise would not have, in reasonable probability, changed the outcome of the trial.” Id., at 61. Wilson applied to the Georgia Supreme Court for a certificate of probable cause to appeal the state habeas court’s decision. But the Georgia Supreme Court denied the application without any explanatory opinion. Wilson v. Terry, No. 2001–v–38 (May 3, 2010), App. 87, cert. denied, 562 U. S. 1093 (2010).
+
+Wilson subsequently filed a petition for habeas corpus in the United States District Court for the Middle District of Georgia. He made what was essentially the same “ineffective assistance” claim. After a hearing, the District Court denied Wilson’s petition. Wilson v. Humphrey, No. 5:10– cv–489 (Dec. 19, 2013), App. 88–89. The court assumed that Wilson’s counsel had indeed been “deficient” in failing adequately to investigate Wilson’s background and physical condition for mitigation evidence and to present what he likely would have found at the sentencing hearing. Id., at 144. But, the court nonetheless deferred to the state habeas court’s conclusion that these deficiencies did not “prejudice” Wilson, primarily because the testimony of many witnesses was “cumulative,” and because the evidence of physical impairments did not include any physical examination or other support that would have shown the state-court determination was “unreasonable.” Id., at 187; see Richter, 562 U. S., at 111–112.
+
+Wilson appealed to the Court of Appeals for the Eleventh Circuit. Wilson v. Warden, 774 F. 3d 671 (2014). The panel first held that the District Court had used the wrong method for determining the reasoning of the relevant state court, namely, that of the Georgia Supreme Court (the final and highest state court to decide the merits of Wilson’s claims). Id., at 678. That state-court decision, the panel conceded, was made without an opinion. But, the federal court was wrong to “look through” that decision and assume that it rested on the grounds given in the lower court’s decision. Instead of “looking through” the decision to the state habeas court’s opinion, the federal court should have asked what arguments “could have supported” the Georgia Supreme Court’s refusal to grant permission to appeal. The panel proceeded to identify a number of bases that it believed reasonably could have supported the decision. Id., at 678–681.
+
+The Eleventh Circuit then granted Wilson rehearing en banc so that it could consider the matter of methodology. Wilson v. Warden, 834 F. 3d 1227 (2016). Ultimately six judges (a majority) agreed with the panel and held that its “could have supported” approach was correct. Id., at 1235. Five dissenting judges believed that the District Court should have used the methodology it did use, namely, the “look through” approach. Id., at 1242–1247, 1247–1269. Wilson then sought certiorari here. Because the Eleventh Circuit’s opinion creates a split among the Circuits, we granted the petition. Compare id., at 1285 (applying “could have supported” approach), with Grueninger v. Director, Va. Dept. of Corrections, 813 F. 3d 517, 525–526 (CA4 2016) (applying “look through” presumption postRichter), and Cannedy v. Adams, 706 F. 3d 1148, 1156– 1159 (CA9 2013) (same); see also Clements v. Clarke, 592 F. 3d 45, 52 (CA1 2010) (applying “look through” presumption pre-Richter); Bond v. Beard, 539 F. 3d 256, 289–290 (CA3 2008) (same); Mark v. Ault, 498 F. 3d 775, 782–783 (CA8 2007) (same); Joseph v. Coyle, 469 F. 3d 441, 450 (CA6 2006) (same).",facts,Wilson v. State and Habeas Corpus,agree,Wilson’s Conviction and Sentencing,agree,Dismissal of the Habeas Corpus Petition Without Reasoning,1
+G6,16,0,1,II,"We conclude that federal habeas law employs a “look through” presumption. That conclusion has parallels in this Court’s precedent. In Ylst v. Nunnemaker, a defendant, convicted in a California state court of murder, appealed his conviction to the state appeals court where he raised a constitutional claim based on Miranda v. Arizona, 384 U. S. 436 (1966). 501 U. S. 797, 799–800 (1991). The appeals court rejected that claim, writing that “ ‘an objection based upon a Miranda violation cannot be raised for the first time on appeal.’ ” Id., at 799. The defendant then similarly challenged his conviction in the California Supreme Court and on collateral review in several state courts (including once again the California Supreme Court). In each of these latter instances the state court denied the defendant relief (or review). In each instance the court did so without an opinion or other explanation. Id., at 799–800.
+
+Subsequently, the defendant asked a federal habeas court to review his constitutional claim. Id., at 800. The higher state courts had given no reason for their decision. And this Court ultimately had to decide how the federal court was to find the state court’s reasoning in those circumstances. Should it have “looked through” the unreasoned decisions to the state procedural ground articulated in the appeals court or should it have used a different method?
+
+In answering that question Justice Scalia wrote the following for the Court: “The problem we face arises, of course, because many formulary orders are not meant to convey anything as to the reason for the decision. Attributing a reason is therefore both difficult and artificial. We think that the attribution necessary for federal habeas purposes can be facilitated, and sound results more often assured, by applying the following presumption: Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion ‘fairly appear[s] to rest primarily upon federal law,’ we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.” Id., at 803 (citation omitted).
+
+Since Ylst, every Circuit to have considered the matter has applied this presumption, often called the “look through” presumption, but for the Eleventh Circuit—even where the state courts did not apply a procedural bar to review. See supra, at 4–5. And most Federal Circuits applied it prior to Ylst. See Ylst, supra, at 803 (citing Prihoda v. McCaughtry, 910 F. 2d 1379, 1383 (CA7 1990); Harmon v. Barton, 894 F. 2d 1268, 1272 (CA11 1990); Evans v. Thompson, 881 F. 2d 117, 123, n. 2 (CA4 1989); Ellis v. Lynaugh, 873 F. 2d 830, 838 (CA5 1989)).
+
+That is not surprising in light of the fact that the “look through” presumption is often realistic, for state higher courts often (but certainly not always, see Redmon v. Johnson, 2018 WL 415714 (Ga., Jan. 16, 2018)) write “denied” or “affirmed” or “dismissed” when they have examined the lower court’s reasoning and found nothing significant with which they disagree.
+
+Moreover, a “look through” presumption is often (but not always) more efficiently applied than a contrary approach—an approach, for example, that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning. The latter task may prove particularly difficult where the issue involves state law, such as state procedural rules that may constrain the scope of a reviewing court’s summary decision, a matter in which a federal judge often lacks comparative expertise. See Ylst, supra, at 805.
+
+The State points to a later case, Harrington v. Richter, 562 U. S. 86 (2011), which, it says, controls here instead of Ylst. In its view, Ylst should apply, at most, to cases in which the federal habeas court is trying to determine whether a state-court decision without opinion rested on a state procedural ground (for example, a procedural default) or whether the state court has reached the merits of a federal issue. In support, it notes that Richter held that the state-court decisions to which AEDPA refers include summary dispositions, i.e., decisions without opinion. Richter added that “determining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” 562 U. S., at 98.
+
+Richter then said that, where “a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Ibid. And the Court concluded that, when “a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id., at 99.
+
+In our view, however, Richter does not control here. For one thing, Richter did not directly concern the issue before us—whether to “look through” the silent state higher court opinion to the reasoned opinion of a lower court in order to determine the reasons for the higher court’s decision. Indeed, it could not have considered that matter, for in Richter, there was no lower court opinion to look to. That is because the convicted defendant sought to raise his federal constitutional claim for the first time in the California Supreme Court (via a direct petition for habeas corpus, as California law permits). Id., at 96.
+
+For another thing, Richter does not say the reasoning of Ylst does not apply in the context of an unexplained decision on the merits. To the contrary, the Court noted that it was setting forth a presumption, which “may be overcome when there is reason to think some other explanation for the state court’s decision is more likely.” Richter, supra, at 99–100. And it referred in support to Ylst, 501 U. S., at 803.
+
+Further, we have “looked through” to lower court decisions in cases involving the merits. See, e.g., Premo v. Moore, 562 U. S. 115, 123–133 (2011); Sears v. Upton, 561 U. S. 945, 951–956 (2010) (per curiam). Indeed, we decided one of those cases, Premo, on the same day we decided Richter. And in our opinion in Richter we referred to Premo. 562 U. S., at 91. Had we intended Richter’s “could have supported” framework to apply even where there is a reasoned decision by a lower state court, our opinion in Premo would have looked very different. We did not even cite the reviewing state court’s summary affirmance. Instead, we focused exclusively on the actual reasons given by the lower state court, and we deferred to those reasons under AEDPA. 562 U. S., at 132 (“The state postconviction court’s decision involved no unreasonable application of Supreme Court precedent”).",analysis,“Look Through” Presumption,strongly agree,Look Through Presumption,strongly agree,Reminder of the precedents established presumption known as “look through”,2
+G6,16,0,1,III,"The State’s further arguments do not convince us. The State points out that there could be many cases in which a “look through” presumption does not accurately identify the grounds for the higher court’s decision. And we agree. We also agree that it is more likely that a state supreme court’s single word “affirm” rests upon alternative grounds where the lower state court decision is unreasonable than, e.g., where the lower court rested on a state-law procedural ground, as in Ylst. But that is why we have set forth a presumption and not an absolute rule. And the unreasonableness of the lower court’s decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning. Thus, additional evidence that might not be sufficient to rebut the presumption in a case like Ylst would allow a federal court to conclude that counsel has rebutted the presumption in a case like this one. For instance, a federal habeas court may conclude that counsel has rebutted the presumption on the basis of convincing alternative arguments for affirmance made to the State’s highest court or equivalent evidence presented in its briefing to the federal court similarly establishing that the State’s highest court relied on a different ground than the lower state court, such as the existence of a valid ground for affirmance that is obvious from the state-court record. The dissent argues that the Georgia Supreme Court’s recent decision in Redmon v. Johnson rebuts the presumption in Georgia because that court indicated its summary decisions should not be read to adopt the lower court’s reasoning. Post, at 6–8, 10–11 (opinion of GORSUCH, J.). This misses the point. A presumption that can be rebutted by evidence of, for instance, an alternative ground that was argued or that is clear in the record was the likely basis for the decision is in accord with full and proper respect for state courts, like those in Georgia, which have well-established systems and procedures in place in order to ensure proper consideration to the arguments and contention in the many cases they must process to determine whether relief should be granted when a criminal conviction or its ensuing sentence is challenged.
+
+The State also points out that we do not necessarily presume that a silent opinion of a federal court of appeals adopts the reasoning of the court below. The dissent similarly invokes these “traditional rules of appellate practice.” See post, at 5–6, 10. But neither the State nor the dissent provides examples of similar context. Were we to adopt a “look through” approach in respect to silent federal appeals court decisions as a general matter in other contexts, we would risk judges and lawyers reading those decisions as creating, through silence, a precedent that could be read as binding throughout the circuit—just what a silent decision may be thought not to do. Here, however, we “look through” the silent decision for a specific and narrow purpose—to identify the grounds for the higher court’s decision, as AEDPA directs us to do. See supra, at 1–2. We see no reason why the federal court’s interpretation of the state court’s silence should be taken as binding precedent outside this context, for example, as a statewide binding interpretation of state law.
+
+Further, the State argues that the “look through” approach shows disrespect for the States. See Brief for Respondent 39 (“Wilson’s approach to summary decisions reflects an utter lack of faith in the ability of the highest state courts to adjudicate constitutional rights”). We do not believe this is so. Rather the presumption seeks to replicate the grounds for the higher state court’s decision. Where there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court, the federal habeas court is free, as we have said, to find to the contrary. In our view, this approach is more likely to respect what the state court actually did, and easier to apply in practice, than to ask the federal court to substitute for silence the federal court’s thought as to more supportive reasoning.
+
+Finally, the State argues that the “look through” approach will lead state courts to believe they must write full opinions where, given the workload, they would have preferred to have decided summarily. Though the matter is empirical, given the narrowness of the context, we do not believe that they will feel compelled to do so—at least not to any significant degree. The State offers no such evidence in the many Circuits that have applied Ylst outside the procedural context. See supra, at 5.
+
+For these reasons, we reverse the Eleventh Circuit’s judgment and remand the case for further proceedings consistent with this opinion.
+
+It is so ordered. ",analysis,Rejection of the Presumption,strongly disagree,The State’s Other Arguments,agree,"Rejection of the Respondent's arguments and confirmation of the ""look through"" approach",3
+G8,4,0,1,I,"On June 1, 1978, respondents loaned $119,000 to petitioner Aletha Dewsnup and her husband, T. LaMar Dewsnup, since deceased. The loan was accompanied by a Deed of Trust granting a lien on two parcels of Utah farmland owned by the Dewsnups.
+
+Petitioner defaulted the following year. Under the terms of the Deed of Trust, respondents at that point could have proceeded against the real property collateral by accelerating the maturity of the loan, issuing a notice of default, and selling the land at a public foreclosure sale to satisfy the debt. See also Utah Code Ann. §§ 57-1_x0097_20 to 57-1_x0097_37 (1990 and Supp. 1991).
+
+Respondents did issue a notice of default in 1981. Before the foreclosure sale took place, however, petitioner sought reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S. C. § 1101 et seq. That bankruptcy petition was dismissed, as was a subsequent Chapter 11 petition. In June 1984, petitioner filed a petition seeking liquidation under Chapter 7 of the Code, 11 U.S. C. § 701 et seq. Because of the pendency of these bankruptcy proceedings, respondents were not able to proceed to the foreclosure sale. See 11 U.S. C. § 362 (1988 ed. and Supp. II).
+
+In 1987, petitioner filed the present adversary proceeding in the Bankruptcy Court for the District of Utah seeking, pursuant to § 506, to ""avoid"" a portion of respondents' lien. App. 3. Petitioner represented that the debt of approximately $120,000 then owed to respondents exceeded the fair market value of the land and that, therefore, the Bankruptcy Court should reduce the lien to that value. According to petitioner, this was compelled by the interrelationship of the security-reducing provision of § 506(a) and the lien-voiding provision of § 506(d). Under § 506(a) (""An allowed claim of a creditor secured by a lien on property in which the estate has an interest . . . is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property""), respondents would have an ""allowed secured claim"" only to the extent of the judicially determined value of their collateral. And under § 506(d) (""To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void""), the court would be required to void the lien as to the remaining portion of respondents' claim, because the remaining portion was not an ""allowed secured claim"" within the meaning of § 506(a).
+
+The Bankruptcy Court refused to grant this relief. In re Dewsnup, 87 B.R. 676 (1988). After a trial, it determined that the then value of the land subject to the Deed of Trust was $39,000. It indulged in the assumption that the property had been abandoned by the trustee pursuant to § 554, and reasoned that once property was abandoned it no longer fell within the reach of § 506(a), which applies only to ""property in which the estate has an interest,"" and therefore was not covered by § 506(d).
+
+The United States District Court, without a supporting opinion, summarily affirmed the Bankruptcy Court's judgment of dismissal with prejudice. App. to Pet. for Cert. 12a.
+
+The Court of Appeals for the Tenth Circuit, in its turn, also affirmed. In re Dewsnup, 908 F.2d 588 (1990). Starting from the ""fundamental premise"" of § 506(a) that a claim is subject to reduction in security only when the estate has an interest in the property, the court reasoned that because the estate had no interest in abandoned property, § 506(a) did not apply (nor, by implication, did § 506(d)). Id., at 590-591. The court then noted that a contrary result would be inconsistent with § 722 under which a debtor has a limited right to redeem certain personal property. Id., at 592.
+
+Because the result reached by the Court of Appeals was at odds with that reached by the Third Circuit in Gaglia v. First Federal Savings & Loan Assn., 889 F.2d 1304, 1306_x0097_ 1311 (1989), and was expressly recognized by the Tenth Circuit as being in conflict, see 908 F.2d, at 591, we granted certiorari. 498 U.S. 1081 (1991).",facts,The Dewsnups,strongly agree,The Dewsnups' Loans and the Foreclosure Sale,strongly agree,Petition to void the Respondent's Lien on two parcels of Utah farmland owned by the Dewsnups,1
+G8,4,0,1,II,"As we read their several submissions, the parties and their amici are not in agreement in their respective approaches to the problem of statutory interpretation that confronts us. Petitioner-debtor takes the position that §§ 506(a) and 506(d) are complementary and to be read together. Because, under § 506(a), a claim is secured only to the extent of the judicially determined value of the real property on which the lien is fixed, a debtor can void a lien on the property pursuant to § 506(d) to the extent the claim is no longer secured and thus is not ""an allowed secured claim."" In other words, § 506(a) bifurcates classes of claims allowed under § 502 into secured claims and unsecured claims; any portion of an allowed claim deemed to be unsecured under § 506(a) is not an ""allowed secured claim"" within the lien-voiding scope of § 506(d). Petitioner argues that there is no exception for unsecured property abandoned by the trustee.
+
+Petitioner's amicus argues that the plain language of § 506(d) dictates that the proper portion of an under secured lien on property in a Chapter 7 case is void whether or not the property is abandoned by the trustee. It further argues that the rationale of the Court of Appeals would lead to evisceration of the debtor's right of redemption and the elimination of an undersecured creditor's ability to participate in the distribution of the estate's assets.
+
+Respondents primarily assert that § 506(d) is not, as petitioner would have it, ""rigidly tied"" to § 506(a), Brief for Respondents 7. They argue that § 506(a) performs the function of classifying claims by true secured status at the time of distribution of the estate to ensure fairness to unsecured claimants. In contrast, the lien-voiding § 506(d) is directed to the time at which foreclosure is to take place, and, where the trustee has abandoned the property, no bankruptcy distributional purpose is served by voiding the lien.
+
+In the alternative, respondents, joined by the United States as amicus curiae, argue more broadly that the words ""allowed secured claim"" in § 506(d) need not be read as an indivisible term of art defined by reference to § 506(a), which by its terms is not a definitional provision. Rather, the words should be read term-by-term to refer to any claim that is, first, allowed, and, second, secured. Because there is no question that the claim at issue here has been ""allowed"" pursuant to § 502 of the Code and is secured by a lien with recourse to the underlying collateral, it does not come within the scope of § 506(d), which voids only liens corresponding to claims that have not been allowed and secured. This reading of § 506(d), according to respondents and the United States, gives the provision the simple and sensible function of voiding a lien whenever a claim secured by the lien itself has not been allowed. It ensures that the Code's determination not to allow the underlying claim against the debtor personally is given full effect by preventing its assertion against the debtor's property.[2]
+
+Respondents point out that pre-Code bankruptcy law preserved liens like respondents' and that there is nothing in the Code's legislative history that reflects any intent to alter that law. Moreover, according to respondents, the ""fresh start"" policy cannot justify an impairment of respondents' property rights, for the fresh start does not extend to an in rem claim against property but is limited to a discharge of personal liability.",analysis,The Parties' Arguments,strongly agree, The Issues of Interpretation,strongly agree,Reminder of the arguments put forward by the parties to the dispute,2
+G8,4,0,1,III,"The foregoing recital of the contrasting positions of the respective parties and their amici demonstrates that § 506 of the Bankruptcy Code and its relationship to other provisions of that Code do embrace some ambiguities. See 3 Collier on Bankruptcy, ch. 506 and, in particular, ¶ 506.07 (15th ed. 1991). Hypothetical applications that come to mind and those advanced at oral argument illustrate the difficulty of interpreting the statute in a single opinion that would apply to all possible fact situations. We therefore focus upon the case before us and allow other facts to await their legal resolution on another day.
+
+We conclude that respondents' alternative position, espoused also by the United States, although not without its difficulty, generally is the better of the several approaches. Therefore, we hold that § 506(d) does not allow petitioner to ""strip down"" respondents' lien, because respondents' claim is secured by a lien and has been fully allowed pursuant to § 502. Were we writing on a clean slate, we might be inclined to agree with petitioner that the words ""allowed secured claim"" must take the same meaning in § 506(d) as in § 506(a).[3] But, given the ambiguity in the text, we are not convinced that Congress intended to depart from the preCode rule that liens pass through bankruptcy unaffected.
+
+1. The practical effect of petitioner's argument is to freeze the creditor's secured interest at the judicially determined valuation. By this approach, the creditor would lose the benefit of any increase in the value of the property by the time of the foreclosure sale. The increase would accrue to the benefit of the debtor, a result some of the parties describe as a ""windfall.""
+
+We think, however, that the creditor's lien stays with the real property until the foreclosure. That is what was bargained for by the mortgagor and the mortgagee. The voidness language sensibly applies only to the security aspect of the lien and then only to the real deficiency in the security. Any increase over the judicially determined valuation during bankruptcy rightly accrues to the benefit of the creditor, not to the benefit of the debtor and not to the benefit of other unsecured creditors whose claims have been allowed and who had nothing to do with the mortgagor-mortgagee bargain.
+
+Such surely would be the result had the lienholder stayed aloof from the bankruptcy proceeding (subject, of course, to the power of other persons or entities to pull him into the proceeding pursuant to § 501), and we see no reason why his acquiescence in that proceeding should cause him to experience a forfeiture of the kind the debtor proposes. It is true that his participation in the bankruptcy results in his having the benefit of an allowed unsecured claim as well as his allowed secured claim, but that does not strike us as proper recompense for what petitioner proposes by way of the elimination of the remainder of the lien.
+
+2. This result appears to have been clearly established before the passage of the 1978 Act. Under the Bankruptcy Act of 1898, a lien on real property passed through bankruptcy unaffected. This Court recently acknowledged that this was so. See Farrey v. Sanderfoot, 500 U.S. 291, 297 (1991) (""Ordinarily, liens and other secured interests survive bankruptcy""); Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) (""Rather, a bankruptcy discharge extinguishes only one mode of enforcing a claim_x0097_namely, an action against the debtor in personam _x0097_while leaving intact another_x0097_namely, an action against the debtor in rem "").[4]
+
+3. Apart from reorganization proceedings, see 11 U.S. C. §§ 616(1) and (10) (1976 ed.), no provision of the pre-Code statute permitted involuntary reduction of the amount of a creditor's lien for any reason other than payment on the debt. Our cases reveal the Court's concern about this. In Long v. Bullard, 117 U.S. 617, 620-621 (1886), the Court held that a discharge in bankruptcy does not release real estate of the debtor from the lien of a mortgage created by him before the bankruptcy. And in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935), the Court considered additions to the Bankruptcy Act effected by the Frazier-Lemke Act, 48 Stat. 1289. There the Court noted that the latter Act's ""avowed object is to take from the mortgagee rights in the specific property held as security; and to that end `to scale down the indebtedness' to the present value of the property."" 295 U.S., at 594. The Court invalidated that statute under the Takings Clause. It further observed: ""No instance has been found, except under the Frazier-Lemke Act, of either a statute or decision compelling the mortgagee to relinquish the property to the mortgagor free of the lien unless the debt was paid in full."" Id. , at 579.
+
+Congress must have enacted the Code with a full understanding of this practice. See H. R. Rep. No. 95-595, p. 357 (1977) (""Subsection (d) permits liens to pass through the bankruptcy case unaffected"").
+
+4. When Congress amends the bankruptcy laws, it does not write ""on a clean slate."" See Emil v. Hanley, 318 U.S. 515, 521 (1943). Furthermore, this Court has been reluctant to accept arguments that would interpret the Code, however vague the particular language under consideration might be, to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history. See United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 380 (1988). See also Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 563 (1990); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 244-245 (1989). Of course, where the language is unambiguous, silence in the legislative history cannot be controlling. But, given the ambiguity here, to attribute to Congress the intention to grant a debtor the broad new remedy against allowed claims to the extent that they become ""unsecured"" for purposes of § 506(a) without the new remedy's being mentioned somewhere in the Code itself or in the annals of Congress is not plausible, in our view, and is contrary to basic bankruptcy principles.
+
+The judgment of the Court of Appeals is affirmed.
+
+It is so ordered.",analysis,Applicability of the Bankruptcy Code,agree,The contrasting positions of the parties and their amici,strongly disagree,Interpretation of the Bankruptcy Code and rejection of the Petitioner's claims,3
+G8,5,0,1,*,"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.
+
+3
+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 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214.
+
+4
+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.
+
+5
+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.
+
+6
+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.
+
+7
+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.""
+
+8
+The Court of Appeals also found no conflict between its interpretation of the statute and the purpose of AEDPA. The court found instead that its construction would promote the goal of encouraging petitioners to file their federal habeas applications as soon as possible.
+
+9
+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.
+
+",facts,Federal Habeas Proceedings,strongly agree,The Federal Habeas Corpus Petition,strongly agree,Federal Habeas Petition and Limitation Period,1
+G8,5,0,1,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.
+
+11
+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.""
+
+12
+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 "" '[w]here 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.
+
+13
+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.""
+
+14
+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.
+
+15
+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.""
+
+16
+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.
+
+17
+Section 2244(d)(1)'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"").
+
+18
+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.
+
+19
+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. Proc. 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.
+
+20
+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. 2263 (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.
+
+21
+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.
+
+22
+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) (""[T]he 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 "").
+
+23
+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.
+
+24
+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[s] for State post-conviction or other collateral review.""
+
+25
+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.
+
+26
+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.
+
+27
+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 AEPDA'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)(1)'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.
+
+28
+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.
+
+29
+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.
+
+30
+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.",analysis,Applicability of 2244(d)(2),strongly agree,Interpretation of 2244(d)(2),strongly agree,Interpretation of Section 2244(d)(2) of the Antiterrorism and Effective Death Penalty Act of 1996,2
+G8,7,0,1,I,"The relevant background circumstances include the following:
+1. Fiore owned and operated a hazardous waste disposal facility in Pennsylvania. Scarpone was the facility's general manager. Pennsylvania authorities, while conceding that Fiore and Scarpone possessed a permit to operate the facility, claimed that their deliberate alteration of a monitoring pipe to hide a leakage problem went so far beyond the terms of the permit that the operation took place without a permit at all. A jury convicted them both of having ""operate[d] a hazardous waste storage, treatment or disposal facility"" without a ""permit."" Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993); see Commonwealth v. Fiore, CC No. 8508740 (Ct. Common Pleas, Allegheny Cty., Pa., Jan. 19, 1988), p. 2, App. 6 (marking date of conviction as Feb. 18, 1986). The trial court upheld the conviction, despite the existence of a permit, for, in its view, the ""alterations of the . . . pipe represented such a significant departure from the terms of the existing permit that the operation of the hazardous waste facility was `un-permitted' after the alterations were undertaken . . . ."" Id., at 48, App. 44.
+
+2. Fiore appealed his conviction to the Pennsylvania Superior Court. See 42 Pa. Cons. Stat. § 742 (1998) (granting the Superior Court jurisdiction over all appeals from a final order of a court of common pleas). That court affirmed the conviction ""on the basis of the opinion of the court below."" Commonwealth v. Fiore, No. 00485 PGH 1988 (May 12, 1989), pp. 2-3, App. 99-100. The Pennsylvania Supreme Court denied Fiore leave to appeal on March 13, 1990; shortly thereafter, Fiore's conviction became final.
+
+3. Fiore's codefendant, Scarpone, appealed his conviction to the Pennsylvania Commonwealth Court. See 42 Pa. Cons. Stat. § 762(a)(2)(ii) (1998) (granting the Commonwealth Court jurisdiction over appeals in regulatory criminal cases). That court noted the existence of a ""valid permit,"" found the Commonwealth's interpretation of the statute ""strained at best,"" and set Scarpone's conviction aside. Scarpone v. Commonwealth, 141 Pa. Commw. 560, 567, 596 A.2d 892, 895 (1991). The court wrote:
+
+""The alteration of the monitoring pipe was clearly a violation of the conditions of the permit. But to say that the alteration resulted in the operation of a new facility which had not been permitted is to engage in a semantic exercise which we cannot accept. . . . [W]e will not let [the provision's] language be stretched to include activities which clearly fall in some other subsection."" Ibid.
+The Pennsylvania Supreme Court affirmed the Commonwealth Court's conclusion. It wrote:
+
+""[T]he Commonwealth did not make out the crime of operating a waste disposal facility without a permit . . . . Simply put, Mr. Scarpone did have a permit. . . . [T]o conclude that the alteration constituted the operation of a new facility without a permit is a bald fiction we cannot endorse. . . . The Commonwealth Court was right in reversing Mr. Scarpone's conviction of operating without a permit when the facility clearly had one."" Com- monwealth v. Scarpone, 535 Pa., at 279, 634 A.2d, at 1112.
+4. Fiore again asked the Pennsylvania Supreme Court to review his case, once after that court agreed to review Scarpone's case and twice more after it decided Scarpone. See Appellee's Supplemental App. in No. 97-3288 (CA3), pp. 59, 61 (including docket sheets reflecting Fiore's filings on Jan. 30, 1992, Jan. 24, 1994, and Oct. 18, 1994). The court denied those requests.
+
+5. Fiore then sought collateral relief in the state courts. The Court of Common Pleas of Allegheny County, Pa., refused to grant Fiore's petition for collateral relief_x0097_despite Scarpone _x0097_because ""at the time of . . . conviction and direct appeals, the interpretation of the law was otherwise,"" and ""[t]he petitioner is not entitled to a retroactive application of the interpretation of the law set forth in Scarpone. "" Commonwealth v. Fiore, CC No. 8508740 (Aug. 18, 1994), p. 6. On appeal, the Superior Court affirmed, both because Fiore had previously litigated the claim and because Fiore's ""direct appeal was no longer pending when the Supreme Court made the ruling which [Fiore] now seeks to have applied to his case."" Commonwealth v. Fiore, 445 Pa. Super. 401, 416, 665 A.2d 1185, 1193 (1995).
+
+6. Fiore sought federal habeas corpus relief. As we previously pointed out, supra, at 25, he argued that Pennsylvania had imprisoned him ""for conduct which was not criminal under the statutory section charged."" App. 194. The Federal District Court, acting on a Magistrate's recommendation, granted the petition. The Court of Appeals for the Third Circuit reversed, however, primarily because it believed that ""state courts are under no constitutional obligation to apply their decisions retroactively."" 149 F.3d 221, 222 (1998).
+
+7. We subsequently granted Fiore's petition for certiorari to consider whether the Fourteenth Amendment's Due Process Clause requires that his conviction be set aside.",facts,Procedural Background and Jurisdiction,disagree,Background Circumstances,disagree,"Issue of the Interpretation of the ""permit"" requirement according to Section 6018.401(a) of the Pennsylvania Statute",1
+G8,7,0,1,II,"Fiore essentially claims that Pennsylvania produced no evidence whatsoever of one element of the crime, namely, that he lacked ""a permit."" The validity of his federal claim may depend upon whether the interpretation of the Pennsylvania Supreme Court in Scarpone was always the statute's meaning, even at the time of Fiore's trial. Scarpone marked the first time the Pennsylvania Supreme Court had interpreted the statute; previously, Pennsylvania's lower courts had been divided in their interpretation. Fiore's and Scarpone's trial court concluded that § 6018.401(a)'s ""permit"" requirement prohibited the operation of a hazardous waste facility in a manner that deviates from the permit's terms, and the Superior Court, in adjudicating Fiore's direct appeal, accepted the trial court's interpretation in a summary unpublished memorandum. Then, the Commonwealth Court, in Scarpone's direct appeal, specifically rejected the interpretation adopted by the Superior Court in Fiore's case. And the Pennsylvania Supreme Court in Scarpone set forth its authoritative interpretation of the statute, affirming the Commonwealth Court only after Fiore's conviction became final. For that reason, we must know whether the Pennsylvania Supreme Court's construction of the statute in Scarpone stated the correct understanding of the statute at the time Fiore's conviction became final, or whether it changed the interpretation then applicable. Compare, e. g., Buradus v. General Cement Prods. Co., 52 A.2d 205, 208 (Pa. 1947) (stating that ""[i]n general, the construction placed upon a statute by the courts becomes a part of the act, from the very beginning""), with Commonwealth v. Fiore, supra, at 416-417, 665 A.2d, at 1193; Commonwealth v. Fiore, CC No. 8508740 (Aug. 18, 1994), at 6 (refusing to apply the Scarpone interpretation because ""at the time of [Fiore's] conviction and direct appeals, the interpretation of the law was otherwise"").",analysis,The Pennsylvania Supreme Court's Interpretation of the Statute,strongly agree,The Pennsylvania Permit Claim,disagree,Reminder of the facts and the divergent interpretations of Section 6018.401(a) of the Pennsylvania Statute,2
+G8,7,0,1,III,"We certify the following question to the Pennsylvania Supreme Court pursuant to that court's Rules Regarding Certification of Questions of Pennsylvania law:
+
+Does the interpretation of Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A.2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore's conviction became final?
+We respectfully request that the Pennsylvania Supreme Court accept our certification petition because, in our view, the answer to this question will help determine the proper state-law predicate for our determination of the federal constitutional questions raised in this case.
+
+We recommend that the Pennsylvania Supreme Court designate William Fiore (the petitioner here) as appellant and both Gregory White, Warden, and the Attorney General of the Commonwealth of Pennsylvania (the respondents here) as appellees.
+
+The Clerk of this Court is directed to transmit to the Supreme Court of Pennsylvania a copy of this opinion and the briefs and records filed with this Court in this case. Judgment and further proceedings in this case are reserved pending our receipt of a response from the Supreme Court of Pennsylvania.
+
+It is so ordered.",conclusion,Certification to the Pennsylvania Supreme Court,strongly agree,Certification of the Question to the Pennsylvania Supreme Court,strongly agree,Remand and Certification Petition by the Supreme Court to resolve the case,3
+G16,0,0,1,I,"Michael Reese, the respondent, appealed his state-court kidnaping and attempted sodomy convictions and sentences through Oregon's state court system. He then brought collateral relief proceedings in the state courts (where he was represented by appointed counsel). After the lower courts denied him collateral relief, Reese filed a petition for discretionary review in the Oregon Supreme Court.
+
+The petition made several different legal claims. In relevant part, the petition asserted that Reese had received ""ineffective assistance of both trial court and appellate court counsel."" App. 47. The petition added that ""his imprisonment is in violation of [Oregon state law]."" Id., at 48. It said that his trial counsel's conduct violated several provisions of the Federal Constitution. Ibid. But it did not say that his separate appellate ""ineffective assistance"" claim violated federal law. The Oregon Supreme Court denied review.
+
+Reese ultimately sought a federal writ of habeas corpus, raising, among other claims, a federal constitutional claim that his appellate counsel did not effectively represent him during one of his direct state-court appeals. The Federal District Court held that Reese had not ""fairly presented"" his federal ""ineffective assistance of appellate counsel"" claim to the higher state courts because his brief in the state appeals court had not indicated that he was complaining about a violation of federal law.
+
+A divided panel of the Ninth Circuit reversed the District Court. 282 F. 3d 1184 (2002). Although the majority apparently believed that Reese's petition itself did not alert the Oregon Supreme Court to the federal nature of the appellate ""ineffective assistance"" claim, it did not find that fact determinative. Id., at 1193-1194. Rather, it found that Reese had satisfied the ""fair presentation"" requirement because the justices of the Oregon Supreme Court had had ""the opportunity to read . . . the lower [Oregon] court decision claimed to be in error before deciding whether to grant discretionary review."" Id., at 1194 (emphasis added). Had they read the opinion of the lower state trial court, the majority added, the justices would have, or should have, realized that Reese's claim rested upon federal law. Ibid.
+
+We granted certiorari to determine whether the Ninth Circuit has correctly interpreted the ""fair presentation"" requirement.",facts,Michael Reese,strongly agree,Michael Reese,strongly agree,Federal Writ of Habeas Corpus for ineffective assistance of counsel,1
+G16,0,0,1,II,"We begin by assuming that Reese's petition by itself did not properly alert the Oregon Supreme Court to the federal nature of Reese's claim. On that assumption, Reese failed to meet the ""fair presentation"" standard, and the Ninth Circuit was wrong to hold the contrary.
+
+We recognize that the justices of the Oregon Supreme Court did have an ""opportunity"" to read the lower court opinions in Reese's case. That opportunity means that the judges could have read them. But to say that a petitioner ""fairly presents"" a federal claim when an appellate judge can discover that claim only by reading lower court opinions in the case is to say that those judges must read the lower court opinions _x0097_ for otherwise they would forfeit the State's opportunity to decide that federal claim in the first instance. In our view, federal habeas corpus law does not impose such a requirement.
+
+For one thing, the requirement would force state appellate judges to alter their ordinary review practices. Appellate judges, of course, will often read lower court opinions, but they do not necessarily do so in every case. Sometimes an appellate court can decide a legal question on the basis of the briefs alone. That is particularly so where the question at issue is whether to exercise a discretionary power of review, i. e., whether to review the merits of a lower court decision. In such instances, the nature of the issue may matter more than does the legal validity of the lower court decision. And the nature of the issue alone may lead the court to decide not to hear the case. Indeed, the Oregon Supreme Court is a court with a discretionary power of review. And Oregon Rule of Appellate Procedure 9.05(7) (2003) instructs litigants seeking discretionary review to identify clearly in the petition itself the legal questions presented, why those questions have special importance, a short statement of relevant facts, and the reasons for reversal, ""including appropriate authorities.""
+
+For another thing, the opinion-reading requirement would impose a serious burden upon judges of state appellate courts, particularly those with discretionary review powers. Those courts have heavy workloads, which would be significantly increased if their judges had to read through lower court opinions or briefs in every instance. See National Center for State Courts, State Court Caseload Statistics 2002, pp. 106-110 (Table 2) (for example, in 2001, Oregon appellate courts received a total of 5,341 appeals, including 908 petitions for discretionary review to its Supreme Court; California appellate courts received 32,273, including 8,860 discretionary Supreme Court petitions; Louisiana appellate courts received 13,117, including 3,230 discretionary Supreme Court petitions; Illinois appellate courts received 12,411, including 2,325 discretionary Supreme Court petitions).
+
+Finally, we do not find such a requirement necessary to avoid imposing unreasonable procedural burdens upon state prisoners who may eventually seek habeas corpus. A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ""federal.""
+
+For these reasons, we believe that the requirement imposed by the Ninth Circuit would unjustifiably undercut the considerations of federal-state comity that the exhaustion requirement seeks to promote. We consequently hold that ordinarily a state prisoner does not ""fairly present"" a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.",analysis,Application of the Fair Presentation Standard,strongly agree,The Oregon Supreme Court's Requirement of a Fair Presentation,strongly agree,“Fair presentation” requirement in federal writ of habeas not met,2
+G16,0,0,1,III,"Reese argues in the alternative that it is wrong to assume that his petition by itself failed to alert the Oregon Supreme Court to the federal nature of his ""ineffective assistance of appellate counsel"" claim. We do not agree.
+
+Reese must concede that his petition does not explicitly say that the words ""ineffective assistance of appellate counsel"" refer to a federal claim. The petition refers to provisions of the Federal Constitution in respect to other claims but not in respect to this one. The petition provides no citation of any case that might have alerted the court to the alleged federal nature of the claim. And the petition does not even contain a factual description supporting the claim. Cf. Gray v. Netherland, 518 U. S. 152, 163 (1996); Duncan, 513 U. S., at 366.
+
+Reese asserts that the petition nonetheless ""fairly presents"" a federal ""ineffective assistance of appellate counsel"" claim for two reasons. First, he says that the word ""ineffective"" is a term of art in Oregon that refers only to federal-law claims and not to similar state-law claims, which, he adds, in Oregon are solely referred to as ""inadequate assistance"" claims. And thus the Oregon Supreme Court should have known, from his use of the word ""ineffective,"" that his claim was federal.
+
+Reese, however, has not demonstrated that Oregon law uses the words ""ineffective assistance"" in the manner he suggests, that is, as referring only to a federal-law claim. See, e. g., Lichau v. Baldwin, 166 Ore. App. 411, 415, 417, 999 P. 2d 1207, 1210, 1211 (2000) (using ""ineffective assistance"" to refer to violations of the Oregon Constitution), rev'd in part, 333 Ore. 350, 39 P. 3d 851 (2002). Indeed, Reese's own petition uses both phrases _x0097_ ""ineffective assistance"" and ""inadequate assistance"" _x0097_ at different points to refer to what is apparently a single claim.
+
+Second, Reese says that in Oregon the standards for adjudicating state and federal ""inadequate/ineffective appellate assistance"" claims are identical. He adds that, where that identity exists, a petitioner need not indicate a claim's federal nature, because, by raising a state-law claim, he would necessarily ""fairly present"" the corresponding federal claim.
+
+However, the Ninth Circuit did not address this argument, and our reading of the briefs filed in the Ninth Circuit leads us to conclude that Reese did not there seek consideration of the argument in that court. Indeed, the argument first made its appearance in this Court in Reese's brief on the merits. Under this Court's Rule 15.2, ""a nonjurisdictional argument not raised in a respondent's brief in opposition to a petition for a writ of certiorari may be deemed waived."" Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996) (internal quotation marks omitted). This argument falls squarely within the rule. The complex nature of Reese's claim and its broad implications suggest that its consideration by the lower courts would help in its resolution. Hence, without expressing any view on the merits of the issue, we exercise our Rule 15.2 discretion and deem the argument waived in this Court. See, e. g., Roberts v. Galen of Va., Inc., 525 U. S. 249, 253-254 (1999) (per curiam); South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999); cf. Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).
+
+For these reasons, the judgment of the Ninth Circuit is
+
+Reversed.",analysis,The Petition Failed to Alert the Oregon Supreme Court of Reese's Federal Claim,strongly agree,Federal Nature of the Claim,strongly agree,Petitioner's argument deemed waived under Rule  15.2,3
+G16,1,0,1,I,"In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department received information indicating that respondent Greenwood might be engaged in narcotics trafficking. Stracner learned that a criminal suspect had informed a federal drug enforcement agent in February 1984 that a truck filled with illegal drugs was en route to the Laguna Beach address at which Greenwood resided. In addition, a neighbor complained of heavy vehicular traffic late at night in front of Greenwood's single-family home. The neighbor reported that the vehicles remained at Greenwood's house for only a few minutes.
+
+Stracner sought to investigate this information by conducting a surveillance of Greenwood's home. She observed several vehicles make brief stops at the house during the late-night and early morning hours, and she followed a truck from the house to a residence that had previously been under investigation as a narcotics-trafficking location.
+
+On April 6, 1984, Stracner asked the neighborhood's regular trash collector to pick up the plastic garbage bags that Greenwood had left on the curb in front of his house and to turn the bags over to her without mixing their contents with garbage from other houses. The trash collector cleaned his truck bin of other refuse, collected the garbage bags from the street in front of Greenwood's house, and turned the bags over to Stracner. The officer searched through the rubbish and found items indicative of narcotics use. She recited the information that she had gleaned from the trash search in an affidavit in support of a warrant to search Greenwood's home.
+
+Police officers encountered both respondents at the house later that day when they arrived to execute the warrant. The police discovered quantities of cocaine and hashish during their search of the house. Respondents were arrested on felony narcotics charges. They subsequently posted bail.
+
+The police continued to receive reports of many late-night visitors to the Greenwood house. On May 4, Investigator Robert Rahaeuser obtained Greenwood's garbage from the regular trash collector in the same manner as had Stracner. The garbage again contained evidence of narcotics use.
+
+Rahaeuser secured another search warrant for Greenwood's home based on the information from the second trash search. The police found more narcotics and evidence of narcotics trafficking when they executed the warrant. Greenwood was again arrested.
+
+The Superior Court dismissed the charges against respondents on the authority of People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262 (1971), which held that warrantless trash searches violate the Fourth Amendment and the California Constitution. The court found that the police would not have had probable cause to search the Greenwood home without the evidence obtained from the trash searches.
+
+The Court of Appeal affirmed. 182 Cal. App. 3d 729, 227 Cal. Rptr. 539 (1986). The court noted at the outset that the fruits of warrantless trash searches could no longer be suppressed if Krivda were based only on the California Constitution, because since 1982 the State has barred the suppression of evidence seized in violation of California law but not federal law. See Cal. Const., Art. I, § 28(d); In re Lance W., 37 Cal. 3d 873, 694 P.2d 744 (1985). But Krivda, a decision binding on the Court of Appeal, also held that the fruits of warrantless trash searches were to be excluded under federal law. Hence, the Superior Court was correct in dismissing the charges against respondents. 182 Cal. App. 3d, at 735, 227 Cal. Rptr, at 542.[1]
+
+The California Supreme Court denied the State's petition for review of the Court of Appeal's decision. We granted certiorari, 483 U.S. 1019, and now reverse.",facts,People v. Krivda,strongly disagree,The Greenwood Home Search,agree,Warrantless Trash Searches,1
+G16,1,0,1,II,"The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. O'Connor v. Ortega, 480 U.S. 709, 715 (1987); California v. Ciraolo, 476 U.S. 207, 211 (1986); Oliver v. United States, 466 U.S. 170, 177 (1984); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Respondents do not disagree with this standard.
+
+They assert, however, that they had, and exhibited, an expectation of privacy with respect to the trash that was searched by the police: The trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone.
+
+It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.
+
+Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals,[2] children, scavengers,[3] snoops,[4] and other members of the public. See Krivda, supra, at 367, 486 P.2d, at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage ""in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,"" United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
+
+Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Hence, ""[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."" Katz v. United States, supra, at 351. We held in Smith v. Maryland, 442 U.S. 735 (1979), for example, that the police did not violate the Fourth Amendment by causing a pen register to be installed at the telephone company's offices to record the telephone numbers dialed by a criminal suspect. An individual has no legitimate expectation of privacy in the numbers dialed on his telephone, we reasoned, because he voluntarily conveys those numbers to the telephone company when he uses the telephone. Again, we observed that ""a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."" Id., at 743-744.
+
+Similarly, we held in California v. Ciraolo, supra, that the police were not required by the Fourth Amendment to obtain a warrant before conducting surveillance of the respondent's fenced backyard from a private plane flying at an altitude of 1,000 feet. We concluded that the respondent's expectation that his yard was protected from such surveillance was unreasonable because ""[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed."" Id., at 213-214.
+
+Our conclusion that society would not accept as reasonable respondents' claim to an expectation of privacy in trash left for collection in an area accessible to the public is reinforced by the unanimous rejection of similar claims by the Federal Courts of Appeals. See United States v. Dela Espriella, 781 F.2d 1432, 1437 (CA9 1986); United States v. O'Bryant, 775 F.2d 1528, 1533-1534 (CA11 1985); United States v. Michaels, 726 F.2d 1307, 1312-1313 (CA8), cert. denied, 469 U.S. 820 (1984); United States v. Kramer, 711 F.2d 789, 791-794 (CA7), cert. denied, 464 U.S. 962 (1983); United States v. Terry, 702 F.2d 299, 308-309 (CA2), cert. denied sub nom. Williams v. United States, 461 U.S. 931 (1983); United States v. Reicherter, supra, at 399; United States v. Vahalik, 606 F.2d 99, 100-101 (CA5 1979) (per curiam), cert. denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025 (CA4 1978), cert. denied, 440 U.S. 959 (1979); Magda v. Benson, 536 F.2d 111, 112-113 (CA6 1976) (per curiam); United States v. Mustone, 469 F.2d 970, 972-974 (CA1 1972). In United States v. Thornton, 241 U. S. App. D. C. 46, 56, and n. 11, 746 F.2d 39, 49, and n. 11 (1984), the court observed that ""the overwhelming weight of authority rejects the proposition that a reasonable expectation of privacy exists with respect to trash discarded outside the home and the curtilege [sic] thereof."" In addition, of those state appellate courts that have considered the issue, the vast majority have held that the police may conduct warrantless searches and seizures of garbage discarded in public areas. See Commonwealth v. Chappee, 397 Mass. 508, 512-513, 492 N.E.2d 719, 721-722 (1986); Cooks v. State, 699 P.2d 653, 656 (Okla. Crim.), cert. denied, 474 U.S. 935 (1985); State v. Stevens, 123 Wis. 2d 303, 314-317, 367 N.W.2d 788, 794-797, cert. denied, 474 U.S. 852 (1985); State v. Ronngren, 361 N.W.2d 224, 228-230 (N. D. 1985); State v. Brown, 20 Ohio App. 3d 36, 37-38, 484 N.E.2d 215, 217-218 (1984); State v. Oquist, 327 N.W.2d 587 (Minn. 1982); People v. Whotte, 113 Mich. App. 12, 317 N.W.2d 266 (1982); Commonwealth v. Minton, 288 Pa. Super. 381, 391, 432 A.2d 212, 217 (1981); State v. Schultz, 388 So. 2d 1326 (Fla. App. 1980); People v. Huddleston, 38 Ill. App. 3d 277, 347 N.E.2d 76 (1976); Willis v. State, 518 S.W.2d 247, 249 (Tex. Crim. App. 1975); Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086 (1973); State v. Fassler, 108 Ariz. 586, 592-593, 503 P.2d 807, 813-814 (1972); Croker v. State, 477 P.2d 122, 125-126 (Wyo. 1970); State v. Purvis, 249 Ore. 404, 411, 438 P.2d 1002, 1005 (1968). But see State v. Tanaka, 67 Haw. 658, 701 P.2d 1274 (1985); People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262 (1971).[5]",analysis,Objectively Reasonable Expectations of Privacy,strongly agree,The Greenwood House,disagree,Exposure of garbage on public streets defeats the protection of the Fourth Amendment,2
+G16,1,0,1,III,"We reject respondent Greenwood's alternative argument for affirmance: that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law. He urges that the state-law right of Californians to privacy in their garbage, announced by the California Supreme Court in Krivda, supra, survived the subsequent state constitutional amendment eliminating the suppression remedy as a means of enforcing that right. See In re Lance W., 37 Cal. 3d, at 886-887, 694 P.2d, at 752-753. Hence, he argues that the Fourth Amendment should itself vindicate that right.
+
+Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution. We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs. We have emphasized instead that the Fourth Amendment analysis must turn on such factors as ""our societal understanding that certain areas deserve the most scrupulous protection from government invasion."" Oliver v. United States, 466 U. S., at 178 (emphasis added). See also Rakas v. Illinois, 439 U.S. 128, 143-144, n. 12 (1978). We have already concluded that society as a whole possesses no such understanding with regard to garbage left for collection at the side of a public street. Respondent's argument is no less than a suggestion that concepts of privacy under the laws of each State are to determine the reach of the Fourth Amendment. We do not accept this submission.",analysis,Privacy in Garbage,strongly agree,Greenwood's Request for Affirmance,agree,Rejection of a reasonable expectation of privacy on garbage,3
+G16,1,0,1,IV,"Greenwood finally urges as an additional ground for affirmance that the California constitutional amendment eliminating the exclusionary rule for evidence seized in violation of state but not federal law violates the Due Process Clause of the Fourteenth Amendment. In his view, having recognized a state-law right to be free from warrantless searches of garbage, California may not under the Due Process Clause deprive its citizens of what he describes as ""the only effective deterrent"" to violations of this right. Greenwood concedes that no direct support for his position can be found in the decisions of this Court. He relies instead on cases holding that individuals are entitled to certain procedural protections before they can be deprived of a liberty or property interest created by state law. See Hewitt v. Helms, 459 U.S. 460 (1983); Vitek v. Jones, 445 U.S. 480 (1980).
+
+We see no merit in Greenwood's position. California could amend its Constitution to negate the holding in Krivda that state law forbids warrantless searches of trash. We are convinced that the State may likewise eliminate the exclusionary rule as a remedy for violations of that right. At the federal level, we have not required that evidence obtained in violation of the Fourth Amendment be suppressed in all circumstances. See, e. g., United States v. Leon, 468 U.S. 897 (1984); United States v. Janis, 428 U.S. 433 (1976); United States v. Calandra, 414 U.S. 338 (1974). Rather, our decisions concerning the scope of the Fourth Amendment exclusionary rule have balanced the benefits of deterring police misconduct against the costs of excluding reliable evidence of criminal activity. See Leon, 468 U. S., at 908-913. We have declined to apply the exclusionary rule indiscriminately ""when law enforcement officers have acted in objective good faith or their transgressions have been minor,"" because ""the magnitude of the benefit conferred on . . . guilty defendants [in such circumstances] offends basic concepts of the criminal justice system."" Id., at 908 (citing Stone v. Powell, 428 U.S. 465, 490 (1976)).
+
+The States are not foreclosed by the Due Process Clause from using a similar balancing approach to delineate the scope of their own exclusionary rules. Hence, the people of California could permissibly conclude that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law.",analysis,Reduction of Exclusionary Rule,agree,Due Process Clause,strongly agree,No violation of the Due Process Clause,4
+G16,1,0,1,V,"The judgment of the California Court of Appeal is therefore reversed, and this case is remanded for further proceedings not inconsistent with this opinion.
+
+It is so ordered.
+
+",conclusion,order remanding for further proceedings,agree,remand for further proceedings,agree,Supreme Court's holding,5
+G16,2,0,1,I,"Richard and Judith Smolin were divorced in California in 1978. Sole custody of their two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable visitation rights for Richard. Until November 1979, all the parties remained in San Bernardino County, California, and Richard apparently paid his child support and exercised his visitation rights without serious incident. In August 1979, however, Judith married James Pope, and in November, Mr. Pope's work required that the family relocate to Oregon. When the Popes moved without informing Richard, the battle over the custody of the minor children began in earnest.
+
+It is unnecessary to recite in detail all that ensued. Richard alleged, and the California courts later found, that the Popes deliberately attempted to defeat Richard's visitation rights and to preclude him from forming a meaningful relationship with his children in the course of their succeeding relocations from Oregon to Texas to Louisiana. On February 13, 1981, the Popes obtained a decree from a Texas court granting full faith and credit to the original California order awarding sole custody to Judith. Richard was served but did not appear in the Texas proceeding. Before the Texas decree was issued, however, Richard sought and obtained in California Superior Court modification of the underlying California decree, awarding joint custody to Richard and Judith. Though properly served, the Popes did not appear in these California proceedings; and, though served with the modification order, the Popes neither complied with its terms, nor notified the Texas court of its existence. On January 9, 1981, Richard instituted an action in California Superior Court to find Judith in contempt and to again modify the custody decree to give him sole custody. In February 1981, sole custody was granted to Richard by the California court, subject to reasonable visitation rights for Judith.
+
+This order also was ignored by the Popes, apparently acting on the advice of counsel that the California courts no longer had jurisdiction over the matter. Richard did not in fact obtain physical custody for over two years. When he finally located the Popes in Louisiana, they began an adoption proceeding, later described by the California courts as ""verging on the fraudulent,"" to sever Richard's legal tie to Jennifer and Jamie. App. 51. After securing a California warrant to obtain custody of the children on February 27, 1984, Richard and his father, Gerard Smolin, resorted to self-help. On March 9, 1984, they picked up Jennifer and Jamie as they were waiting for their school bus in Slidell, Louisiana, and brought them back to California. On April 11, 1984, the Popes submitted to the jurisdiction of the California Superior Court and instituted an action to modify the 1981 order granting Richard sole custody. 41 Cal. 3d 758, 764, n. 4, 716 P.2d 991, 994, n. 4 (1986). Those proceedings are apparently still pending before the California courts.
+
+Meanwhile, the Popes raised the stakes by instituting a criminal action against Richard and Gerard Smolin in Louisiana. On April 30, 1984, after the Popes instituted modification proceedings in California, Judith Pope swore out an affidavit charging Richard and Gerard Smolin with kidnaping Jennifer and Jamie from her custody and asserting that they had acted ""without authority to remove children from [her] custody."" App. B to Pet. for Cert. 6. On the basis of this affidavit, the Assistant District Attorney for the 22d Judicial District of Louisiana, William Alford, Jr., filed an information charging Richard and Gerard Smolin each with two counts of violating La. Rev. Stat. Ann. § 14:45 (West 1986), the Louisiana kidnaping statute. On June 14, 1984, the Governor of Louisiana formally notified the Governor of California that Richard and Gerard Smolin were charged with ""simple kidnaping"" in Louisiana and demanded that they be delivered up for trial. 41 Cal. 3d, at 763, 716 P. 2d, at 993-994.
+
+In early August 1984, the Smolins petitioned in the California Superior Court for a writ of habeas corpus to block the anticipated extradition warrants. On August 17, 1984, the anticipated warrants issued and on August 24, 1984, the Superior Court orally granted a writ of habeas corpus after taking judicial notice of the various custody orders that had been issued. The court concluded ""that the findings in the family law case adequately demonstrate that, in fact, the process initiated by Mrs. Pope in Louisiana and her declarations and affidavits were totally insufficient to establish any basis for rights of either herself personally or for the State . . . of Louisiana."" App. C to Pet. for Cert. 5. California then sought a writ of mandate in the California Court of Appeal on the ground that the Superior Court had abused its discretion in blocking extradition. The Court of Appeal reluctantly issued the writ:
+
+""Although we abhor Judy's apparent willingness to take advantage of our federal system to further this custody battle, and are sympathetic to [the Smolins'] position, we must conclude that their arguments are irrelevant to the only issue a court in the asylum state may properly address: are the documents on their face in order."" App. B to Pet. for Cert. 16.
+A divided California Supreme Court reversed. The majority interpreted the Superior Court's finding to be that the Smolins were not substantially charged with a crime. It found that the California custody decrees were properly considered by the Superior Court, and that its conclusion that the Smolins were not substantially charged was correct. Under the full faith and credit provisions of the federal Parental Kidnaping Prevention Act of 1980, 28 U.S. C. § 1738A, the majority determined that those decrees conclusively established that Richard Smolin was the lawful custodian of the children at the time that they were taken from Louisiana to California.[*] Finally, the court found that, under Louisiana law, the lawful custodian cannot be guilty of kidnaping children in his custody. State v. Elliott, 171 La. 306, 311, 131 So. 28, 30 (1930). We granted certiorari, 479 U.S. 982 (1986), to consider whether the Extradition Clause, Art. IV, § 2, cl. 2, and the Extradition Act, 18 U.S. C. § 3182, prevent the California Supreme Court from refusing to permit extradition on these grounds.",facts,The Smolin Matter,strongly agree,The Smolin Matter,strongly agree,Request for extradition of ex-husband after kidnapping of couple's children,1
+G16,2,0,1,II,"The Federal Constitution places certain limits on the sovereign powers of the States, limits that are an essential part of the Framers' conception of national identity and Union. One such limit is found in Art. IV, § 2, cl. 2, the Extradition Clause:
+
+""A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.""
+The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State's criminal justice system. As this Court noted in its first opportunity to construe the Extradition Clause:
+
+""[T]he statesmen who framed the Constitution were fully sensible, that from the complex character of the Government, it must fail unless the States mutually supported each other and the General Government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offense as soon as another opportunity offered."" Kentucky v. Dennison, 24 How. 66, 100 (1861).
+The Extradition Clause, however, does not specifically establish a procedure by which interstate extradition is to take place, and, accordingly, has never been considered to be self-executing. See, e. g., Hyatt v. People ex rel. Corkran, 188 U.S. 691, 708-709 (1903); Kentucky v. Dennison, supra, at 104. Early in our history, the lack of an established procedure led to a bitter dispute between the States of Virginia and Pennsylvania. J. Scott, Law of Interstate Rendition 5-7 (1917). In 1791, Pennsylvania demanded the extradition of three men charged with kidnaping a free black man and selling him into slavery. Virginia refused to comply with Pennsylvania's demand. The controversy was finally submitted to President Washington who, relying upon the advice of Attorney General Randolph, 9 National State Papers of the United States 1789-1817, pt. II, pp. 144-145 (E. Carzo ed. 1985), personally appeared before the Congress to obtain the enactment of a law to regulate the extradition process. Congress responded by enacting the Extradition Act of 1793, which provides in its current form:
+
+""Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear."" 18 U.S. C. § 3182.
+This Court has held the Extradition Act of 1793 to be a proper exercise of Congress' powers under the Extradition Clause and Art. IV, § 1, to ""prescribe the manner in which acts, records and proceedings shall be proved, and the effect thereof."" Kentucky v. Dennison, supra, at 105; Prigg v. Pennsylvania, 16 Pet. 539, 618-622 (1842). By the express terms of federal law, therefore, the asylum State is bound to deliver up to the demanding State's agent a fugitive against whom a properly certified indictment or affidavit charging a crime is lodged.
+
+The language, history, and subsequent construction of the Extradition Act make clear that Congress intended extradition to be a summary procedure. As we have repeatedly held, extradition proceedings are ""to be kept within narrow bounds""; they are ""emphatically"" not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party. Biddinger v. Commissioner of Police, 245 U.S. 128, 135 (1917); see also, e. g., Michigan v. Doran, 439 U.S. 282, 288 (1978); Drew v. Thaw, 235 U.S. 432, 440 (1914); Pierce v. Creecy, 210 U.S. 387, 405 (1908); In re Strauss, 197 U.S. 324, 332-333 (1905). Those inquiries are left to the professorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State's criminal law _x0097_ subject, of course, to the limitations imposed by the Constitution and laws of the United States. Biddinger v. Commissioner of Police, supra, at 135; Drew v. Thaw, supra, at 440. The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met. As the Court held in Michigan v. Doran, supra, the Act leaves only four issues open for consideration before the fugitive is delivered up:
+
+""(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive."" 439 U.S., at 289.
+The parties argue at length about the propriety of the California courts taking judicial notice of their prior child custody decrees in this extradition proceeding. But even if taking judicial notice of the decrees is otherwise proper, the question remains whether the decrees noticed were relevant to one of these four inquiries. The Smolins do not dispute that the extradition documents are in order, that they are the persons named in the documents and that they meet the technical definition of a ""fugitive."" Their sole contention is that, in light of the earlier California custody decrees and the federal Parental Kidnaping Prevention Act of 1980, 28 U.S. C. § 1738A, they have not been properly charged with a violation of Louisiana's kidnaping statute, La. Rev. Stat. Ann. § 14:45 (West 1986).
+
+Section 14:45A(4) prohibits the
+
+""intentional taking, enticing or decoying away and removing from the state, by any parent, of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.""
+A properly certified Louisiana information charges the Smolins with violating this statute by kidnaping Jennifer and Jamie Smolin. The information is based on the sworn affidavit of Judith Pope which asserts:
+
+"" `On March 9, 1984, at approximately 7:20 a. m., Richard Smolin and Gerard Smolin, kidnapped Jennifer Smolin, aged 10, and James C. Smolin, aged 9, from the affiant's custody while said children were at a bus stop in St. Tammany Parish, Louisiana.
+""The affiant has custody of the said children by virtue of a Texas court order dated February 5, 1981, a copy of said order attached hereto and made part hereof. The information regarding the actual kidnapping was told to the affiant by witnesses Mason Galatas and Cheryl Galatas of 2028 Mallard Street, Slidell, Louisiana, and Jimmie Huessler of 2015 Dridle Street, Slidell, Louisiana. Richard Smolin and Gerard Smolin were without authority to remove children from affiant's custody.' "" App. B to Pet. for Cert. 5-6.
+The information is in proper form, and the Smolins do not dispute that the affidavit, and documents incorporated by reference therein, set forth facts that clearly satisfy each element of the crime of kidnaping as it is defined in La. Rev. Stat. Ann. § 14:45A(4) (West 1986). If we accept as true every fact alleged, the Smolins are properly charged with kidnaping under Louisiana law. In our view, this ends the inquiry into the issue whether or not a crime is charged for purposes of the Extradition Act.
+
+The Smolins argue, however, that more than a formal charge is required, citing the following language from Roberts v. Reilly, 116 U.S. 80, 95 (1885):
+
+""It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand. . . .
+""[This] is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus.""
+The Smolins claim that this language in Roberts spawned a widespread practice of permitting the fugitive, upon a petition for writ of habeas corpus in the asylum State's courts, to show that the demanding State's charging instrument is so insufficient that it cannot withstand some generalized version of a motion to dismiss or common-law demurrer. Tr. of Oral Arg. 29-36. The cases the Smolins principally rely upon as support for this asserted practice are People ex rel. Lewis v. Commissioner of Correction of City of New York, 100 Misc. 2d 48, 417 N. Y. S. 2d 377 (1979), aff'd, 75 A.D. 2d 526, 426 N. Y. S. 2d 969 (1980), and Application of Varona, 38 Wash. 2d 833, 232 P.2d 923 (1951). See Brief for Respondent 15-17. In Lewis, however, the New York trial court actually granted extradition despite its apparent misgivings about the substantiality of the criminal charge. Lewis, supra, at 56, 417 N. Y. S. 2d, at 382. And, in Varona, the Washington Supreme Court relied on the fact that the indictment, on its face, did not charge a crime under California law. Application of Varona, supra, at 833-834, 232 P.2d, at 923-924. Neither case, in our view, supports the broad proposition that the asylum State's courts may entertain motions to dismiss or demurrers to the indictment or information from the demanding State.
+
+To the contrary, our cases make clear that no such inquiry is permitted. For example, in Pierce v. Creecy, decided after Roberts, supra, this Court refused to grant relief from extradition over multiple objections to the sufficiency of the indictment. The Pierce Court concluded that it was enough that ""the indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing, as it is defined in the Texas Penal Code . . . ."" 210 U.S., at 404. It reasoned:
+
+""If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States and fruitful of miscarriages of justice. The duty ought not be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance."" Id., at 405.
+Similarly, in Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), the appellant argued that he had a seemingly valid statute of limitations defense based on the fact that more than three years, the limitations period, had elapsed since the date of the crime recited in the indictment and that he had been publicly and openly resident in the demanding State for that entire period. The Court found that the question of limitations was properly considered only in the demanding State's courts. Id., at 135; see also Drew v. Thaw, 235 U. S., at 439-440 (whether the escape of a person committed to a mental institution is a crime ""is a question as to the law of New York which the New York courts must decide"").
+
+This proceeding is neither the time nor place for the Smolins' arguments that Judith Pope's affidavit is fraudulent and that the California custody decrees establish Richard as the lawful custodian under the full faith and credit provision of the federal Parental Kidnaping Prevention Act of 1980. There is nothing in the record to suggest that the Smolins are not entirely correct in all of this: that California had exclusive modification jurisdiction over the custody of Jennifer and Jamie; that, under the California decrees, Richard Smolin had lawful custody of the children when he brought them to California; and, that, accordingly, the Smolins did not violate La. Rev. Stat. Ann. § 14:45A(4) (West 1986) as is charged. Of course, the Parental Kidnaping Prevention Act of 1980 creates a uniform federal rule governing custody determinations, a rule to which the courts of Louisiana must adhere when they consider the Smolins' case on the merits. We are not informed by the record why it is that the States of California and Louisiana are so eager to force the Smolins halfway across the continent to face criminal charges that, at least to a majority of the California Supreme Court, appear meritless. If the Smolins are correct, they are not only innocent of the charges made against them, but also victims of a possible abuse of the criminal process. But, under the Extradition Act, it is for the Louisiana courts to do justice in this case, not the California courts: ""surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place."" Drew v. Thaw, supra, at 440. The judgment of the California Supreme Court is
+
+Reversed.",analysis,The Extradition Clause,strongly agree,The Extradition Clause,strongly agree,Jurisdiction of the Louisiana Court under the Extradition Act and the Extradition Clause,2
+G16,3,0,1,I,"There is no dispute as to the facts. The critical ones are stipulated. See App. 9. Respondent Robert P. Groetzinger had worked for 20 years in sales and market research for an Illinois manufacturer when his position was terminated in February 1978. During the remainder of that year, respondent busied himself with parimutuel wagering, primarily on greyhound races. He gambled at tracks in Florida and Colorado. He went to the track 6 days a week for 48 weeks in 1978. He spent a substantial amount of time studying racing forms, programs, and other materials. He devoted from 60 to 80 hours each week to these gambling-related endeavors. He never placed bets on behalf of any other person, or sold tips, or collected commissions for placing bets, or functioned as a bookmaker. He gambled solely for his own account. He had no other profession or type of employment.[2]
+
+Respondent kept a detailed accounting of his wagers and every day noted his winnings and losses in a record book. In 1978, he had gross winnings of $70,000, but he bet $72,032; he thus realized a net gambling loss for the year of $2,032.
+
+Respondent received $6,498 in income from other sources in 1978. This came from interest, dividends, capital gains, and salary earned before his job was terminated.
+
+On the federal income tax return he filed for the calendar year 1978 respondent report as income only the $6,498 realized from nongambling sources. He did not report any gambling winnings or deduct any gambling losses.[3] He did not itemize deductions. Instead, he computed his tax liability from the tax tables.
+
+Upon audit, the Commissioner of Internal Revenue determined that respondent's $70,000 in gambling winnings were to be included in his gross income and that, pursuant to § 165(d) of the Code, 26 U.S. C. § 165(d), a deduction was to be allowed for his gambling losses to the extent of these gambling gains. But the Commissioner further determined that, under the law as it was in 1978, a portion of respondent's $70,000 gambling-loss deduction was an item of tax preference and operated to subject him to the minimum tax under § 56(a) of the Code, 26 U.S. C. § 56(a) (1976 ed.). At that time, under statutory provisions in effect from 1976 until 1982, ""items of tax preference"" were lessened by certain deductions, but not by deductions not ""attributable to a trade or business carried on by the taxpayer."" §§ 57(a)(1) and (b)(1)(A), and § 62(1), 26 U.S. C. §§ 57(a)(1) and (b)(1)(A), and § 62(1) (1976 ed. and Supp. I).[4]
+
+These determinations by the Commissioner produced a § 56(a) minimum tax of $2,142 and, with certain other adjustments not now in dispute, resulted in a total asserted tax deficiency of $2,522 for respondent for 1978.
+
+Respondent sought redetermination of the deficiency in the United States Tax Court. That court, in a reviewed decision, with only two judges dissenting, held that respondent was in the trade or business of gambling, and that, as a consequence, no part of his gambling losses constituted an item of tax preference in determining any minimum tax for 1978. 82 T.C. 793 (1984). In so ruling, the court adhered to its earlier court-reviewed decision in Ditunno v. Commissioner, 80 T.C. 362 (1983). The court in Ditunno, id., at 371, had overruled Gentile v. Commissioner, 65 T.C. 1 (1975), a case where it had rejected the Commissioner's contention (contrary to his position here) that a full-time gambler was in a trade or business and therefore was subject to self-employment tax.
+
+The United States Court of Appeals for the Seventh Circuit affirmed. 771 F.2d 269 (1985). Because of a conflict on the issue among Courts of Appeals,[5] we granted certiorari. 475 U.S. 1080 (1986).",facts,The Groetzinger Matter,strongly agree,The Groetzinger Matter,strongly agree,Gambling losses and Tax Preference,1
+G16,3,0,1,II,"The phrase ""trade or business"" has been in § 162(a) and in that section's predecessors for many years. Indeed, the phrase is common in the Code, for it appears in over 50 sections and 800 subsections and in hundreds of places in proposed and final income tax regulations. The slightly longer phrases, ""carrying on a trade or business"" and ""engaging in a trade or business,"" themselves are used no less than 60 times in the Code. The concept thus has a well-known and almost constant presence on our tax-law terrain. Despite this, the Code has never contained a definition of the words ""trade or business"" for general application, and no regulation has been issued expounding its meaning for all purposes.[6] Neither has a broadly applicable authoritative judicial definition emerged.[7] Our task in this case is to ascertain the meaning of the phrase as it appears in the sections of the Code with which we are here concerned.[8]
+
+In one of its early tax cases, Flint v. Stone Tracy Co., 220 U.S. 107 (1911), the Court was concerned with the Corporation Tax imposed by § 38 of the Tariff Act of 1909, ch. 6, 36 Stat. 112-117, and the status of being engaged in business. It said: "" `Business' is a very comprehensive term and embraces everything about which a person can be employed."" 220 U.S., at 171. It embraced the Bouvier Dictionary definition: ""That which occupies the time, attention and labor of men for the purpose of a livelihood or profit."" Ibid. See also Helvering v. Horst, 311 U.S. 112, 118 (1940). And Justice Frankfurter has observed that ""we assume that Congress uses common words in their popular meaning, as used in the common speech of men."" Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947).
+
+With these general comments as significant background, we turn to pertinent cases decided here. Snyder v. Commissioner, 295 U.S. 134 (1935), had to do with margin trading and capital gains, and held, in that context, that an investor, seeking merely to increase his holdings, was not engaged in a trade or business. Justice Brandeis, in his opinion for the Court, noted that the Board of Tax Appeals theretofore had ruled that a taxpayer who devoted the major portion of his time to transactions on the stock exchange for the purpose of making a livelihood could treat losses incurred as having been sustained in the course of a trade or business. He went on to observe that no facts were adduced in Snyder to show that the taxpayer ""might properly be characterized as a `trader on an exchange who makes a living in buying and selling securities.' "" Id., at 139. These observations, thus, are dicta, but, by their use, the Court appears to have drawn a distinction between an active trader and an investor.
+
+In Deputy v. Du Pont, 308 U.S. 488 (1940), the Court was concerned with what were ""ordinary and necessary"" expenses of a taxpayer's trade or business, within the meaning of § 23(a) of the Revenue Act of 1928, 45 Stat. 799. In ascertaining whether carrying charges on short sales of stock were deductible as ordinary and necessary expenses of the taxpayer's business, the Court assumed that the activities of the taxpayer in conserving and enhancing his estate constituted a trade or business, but nevertheless disallowed the claimed deductions because they were not ""ordinary"" or ""necessary."" 308 U.S., at 493-497. Justice Frankfurter, in a concurring opinion joined by Justice Reed, did not join the majority. He took the position that whether the taxpayer's activities constituted a trade or business was ""open for determination,"" id., at 499, and observed:
+
+"" `. . . carrying on any trade or business,' within the contemplation of § 23(a), involves holding one's self out to others as engaged in the selling of goods or services. This the taxpayer did not do. . . . Without elaborating the reasons for this construction and not unmindful of opposing considerations, including appropriate regard for administrative practice, I prefer to make the conclusion explicit instead of making the hypothetical litigation-breeding assumption that this taxpayer's activities, for which expenses were sought to be deducted, did constitute a `trade or business.' "" Ibid.
+Next came Higgins v. Commissioner, 312 U.S. 212 (1941). There the Court, in a bare and brief unanimous opinion, ruled that salaries and other expenses incident to looking after one's own investments in bonds and stocks were not deductible under § 23(a) of the Revenue Act of 1932, 47 Stat. 179, as expenses paid or incurred in carrying on a trade or business. While surely cutting back on Flint's broad approach, the Court seemed to do little more than announce that since 1918 ""the present form [of the statute] was fixed and has so continued""; that ""[n]o regulation has ever been promulgated which interprets the meaning of `carrying on a business' ""; that the comprehensive definition of ""business"" in Flint was ""not controlling in this dissimilar inquiry""; that the facts in each case must be examined; that not all expenses of every business transaction are deductible; and that ""[n]o matter how large the estate or how continuous or extended the work required may be, such facts are not sufficient as a matter of law to permit the courts to reverse the decision of the Board."" 312 U.S., at 215-218. The opinion, therefore _x0097_ although devoid of analysis and not setting forth what elements, if any, in addition to profit motive and regularity, were required to render an activity a trade or business _x0097_ must stand for the propositions that full-time market activity in managing and preserving one's own estate is not embraced within the phrase ""carrying on a business,"" and that salaries and other expenses incident to the operation are not deductible as having been paid or incurred in a trade or business.[9] See also United States v. Gilmore, 372 U.S. 39, 44-45 (1963); Whipple v. Commissioner, 373 U.S. 193 (1963). It is of interest to note that, although Justice Frankfurter was on the Higgins Court and this time did not write separately, and although Justice Reed, who had joined the concurring opinion in Du Pont, was the author of the Higgins opinion, the Court in that case did not even cite Du Pont and thus paid no heed whatsoever to the content of Justice Frankfurter's pronouncement in his concurring opinion.[10] Adoption of the Frankfurter gloss obviously would have disposed of the case in the Commissioner's favor handily and automatically, but that easy route was not followed.
+
+Less than three months later, the Court considered the issue of the deductibility, as business expenses, of estate and trust fees. In unanimous opinions issued the same day and written by Justice Black, the Court ruled that the efforts of an estate or trust in asset conservation and maintenance did not constitute a trade or business. City Bank Farmers Trust Co. v. Helvering, 313 U.S. 121 (1941); United States v. Pyne, 313 U.S. 127 (1941). The Higgins case was deemed to be relevant and controlling. Again, no mention was made of the Frankfurter concurrence in Du Pont. Yet Justices Reed and Frankfurter were on the Court.
+
+Snow v. Commissioner, 416 U.S. 500 (1974), concerned a taxpayer who had advanced capital to a partnership formed to develop an invention. On audit of his 1966 return, a claimed deduction under § 174(a)(1) of the 1954 Code for his pro rata share of the partnership's operating loss was disallowed. The Tax Court and the Sixth Circuit upheld that disallowance. This Court reversed. Justice Douglas, writing for the eight Justices who participated, observed: ""Section 174 was enacted in 1954 to dilute some of the conception of `ordinary and necessary' business expenses under § 162(a) (then § 23(a)(1) of the Internal Revenue Code of 1939) adumbrated by Mr. Justice Frankfurter in a concurring opinion in Deputy v. Du Pont . . . where he said that the section in question . . . `involves holding one's self out to others as engaged in the selling of goods or services.' "" 416 U.S., at 502-503. He went on to state, id., at 503, that § 162(a) ""is more narrowly written than is § 174.""
+
+From these observations and decisions, we conclude (1) that, to be sure, the statutory words are broad and comprehensive (Flint); (2) that, however, expenses incident to caring for one's own investments, even though that endeavor is full time, are not deductible as paid or incurred in carrying on a trade or business (Higgins; City Bank; Pyne); (3) that the opposite conclusion may follow for an active trader (Snyder); (4) that Justice Frankfurter's attempted gloss upon the decision in Du Pont was not adopted by the Court in that case; (5) that the Court, indeed, later characterized it as an ""adumbration"" (Snow); and (6) that the Frankfurter observation, specifically or by implication, never has been accepted as law by a majority opinion of the Court, and more than once has been totally ignored. We must regard the Frankfurter gloss merely as a two-Justice pronouncement in a passing moment and, while entitled to respect, as never having achieved the status of a Court ruling. One also must acknowledge that Higgins, with its stress on examining the facts in each case, affords no readily helpful standard, in the usual sense, with which to decide the present case and others similar to it. The Court's cases, thus, give us results, but little general guidance.",analysis,The Meaning of the Term Trade or Business,strongly agree,"The Meaning of the Word ""Trade or Business""",strongly agree,Interpretation of the concept of trade or business of the §§ 162(a) and 62(1) of the Internal Revenue Code of 1954,2
+G16,3,0,1,III,"Federal and state legislation and court decisions, perhaps understandably, until recently have not been noticeably favorable to gambling endeavors and even have been reluctant to treat gambling on a parity with more ""legitimate"" means of making a living. See, e. g., § 4401 et seq. of the Code; Marchetti v. United States, 390 U.S. 39, 44-46, and nn. 5 and 6 (1968).[11] And the confinement of gambling-loss deductions to the amount of gambling gains, a provision brought into the income tax law as § 23(g) of the Revenue Act of 1934, 48 Stat. 689, and carried forward into § 165(d) of the 1954 Code, closed the door on suspected abuses, see H. R. Rep. No. 704, 73d Cong., 2d Sess., 22 (1934); S. Rep. No. 558, 73d Cong., 2d Sess., 25 (1934), but served partially to differentiate genuine gambling losses from many other types of adverse financial consequences sustained during the tax year. Gambling winnings, however, have not been isolated from gambling losses. The Congress has been realistic enough to recognize that such losses do exist and do have some effect on income, which is the primary focus of the federal income tax.
+
+The issue this case presents has ""been around"" for a long time and, as indicated above, has not met with consistent treatment in the Tax Court itself or in the Federal Courts of Appeals. The Seventh Circuit, in the present case, said the issue ""has proven to be most difficult and troublesome over the years."" 771 F.2d, at 271. The difficulty has not been ameliorated by the persistent absence of an all-purpose definition, by statute or regulation, of the phrase ""trade or business"" which so frequently appears in the Code. Of course, this very frequency well may be the explanation for legislative and administrative reluctance to take a position as to one use that might affect, with confusion, so many others.
+
+Be that as it may, this taxpayer's case must be decided and, from what we have outlined above, must be decided in the face of a decisional history that is not positive or even fairly indicative, as we read the cases, of what the result should be. There are, however, some helpful indicators.
+
+If a taxpayer, as Groetzinger is stipulated to have done in 1978, devotes his full-time activity to gambling, and it is his intended livelihood source, it would seem that basic concepts of fairness (if there be much of that in the income tax law) demand that his activity be regarded as a trade or business just as any other readily accepted activity, such as being a retail store proprietor or, to come closer categorically, as being a casino operator or as being an active trader on the exchanges.
+
+It is argued, however, that a full-time gambler is not offering goods or his services, within the line of demarcation that Justice Frankfurter would have drawn in Du Pont. Respondent replies that he indeed is supplying goods and services, not only to himself but, as well, to the gambling market; thus, he says, he comes within the Frankfurter test even if that were to be imposed as the proper measure. ""It takes two to gamble."" Brief for Respondent 3. Surely, one who clearly satisfies the Frankfurter adumbration usually is in a trade or business. But does it necessarily follow that one who does not satisfy the Frankfurter adumbration is not in a trade or business? One might well feel that a full-time gambler ought to qualify as much as a full-time trader,[12] as Justice Brandeis in Snyder implied and as courts have held.[13] The Commissioner, indeed, accepts the trader result. Tr. of Oral Arg. 17. In any event, while the offering of goods and services usually would qualify the activity as a trade or business, this factor, it seems to us, is not an absolute prerequisite.
+
+We are not satisfied that the Frankfurter gloss would add any helpful dimension to the resolution of cases such as this one, or that it provides a ""sensible test,"" as the Commissioner urges. See Brief for Petitioner 36. It might assist now and then, when the answer is obvious and positive, but it surely is capable of breeding litigation over the meaning of ""goods,"" the meaning of ""services,"" or the meaning of ""holding one's self out."" And we suspect that _x0097_ apart from gambling _x0097_ almost every activity would satisfy the gloss.[14] A test that everyone passes is not a test at all. We therefore now formally reject the Frankfurter gloss which the Court has never adopted anyway.
+
+Of course, not every income-producing and profit-making endeavor constitutes a trade or business. The income tax law, almost from the beginning, has distinguished between a business or trade, on the one hand, and ""transactions entered into for profit but not connected with . . . business or trade,"" on the other. See Revenue Act of 1916, § 5(a), Fifth, 39 Stat. 759. Congress ""distinguished the broad range of income or profit producing activities from those satisfying the narrow category of trade or business."" Whipple v. Commissioner, 373 U. S., at 197. We accept the fact that to be engaged in a trade or business, the taxpayer must be involved in the activity with continuity and regularity and that the taxpayer's primary purpose for engaging in the activity must be for income or profit. A sporadic activity, a hobby, or an amusement diversion does not qualify.
+
+It is suggested that we should defer to the position taken by the Commissioner and by the Solicitor General, but, in the absence of guidance, for over several decades now, through the medium of definitive statutes or regulations, we see little reason to do so. We would defer, instead, to the Code's normal focus on what we regard as a common-sense concept of what is a trade or business. Otherwise, as here, in the context of a minimum tax, it is not too extreme to say that the taxpayer is being taxed on his gambling losses,[15] a result distinctly out of line with the Code's focus on income.
+
+We do not overrule or cut back on the Court's holding in Higgins when we conclude that if one's gambling activity is pursued full time, in good faith, and with regularity, to the production of income for a livelihood, and is not a mere hobby, it is a trade or business within the meaning of the statutes with which we are here concerned. Respondent Groetzinger satisfied that test in 1978. Constant and largescale effort on his part was made. Skill was required and was applied. He did what he did for a livelihood, though with a less-than-successful result. This was not a hobby or a passing fancy or an occasional bet for amusement.
+
+We therefore adhere to the general position of the Higgins Court, taken 46 years ago, that resolution of this issue ""requires an examination of the facts in each case."" 312 U.S., at 217. This may be thought by some to be a less-than-satisfactory solution, for facts vary. See Boyle, What is a Trade or Business?, 39 Tax Lawyer 737, 767 (1986); Note, The Business of Betting: Proposals for Reforming the Taxation of Business Gamblers, 38 Tax Lawyer 759 (1985); Lopez, Defining ""Trade or Business"" Under the Internal Revenue Code: A Survey of Relevant Cases, 11 Fla. St. U. L. Rev. 949 (1984). Cf. Comment, Continuing Vitality of the ""Goods or Services"" Test, 15 U. Balt. L. Rev. 108 (1985). But the difficulty rests in the Code's wide utilization in various contexts of the term ""trade or business,"" in the absence of an all-purpose definition by statute or regulation, and in our concern that an attempt judicially to formulate and impose a test for all situations would be counterproductive, unhelpful, and even somewhat precarious for the overall integrity of the Code. We leave repair or revision, if any be needed, which we doubt, to the Congress where we feel, at this late date, the ultimate responsibility rests. Cf. Flood v. Kuhn, 407 U.S. 258, 269-285 (1972).[16]
+
+The judgment of the Court of Appeals is affirmed.
+
+It is so ordered.",analysis,Gambling Loss Deductions,strongly agree,The Gambling-Loss Deductions,strongly agree,Gambling Activity Full Time is a Trade or Business within the meaning of the §§ 162(a) and 62(1) of the Internal Revenue Code of 1954,3
+G16,4,0,1,I,"Since 1909, Local 134, International Brotherhood of Electrical Workers, AFL-CIO, one of the respondents in No. 73-795, has been recognized by the Illinois Bell Telephone Co. (Illinois Bell) and its predecessors as the exclusive bargaining representative for both rank-and-file and certain supervisory personnel, including general foremen, P. B. X. installation foremen, and building cable foremen. Rather than exercise its right to refuse to hire union members as supervisors, the company agreed to the inclusion of a union security clause in the collective-bargaining agreement which required that these supervisors, like the rank-and-file employees, maintain membership in Local 134. In addition, the bargaining agreement in effect at the time of this dispute contained provisions for the conditions of employment and certain wages of these foremen.
+
+Other higher ranking supervisors, however, were neither represented by the union for collective-bargaining purposes nor covered by the agreement, although they were permitted to maintain their union membership.[1] By virtue of that membership, these supervisors, like those within the bargaining units, received substantial benefits, including participation in the International's pension and death-benefit plans and in group life insurance and old-age-benefit plans sponsored by Local 134.
+
+Under the International's constitution, all union members could be penalized for committing any of 23 enumerated offenses, including ""[w]orking in the interest of any organization or cause which is detrimental to, or opposed to, the I. B. E. W.,"" App. 76, and ""[w]orking for any individual or company declared in difficulty with a [local union] or the I. B. E. W."" Id., at 77.
+
+Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the company. At the inception of the strike, Illinois Bell informed its supervisory personnel that it would like to have them come to work during the stoppage but that the decision whether or not to do so would be left to each individual, and that those who chose not to work would not be penalized. Local 134, on the other hand, warned its supervisor-members that they would be subject to disciplinary action if they performed rank-and-file work during the strike. Some of the supervisor-members crossed the union picket lines to perform rank-and-file struck work. Local 134 thereupon initiated disciplinary proceedings against these supervisors, and those found guilty were fined $500 each.[2] Charges were then filed with the NLRB by the Bell Supervisors Protective Association, an association formed by five supervisors to obtain counsel for and otherwise protect the supervisors who worked during the strike. The Board, one member dissenting, held that in thus disciplining the supervisory personnel, the union had violated § 8 (b) (1) (B) of the Act,[3] in accord with its decision of the same day in Local 2150, IBEW (Wisconsin Electric Power Co.), 192 N. L. R. B. 77 (1971), enforced, 486 F.2d 602 (CA7 1973), cert. pending No. 73-877, holding:
+
+""The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors.
+.....
+""The purpose of Section 8 (b) (1) (B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer. . . ."" 192 N. L. R. B., at 78.
+Accordingly, the Board ordered the unions to rescind the fines, to expunge all records thereof, and to reimburse the supervisors for any portions of the fines paid.
+
+The Florida Power & Light Co. (Florida Power), the petitioner in No. 73-556, has maintained a collective-bargaining agreement with the International Brotherhood of Electrical Workers, AFL-CIO and Locals 641, 622, 759, 820, and 1263, represented by the System Council U-4,[4] since 1953. That agreement does not require employees to become union members as a condition of employment, but many of its supervisory personnel have in fact joined the union. The company has elected to recognize the union as the exclusive bargaining representative of these supervisors, and certain aspects of their wages and conditions of employment are provided for in the agreement.[5] In addition, other higher supervisory personnel not covered by the agreement were allowed to maintain union membership,[6] and, although not represented by the union for collective-bargaining purposes, received substantial benefits as a result of their union membership, including pension, disability, and death benefits under the terms of the International's constitution.
+
+Since the same International union was involved in both No. 73-556 and No. 73-795, the union members of Florida Power bore the same obligations under the International's constitution as did the union members of Illinois Bell. See supra, at 793. With respect to union discipline of supervisor members, however, the Florida Power collective-bargaining agreement itself provided:
+
+""It is further agreed that employees in [supervisory] classifications have definite management responsibilities and are the direct representatives of the Company at their level of work. Employees in these classifications and any others in a supervisory capacity are not to be jacked up or disciplined through Union machinery for the acts they may have performed as supervisors in the Company's interest. The Union and the Company do not expect or intend for Union members to interfere with the proper and legitimate performance of the Foreman's management responsibilities appropriate to their classification. . . ."" App. 47.
+From October 22, 1969, through December 28, 1969, the International union and its locals engaged in an economic strike against Florida Power. During the strike, many of the supervisors who were union members crossed the picket lines maintained at nearly all the company's operation facilities, and performed rank-and-file work normally performed by the striking nonsupervisory employees. Following the strike, the union brought charges against those supervisors covered by the bargaining agreement as well as those not covered, alleging violations of the International union constitution. Those found guilty of crossing the picket lines to perform rank-and-file work, as opposed to their usual supervisory functions, received fines ranging from $100 to $6,000 and most were expelled from the union, thereby terminating their right to pension, disability, and death benefits. Upon charges filed by Florida Power, the Board, in reliance upon its prior decisions in Wisconsin Electric and Illinois Bell, held that the penalties imposed ""struck at the loyalty an employer should be able to expect from its representatives for the adjustment of grievances and therefore restrained and coerced employers in their selection of such representatives,"" in violation of § 8 (b) (1) (B) of the Act. Accordingly, the Board ordered the union to cease and desist, to rescind and refund all fines, to expunge all records of the disciplinary proceedings, and to restore those disciplined to full union membership and benefits.[7]
+
+The Illinois Bell case was first heard by a panel of the Court of Appeals for the District of Columbia Circuit, 159 U. S. App. D. C. 242, 487 F.2d 1113 (1973), and then on rehearing was consolidated with Florida Power and considered en banc. In a 5-4 decision, the court held that ""[s]ection 8 (b) (1) (B) cannot reasonably be read to prohibit discipline of union members_x0097_supervisors though they be_x0097_for performance of rank-and-file struck work,"" 159 U. S. App. D. C. 272, 300, 487 F.2d 1143, 1171 (1973), and accordingly refused to enforce the Board's orders.[8] Section 8 (b) (1) (B), the court held, was intended to proscribe only union efforts to discipline supervisors for their actions in representing management in collective bargaining and the adjustment of grievances. It was the court's view that when a supervisor forsakes his supervisory role to do work normally performed by nonsupervisory employees, he no longer acts as a managerial representative and hence ""no longer merits any immunity from discipline."" Id., at 286, 487 F.2d, at 1157. We granted certiorari, 414 U.S. 1156, to consider an important and novel question of federal labor law.",facts, Illinois Bell Telephone Co.,strongly disagree,"The International Brotherhood of Electrical Workers, AFL-CIO",strongly disagree,Crossing of Picket Lines by Supervisors during Strike,1
+G16,4,0,1,II,"Section 8 (b) of the National Labor Relations Act provides in pertinent part:
+
+""It shall be an unfair labor practice for a labor organization or its agents_x0097_(1) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.""
+The basic import of this provision was explained in the Senate Report as follows:
+
+""[A] union or its responsible agents could not, without violating the law, coerce an employer into joining or resigning from an employer association which negotiates labor contracts on behalf of its members; also, this subsection would not permit a union to dictate who shall represent an employer in the settlement of employee grievances, or to compel the removal of a personnel director or supervisor who has been delegated the function of settling grievances.""[9]
+For more than 20 years after § 8 (b) (1) (B) was enacted in 1947, the Board confined its application to situations clearly falling within the metes and bounds of the statutory language. Thus, in Los Angeles Cloak Joint Board ILGWU (Helen Rose Co.), 127 N. L. R. B. 1543 (1960), the Board held that § 8 (b) (1) (B) barred a union from picketing a company in an attempt to force the employer to dismiss an industrial relations consultant thought to be hostile to the union. See also Local 986, Miscellaneous Warehousemen, Drivers & Helpers (Tak-Trak, Inc.), 145 N. L. R. B. 1511 (1964); Southern California Pipe Trades District Council No. 16 (Paddock Pools of California, Inc.), 120 N. L. R. B. 249 (1958). Similarly, the Board held that § 8 (b) (1) (B) was violated by union attempts to force employers to join or resign from multi-employer bargaining associations, United Slate, Tile & Composition Roofers, Local 36 (Roofing Contractors Assn. of Southern California), 172 N. L. R. B. 2248 (1968); Orange Belt District Council of Painters No. 48 (Painting & Decorating Contractors of America, Inc.), 152 N. L. R. B. 1136 (1965); General Teamsters Local Union No. 324 (Cascade Employers Assn., Inc.), 127 N. L. R. B. 488 (1960), as well as by attempts to compel employers to select foremen from the ranks of union members, International Typographical Union & Baltimore Typographical Union No. 12 (Graphic Arts League), 87 N. L. R. B. 1215 (1949); International Typographical Union (American Newspaper Publishers Assn.), 86 N. L. R. B. 951 (1949), enforced, 193 F.2d 782 (CA7 1951); International Typographical Union (Haverhill Gazette Co.), 123 N. L. R. B. 806 (1959), enforced, 278 F.2d 6 (CA1 1960), aff'd by an equally divided Court, 365 U.S. 705 (1961).[10]
+
+In 1968, however, the Board significantly expanded the reach of § 8 (b) (1) (B), with its decision in San Francisco-Oakland Mailers' Union No. 18 (Northwest Publications, Inc.), 172 N. L. R. B. 2173. In that case, three union-member foremen were expelled from the union for allegedly assigning bargaining unit work in violation of the collective-bargaining agreement. Despite the absence of union pressure or coercion aimed at securing the replacement of the foremen, the Board held that the union had violated § 8 (b) (1) (B) by seeking to influence the manner in which the foremen interpreted the contract:
+
+""That Respondent may have sought the substitution of attitudes rather than persons, and may have exerted its pressures upon the Charging Party by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the Charging Party's control over its representatives. Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them."" 172 N. L. R. B. 2173.
+Subsequent Board decisions extended § 8 (b) (1) (B) to proscribe union discipline of management representatives both for the manner in which they performed their collective-bargaining and grievance-adjusting functions, and for the manner in which they performed other supervisory functions if those representatives also in fact possessed authority to bargain collectively or to adjust grievances. See Detroit Newspaper Printing Pressmen's Union 13, 192 N. L. R. B. 106 (1971); Meat Cutters Union Local 81, 185 N. L. R. B. 884 (1970), enforced, 147 U. S. App. D. C. 375, 458 F.2d 794 (1972); Houston Typographical Union 87, 182 N. L. R. B. 592 (1970); Dallas Mailers Union Local 143 (Dow Jones Co., Inc.), 181 N. L. R. B. 286 (1970), enforced, 144 U. S. App. D. C. 254, 445 F.2d 730 (1971); Sheet Metal Workers' International Assn., Local Union 49 (General Metal Products, Inc.), 178 N. L. R. B. 139 (1969), enforced, 430 F.2d 1348 (CA10 1970); New Mexico District Council of Carpenters & Joiners of America (A. S. Horner, Inc.), 176 N. L. R. B. 797 and 177 N. L. R. B. 500 (1969), both enforced, 454 F.2d 1116 (CA10 1972); Toledo Locals Nos. 15-P & 272, Lithographers & Photoengravers International (Toledo Blade Co., Inc.), 175 N. L. R. B. 1072 (1969), enforced, 437 F.2d 55 (CA6 1971).[11]
+
+These decisions reflected a further evolution of the Oakland Mailers doctrine. In Oakland Mailers, the union had disciplined its supervisor-members for an alleged misinterpretation or misapplication of the collective-bargaining agreement, and the Board had reasoned that the natural and foreseeable effect of such discipline was that in interpreting the agreement in the future, the supervisor would be reluctant to take a position adverse to that of the union. In the subsequent cases, however, the Board held that the same coercive effect was likely to arise from the disciplining of a supervisor whenever he was engaged in management or supervisory activities, even though his collective-bargaining or grievance-adjustment duties were not involved. Through the course of these decisions, § 8 (b) (1) (B) thus began to evolve in the view of the Board and the courts ""as a general prohibition of a union's disciplining supervisor-members for their conduct in the course of representing the interests of their employers."" Toledo Locals Nos. 15-P & 272, Lithographers & Photoengravers International, 175 N. L. R. B., at 1080, or for acts ""performed in the course of [their] management duties,"" Meat Cutters Union Local 81 v. NLRB, 147 U. S. App. D. C., at 377, 458 F.2d, at 796.[12]
+
+In the present cases, the Board has extended that doctrine to hold that § 8 (b) (1) (B) forbids union discipline of supervisors for performance of rank-and-file work on the theory that the performance of such work during a strike is an activity furthering management's interests.[13] We agree with the Court of Appeals that § 8 (b) (1) (B) cannot be so broadly read. Both the language and the legislative history of § 8 (b) (1) (B) reflect a clearly focused congressional concern with the protection of employers in the selection of representatives to engage in two particular and explicitly stated activities, namely collective bargaining and the adjustment of grievances. By its terms, the statute proscribes only union restraint or coercion of an employer ""in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances,"" and the legislative history makes clear that in enacting the provision Congress was exclusively concerned with union attempts to dictate to employers who would represent them in collective bargaining and grievance adjustment.
+
+The specific concern of Congress was to prevent unions from trying to force employers into or out of multi-employer bargaining units.[14] As Senator Taft, cosponsor of the legislation, explained:
+
+""Under this provision it would be impossible for a union to say to a company, `We will not bargain with you unless you appoint your national employers' association as your agent so that we can bergain nationally.' Under the bill the employer has a right to say, `No, I will not join in national bargaining. Here is my representative, and this is the man you have to deal with.' I believe the provision is a necessary one, and one which will accomplish substantially wise purposes."" 93 Cong. Rec. 3837.
+That the legislative creation of this unfair labor practice was in no sense intended to cut the broad swath attributed to it by the Board in the present cases is pointed up by the further observation of Senator Taft:
+
+""This unfair labor practice referred to is not perhaps of tremendous importance, but employees cannot say to their employer, `we do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y.' That has been done. It would prevent their saying to the employer, `You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you will have to fire him, or we will not go to work.' "" 93 Cong. Rec. 3837.[15]
+Nowhere in the legislative history is there to be found any implication that Congress sought to extend protection to the employer from union restraint or coercion when engaged in any activity other than the selection of its representatives for the purposes of collective bargaining and grievance adjustment. The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of § 8 (b) (1) (B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer.
+
+We may assume without deciding that the Board's Oakland Mailers decision fell within the outer limits of this test, but its decisions in the present cases clearly do not. For it is certain that these supervisors were not engaged in collective bargaining or grievance adjustment, or in any activities related thereto, when they crossed union picket lines during an economic strike to engage in rank-and-file struck work.[16]
+",analysis,The National Labor Relations Act,agree,The Board's Application of Section 8 (b),strongly agree,Rejection of the application of the Oakland Mailers doctrine of the National Labor Relations Board,2
+G16,4,0,1,III,"It is strenuously asserted, however, that to permit a union to discipline supervisor-members for performing rank-and-file work during an economic strike will deprive the employer of the full loyalty of those supervisors. Indeed, it is precisely that concern that is reflected in these and other recent decisions of the Board holding that the statutory language ""restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances"" is not confined to situations in which the union's object is to force a change in the identity of the employer's representatives, but may properly be read to encompass any situation in which the union's actions are likely to deprive the employer of the undivided loyalty of his supervisory employees. As the Board stated in Wisconsin Electric:
+
+""During the strike of the Union, the Employer clearly considered its supervisors among those it could depend on during this period. The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective-bargaining agents or to act for it in adjusting grievances. Moreover, such fines clearly interfere with the Employer's control over its own representatives.
+""The purpose of Section 8 (b) (1) (B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer."" 192 N. L. R. B., at 78.
+The Board in the present cases echoes this view in arguing that ""where a supervisor is disciplined by the union for performing other supervisory or management functions, the likely effect of such discipline is to make him subservient to the union's wishes when he performs those functions in the future. Thus, even if the effect of this discipline did not carry over to the performance of the supervisor's grievance adjustment or collective bargaining functions, the result would be to deprive the employer of the full allegiance of, and control over, a representative he has selected for grievance adjustment or collective bargaining purposes."" Brief for Petitioner in No. 73-795, p. 34.
+
+The concern expressed in this argument is a very real one, but the problem is one that Congress addressed, not through § 8 (b) (1) (B), but through a completely different legislative route. Specifically, Congress in 1947 amended the definition of ""employee"" in § 2 (3), 29 U.S. C. § 152 (3), to exclude those denominated supervisors under § 2 (11), 29 U.S. C. § 152 (11), thereby excluding them from the coverage of the Act.[17] See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). Further, Congress enacted § 14 (a), 29 U.S. C. § 164 (a), explicitly providing:
+
+""Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.""
+Thus, while supervisors are permitted to become union members, Congress sought to assure the employer of the loyalty of his supervisors by reserving in him the right to refuse to hire union members as supervisors, see Carpenters District Council v. NLRB, 107 U. S. App. D. C. 55, 274 F.2d 564 (1959); A. H. Bull S. S. Co. v. National Marine Engineers' Beneficial Assn., 250 F.2d 332 (CA2 1957), the right to discharge such supervisors because of their involvement in union activities or union membership, see Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653 (1974); see also Oil City Brass Works v. NLRB, 357 F.2d 466 (CA5 1966); NLRB v. Fullerton Publishing Co., 283 F.2d 545 (CA9 1960); NLRB v. Griggs Equipment, Inc., 307 F.2d 275 (CA5 1962); NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (CA6 1948), cert. denied, 335 U.S. 908 (1949),[18] and the right to refuse to engage in collective bargaining with them, see L. A. Young Spring & Wire Corp. v. NLRB, 82 U. S. App. D. C. 327, 163 F.2d 905 (1947), cert. denied, 333 U.S. 837 (1948).
+
+The legislative history of §§ 2 (3) and 14 (a) of the Act clearly indicates that those provisions were enacted in response to the decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), in which this Court upheld the Board's finding that the statutory definition of ""employee"" included foremen, and that they were therefore entitled to the coverage of the Act in the absence of a decision by Congress to exclude them.[19] In recommending passage of this legislation, the Senate Report noted:
+
+""It is natural to expect that unless this Congress takes action, management will be deprived of the undivided loyalty of its foremen. There is an inherent tendency to subordinate their interests wherever they conflict with those of the rank and file."" Senate Report 5. (Emphasis supplied.)
+A similar concern with this conflict-of-loyalties problem was reflected in the House Report:
+
+""The evidence before the committee shows clearly that unionizing supervisors under the Labor Act is inconsistent with . . . our policy to protect the rights of employers; they, as well as workers, are entitled to loyal representatives in the plants, but when the foremen unionize, even in a union that claims to be `independent' of the union of the rank and file, they are subject to influence and control by the rank and file union, and, instead of their bossing the rank and file, the rank and file bosses them.
+.....
+""The bill does not forbid anyone to organize. It does not forbid any employer to recognize a union of foremen. Employers who, in the past, have bargained collectively with supervisors may continue to do so. What the bill does is to say what the law always has said until the Labor Board, in the exercise of what it modestly calls its `expertness', changed the law: That no one, whether employer or employee, need have as his agent one who is obligated to those on the other side, or one whom, for any reason, he does not trust."" House Report 14-17.[20] (Emphasis supplied.)
+It is clear that the conflict-of-loyalties problem that the Board has sought to reach under § 8 (b) (1) (B) was intended by Congress to be dealt with in a very different manner.[21] As we concluded in Beasley v. Food Fair of North Carolina, Inc., 416 U. S., at 661-662:
+
+""This history compels the conclusion that Congress' dominant purpose in amending §§ 2 (3) and 2 (11), and enacting § 14 (a) was to redress a perceived imbalance in labor-management relationships that was found to arise from putting supervisors in the position of serving two masters with opposed interests.""
+While we recognize that the legislative accommodation adopted in 1947 is fraught with difficulties of its own, ""[i]t is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute."" Colgate-Palmolive Peet Co. v. NLRB, 338 U.S. 355, 363 (1949).[22]
+
+Congress' solution was essentially one of providing the employer with an option. On the one hand, he is at liberty to demand absolute loyalty from his supervisory personnel by insisting, on pain of discharge, that they neither participate in, nor retain membership in, a labor union, see Beasley v. Food Fair of North Carolina, Inc., supra. Alternatively, an employer who wishes to do so can permit his supervisors to join or retain their membership in labor unions, resolving such conflicts as arise through the traditional procedures of collective bargaining.[23] But it is quite apparent, given the statutory language and the particular concerns that the legislative history shows were what motivated Congress to enact § 8 (b) (1) (B), that it did not intend to make that provision any part of the solution to the generalized problem of supervisor-member conflict of loyalties.
+
+For these reasons, we hold that the respondent unions did not violate § 8 (b) (1) (B) of the Act when they disciplined their supervisor-members for performing rank-and-file struck work. Accordingly, the judgment is
+
+Affirmed.
+",analysis,Discipline for performing rank-and-file work,strongly agree,The Effect of the Union's Fines on the Employer's Supervisory Employees,disagree,No violation of the National Labor Relations Act by unions that disciplined their supervisors-members,3
+G16,6,0,1,I,"Espinosa's claim squarely raises the question whether the requirement of five years' continuous residence is constitutional, a question that is not necessarily presented by the claims of Diaz and Clara. For if the requirement of admission for permanent residence is valid, their applications were properly denied even if the durational residence requirement is ineffective.[7] We must therefore decide whether the District Court had jurisdiction over Espinosa's claim.
+
+We have little difficulty with Espinosa's failure to file an application with the Secretary until after he was joined in the action. Although 42 U. S. C. § 405 (g) establishes filing of an application as a nonwaivable condition of jurisdiction, Mathews v. Eldridge, 424 U. S. 319, 328; Weinberger v. Salfi, 422 U. S., at 764, Espinosa satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue;[8] since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact.[9] Under these circumstances, we treat the pleadings as properly supplemented by the Secretary's stipulation that Espinosa had filed an application.
+
+A further problem is presented by the absence of any formal administrative action by the Secretary denying Espinosa's application. Section 405 (g) requires a final decision by the Secretary after a hearing as a prerequisite of jurisdiction. Mathews v. Eldridge, supra, at 328-330; Weinberger v. Salfi, supra, at 763-765. However, we held in Salfi that the Secretary could waive the exhaustion requirements which this provision contemplates and that he had done so in that case. Id., at 765-767; accord, Mathews v. Eldridge, supra, at 328-330 (dictum); Weinberger v. Wiesenfeld, 420 U. S., at 641 n. 8. We reach a similar conclusion here.
+
+The plaintiffs in Salfi alleged that their claims had been denied by the local and regional Social Security offices and that the only question was one of constitutional law, beyond the competence of the Secretary to decide. These allegations did not satisfy the exhaustion requirements of § 405 (g) or the Secretary's regulations, but the Secretary failed to challenge the sufficiency of the allegations on this ground. We interpreted this failure as a determination by the Secretary that exhaustion would have been futile and deferred to his judgment that the only issue presented was the constitutionality of a provision of the Social Security Act.
+
+The same reasoning applies to the present case. Although the Secretary moved to dismiss for failure to exhaust administrative remedies, at the hearing on the motion he stipulated that no facts were in dispute, that the case was ripe for disposition by summary judgment, and that the only issue before the District Court was the constitutionality of the statute.[10] As in Salfi, this constitutional question is beyond the Secretary's competence. Indeed, the Secretary has twice stated in this Court that he stipulated in the District Court that Espinosa's application would be denied for failure to meet the durational residence requirement.[11] For jurisdictional purposes, we treat the stipulation in the District Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirements. Cf. Weinberger v. Wiesenfeld, supra, at 640 n. 6, 641 n. 8.
+
+We conclude, as we did in Salfi, that the Secretary's submission of the question for decision on the merits by the District Court satisfied the statutory requirement of a hearing and final decision. We hold that Espinosa's claim, as well as the claims of Diaz and Clara, must be decided.",analysis,Espinosa's Claim,strongly agree,The District Court had jurisdiction over Espinosa's claim.,strongly agree,District Court Jurisdiction Over Petitioner's Claim,1
+G16,6,0,1,II,"There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Wong Yang Sung v. McGrath, 339 U. S. 33, 48-51; Wong Wing v. United States, 163 U. S. 228, 238; see Russian Fleet v. United States, 282 U. S. 481, 489. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. Wong Yang Sung, supra; Wong Wing, supra.
+
+The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other;[12] and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country.[13]
+
+In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens[14] and the reservation of the power to deport[15] have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry.[16] The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is ""invidious.""
+
+In particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that as the alien's tie grows stronger, so does the strength of his claim to an equal share of that munificence.
+
+The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens_x0097_allowing benefits to some aliens but not to others_x0097_is permissible. We turn to that question.",analysis,The Constitutionality of the Exclusion of Aliens,strongly agree,The Constitutional Claim of All Aliens,disagree,Protection of Aliens under the Fifth and Fourteenth Amendments,2
+G16,6,0,1,III,"For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.[17] Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. This very case illustrates the need for flexibility in policy choices rather than the rigidity often characteristic of constitutional adjudication. Appellees Diaz and Clara are but two of over 440,000 Cuban refugees who arrived in the United States between 1961 and 1972.[18] And the Cuban parolees are but one of several categories of aliens who have been admitted in order to make a humane response to a natural catastrophe or an international political situation.[19] Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.[20] The reasons that preclude judicial review of political questions[21] also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.
+
+Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case the appellees have challenged two requirements_x0097_first, that the alien be admitted as a permanent resident, and, second, that his residence be of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien's entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. In short, it is unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind.
+
+We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program.[22] We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity with the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not.
+
+The task of classifying persons for medical benefits, like the task of drawing lines for federal tax purposes, inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line; the differences between the eligible and the ineligible are differences in degree rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment.[23] In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation.
+",analysis, The Role of the Political Branches of Government,strongly agree,The Constitutionality of the Immigration and Naturalization Requirements,strongly agree,In-principle jurisdiction of the Legislative and Executive branches of the United States Government over Foreign and Immigration policy,3
+G16,6,0,1,IV,"The cases on which appellees rely are consistent with our conclusion that this statutory classification does not deprive them of liberty or property without due process of law.
+
+Graham v. Richardson, 403 U. S. 365, provides the strongest support for appellees' position. That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens. The equal protection analysis also involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government.
+
+Insofar as state welfare policy is concerned,[24] there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Furthermore, whereas the Constitution inhibits every State's power to restrict travel across its own borders, Congress is explicitly empowered to exercise that type of control over travel across the borders of the United States.[25]
+
+The distinction between the constitutional limits on state power and the constitutional grant of power to the Federal Government also explains why appellees' reliance on Memorial Hospital v. Maricopa County, 415 U. S. 250, is misplaced. That case involved Arizona's requirement of durational residence within a county in order to receive nonemergency medical care at the county's expense. No question of alienage was involved. Since the sole basis for the classification between residents impinged on the constitutionally guaranteed right to travel within the United States, the holding in Shapiro v. Thompson, 394 U. S. 618, required that it be justified by a compelling state interest.[26] Finding no such justification, we held that the requirement violated the Equal Protection Clause. This case, however, involves no state impairment of the right to travel_x0097_nor indeed any impairment whatever of the right to travel within the United States; the predicate for the equal protection analysis in those cases is simply not present. Contrary to appellees' characterization, it is not ""political hypocrisy"" to recognize that the Fourteenth Amendment's limits on state powers are substantially different from the constitutional provisions applicable to the federal power over immigration and naturalization.
+
+Finally, we reject the suggestion that U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, lends relevant support to appellees' claim. No question involving alienage was presented in that case. Rather, we found that the denial of food stamps to households containing unrelated members was not only unsupported by any rational basis but actually was intended to discriminate against certain politically unpopular groups. This case involves no impairment of the freedom of association of either citizens or aliens.
+
+We hold that § 1395o (2) (B) has not deprived appellees of liberty or property without due process of law.
+
+The judgment of the District Court is
+
+Reversed.",analysis,Appellees' Equal Protection Argument,strongly agree,The Cases on Which Appellants Rely,agree,No violation of the Due Process Clause or the Equal Protection Clause to deprive aliens resident from welfare benefits,4
+G16,7,0,1,I,"In August 2007, respondent Galin Frye was charged with driving with a revoked license. Frye had been convicted for that offense on three other occasions, so the State of Missouri charged him with a class D felony, which carries a maximum term of imprisonment of four years. See Mo. Rev. Stat. §§302.321.2, 558.011.1(4) (2011).
+
+On November 15, the prosecutor sent a letter to Frye’s counsel offering a choice of two plea bargains. App. 50. The prosecutor first offered to recommend a 3-year sentence if there was a guilty plea to the felony charge, without a recommendation regarding probation but with a recommendation that Frye serve 10 days in jail as socalled “shock” time. The second offer was to reduce the charge to a misdemeanor and, if Frye pleaded guilty to it, to recommend a 90-day sentence. The misdemeanor charge of driving with a revoked license carries a maximum term of imprisonment of one year. 311 S. W. 3d 350, 360 (Mo. App. 2010). The letter stated both offers would expire on December 28. Frye’s attorney did not advise Frye that the offers had been made. The offers expired. Id., at 356.
+
+Frye’s preliminary hearing was scheduled for January 4, 2008. On December 30, 2007, less than a week before the hearing, Frye was again arrested for driving with a revoked license. App. 47–48, 311 S. W. 3d, at 352–353. At the January 4 hearing, Frye waived his right to a preliminary hearing on the charge arising from the August 2007 arrest. He pleaded not guilty at a subsequent arraignment but then changed his plea to guilty. There was no underlying plea agreement. App. 5, 13, 16. The state trial court accepted Frye’s guilty plea. Id., at 21. The prosecutor recommended a 3-year sentence, made no recommendation regarding probation, and requested 10 days shock time in jail. Id., at 22. The trial judge sentenced Frye to three years in prison. Id., at 21, 23.
+
+Frye filed for postconviction relief in state court. Id., at 8, 25–29. He alleged his counsel’s failure to inform him of the prosecution’s plea offer denied him the effective assistance of counsel. At an evidentiary hearing, Frye testified he would have entered a guilty plea to the misdemeanor had he known about the offer. Id., at 34.
+
+A state court denied the postconviction motion, id., at 52–57, but the Missouri Court of Appeals reversed, 311 S. W. 3d 350. It determined that Frye met both of the requirements for showing a Sixth Amendment violation under Strickland. First, the court determined Frye’s counsel’s performance was deficient because the “record is void of any evidence of any effort by trial counsel to communicate the Offer to Frye during the Offer window.” 311 S. W. 3d, at 355, 356 (emphasis deleted). The court next concluded Frye had shown his counsel’s deficient performance caused him prejudice because “Frye pled guilty to a felony instead of a misdemeanor and was subject to a maximum sentence of four years instead of one year.” Id., at 360.
+
+To implement a remedy for the violation, the court deemed Frye’s guilty plea withdrawn and remanded to allow Frye either to insist on a trial or to plead guilty to any offense the prosecutor deemed it appropriate to charge. This Court granted certiorari. 562 U. S. ___ (2011).
+
+",facts,Frye,strongly agree,Galin Frye,strongly agree,Motion for Post-Conviction Relief Due to Counsel's Failure to Notify of Prosecution's Plea Offer,1
+G16,7,0,1,II,"
+
+It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U. S. 778, 786 (2009) (quoting United States v. Wade, 388 U. S. 218, 227–228 (1967)). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, 368 U. S. 52 (1961) (arraignment); Massiah v. United States, 377 U. S. 201 (1964) (postindictment interrogation); Wade, supra (postindictment lineup); Argersinger v. Hamlin, 407 U. S. 25 (1972) (guilty plea).
+
+With respect to the right to effective counsel in plea negotiations, a proper beginning point is to discuss two cases from this Court considering the role of counsel in advising a client about a plea offer and an ensuing guilty plea: Hill v. Lockhart, 474 U. S. 52 (1985); and Padilla v. Kentucky, 559 U. S. ___(2010).
+
+Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland. See Hill, supra, at 57. As noted above, in Frye’s case, the Missouri Court of Appeals, applying the two part test of Strickland, determined first that defense counsel had been ineffective and second that there was resulting prejudice.
+
+In Hill, the decision turned on the second part of the Strickland test. There, a defendant who had entered a guilty plea claimed his counsel had misinformed him of the amount of time he would have to serve before he became eligible for parole. But the defendant had not alleged that, even if adequate advice and assistance had been given, he would have elected to plead not guilty and proceed to trial. Thus, the Court found that no prejudice from the inadequate advice had been shown or alleged. Hill, supra, at 60.
+
+In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” 559 U. S., at ___ (slip op., at 16). It also rejected the argument made by petitioner in this case that a knowing and voluntary plea supersedes errors by defense counsel. Cf. Brief for Respondent in Padilla v. Kentucky, O. T. 2009, No. 08–651, p. 27 (arguing Sixth Amendment’s assurance of effective assistance “does not extend to collateral aspects of the prosecution” because “knowledge of the consequences that are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea”).
+
+In the case now before the Court the State, as petitioner, points out that the legal question presented is different from that in Hill and Padilla. In those cases the claim was that the prisoner’s plea of guilty was invalid because counsel had provided incorrect advice pertinent to the plea. In the instant case, by contrast, the guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel. The challenge is not to the advice pertaining to the plea that was accepted but rather to the course of legal representation that preceded it with respect to other potential pleas and plea offers.
+
+To give further support to its contention that the instant case is in a category different from what the Court considered in Hill and Padilla, the State urges that there is no right to a plea offer or a plea bargain in any event. See Weatherford v. Bursey, 429 U. S. 545, 561 (1977). It claims Frye therefore was not deprived of any legal benefit to which he was entitled. Under this view, any wrongful or mistaken action of counsel with respect to earlier plea offers is beside the point.
+
+The State is correct to point out that Hill and Padilla concerned whether there was ineffective assistance leading to acceptance of a plea offer, a process involving a formal court appearance with the defendant and all counsel present. Before a guilty plea is entered the defendant’s understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea. See, e.g., Fed. Rule Crim. Proc. 11; Mo. Sup. Ct. Rule 24.02 (2004). Hill and Padilla both illustrate that, nevertheless, there may be instances when claims of ineffective assistance can arise after the conviction is entered. Still, the State, and the trial court itself, have had a substantial opportunity to guard against this contingency by establishing at the plea entry proceeding that the defendant has been given proper advice or, if the advice received appears to have been inadequate, to remedy that deficiency before the plea is accepted and the conviction entered.
+
+When a plea offer has lapsed or been rejected, however, no formal court proceedings are involved. This underscores that the plea-bargaining process is often in flux, with no clear standards or timelines and with no judicial supervision of the discussions between prosecution and defense. Indeed, discussions between client and defense counsel are privileged. So the prosecution has little or no notice if something may be amiss and perhaps no capacity to intervene in any event. And, as noted, the State insists there is no right to receive a plea offer. For all these reasons, the State contends, it is unfair to subject it to the consequences of defense counsel’s inadequacies, especially when the opportunities for a full and fair trial, or, as here, for a later guilty plea albeit on less favorable terms, are preserved.
+
+The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/ sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court’s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/ fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
+
+To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. “Anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).
+
+
+The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question. “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.” Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 8–9). Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process. Cf. ibid.
+
+This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects, however. Here the question is whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.
+
+This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.
+
+Though the standard for counsel’s performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides. The American Bar Association recommends defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999), and this standard has been adopted by numerous state and federal courts over the last 30 years. See, e.g., Davie v. State, 381 S. C. 601, 608–609, 675 S. E. 2d 416, 420 (2009); Cottle v. State, 733 So. 2d 963, 965–966 (Fla. 1999); Becton v. Hun, 205 W. Va. 139, 144, 516 S. E. 2d 762, 767 (1999); Harris v. State, 875 S. W. 2d 662, 665 (Tenn. 1994); Lloyd v. State, 258 Ga. 645, 648, 373 S. E. 2d 1, 3 (1988); United States v. Rodriguez Rodriguez, 929 F. 2d 747, 752 (CA1 1991) (per curiam); Pham v. United States, 317 F. 3d 178, 182 (CA2 2003); United States ex rel. Caruso v. Zelinsky, 689 F. 2d 435, 438 (CA3 1982); Griffin v. United States, 330 F. 3d 733, 737 (CA6 2003); Johnson v. Duckworth, 793 F. 2d 898, 902 (CA7 1986); United States v. Blaylock, 20 F. 3d 1458, 1466 (CA9 1994); cf. Diaz v. United States, 930 F. 2d 832, 834 (CA11 1991). The standard for prompt communication and consultation is also set out in state bar professional standards for attorneys. See, e.g., Fla. Rule Regulating Bar 4–1.4 (2008); Ill. Rule Prof. Conduct 1.4 (2011); Kan. Rule Prof. Conduct 1.4 (2010); Ky. Sup. Ct. Rule 3.130, Rule Prof. Conduct 1.4 (2011); Mass. Rule Prof. Conduct 1.4 (2011–2012); Mich. Rule Prof. Conduct 1.4 (2011).
+
+The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. See N. J. Ct. Rule 3:9–1(b) (2012) (“Any plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant’s attorney”). Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence. At least one State often follows a similar procedure before trial. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 20 (discussing hearings in Arizona conducted pursuant to State v. Donald, 198 Ariz. 406, 10 P. 3d 1193 (App. 2000)); see also N. J. Ct. Rules 3:9–1(b), (c) (requiring the prosecutor and defense counsel to discuss the case prior to the arraignment/status conference including any plea offers and to report on these discussions in open court with the defendant present); In re Alvernaz, 2 Cal. 4th 924, 938, n. 7, 830 P. 2d 747, 756, n. 7 (1992) (encouraging parties to “memorialize in some fashion prior to trial (1) the fact that a plea bargain offer was made, and (2) that the defendant was advised of the offer [and] its precise terms, . . . and (3) the defendant’s response to the plea bargain offer”); Brief for Center on the Administration of Criminal Law, New York University School of Law as Amicus Curiae 25–27.
+
+Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.
+
+To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U. S. 198, 203 (2001) (“[A]ny amount of [additional] jail time has Sixth Amendment significance”).
+
+This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U. S., at 59. Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations. Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years’ imprisonment). In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry into whether “the result of the proceeding would have been different,” 466 U. S., at 694, requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.
+
+In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea, see Weatherford, 429 U. S., at 561, nor a federal right that the judge accept it, Santobello v. New York, 404 U. S. 257, 262 (1971). In at least some States, including Missouri, it appears the prosecution has some discretion to cancel a plea agreement to which the defendant has agreed, see, e.g., 311 S. W. 3d, at 359 (case below); Ariz. Rule Crim. Proc. 17.4(b) (Supp. 2011). The Federal Rules, some state rules including in Missouri, and this Court’s precedents give trial courts some leeway to accept or reject plea agreements, see Fed. Rule Crim. Proc. 11(c)(3); see Mo. Sup. Ct. Rule 24.02(d)(4); Boykin v. Alabama, 395 U. S. 238, 243–244 (1969). It can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework.",analysis,The Right to Effective Assistance of Counsel,strongly agree, The Duty and Responsibilities of Defense Counsel,strongly agree,Plea Bargaining and Right to Effective Assistance of Counsel,2
+G16,7,0,2,A,"It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U. S. 778, 786 (2009) (quoting United States v. Wade, 388 U. S. 218, 227–228 (1967)). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, 368 U. S. 52 (1961) (arraignment); Massiah v. United States, 377 U. S. 201 (1964) (postindictment interrogation); Wade, supra (postindictment lineup); Argersinger v. Hamlin, 407 U. S. 25 (1972) (guilty plea).
+
+With respect to the right to effective counsel in plea negotiations, a proper beginning point is to discuss two cases from this Court considering the role of counsel in advising a client about a plea offer and an ensuing guilty plea: Hill v. Lockhart, 474 U. S. 52 (1985); and Padilla v. Kentucky, 559 U. S. ___(2010).
+
+Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland. See Hill, supra, at 57. As noted above, in Frye’s case, the Missouri Court of Appeals, applying the two part test of Strickland, determined first that defense counsel had been ineffective and second that there was resulting prejudice.
+
+In Hill, the decision turned on the second part of the Strickland test. There, a defendant who had entered a guilty plea claimed his counsel had misinformed him of the amount of time he would have to serve before he became eligible for parole. But the defendant had not alleged that, even if adequate advice and assistance had been given, he would have elected to plead not guilty and proceed to trial. Thus, the Court found that no prejudice from the inadequate advice had been shown or alleged. Hill, supra, at 60.
+
+In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” 559 U. S., at ___ (slip op., at 16). It also rejected the argument made by petitioner in this case that a knowing and voluntary plea supersedes errors by defense counsel. Cf. Brief for Respondent in Padilla v. Kentucky, O. T. 2009, No. 08–651, p. 27 (arguing Sixth Amendment’s assurance of effective assistance “does not extend to collateral aspects of the prosecution” because “knowledge of the consequences that are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea”).
+
+In the case now before the Court the State, as petitioner, points out that the legal question presented is different from that in Hill and Padilla. In those cases the claim was that the prisoner’s plea of guilty was invalid because counsel had provided incorrect advice pertinent to the plea. In the instant case, by contrast, the guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel. The challenge is not to the advice pertaining to the plea that was accepted but rather to the course of legal representation that preceded it with respect to other potential pleas and plea offers.
+
+To give further support to its contention that the instant case is in a category different from what the Court considered in Hill and Padilla, the State urges that there is no right to a plea offer or a plea bargain in any event. See Weatherford v. Bursey, 429 U. S. 545, 561 (1977). It claims Frye therefore was not deprived of any legal benefit to which he was entitled. Under this view, any wrongful or mistaken action of counsel with respect to earlier plea offers is beside the point.
+
+The State is correct to point out that Hill and Padilla concerned whether there was ineffective assistance leading to acceptance of a plea offer, a process involving a formal court appearance with the defendant and all counsel present. Before a guilty plea is entered the defendant’s understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea. See, e.g., Fed. Rule Crim. Proc. 11; Mo. Sup. Ct. Rule 24.02 (2004). Hill and Padilla both illustrate that, nevertheless, there may be instances when claims of ineffective assistance can arise after the conviction is entered. Still, the State, and the trial court itself, have had a substantial opportunity to guard against this contingency by establishing at the plea entry proceeding that the defendant has been given proper advice or, if the advice received appears to have been inadequate, to remedy that deficiency before the plea is accepted and the conviction entered.
+
+When a plea offer has lapsed or been rejected, however, no formal court proceedings are involved. This underscores that the plea-bargaining process is often in flux, with no clear standards or timelines and with no judicial supervision of the discussions between prosecution and defense. Indeed, discussions between client and defense counsel are privileged. So the prosecution has little or no notice if something may be amiss and perhaps no capacity to intervene in any event. And, as noted, the State insists there is no right to receive a plea offer. For all these reasons, the State contends, it is unfair to subject it to the consequences of defense counsel’s inadequacies, especially when the opportunities for a full and fair trial, or, as here, for a later guilty plea albeit on less favorable terms, are preserved.
+
+The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/ sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court’s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/ fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
+
+To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. “Anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).
+",analysis,Right to Effective Assistance of Counsel in Plea Negotiations,strongly agree,The Right to Effective Assistance of Counsel,strongly agree,The Sixth Amendment Right to Effective Assistance of Counsel,1
+G16,7,0,2,B,"The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question. “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.” Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 8–9). Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process. Cf. ibid.
+
+This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects, however. Here the question is whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.
+
+This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.
+
+Though the standard for counsel’s performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides. The American Bar Association recommends defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999), and this standard has been adopted by numerous state and federal courts over the last 30 years. See, e.g., Davie v. State, 381 S. C. 601, 608–609, 675 S. E. 2d 416, 420 (2009); Cottle v. State, 733 So. 2d 963, 965–966 (Fla. 1999); Becton v. Hun, 205 W. Va. 139, 144, 516 S. E. 2d 762, 767 (1999); Harris v. State, 875 S. W. 2d 662, 665 (Tenn. 1994); Lloyd v. State, 258 Ga. 645, 648, 373 S. E. 2d 1, 3 (1988); United States v. Rodriguez Rodriguez, 929 F. 2d 747, 752 (CA1 1991) (per curiam); Pham v. United States, 317 F. 3d 178, 182 (CA2 2003); United States ex rel. Caruso v. Zelinsky, 689 F. 2d 435, 438 (CA3 1982); Griffin v. United States, 330 F. 3d 733, 737 (CA6 2003); Johnson v. Duckworth, 793 F. 2d 898, 902 (CA7 1986); United States v. Blaylock, 20 F. 3d 1458, 1466 (CA9 1994); cf. Diaz v. United States, 930 F. 2d 832, 834 (CA11 1991). The standard for prompt communication and consultation is also set out in state bar professional standards for attorneys. See, e.g., Fla. Rule Regulating Bar 4–1.4 (2008); Ill. Rule Prof. Conduct 1.4 (2011); Kan. Rule Prof. Conduct 1.4 (2010); Ky. Sup. Ct. Rule 3.130, Rule Prof. Conduct 1.4 (2011); Mass. Rule Prof. Conduct 1.4 (2011–2012); Mich. Rule Prof. Conduct 1.4 (2011).
+
+The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. See N. J. Ct. Rule 3:9–1(b) (2012) (“Any plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant’s attorney”). Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence. At least one State often follows a similar procedure before trial. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 20 (discussing hearings in Arizona conducted pursuant to State v. Donald, 198 Ariz. 406, 10 P. 3d 1193 (App. 2000)); see also N. J. Ct. Rules 3:9–1(b), (c) (requiring the prosecutor and defense counsel to discuss the case prior to the arraignment/status conference including any plea offers and to report on these discussions in open court with the defendant present); In re Alvernaz, 2 Cal. 4th 924, 938, n. 7, 830 P. 2d 747, 756, n. 7 (1992) (encouraging parties to “memorialize in some fashion prior to trial (1) the fact that a plea bargain offer was made, and (2) that the defendant was advised of the offer [and] its precise terms, . . . and (3) the defendant’s response to the plea bargain offer”); Brief for Center on the Administration of Criminal Law, New York University School of Law as Amicus Curiae 25–27.
+
+Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.",analysis,Duty and Responsibilities of Defense Counsel,agree,Duty and Responsibilities of Defense Counsel,agree,Duty and Responsibilities of Defense Counsel in the Plea Bargain Process,2
+G16,7,0,2,C,"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U. S. 198, 203 (2001) (“[A]ny amount of [additional] jail time has Sixth Amendment significance”).
+
+This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U. S., at 59. Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations. Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years’ imprisonment). In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry into whether “the result of the proceeding would have been different,” 466 U. S., at 694, requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.
+
+In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea, see Weatherford, 429 U. S., at 561, nor a federal right that the judge accept it, Santobello v. New York, 404 U. S. 257, 262 (1971). In at least some States, including Missouri, it appears the prosecution has some discretion to cancel a plea agreement to which the defendant has agreed, see, e.g., 311 S. W. 3d, at 359 (case below); Ariz. Rule Crim. Proc. 17.4(b) (Supp. 2011). The Federal Rules, some state rules including in Missouri, and this Court’s precedents give trial courts some leeway to accept or reject plea agreements, see Fed. Rule Crim. Proc. 11(c)(3); see Mo. Sup. Ct. Rule 24.02(d)(4); Boykin v. Alabama, 395 U. S. 238, 243–244 (1969). It can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework.",analysis, Plea Negotiations,disagree,Prejudice from Ineffective Assistance of Counsel,strongly agree,"Necessity for Defendant to demonstrate a ""Strickland Prejudice""",3
+G16,7,0,1,III,"These standards must be applied to the instant case. As regards the deficient performance prong of Strickland, the Court of Appeals found the “record is void of any evidence of any effort by trial counsel to communicate the [formal] Offer to Frye during the Offer window, let alone any evidence that Frye’s conduct interfered with trial counsel’s ability to do so.” 311 S. W. 3d, at 356. On this record, it is evident that Frye’s attorney did not make a meaningful attempt to inform the defendant of a written plea offer before the offer expired. See supra, at 2. The Missouri Court of Appeals was correct that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, supra, at 688.
+
+The Court of Appeals erred, however, in articulating the precise standard for prejudice in this context. As noted, a defendant in Frye’s position must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecution would have adhered to the agreement and that it would have been accepted by the trial court. Frye can show he would have accepted the offer, but there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final.
+
+There appears to be a reasonable probability Frye would have accepted the prosecutor’s original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. It may be that in some cases defendants must show more than just a guilty plea to a charge or sentence harsher than the original offer. For example, revelations between plea offers about the strength of the prosecution’s case may make a late decision to plead guilty insufficient to demonstrate, without further evidence, that the defendant would have pleaded guilty to an earlier, more generous plea offer if his counsel had reported it to him. Here, however, that is not the case. The Court of Appeals did not err in finding Frye’s acceptance of the less favorable plea offer indicated that he would have accepted the earlier (and more favorable) offer had he been apprised of it; and there is no need to address here the showings that might be required in other cases.
+
+The Court of Appeals failed, however, to require Frye to show that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court. Whether the prosecution and trial court are required to do so is a matter of state law, and it is not the place of this Court to settle those matters. The Court has established the minimum requirements of the Sixth Amendment as interpreted in Strickland, and States have the discretion to add procedural protections under state law if they choose. A State may choose to preclude the prosecution from withdrawing a plea offer once it has been accepted or perhaps to preclude a trial court from rejecting a plea bargain. In Missouri, it appears “a plea offer once accepted by the defendant can be withdrawn without recourse” by the prosecution. 311 S. W. 3d, at 359. The extent of the trial court’s discretion in Missouri to reject a plea agreement appears to be in some doubt. Compare id., at 360, with Mo. Sup. Ct. Rule 24.02(d)(4).
+
+We remand for the Missouri Court of Appeals to consider these state-law questions, because they bear on the federal question of Strickland prejudice. If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice. In this case, given Frye’s new offense for driving without a license on December 30, 2007, there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the January 4, 2008, hearing, unless they were required by state law to do so.
+
+It is appropriate to allow the Missouri Court of Appeals to address this question in the first instance. The judgment of the Missouri Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
+
+It is so ordered. ",analysis,Frye’s Performance,strongly disagree,Deficient Performance Prong,strongly disagree,Remand to the Court of Appeal of Missouri to Verify the Conditions of Strickland Prejudice Standard,3
+G16,9,0,1,I,"Albert Greenwood Brown, Jr., was tried and convicted of the rape and murder of a teenage girl, and sentenced to death in California Superior Court. Before the voir dire examination of prospective jurors began, petitioner, Press-Enterprise Co., moved that the voir dire be open to the public and the press. Petitioner contended that the public had an absolute right to attend the trial, and asserted that the trial commenced with the voir dire proceedings. The State opposed petitioner's motion, arguing that if the press were present, juror responses would lack the candor necessary to assure a fair trial.
+
+The trial judge agreed and permitted petitioner to attend only the ""general voir dire."" He stated that counsel would conduct the ""individual voir dire with regard to death qualifications and any other special areas that counsel may feel some problem with regard to . . . in private. . . ."" App. 93. The voir dire consumed six weeks and all but approximately three days was closed to the public.
+
+After the jury was empaneled, petitioner moved the trial court to release a complete transcript of the voir dire proceedings. At oral argument on the motion, the trial judge described the responses of prospective jurors at their voir dire:
+
+""Most of them are of little moment. There are a few, however, in which some personal problems were discussed which could be somewhat sensitive as far as publication of those particular individuals' situations are concerned."" Id., at 103.
+Counsel for Brown argued that release of the transcript would violate the jurors' right of privacy. The prosecutor agreed, adding that the prospective jurors had answered questions under an ""implied promise of confidentiality."" Id., at 111. The court denied petitioner's motion, concluding as follows:
+
+""I agree with much of what defense counsel and People's counsel have said and I also, regardless of the public's right to know, I also feel that's rather difficult that by a person performing their civic duty as a prospective juror putting their private information as open to the public which I just think there is certain areas that the right of privacy should prevail and a right to a fair trial should prevail and the right of the people to know, I think, should have some limitations and, so, at this stage, the motion to open up . . . the individual sequestered voir dire proceedings is denied without prejudice."" Id., at 121.
+After Brown had been convicted and sentenced to death, petitioner again applied for release of the transcript. In denying this application, the judge stated:
+
+""The jurors were questioned in private relating to past experiences, and while most of the information is dull and boring, some of the jurors had some special experiences in sensitive areas that do not appear to be appropriate for public discussion."" Id., at 39.
+Petitioner then sought in the California Court of Appeal a writ of mandate to compel the Superior Court to release the transcript and vacate the order closing the voir dire proceedings. The petition was denied. The California Supreme Court denied petitioner's request for a hearing. We granted certiorari. 459 U. S. 1169 (1983). We reverse.",facts,State v. Brown,disagree,The Brown Voir Dire,strongly agree,Request to Open Voir Dire Examination to the Public and the Press,1
+G16,9,0,1,II,"The trial of a criminal case places the factfinding function in a jury of 12 unless by statute or consent the jury is fixed at a lesser number or a jury is waived. The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system. In Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 569 (1980), the plurality opinion summarized the evolution of the criminal trial as we know it today and concluded that ""at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open."" A review of the historical evidence is also helpful for present purposes. It reveals that, since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.
+
+The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before ""moots,"" a town meeting kind of body such as the local court of the hundred or the county court.[1] Attendance was virtually compulsory on the part of the freemen of the community, who represented the ""patria,"" or the ""country,"" in rendering judgment. The public aspect thus was ""almost a necessary incident of jury trials, since the presence of a jury. . . already insured the presence of a large part of the public.""[2]
+
+As the jury system evolved in the years after the Norman Conquest, and the jury came to be but a small segment representing the community, the obligation of all freemen to attend criminal trials was relaxed; however, the public character of the proceedings, including jury selection, remained unchanged. Later, during the 14th and 15th centuries, the jury became an impartial trier of facts, owing in large part to a development in that period, allowing challenges.[3] 1 W. Holdsworth, History of English Law 332, 335 (7th ed. 1956). Since then, the accused has generally enjoyed the right to challenge jurors in open court at the outset of the trial.[4]
+
+Although there appear to be few contemporary accounts of the process of jury selection of that day,[5] one early record written in 1565 places the trial ""[i]n the towne house, or in some open or common place."" T. Smith, De Republica Anglorum 96 (Alston ed. 1906). Smith explained that ""there is nothing put in writing but the enditement"":
+
+""All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so many as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide."" Id., at 101 (emphasis added).
+If we accept this account it appears that beginning in the 16th century, jurors were selected in public.
+
+As the trial began, the judge and the accused were present. Before calling jurors, the judge ""telleth the cause of their comming, and [thereby] giveth a good lesson to the people."" Id., at 96-97 (emphasis added). The indictment was then read; if the accused pleaded not guilty, the jurors were called forward, one by one, at which time the defendant was allowed to make his challenges. Id., at 98. Smith makes clear that the entire trial proceeded ""openly, that not only the xii [12 jurors], but the Judges, the parties and as many [others] as be present may heare."" Id., at 79 (emphasis added).
+
+This open process gave assurance to those not attending trials that others were able to observe the proceedings and enhanced public confidence. The presence of bystanders served yet another purpose according to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing at the trial, ""either party may pray a tales."" 3 W. Blackstone Commentaries *364; see also M. Hale, The History of the Common Law of England 342 (6th ed. 1820). A ""tales"" was the balance necessary to supply the deficiency.[6]
+
+The presumptive openness of the jury selection process in England, not surprisingly, carried over into proceedings in colonial America. For example, several accounts noted the need for talesmen at the trials of Thomas Preston and William Wemms, two of the British soldiers who were charged with murder after the so-called Boston Massacre in 1770.[7] Public jury selection thus was the common practice in America when the Constitution was adopted.
+
+For present purposes, how we allocate the ""right"" to openness as between the accused and the public, or whether we view it as a component inherent in the system benefiting both, is not crucial. No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.
+
+The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 569-571.
+
+This openness has what is sometimes described as a ""community therapeutic value."" Id., at 570. Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done. See T. Reik, The Compulsion to Confess 288-295, 408 (1959). Whether this is viewed as retribution or otherwise is irrelevant. When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. See United States v. Hasting, 461 U. S. 499, 507 (1983); Morris v. Slappy, 461 U. S. 1, 14-15 (1983).
+
+""People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."" Richmond Newspapers, supra, at 572. Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.[8] In Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982), we stated:
+
+""[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."" Id., at 606-607.
+The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. We now turn to whether the presumption of openness has been rebutted in this case.
+",analysis, History of the Trial,disagree,The Jury Selection Process,disagree,Balance between compelling interest of the accused legitime privacy and the right of everyone in the community to attend the voir dire,2
+G16,9,0,2,A,"The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before ""moots,"" a town meeting kind of body such as the local court of the hundred or the county court.[1] Attendance was virtually compulsory on the part of the freemen of the community, who represented the ""patria,"" or the ""country,"" in rendering judgment. The public aspect thus was ""almost a necessary incident of jury trials, since the presence of a jury. . . already insured the presence of a large part of the public.""[2]
+
+As the jury system evolved in the years after the Norman Conquest, and the jury came to be but a small segment representing the community, the obligation of all freemen to attend criminal trials was relaxed; however, the public character of the proceedings, including jury selection, remained unchanged. Later, during the 14th and 15th centuries, the jury became an impartial trier of facts, owing in large part to a development in that period, allowing challenges.[3] 1 W. Holdsworth, History of English Law 332, 335 (7th ed. 1956). Since then, the accused has generally enjoyed the right to challenge jurors in open court at the outset of the trial.[4]
+
+Although there appear to be few contemporary accounts of the process of jury selection of that day,[5] one early record written in 1565 places the trial ""[i]n the towne house, or in some open or common place."" T. Smith, De Republica Anglorum 96 (Alston ed. 1906). Smith explained that ""there is nothing put in writing but the enditement"":
+
+""All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so many as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide."" Id., at 101 (emphasis added).
+If we accept this account it appears that beginning in the 16th century, jurors were selected in public.
+
+As the trial began, the judge and the accused were present. Before calling jurors, the judge ""telleth the cause of their comming, and [thereby] giveth a good lesson to the people."" Id., at 96-97 (emphasis added). The indictment was then read; if the accused pleaded not guilty, the jurors were called forward, one by one, at which time the defendant was allowed to make his challenges. Id., at 98. Smith makes clear that the entire trial proceeded ""openly, that not only the xii [12 jurors], but the Judges, the parties and as many [others] as be present may heare."" Id., at 79 (emphasis added).
+
+This open process gave assurance to those not attending trials that others were able to observe the proceedings and enhanced public confidence. The presence of bystanders served yet another purpose according to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing at the trial, ""either party may pray a tales."" 3 W. Blackstone Commentaries *364; see also M. Hale, The History of the Common Law of England 342 (6th ed. 1820). A ""tales"" was the balance necessary to supply the deficiency.[6]
+
+The presumptive openness of the jury selection process in England, not surprisingly, carried over into proceedings in colonial America. For example, several accounts noted the need for talesmen at the trials of Thomas Preston and William Wemms, two of the British soldiers who were charged with murder after the so-called Boston Massacre in 1770.[7] Public jury selection thus was the common practice in America when the Constitution was adopted.",facts,History of Open Trials,strongly agree,The Open Trials,agree,The Roots of Open Trials ,1
+G16,9,0,2,B,"For present purposes, how we allocate the ""right"" to openness as between the accused and the public, or whether we view it as a component inherent in the system benefiting both, is not crucial. No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.
+
+The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 569-571.
+
+This openness has what is sometimes described as a ""community therapeutic value."" Id., at 570. Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done. See T. Reik, The Compulsion to Confess 288-295, 408 (1959). Whether this is viewed as retribution or otherwise is irrelevant. When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. See United States v. Hasting, 461 U. S. 499, 507 (1983); Morris v. Slappy, 461 U. S. 1, 14-15 (1983).
+
+""People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."" Richmond Newspapers, supra, at 572. Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.[8] In Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982), we stated:
+
+""[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."" Id., at 606-607.
+The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. We now turn to whether the presumption of openness has been rebutted in this case.
+",analysis,The Right to Open Trial,strongly agree,The Right to Openness,strongly agree,The Right to Openness and The Right of the Accused to a Fair Trial,2
+G16,9,0,1,III,"Although three days of voir dire in this case were open to the public, six weeks of the proceedings were closed, and media requests for the transcript were denied.[9] The Superior Court asserted two interests in support of its closure order and orders denying a transcript: the right of the defendant to a fair trial, and the right to privacy of the prospective jurors, for any whose ""special experiences in sensitive areas . . . do not appear to be appropriate for public discussion."" Supra, at 504. Of course the right of an accused to fundamental fairness in the jury selection process is a compelling interest. But the California court's conclusion that Sixth Amendment and privacy interests were sufficient to warrant prolonged closure was unsupported by findings showing that an open proceeding in fact threatened those interests;[10] hence it is not possible to conclude that closure was warranted.[11] Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire.
+
+The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain. The trial involved testimony concerning an alleged rape of a teenage girl. Some questions may have been appropriate to prospective jurors that would give rise to legitimate privacy interests of those persons. For example a prospective juror might privately inform the judge that she, or a member of her family, had been raped but had declined to seek prosecution because of the embarrassment and emotional trauma from the very disclosure of the episode. The privacy interests of such a prospective juror must be balanced against the historic values we have discussed and the need for openness of the process.
+
+To preserve fairness and at the same time protect legitimate privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.
+
+By requiring the prospective juror to make an affirmative request, the trial judge can ensure that there is in fact a valid basis for a belief that disclosure infringes a significant interest in privacy. This process will minimize the risk of unnecessary closure. The exercise of sound discretion by the court may lead to excusing such a person from jury service. When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror's valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.
+
+The judge at this trial closed an incredible six weeks of voir dire without considering alternatives to closure. Later the court declined to release a transcript of the voir dire even while stating that ""most of the information"" in the transcript was ""dull and boring."" Supra, at 504. Those parts of the transcript reasonably entitled to privacy could have been sealed without such a sweeping order; a trial judge should explain why the material is entitled to privacy.
+
+Assuming that some jurors had protectible privacy interests in some of their answers, the trial judge provided no explanation as to why his broad order denying access to information at the voir dire was not limited to information that was actually sensitive and deserving of privacy protection. Nor did he consider whether he could disclose the substance of the sensitive answers while preserving the anonymity of the jurors involved.
+
+Thus not only was there a failure to articulate findings with the requisite specificity but there was also a failure to consider alternatives to closure and to total suppression of the transcript. The trial judge should seal only such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected.
+",analysis, The Superior Court's Order Denying Access to Voir Dire Testimony,agree,Closure of Voir Dire,strongly agree,Failure of the Trial Judge to Consider Alternatives to Closure and to Total Suppression of the Transcript.,3
+G16,9,0,1,IV,"The judgment of the Court of Appeal is vacated, and the case is remanded for proceedings not inconsistent with this opinion.
+
+It is so ordered.
+",conclusion,order of remand,agree,remand for remand,strongly disagree,Supreme Court's holding,4
+G16,10,0,1,I,"
+
+The Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective . . . Discoveries.” Art. I, §8, cl. 8. Pursuant to that authority, Congress established the United States Patent and Trademark Office (Patent Office) and tasked it with “the granting and issuing of patents.” 35 U. S. C. §§1, 2(a)(1).
+
+To obtain a patent, an inventor submits an application describing the proposed patent claims to the Patent Office. See §§111(a)(1), 112. A patent examiner then reviews the application and prior art (the information available to the public at the time of the application) to determine whether the claims satisfy the statutory requirements for patentability, including that the claimed invention is useful, novel, nonobvious, and contains eligible subject matter. See §§101, 102, 103. If the Patent Office accepts the claim and issues a patent, the patent owner generally obtains exclusive rights to the patented invention throughout the United States for 20 years. §§154(a)(1), (2).
+
+After a patent issues, there are several avenues by which its validity can be revisited. The first is through a defense in an infringement action. Generally, one who intrudes upon a patent without authorization “infringes the patent” and becomes subject to civil suit in the federal district courts, where the patent owner may demand a jury trial and seek monetary damages and injunctive relief. §§271(a), 281–284. If, however, the Federal Government is the alleged patent infringer, the patent owner must sue the Government in the United States Court of Federal Claims and may recover only “reasonable and entire compensation” for the unauthorized use. 28 U. S. C. §1498(a).
+
+Once sued, an accused infringer can attempt to prove by clear and convincing evidence “that the patent never should have issued in the first place.” Microsoft Corp. v. i4i L. P., 564 U. S. 91, 96–97 (2011); see 35 U. S. C. §282(b). If a defendant succeeds in showing that the claimed invention falls short of one or more patentability requirements, the court may deem the patent invalid and absolve the defendant of liability.
+
+The Patent Office may also reconsider the validity of issued patents. Since 1980, the Patent Act has empowered the Patent Office “to reexamine—and perhaps cancel—a patent claim that it had previously allowed.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 3). This procedure is known as ex parte reexamination. “Any person at any time” may cite to the Patent Office certain prior art that may “bea[r] on the patentability of any claim of a particular patent”; and the person may additionally request that the Patent Office reexamine the claim on that basis. 35 U. S. C. §§301(a), 302(a). If the Patent Office concludes that the prior art raises “a substantial new question of patentability,” the agency may reexamine the patent and, if warranted, cancel the patent or some of its claims. §§303(a), 304–307. The Director of the Patent Office may also, on her “own initiative,” initiate such a proceeding. §303(a).
+
+In 1999 and 2002, Congress added an “inter partes reexamination” procedure, which similarly invited “[a]ny person at any time” to seek reexamination of a patent on the basis of prior art and allowed the challenger to participate in the administrative proceedings and any subsequent appeal. See §311(a) (2000 ed.); §§314(a), (b) (2006 ed.); Cuozzo Speed Technologies, 579 U. S., at ___ (slip op., at 3).
+
+
+In 2011, Congress overhauled the patent system by enacting the America Invents Act (AIA), which created the Patent Trial and Appeal Board and phased out inter partes reexamination. See 35 U. S. C. §6; H. R. Rep. No. 112–98, pt. 1, pp. 46–47. In its stead, the AIA tasked the Board with overseeing three new types of post-issuance review proceedings.
+
+First, the “inter partes review” provision permits “a person” other than the patent owner to petition for the review and cancellation of a patent on the grounds that the invention lacks novelty or nonobviousness in light of “patents or printed publications” existing at the time of the patent application. §311.
+
+Second, the “post-grant review” provision permits “a person who is not the owner of a patent” to petition for review and cancellation of a patent on any ground of patentability. §321; see §§282(b)(2), (b)(3). Such proceedings must be brought within nine months of the patent’s issuance. §321.
+
+Third, the “covered-business-method review” (CBM review) provision provides for changes to a patent that claims a method for performing data processing or other operations used in the practice or management of a financial product or service. AIA §§18(a)(1), (d)(1), 125 Stat. 329, note following 35 U. S. C. §321, p. 1442. CBM review tracks the “standards and procedures of” post-grant review with two notable exceptions: CBM review is not limited to the nine months following issuance of a patent, and “[a] person” may file for CBM review only as a defense against a charge or suit for infringement. §18(a)(1)(B), 125 Stat. 330.1
+
+The AIA’s three post-issuance review proceedings are adjudicatory in nature. Review is conducted by a threemember panel of the Patent Trial and Appeal Board, 35 U. S. C. §6(c), and the patent owner and challenger may seek discovery, file affidavits and other written memoranda, and request an oral hearing, see §§316, 326; AIA §18(a)(1), 125 Stat. 329; Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___, ___–___ (2018) (slip op., at 3–4). The petitioner has the burden of proving unpatentability by a preponderance of the evidence. §§282, 316(e), 326(e). The Board then either confirms the patent claims or cancels some or all of the claims. §§318(b), 328(b). Any party “dissatisfied” with the Board’s final decision may seek judicial review in the Court of Appeals for the Federal Circuit, §§319, 329; see §141(c), and the Director of the Patent Office may intervene, §143.
+
+In sum, in the post-AIA world, a patent can be reexamined either in federal court during a defense to an infringement action, in an ex parte reexamination by the Patent Office, or in the suite of three post-issuance review proceedings before the Patent Trial and Appeal Board. The central question in this case is whether the Federal Government can avail itself of the three post-issuance review proceedings, including CBM review.
+
+Return Mail, Inc., owns U. S. Patent No. 6,826,548 (’548 patent), which claims a method for processing mail that is undeliverable. Beginning in 2003, the United States Postal Service allegedly began exploring the possibility of licensing Return Mail’s invention for use in handling the country’s undelivered mail. But the parties never reached an agreement.
+
+In 2006, the Postal Service introduced an enhanced address-change service to process undeliverable mail. Return Mail’s representatives asserted that the new service infringed the ’548 patent, and the company renewed its offer to license the claimed invention to the Postal Service. In response, the Postal Service petitioned for ex parte reexamination of the ’548 patent. The Patent Office canceled the original claims but issued several new ones, confirming the validity of the ’548 patent. Return Mail then sued the Postal Service in the Court of Federal Claims, seeking compensation for the Postal Service’s unauthorized use of its invention, as reissued by the Patent Office.
+
+While the lawsuit was pending, the Postal Service again petitioned the Patent Office to review the ’548 patent, this time seeking CBM review. The Patent Board instituted review. The Board agreed with the Postal Service that Return Mail’s patent claims subject matter that was ineligible to be patented, and it canceled the claims underlying the ’548 patent. A divided panel of the Court of Appeals for the Federal Circuit affirmed. See 868 F. 3d 1350 (2017). As relevant here, the Federal Circuit held, over a dissent, that the Government is a “person” eligible to petition for CBM review. Id., at 1366; see AIA §18(a)(1)(B), 125 Stat. 330 (only a qualifying “person” may petition for CBM review). The court then affirmed the Patent Board’s decision on the merits, invalidating Return Mail’s patent claims.
+
+We granted certiorari to determine whether a federal agency is a “person” capable of petitioning for postissuance review under the AIA.2 586 U. S. ___ (2018).",introduction,The America Invents Act,strongly disagree,The America Invents Act,strongly disagree,Patent administrative proceedings and jurisdiction,1
+G16,10,0,2,A,"The Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective . . . Discoveries.” Art. I, §8, cl. 8. Pursuant to that authority, Congress established the United States Patent and Trademark Office (Patent Office) and tasked it with “the granting and issuing of patents.” 35 U. S. C. §§1, 2(a)(1).
+
+To obtain a patent, an inventor submits an application describing the proposed patent claims to the Patent Office. See §§111(a)(1), 112. A patent examiner then reviews the application and prior art (the information available to the public at the time of the application) to determine whether the claims satisfy the statutory requirements for patentability, including that the claimed invention is useful, novel, nonobvious, and contains eligible subject matter. See §§101, 102, 103. If the Patent Office accepts the claim and issues a patent, the patent owner generally obtains exclusive rights to the patented invention throughout the United States for 20 years. §§154(a)(1), (2).
+
+After a patent issues, there are several avenues by which its validity can be revisited. The first is through a defense in an infringement action. Generally, one who intrudes upon a patent without authorization “infringes the patent” and becomes subject to civil suit in the federal district courts, where the patent owner may demand a jury trial and seek monetary damages and injunctive relief. §§271(a), 281–284. If, however, the Federal Government is the alleged patent infringer, the patent owner must sue the Government in the United States Court of Federal Claims and may recover only “reasonable and entire compensation” for the unauthorized use. 28 U. S. C. §1498(a).
+
+Once sued, an accused infringer can attempt to prove by clear and convincing evidence “that the patent never should have issued in the first place.” Microsoft Corp. v. i4i L. P., 564 U. S. 91, 96–97 (2011); see 35 U. S. C. §282(b). If a defendant succeeds in showing that the claimed invention falls short of one or more patentability requirements, the court may deem the patent invalid and absolve the defendant of liability.
+
+The Patent Office may also reconsider the validity of issued patents. Since 1980, the Patent Act has empowered the Patent Office “to reexamine—and perhaps cancel—a patent claim that it had previously allowed.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 3). This procedure is known as ex parte reexamination. “Any person at any time” may cite to the Patent Office certain prior art that may “bea[r] on the patentability of any claim of a particular patent”; and the person may additionally request that the Patent Office reexamine the claim on that basis. 35 U. S. C. §§301(a), 302(a). If the Patent Office concludes that the prior art raises “a substantial new question of patentability,” the agency may reexamine the patent and, if warranted, cancel the patent or some of its claims. §§303(a), 304–307. The Director of the Patent Office may also, on her “own initiative,” initiate such a proceeding. §303(a).
+
+In 1999 and 2002, Congress added an “inter partes reexamination” procedure, which similarly invited “[a]ny person at any time” to seek reexamination of a patent on the basis of prior art and allowed the challenger to participate in the administrative proceedings and any subsequent appeal. See §311(a) (2000 ed.); §§314(a), (b) (2006 ed.); Cuozzo Speed Technologies, 579 U. S., at ___ (slip op., at 3).
+",analysis, The Patentability Framework,strongly agree,The United States Patent and Trademark Office,strongly agree,The Different Avenues before the United States Patent and Trademark Office,1
+G16,10,0,2,B,"In 2011, Congress overhauled the patent system by enacting the America Invents Act (AIA), which created the Patent Trial and Appeal Board and phased out inter partes reexamination. See 35 U. S. C. §6; H. R. Rep. No. 112–98, pt. 1, pp. 46–47. In its stead, the AIA tasked the Board with overseeing three new types of post-issuance review proceedings.
+
+First, the “inter partes review” provision permits “a person” other than the patent owner to petition for the review and cancellation of a patent on the grounds that the invention lacks novelty or nonobviousness in light of “patents or printed publications” existing at the time of the patent application. §311.
+
+Second, the “post-grant review” provision permits “a person who is not the owner of a patent” to petition for review and cancellation of a patent on any ground of patentability. §321; see §§282(b)(2), (b)(3). Such proceedings must be brought within nine months of the patent’s issuance. §321.
+
+Third, the “covered-business-method review” (CBM review) provision provides for changes to a patent that claims a method for performing data processing or other operations used in the practice or management of a financial product or service. AIA §§18(a)(1), (d)(1), 125 Stat. 329, note following 35 U. S. C. §321, p. 1442. CBM review tracks the “standards and procedures of” post-grant review with two notable exceptions: CBM review is not limited to the nine months following issuance of a patent, and “[a] person” may file for CBM review only as a defense against a charge or suit for infringement. §18(a)(1)(B), 125 Stat. 330.1
+
+The AIA’s three post-issuance review proceedings are adjudicatory in nature. Review is conducted by a threemember panel of the Patent Trial and Appeal Board, 35 U. S. C. §6(c), and the patent owner and challenger may seek discovery, file affidavits and other written memoranda, and request an oral hearing, see §§316, 326; AIA §18(a)(1), 125 Stat. 329; Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___, ___–___ (2018) (slip op., at 3–4). The petitioner has the burden of proving unpatentability by a preponderance of the evidence. §§282, 316(e), 326(e). The Board then either confirms the patent claims or cancels some or all of the claims. §§318(b), 328(b). Any party “dissatisfied” with the Board’s final decision may seek judicial review in the Court of Appeals for the Federal Circuit, §§319, 329; see §141(c), and the Director of the Patent Office may intervene, §143.
+
+In sum, in the post-AIA world, a patent can be reexamined either in federal court during a defense to an infringement action, in an ex parte reexamination by the Patent Office, or in the suite of three post-issuance review proceedings before the Patent Trial and Appeal Board. The central question in this case is whether the Federal Government can avail itself of the three post-issuance review proceedings, including CBM review.",analysis,The America Invents Act,strongly agree,The America Invents Act,strongly agree,The America Invents Act (AIA) and the Patent Trial and Appeal Board ,2
+G16,10,0,2,C,"Return Mail, Inc., owns U. S. Patent No. 6,826,548 (’548 patent), which claims a method for processing mail that is undeliverable. Beginning in 2003, the United States Postal Service allegedly began exploring the possibility of licensing Return Mail’s invention for use in handling the country’s undelivered mail. But the parties never reached an agreement.
+
+In 2006, the Postal Service introduced an enhanced address-change service to process undeliverable mail. Return Mail’s representatives asserted that the new service infringed the ’548 patent, and the company renewed its offer to license the claimed invention to the Postal Service. In response, the Postal Service petitioned for ex parte reexamination of the ’548 patent. The Patent Office canceled the original claims but issued several new ones, confirming the validity of the ’548 patent. Return Mail then sued the Postal Service in the Court of Federal Claims, seeking compensation for the Postal Service’s unauthorized use of its invention, as reissued by the Patent Office.
+
+While the lawsuit was pending, the Postal Service again petitioned the Patent Office to review the ’548 patent, this time seeking CBM review. The Patent Board instituted review. The Board agreed with the Postal Service that Return Mail’s patent claims subject matter that was ineligible to be patented, and it canceled the claims underlying the ’548 patent. A divided panel of the Court of Appeals for the Federal Circuit affirmed. See 868 F. 3d 1350 (2017). As relevant here, the Federal Circuit held, over a dissent, that the Government is a “person” eligible to petition for CBM review. Id., at 1366; see AIA §18(a)(1)(B), 125 Stat. 330 (only a qualifying “person” may petition for CBM review). The court then affirmed the Patent Board’s decision on the merits, invalidating Return Mail’s patent claims.
+
+We granted certiorari to determine whether a federal agency is a “person” capable of petitioning for postissuance review under the AIA.2 586 U. S. ___ (2018).",facts,Return Mail’s Patent Claims,agree,The Patent Appeal,strongly agree,Challenging to the ability of the Patent Trial and Appeal Board to conduct a post issuance review under the America Invents Act (AIA),3
+G16,10,0,1,II,"The AIA provides that only “a person” other than the patent owner may file with the Office a petition to institute a post-grant review or inter partes review of an issued patent. 35 U. S. C. §§311(a), 321(a). The statute likewise provides that a “person” eligible to seek CBM review may not do so “unless the person or the person’s real party in interest or privy has been sued for infringement.” AIA §18(a)(1)(B), 125 Stat. 330. The question in this case is whether the Government is a “person” capable of instituting the three AIA review proceedings.
+
+The patent statutes do not define the term “person.” In the absence of an express statutory definition, the Court applies a “longstanding interpretive presumption that ‘person’ does not include the sovereign,” and thus excludes a federal agency like the Postal Service. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 780–781 (2000); see United States v. Mine Workers, 330 U. S. 258, 275 (1947); United States v. Cooper Corp., 312 U. S. 600, 603–605 (1941); United States v. Fox, 94 U. S. 315, 321 (1877).
+
+This presumption reflects “common usage.” Mine Workers, 330 U. S., at 275. It is also an express directive from Congress: The Dictionary Act has since 1947 provided the definition of “ ‘person’ ” that courts use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U. S. 194, 199–200 (1993). The Act provides that the word “ ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” §1. Notably absent from the list of “person[s]” is the Federal Government. See Mine Workers, 330 U. S., at 275 (reasoning that Congress’ express inclusion of partnerships and corporations in §1 implies that Congress did not intend to include the Government). Thus, although the presumption is not a “hard and fast rule of exclusion,” Cooper, 312 U. S., at 604–605, “it may be disregarded only upon some affirmative showing of statutory intent to the contrary,” Stevens, 529 U. S., at 781.
+
+The Postal Service contends that the presumption is strongest where interpreting the word “person” to include the Government imposes liability on the Government, and is weakest where (as here) interpreting “person” in that way benefits the Government. In support of this argument, the Postal Service points to a different interpretive canon: that Congress must unequivocally express any waiver of sovereign immunity for that waiver to be effective. See FAA v. Cooper, 566 U. S. 284, 290 (2012). That clear-statement rule inherently applies only when a party seeks to hold the Government liable for its actions; otherwise immunity is generally irrelevant. In the Postal Service’s view, the presumption against treating the Government as a statutory person works in tandem with the clear-statement rule regarding immunity, such that both apply only when a statute would subject the Government to liability.
+
+Our precedents teach otherwise. In several instances, this Court has applied the presumption against treating the Government as a statutory person when there was no question of immunity, and doing so would instead exclude the Federal Government or one of its agencies from accessing a benefit or favorable procedural device. In Cooper, 312 U. S., at 604–605, 614, for example, the Court held that the Federal Government was not “ ‘[a]ny person’ ” who could sue for treble damages under §7 of the Sherman Anti-Trust Act. Accord, International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72, 82–84 (1991) (concluding that the National Institutes of Health was not authorized to remove an action as a “ ‘person acting under [a federal]’ officer” pursuant to 28 U. S. C. §1442(a)(1)); Davis v. Pringle, 268 U. S. 315, 317– 318 (1925) (reasoning that “normal usages of speech” indicated that the Government was not a “person” entitled to priority under the Bankruptcy Act); Fox, 94 U. S., at 321 (holding that the Federal Government was not a “ ‘person capable by law of holding real estate,’ ” absent “an express definition to that effect”).
+
+Thus, although the presumption against treating the Government as a statutory person is “ ‘particularly applicable where it is claimed that Congress has subjected the [sovereign] to liability to which they had not been subject before,’ ” Stevens, 529 U. S., at 781, it is hardly confined to such cases. Here, too, we proceed from the presumption that the Government is not a “person” authorized to initiate these proceedings absent an affirmative showing to the contrary.
+
+
+Given the presumption that a statutory reference to a “person” does not include the Government, the Postal Service must show that the AIA’s context indicates otherwise. Although the Postal Service need not cite to “an express contrary definition,” Rowland, 506 U. S., at 200, it must point to some indication in the text or context of the statute that affirmatively shows Congress intended to include the Government. See Cooper, 312 U. S., at 605.
+
+The Postal Service makes three arguments for displacing the presumption. First, the Postal Service argues that the statutory text and context offer sufficient evidence that the Government is a “person” with the power to petition for AIA review proceedings. Second, the Postal Service contends that federal agencies’ long history of participation in the patent system suggests that Congress intended for the Government to participate in AIA review proceedings as well. Third, the Postal Service maintains that the statute must permit it to petition for AIA review because §1498 subjects the Government to liability for infringement. None delivers.
+
+The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. Indeed, it is often true that when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (2006). This principle, however, “readily yields to context,” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (internal quotation marks omitted). That is the case here. The Patent Act and the AIA refer to “person[s]” in at least 18 different places, and there is no clear trend: Sometimes “person” plainly includes the Government,3 sometimes it plainly excludes the Government,4 and sometimes—as here—it might be read either way.
+
+Looking on the bright side, the Postal Service and the dissent, see post, at 2, focus on §207(a)(1), which authorizes “[e]ach [f]ederal agency” to “apply for, obtain, and maintain patents or other forms of protection . . . on inventions in which the Federal Government owns a right, title, or interest.” It follows from §207(a)(1)’s express inclusion of federal agencies among those eligible to apply for patents that the statute’s references to “person[s]” in the subsections governing the patent-application process and questions of patentability (§§102(a), 118, and 119) must also include federal agencies.5 In other words, the right described in §207(a)(1) provides a sufficient contextual clue that the word “person”—when used in the other provisions governing the application process §207(a)(1) makes available to federal agencies—includes the Government.
+
+But §207(a)(1) provides no such clue as to the interpretation of the AIA review provisions because it implies nothing about what a federal agency may or may not do following the issuance of someone else’s patent. Conversely, reading the review provisions to exclude the Government has no bearing on a federal agency’s right to obtain a patent under §207(a)(1). An agency may still apply for and obtain patents whether or not it may petition for a review proceeding under the AIA seeking cancellation of a patent it does not own. There is thus no reason to think that “person” must mean the same thing in these two different parts of the statute. See Utility Air, 573 U. S., at 320.6
+
+The Postal Service cites other provisions that may refer to the Government—namely, the “intervening rights” provisions that offer certain protections for “any person” who is lawfully making or using an invention when the Patent Office modifies an existing patent claim in a way that deems the person’s (previously lawful) use to be infringement. See §§252, 307(b), 318(c), 328(c). The Postal Service argues that the Government must be among those protected by these provisions and from there deduces that it must also be permitted to petition for AIA review proceedings because the review provisions and the intervening-rights provisions were all added to the Patent Act by the AIA at the same time. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) (invoking the consistent-usage canon where the same term was used in related provisions enacted at the same time).
+
+But regardless of whether the intervening-rights provisions apply to the Government (a separate interpretive question that we have no occasion to answer here), the Postal Service’s chain of inferences overlooks a confounding link: The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways. As noted, that is the case here. In the face of such inconsistency, the mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that Congress did not intend to include the Government among those “person[s]” eligible to petition for AIA review proceedings.7
+
+The Postal Service next points to the Federal Government’s longstanding history with the patent system. It reminds us that federal officers have been able to apply for patents in the name of the United States since 1883, see Act of Mar. 3, 1883, 22 Stat. 625—which, in the Postal Service’s view, suggests that Congress intended to allow the Government access to AIA review proceedings as well. But, as already explained, the Government’s ability to obtain a patent under §207(a)(1) does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA review proceedings. As to those proceedings, there is no longstanding practice: The AIA was enacted just eight years ago.8
+
+More pertinently, the Postal Service and the dissent both note that the Patent Office since 1981 has treated federal agencies as “persons” who may cite prior art to the agency or request an ex parte reexamination of an issued patent. See post, at 5. Recall that §301(a) provides that “[a]ny person at any time may cite to the Office in writing . . . prior art . . . which that person believes to have a bearing on the patentability of any claim of a particular patent.” As memorialized in the Patent Office’s Manual of Patent Examining Procedure (MPEP), the agency has understood §301’s reference to “any person” to include “governmental entit[ies].” Dept. of Commerce, Patent and Trademark Office, MPEP §§2203, 2212 (4th rev. ed., July 1981).
+
+We might take account of this “executive interpretation” if we were determining whether Congress meant to include the Government as a “person” for purposes of the ex parte reexamination procedures themselves. See, e.g., United States v. Hermanos y Compañia, 209 U. S. 337, 339 (1908). Here, however, the Patent Office’s statement in the 1981 MPEP has no direct relevance. Even assuming that the Government may petition for ex parte reexamination, ex parte reexamination is a fundamentally different process than an AIA post-issuance review proceeding.9 Both share the common purpose of allowing non-patent owners to bring questions of patent validity to the Patent Office’s attention, but they do so in meaningfully different ways.
+
+In an ex parte reexamination, the third party sends information to the Patent Office that the party believes bears on the patent’s validity, and the Patent Office decides whether to reexamine the patent. If it decides to do so, the reexamination process is internal; the challenger is not permitted to participate in the Patent Office’s process. See 35 U. S. C. §§302, 303. By contrast, the AIA postissuance review proceedings are adversarial, adjudicatory proceedings between the “person” who petitioned for review and the patent owner: There is briefing, a hearing, discovery, and the presentation of evidence, and the losing party has appeal rights. See supra, at 4–5. Thus, there are good reasons Congress might have authorized the Government to initiate a hands-off ex parte reexamination but not to become a party to a full-blown adversarial proceeding before the Patent Office and any subsequent appeal. After all, the Government is already in a unique position among alleged infringers given that 28 U. S. C. §1498 limits patent owners to bench trials before the Court of Federal Claims and monetary damages, whereas 35 U. S. C. §271 permits patent owners to demand jury trials in the federal district courts and seek other types of relief.
+
+Thus, there is nothing to suggest that Congress had the 1981 MPEP statement in mind when it enacted the AIA. It is true that this Court has often said, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.” Bragdon v. Abbott, 524 U. S. 624, 645 (1998). But there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings. Accordingly, the MPEP does not justify putting aside the presumptive meaning of “person” here.
+
+Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. See §§282(b)(2)–(3). In the Postal Service’s view, it is anomalous to deny it a benefit afforded to other infringers—the ability to challenge a patent de novo before the Patent Office, rather than only as an infringement defense that must be proved by clear and convincing evidence. See ibid.; Microsoft Corp., 564 U. S., at 95 (holding that §282’s presumption of validity in litigation imposes a clear and convincing evidence standard on defendants seeking to prove invalidity).
+
+The Postal Service overstates the asymmetry. Agencies retain the ability under §282 to assert defenses to infringement. Once sued, an agency may, like any other accused infringer, argue that the patent is invalid, and the agency faces the same burden of proof as a defendant in any other infringement suit. The Postal Service lacks only the additional tool of petitioning for the initiation of an administrative proceeding before the Patent Office under the AIA, a process separate from defending an infringement suit.
+
+We see no oddity, however, in Congress’ affording nongovernmental actors an expedient route that the Government does not also enjoy for heading off potential infringement suits. Those other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents. Most notably, §1498 restricts a patent owner who sues the Government to her “reasonable and entire compensation” for the Government’s infringing use; she cannot seek an injunction, demand a jury trial, or ask for punitive damages, all of which are available in infringement suits against nongovernmental actors under §271(e)(4). Thus, although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Because federal agencies face lower risks, it is reasonable for Congress to have treated them differently.10
+
+Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office). We are therefore unpersuaded that the Government’s exclusion from the AIA review proceedings is sufficiently anomalous to overcome the presumption that the Government is not a “person” under the Act.11",analysis, The Government as a “Person”,strongly agree,The Government as a “Person”,strongly agree,,2
+G16,10,0,2,A,"The patent statutes do not define the term “person.” In the absence of an express statutory definition, the Court applies a “longstanding interpretive presumption that ‘person’ does not include the sovereign,” and thus excludes a federal agency like the Postal Service. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 780–781 (2000); see United States v. Mine Workers, 330 U. S. 258, 275 (1947); United States v. Cooper Corp., 312 U. S. 600, 603–605 (1941); United States v. Fox, 94 U. S. 315, 321 (1877).
+
+This presumption reflects “common usage.” Mine Workers, 330 U. S., at 275. It is also an express directive from Congress: The Dictionary Act has since 1947 provided the definition of “ ‘person’ ” that courts use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U. S. 194, 199–200 (1993). The Act provides that the word “ ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” §1. Notably absent from the list of “person[s]” is the Federal Government. See Mine Workers, 330 U. S., at 275 (reasoning that Congress’ express inclusion of partnerships and corporations in §1 implies that Congress did not intend to include the Government). Thus, although the presumption is not a “hard and fast rule of exclusion,” Cooper, 312 U. S., at 604–605, “it may be disregarded only upon some affirmative showing of statutory intent to the contrary,” Stevens, 529 U. S., at 781.
+
+The Postal Service contends that the presumption is strongest where interpreting the word “person” to include the Government imposes liability on the Government, and is weakest where (as here) interpreting “person” in that way benefits the Government. In support of this argument, the Postal Service points to a different interpretive canon: that Congress must unequivocally express any waiver of sovereign immunity for that waiver to be effective. See FAA v. Cooper, 566 U. S. 284, 290 (2012). That clear-statement rule inherently applies only when a party seeks to hold the Government liable for its actions; otherwise immunity is generally irrelevant. In the Postal Service’s view, the presumption against treating the Government as a statutory person works in tandem with the clear-statement rule regarding immunity, such that both apply only when a statute would subject the Government to liability.
+
+Our precedents teach otherwise. In several instances, this Court has applied the presumption against treating the Government as a statutory person when there was no question of immunity, and doing so would instead exclude the Federal Government or one of its agencies from accessing a benefit or favorable procedural device. In Cooper, 312 U. S., at 604–605, 614, for example, the Court held that the Federal Government was not “ ‘[a]ny person’ ” who could sue for treble damages under §7 of the Sherman Anti-Trust Act. Accord, International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72, 82–84 (1991) (concluding that the National Institutes of Health was not authorized to remove an action as a “ ‘person acting under [a federal]’ officer” pursuant to 28 U. S. C. §1442(a)(1)); Davis v. Pringle, 268 U. S. 315, 317– 318 (1925) (reasoning that “normal usages of speech” indicated that the Government was not a “person” entitled to priority under the Bankruptcy Act); Fox, 94 U. S., at 321 (holding that the Federal Government was not a “ ‘person capable by law of holding real estate,’ ” absent “an express definition to that effect”).
+
+Thus, although the presumption against treating the Government as a statutory person is “ ‘particularly applicable where it is claimed that Congress has subjected the [sovereign] to liability to which they had not been subject before,’ ” Stevens, 529 U. S., at 781, it is hardly confined to such cases. Here, too, we proceed from the presumption that the Government is not a “person” authorized to initiate these proceedings absent an affirmative showing to the contrary.
+",analysis,“Person”,strongly agree,The “person” presumption,strongly agree,"The presumption that the term “person” does not include the ""sovereign""",1
+G16,10,0,2,B,"Given the presumption that a statutory reference to a “person” does not include the Government, the Postal Service must show that the AIA’s context indicates otherwise. Although the Postal Service need not cite to “an express contrary definition,” Rowland, 506 U. S., at 200, it must point to some indication in the text or context of the statute that affirmatively shows Congress intended to include the Government. See Cooper, 312 U. S., at 605.
+
+The Postal Service makes three arguments for displacing the presumption. First, the Postal Service argues that the statutory text and context offer sufficient evidence that the Government is a “person” with the power to petition for AIA review proceedings. Second, the Postal Service contends that federal agencies’ long history of participation in the patent system suggests that Congress intended for the Government to participate in AIA review proceedings as well. Third, the Postal Service maintains that the statute must permit it to petition for AIA review because §1498 subjects the Government to liability for infringement. None delivers.
+
+The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. Indeed, it is often true that when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (2006). This principle, however, “readily yields to context,” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (internal quotation marks omitted). That is the case here. The Patent Act and the AIA refer to “person[s]” in at least 18 different places, and there is no clear trend: Sometimes “person” plainly includes the Government,3 sometimes it plainly excludes the Government,4 and sometimes—as here—it might be read either way.
+
+Looking on the bright side, the Postal Service and the dissent, see post, at 2, focus on §207(a)(1), which authorizes “[e]ach [f]ederal agency” to “apply for, obtain, and maintain patents or other forms of protection . . . on inventions in which the Federal Government owns a right, title, or interest.” It follows from §207(a)(1)’s express inclusion of federal agencies among those eligible to apply for patents that the statute’s references to “person[s]” in the subsections governing the patent-application process and questions of patentability (§§102(a), 118, and 119) must also include federal agencies.5 In other words, the right described in §207(a)(1) provides a sufficient contextual clue that the word “person”—when used in the other provisions governing the application process §207(a)(1) makes available to federal agencies—includes the Government.
+
+But §207(a)(1) provides no such clue as to the interpretation of the AIA review provisions because it implies nothing about what a federal agency may or may not do following the issuance of someone else’s patent. Conversely, reading the review provisions to exclude the Government has no bearing on a federal agency’s right to obtain a patent under §207(a)(1). An agency may still apply for and obtain patents whether or not it may petition for a review proceeding under the AIA seeking cancellation of a patent it does not own. There is thus no reason to think that “person” must mean the same thing in these two different parts of the statute. See Utility Air, 573 U. S., at 320.6
+
+The Postal Service cites other provisions that may refer to the Government—namely, the “intervening rights” provisions that offer certain protections for “any person” who is lawfully making or using an invention when the Patent Office modifies an existing patent claim in a way that deems the person’s (previously lawful) use to be infringement. See §§252, 307(b), 318(c), 328(c). The Postal Service argues that the Government must be among those protected by these provisions and from there deduces that it must also be permitted to petition for AIA review proceedings because the review provisions and the intervening-rights provisions were all added to the Patent Act by the AIA at the same time. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) (invoking the consistent-usage canon where the same term was used in related provisions enacted at the same time).
+
+But regardless of whether the intervening-rights provisions apply to the Government (a separate interpretive question that we have no occasion to answer here), the Postal Service’s chain of inferences overlooks a confounding link: The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways. As noted, that is the case here. In the face of such inconsistency, the mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that Congress did not intend to include the Government among those “person[s]” eligible to petition for AIA review proceedings.7
+
+The Postal Service next points to the Federal Government’s longstanding history with the patent system. It reminds us that federal officers have been able to apply for patents in the name of the United States since 1883, see Act of Mar. 3, 1883, 22 Stat. 625—which, in the Postal Service’s view, suggests that Congress intended to allow the Government access to AIA review proceedings as well. But, as already explained, the Government’s ability to obtain a patent under §207(a)(1) does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA review proceedings. As to those proceedings, there is no longstanding practice: The AIA was enacted just eight years ago.8
+
+More pertinently, the Postal Service and the dissent both note that the Patent Office since 1981 has treated federal agencies as “persons” who may cite prior art to the agency or request an ex parte reexamination of an issued patent. See post, at 5. Recall that §301(a) provides that “[a]ny person at any time may cite to the Office in writing . . . prior art . . . which that person believes to have a bearing on the patentability of any claim of a particular patent.” As memorialized in the Patent Office’s Manual of Patent Examining Procedure (MPEP), the agency has understood §301’s reference to “any person” to include “governmental entit[ies].” Dept. of Commerce, Patent and Trademark Office, MPEP §§2203, 2212 (4th rev. ed., July 1981).
+
+We might take account of this “executive interpretation” if we were determining whether Congress meant to include the Government as a “person” for purposes of the ex parte reexamination procedures themselves. See, e.g., United States v. Hermanos y Compañia, 209 U. S. 337, 339 (1908). Here, however, the Patent Office’s statement in the 1981 MPEP has no direct relevance. Even assuming that the Government may petition for ex parte reexamination, ex parte reexamination is a fundamentally different process than an AIA post-issuance review proceeding.9 Both share the common purpose of allowing non-patent owners to bring questions of patent validity to the Patent Office’s attention, but they do so in meaningfully different ways.
+
+In an ex parte reexamination, the third party sends information to the Patent Office that the party believes bears on the patent’s validity, and the Patent Office decides whether to reexamine the patent. If it decides to do so, the reexamination process is internal; the challenger is not permitted to participate in the Patent Office’s process. See 35 U. S. C. §§302, 303. By contrast, the AIA postissuance review proceedings are adversarial, adjudicatory proceedings between the “person” who petitioned for review and the patent owner: There is briefing, a hearing, discovery, and the presentation of evidence, and the losing party has appeal rights. See supra, at 4–5. Thus, there are good reasons Congress might have authorized the Government to initiate a hands-off ex parte reexamination but not to become a party to a full-blown adversarial proceeding before the Patent Office and any subsequent appeal. After all, the Government is already in a unique position among alleged infringers given that 28 U. S. C. §1498 limits patent owners to bench trials before the Court of Federal Claims and monetary damages, whereas 35 U. S. C. §271 permits patent owners to demand jury trials in the federal district courts and seek other types of relief.
+
+Thus, there is nothing to suggest that Congress had the 1981 MPEP statement in mind when it enacted the AIA. It is true that this Court has often said, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.” Bragdon v. Abbott, 524 U. S. 624, 645 (1998). But there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings. Accordingly, the MPEP does not justify putting aside the presumptive meaning of “person” here.
+
+Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. See §§282(b)(2)–(3). In the Postal Service’s view, it is anomalous to deny it a benefit afforded to other infringers—the ability to challenge a patent de novo before the Patent Office, rather than only as an infringement defense that must be proved by clear and convincing evidence. See ibid.; Microsoft Corp., 564 U. S., at 95 (holding that §282’s presumption of validity in litigation imposes a clear and convincing evidence standard on defendants seeking to prove invalidity).
+
+The Postal Service overstates the asymmetry. Agencies retain the ability under §282 to assert defenses to infringement. Once sued, an agency may, like any other accused infringer, argue that the patent is invalid, and the agency faces the same burden of proof as a defendant in any other infringement suit. The Postal Service lacks only the additional tool of petitioning for the initiation of an administrative proceeding before the Patent Office under the AIA, a process separate from defending an infringement suit.
+
+We see no oddity, however, in Congress’ affording nongovernmental actors an expedient route that the Government does not also enjoy for heading off potential infringement suits. Those other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents. Most notably, §1498 restricts a patent owner who sues the Government to her “reasonable and entire compensation” for the Government’s infringing use; she cannot seek an injunction, demand a jury trial, or ask for punitive damages, all of which are available in infringement suits against nongovernmental actors under §271(e)(4). Thus, although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Because federal agencies face lower risks, it is reasonable for Congress to have treated them differently.10
+
+Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office). We are therefore unpersuaded that the Government’s exclusion from the AIA review proceedings is sufficiently anomalous to overcome the presumption that the Government is not a “person” under the Act.11",analysis,The Postal Service’s Argument,strongly agree,The Postal Service’s Arguments,strongly agree,Arguments of the United States Postal Service ,2
+G16,10,0,3,1,"The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. Indeed, it is often true that when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (2006). This principle, however, “readily yields to context,” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (internal quotation marks omitted). That is the case here. The Patent Act and the AIA refer to “person[s]” in at least 18 different places, and there is no clear trend: Sometimes “person” plainly includes the Government,3 sometimes it plainly excludes the Government,4 and sometimes—as here—it might be read either way.
+
+Looking on the bright side, the Postal Service and the dissent, see post, at 2, focus on §207(a)(1), which authorizes “[e]ach [f]ederal agency” to “apply for, obtain, and maintain patents or other forms of protection . . . on inventions in which the Federal Government owns a right, title, or interest.” It follows from §207(a)(1)’s express inclusion of federal agencies among those eligible to apply for patents that the statute’s references to “person[s]” in the subsections governing the patent-application process and questions of patentability (§§102(a), 118, and 119) must also include federal agencies.5 In other words, the right described in §207(a)(1) provides a sufficient contextual clue that the word “person”—when used in the other provisions governing the application process §207(a)(1) makes available to federal agencies—includes the Government.
+
+But §207(a)(1) provides no such clue as to the interpretation of the AIA review provisions because it implies nothing about what a federal agency may or may not do following the issuance of someone else’s patent. Conversely, reading the review provisions to exclude the Government has no bearing on a federal agency’s right to obtain a patent under §207(a)(1). An agency may still apply for and obtain patents whether or not it may petition for a review proceeding under the AIA seeking cancellation of a patent it does not own. There is thus no reason to think that “person” must mean the same thing in these two different parts of the statute. See Utility Air, 573 U. S., at 320.6
+
+The Postal Service cites other provisions that may refer to the Government—namely, the “intervening rights” provisions that offer certain protections for “any person” who is lawfully making or using an invention when the Patent Office modifies an existing patent claim in a way that deems the person’s (previously lawful) use to be infringement. See §§252, 307(b), 318(c), 328(c). The Postal Service argues that the Government must be among those protected by these provisions and from there deduces that it must also be permitted to petition for AIA review proceedings because the review provisions and the intervening-rights provisions were all added to the Patent Act by the AIA at the same time. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) (invoking the consistent-usage canon where the same term was used in related provisions enacted at the same time).
+
+But regardless of whether the intervening-rights provisions apply to the Government (a separate interpretive question that we have no occasion to answer here), the Postal Service’s chain of inferences overlooks a confounding link: The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways. As noted, that is the case here. In the face of such inconsistency, the mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that Congress did not intend to include the Government among those “person[s]” eligible to petition for AIA review proceedings.7",analysis,References to a “Person”,disagree,“Person”,disagree,Rejection of the argument that the Government is a person eligible to petition for America Invents Act (AIA) review proceedings,1
+G16,10,0,3,2,"The Postal Service next points to the Federal Government’s longstanding history with the patent system. It reminds us that federal officers have been able to apply for patents in the name of the United States since 1883, see Act of Mar. 3, 1883, 22 Stat. 625—which, in the Postal Service’s view, suggests that Congress intended to allow the Government access to AIA review proceedings as well. But, as already explained, the Government’s ability to obtain a patent under §207(a)(1) does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA review proceedings. As to those proceedings, there is no longstanding practice: The AIA was enacted just eight years ago.8
+
+More pertinently, the Postal Service and the dissent both note that the Patent Office since 1981 has treated federal agencies as “persons” who may cite prior art to the agency or request an ex parte reexamination of an issued patent. See post, at 5. Recall that §301(a) provides that “[a]ny person at any time may cite to the Office in writing . . . prior art . . . which that person believes to have a bearing on the patentability of any claim of a particular patent.” As memorialized in the Patent Office’s Manual of Patent Examining Procedure (MPEP), the agency has understood §301’s reference to “any person” to include “governmental entit[ies].” Dept. of Commerce, Patent and Trademark Office, MPEP §§2203, 2212 (4th rev. ed., July 1981).
+
+We might take account of this “executive interpretation” if we were determining whether Congress meant to include the Government as a “person” for purposes of the ex parte reexamination procedures themselves. See, e.g., United States v. Hermanos y Compañia, 209 U. S. 337, 339 (1908). Here, however, the Patent Office’s statement in the 1981 MPEP has no direct relevance. Even assuming that the Government may petition for ex parte reexamination, ex parte reexamination is a fundamentally different process than an AIA post-issuance review proceeding.9 Both share the common purpose of allowing non-patent owners to bring questions of patent validity to the Patent Office’s attention, but they do so in meaningfully different ways.
+
+In an ex parte reexamination, the third party sends information to the Patent Office that the party believes bears on the patent’s validity, and the Patent Office decides whether to reexamine the patent. If it decides to do so, the reexamination process is internal; the challenger is not permitted to participate in the Patent Office’s process. See 35 U. S. C. §§302, 303. By contrast, the AIA postissuance review proceedings are adversarial, adjudicatory proceedings between the “person” who petitioned for review and the patent owner: There is briefing, a hearing, discovery, and the presentation of evidence, and the losing party has appeal rights. See supra, at 4–5. Thus, there are good reasons Congress might have authorized the Government to initiate a hands-off ex parte reexamination but not to become a party to a full-blown adversarial proceeding before the Patent Office and any subsequent appeal. After all, the Government is already in a unique position among alleged infringers given that 28 U. S. C. §1498 limits patent owners to bench trials before the Court of Federal Claims and monetary damages, whereas 35 U. S. C. §271 permits patent owners to demand jury trials in the federal district courts and seek other types of relief.
+
+Thus, there is nothing to suggest that Congress had the 1981 MPEP statement in mind when it enacted the AIA. It is true that this Court has often said, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.” Bragdon v. Abbott, 524 U. S. 624, 645 (1998). But there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings. Accordingly, the MPEP does not justify putting aside the presumptive meaning of “person” here.",analysis,The Federal Government’s History with the Patent System,strongly agree,The Government’s Longstanding History,strongly agree,"Rejection of the argument to reject the presumption of ""person"" due to a longstanding practice of the Government",2
+G16,10,0,3,3,"Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. See §§282(b)(2)–(3). In the Postal Service’s view, it is anomalous to deny it a benefit afforded to other infringers—the ability to challenge a patent de novo before the Patent Office, rather than only as an infringement defense that must be proved by clear and convincing evidence. See ibid.; Microsoft Corp., 564 U. S., at 95 (holding that §282’s presumption of validity in litigation imposes a clear and convincing evidence standard on defendants seeking to prove invalidity).
+
+The Postal Service overstates the asymmetry. Agencies retain the ability under §282 to assert defenses to infringement. Once sued, an agency may, like any other accused infringer, argue that the patent is invalid, and the agency faces the same burden of proof as a defendant in any other infringement suit. The Postal Service lacks only the additional tool of petitioning for the initiation of an administrative proceeding before the Patent Office under the AIA, a process separate from defending an infringement suit.
+
+We see no oddity, however, in Congress’ affording nongovernmental actors an expedient route that the Government does not also enjoy for heading off potential infringement suits. Those other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents. Most notably, §1498 restricts a patent owner who sues the Government to her “reasonable and entire compensation” for the Government’s infringing use; she cannot seek an injunction, demand a jury trial, or ask for punitive damages, all of which are available in infringement suits against nongovernmental actors under §271(e)(4). Thus, although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Because federal agencies face lower risks, it is reasonable for Congress to have treated them differently.10
+
+Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office). We are therefore unpersuaded that the Government’s exclusion from the AIA review proceedings is sufficiently anomalous to overcome the presumption that the Government is not a “person” under the Act.11",analysis,The Postal Service’s Ability to Petition,agree, The Postal Service,agree,Rejection of the argument that the federal agency is a person because it is subject to civil liability and can assert a defense of patent invalidity,3
+G16,10,0,1,III,"For the foregoing reasons, we hold that a federal agency is not a “person” who may petition for post-issuance review under the AIA. The judgment of the United States Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered. ",conclusion,Petition for Post-ISSuance Review,strongly disagree,Post-Issuance Review,strongly disagree,Supreme Court's holding,3
+G16,12,0,1,I,"The column on its face contains no clearly actionable statement. Although the questions ""What happened to all the money last year? and every other year?"" could be read to imply peculation, they could also be read, in context, merely to praise the present administration. The only persons mentioned by name are officials of the new regime; no reference is made to respondent, the three elected commissioners, or anyone else who had a part in the administration of the Area during respondent's tenure. Persons familiar with the controversy over the Area might well read it as complimenting the luck or skill of the new management in attracting increased patronage and producing a ""tremendous difference in net cash results"" despite less favorable snow; indeed, witnesses for petitioner testified that they so read the column.
+
+Respondent offered extrinsic proofs to supply a defamatory meaning. These proofs were that the column greatly exaggerated any improvement under the new regime, and that a large part of the community understood it to say that the asserted improvements were not explicable by anything the new management had done. Rather, his witnesses testified, they read the column as imputing mismanagement and peculation during respondent's tenure. Respondent urged two theories to support a recovery based on that imputation.
+",analysis,Pleculation,strongly disagree,The Column,agree,Interpretation of the Disputed Column,1
+G16,12,0,1,II,"The first was that the jury could award him damages if it found that the column cast suspicion indiscriminately on the small number of persons who composed the former management group, whether or not it found that the imputation of misconduct was specifically made of and concerning him.[2] This theory of recovery was open to respondent under New Hampshire law; the trial judge explicitly instructed the jury that ""an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable.""[3] The question is presented, however, whether that theory of recovery is precluded by our holding in New York Times that, in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations. 376 U. S., at 290-292.
+
+The plaintiff in New York Times was one of the three elected Commissioners of the City of Montgomery, Alabama. His duties included the supervision of the police department. The statements in the advertisement upon which he principally relied as referring to him were that ""truckloads of police . . . ringed the Alabama State College Campus"" after a demonstration on the State Capitol steps, and that Dr. Martin Luther King had been ""arrested . . . seven times."" These statements were false in that although the police had been ""deployed near the campus,"" they had not actually ""ringed"" it and had not gone there in connection with a State Capitol demonstration, and in that Dr. King had been arrested only four times. We held that evidence that Sullivan as Police Commissioner was the supervisory head of the Police Department was constitutionally insufficient to show that the statements about police activity were ""of and concerning"" him; we rejected as inconsistent with the First and Fourteenth Amendments the proposition followed by the Alabama Supreme Court in the case that ""[i]n measuring the performance or deficiencies of . . . groups, praise or criticism is usually attached to the official in complete control of the body,"" 273 Ala. 656, 674-675, 144 So. 2d 25, 39. To allow the jury to connect the statements with Sullivan on that presumption alone was, in our view, to invite the spectre of prosecutions for libel on government, which the Constitution does not tolerate in any form. 376 U. S., at 273-276, 290-292.[4] We held ""that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations."" 376 U. S., at 292. There must be evidence showing that the attack was read as specifically directed at the plaintiff.
+
+Were the statement at issue in this case an explicit charge that the Commissioners and Baer or the entire Area management were corrupt, we assume without deciding that any member of the identified group might recover.[5] The statement itself might be sufficient evidence that the attack was specifically directed at each individual. Even if a charge and reference were merely implicit, as is alleged here, but a plaintiff could show by extrinsic proofs that the statement referred to him, it would be no defense to a suit by one member of an identifiable group engaged in governmental activity that another was also attacked. These situations are distinguishable from the present case; here, the jury was permitted to infer both defamatory content and reference from the challenged statement itself, although the statement on its face is only an impersonal discussion of government activity. To the extent the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous.[6] Here, no explicit charge of peculation was made; no assault on the previous management appears. The jury was permitted to award damages upon a finding merely that respondent was one of a small group acting for an organ of government, only some of whom were implicated, but all of whom were tinged with suspicion. In effect, this permitted the jury to find liability merely on the basis of his relationship to the government agency, the operations of which were the subject of discussion. It is plain that the elected Commissioners, also members of that group, would have been barred from suit on this theory under New York Times. They would be required to show specific reference. Whether or not respondent was a public official, as a member of the group he bears the same burden.[7] A theory that the column cast indiscriminate suspicion on the members of the group responsible for the conduct of this governmental operation is tantamount to a demand for recovery based on libel of government, and therefore is constitutionally insufficient. Since the trial judge's instructions were erroneous in this respect, the judgment must be reversed.
+",analysis,The New Hampshire Theory of Recovery,disagree,The Theory of Recovery,strongly agree,Argument of the Respondent that damages should be awarded if the Column casts suspicion in part of the management group,2
+G16,12,0,1,III,"Respondent's second theory, supported by testimony of several witnesses, was that the column was read as referring specifically to him, as the ""man in charge"" at the Area, personally responsible for its financial affairs. Even accepting respondent's reading, the column manifestly discusses the conduct of operations of government.[8] The subject matter may have been only of local interest, but at least here, where publication was addressed primarily to the interested community, that fact is constitutionally irrelevant. The question is squarely presented whether the ""public official"" designation under New York Times applies.
+
+If it does, it is clear that the jury instructions were improper. Under the instructions, the jury was permitted to find that negligent misstatement of fact would defeat petitioner's privilege. That test was rejected in Garrison, 379 U. S., at 79, where we said, ""The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth."" The trial court also charged that ""[d]efamatory matter which constitutes comment rather than fact is justified if made without malice and represented fair comment on matters of public interest,"" and defined malice to include ""ill will, evil motive, intention to injure . . . ."" This definition of malice is constitutionally insufficient where discussion of public affairs is concerned; ""[w]e held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true."" Garrison, 379 U. S., at 74.
+
+Turning, then, to the question whether respondent was a ""public official"" within New York Times, we reject at the outset his suggestion that it should be answered by reference to state-law standards. States have developed definitions of ""public official"" for local administrative purposes, not the purposes of a national constitutional protection.[9] If existing state-law standards reflect the purposes of New York Times, this is at best accidental. Our decision in New York Times, moreover, draws its force from the constitutional protections afforded free expression. The standards that set the scope of its principles cannot therefore be such that ""the constitutional limits of free expression in the Nation would vary with state lines."" Pennekamp v. Florida, 328 U. S. 331, 335.[10]
+
+We remarked in New York Times that we had no occasion ""to determine how far down into the lower ranks of government employees the `public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included."" 376 U. S., at 283, n. 23. No precise lines need be drawn for the purposes of this case. The motivating force for the decision in New York Times was twofold. We expressed ""a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."" 376 U. S., at 270. (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the ""public official"" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.[11]
+
+This conclusion does not ignore the important social values which underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation. But in cases like the present, there is tension between this interest and the values nurtured by the First and Fourteenth Amendments. The thrust of New York Times is that when interests in public discussion are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present[12] and the New York Times malice standards apply.[13]
+
+As respondent framed his case, he may have held such a position. Since New York Times had not been decided when his case went to trial, his presentation was not shaped to the ""public official"" issue. He did, however, seek to show that the article referred particularly to him. His theory was that his role in the management of the Area was so prominent and important that the public regarded him as the man responsible for its operations, chargeable with its failures and to be credited with its successes. Thus, to prove the article referred to him, he showed the importance of his role; the same showing, at the least, raises a substantial argument that he was a ""public official.""[14]
+
+The record here, however, leaves open the possibility that respondent could have adduced proofs to bring his claim outside the New York Times rule. Moreover, even if the claim falls within New York Times, the record suggests respondent may be able to present a jury question of malice as there defined. Because the trial here was had before New York Times, we have concluded that we should not foreclose him from attempting retrial of his action. We remark only that, as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a ""public official.""[15]
+
+The judgment is reversed and the case remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.
+
+It is so ordered.",analysis, Public Official,strongly agree,The Column's Reference to Respondent,strongly agree,The Issue of public official designation,3
+G16,13,0,1,I,"The complex statutory scheme at issue in these cases establishes processes both for obtaining FDA approval of biosimilars and for resolving patent disputes between manufacturers of licensed biologics and manufacturers of biosimilars. Before turning to the questions presented, we first explain the statutory background.
+
+
+
+A biologic is a type of drug derived from natural, biological sources such as animals or microorganisms. Biologics thus differ from traditional drugs, which are typically synthesized from chemicals.1 A manufacturer of a biologic may market the drug only if the FDA has licensed it pursuant to either of two review processes set forth in §262. The default pathway for approval, used for new biologics, is set forth in §262(a). Under that subsection, the FDA may license a new biologic if, among other things, the manufacturer demonstrates that it is “safe, pure, and potent.” §262(a)(2)(C)(i)(I). In addition to this default route, the statute also prescribes an alternative, abbreviated route for FDA approval of biosimilars, which is set forth in §262(k).
+
+To obtain approval through the BPCIA’s abbreviated process, the manufacturer of a biosimilar (applicant) does not need to show that the product is “safe, pure, and potent.” Instead, the applicant may piggyback on the showing made by the manufacturer (sponsor) of a previously licensed biologic (reference product). See §262(k)(2)(A)(iii). An applicant must show that its product is “highly similar” to the reference product and that there are no “clinically meaningful differences” between the two in terms of “safety, purity, and potency.” §§262(i)(2)(A), (B); see also §262(k)(2)(A)(i)(I). An applicant may not submit an application until 4 years after the reference product is first licensed, and the FDA may not license a biosimilar until 12 years after the reference product is first licensed. §§262(k)(7)(A), (B). As a result, the manufacturer of a new biologic enjoys a 12-year period when its biologic may be marketed without competition from biosimilars.
+
+A sponsor may hold multiple patents covering the biologic, its therapeutic uses, and the processes used to manufacture it. Those patents may constrain an applicant’s ability to market its biosimilar even after the expiration of the 12-year exclusivity period contained in §262(k)(7)(A).
+
+The BPCIA facilitates litigation during the period preceding FDA approval so that the parties do not have to wait until commercial marketing to resolve their patent disputes. It enables the parties to bring infringement actions at certain points in the application process, even if the applicant has not yet committed an act that would traditionally constitute patent infringement. See 35 U.S. C. §271(a) (traditionally infringing acts include making, using, offering to sell, or selling any patented invention within the United States without authority to do so). Specifically, it provides that the mere submission of a biosimilar application constitutes an act of infringement. §§271(e)(2)(C)(i), (ii). We will refer to this kind of preapproval infringement as “artificial” infringement. Section 271(e)(4) provides remedies for artificial infringement, including injunctive relief and damages.
+
+The BPCIA sets forth a carefully calibrated scheme for preparing to adjudicate, and then adjudicating, claims of infringement. See 42 U.S. C. §262(l). When the FDA accepts an application for review, it notifies the applicant, who within 20 days “shall provide” to the sponsor a copy of the application and information about how the biosimilar is manufactured. §262(l)(2)(A). The applicant also “may provide” the sponsor with any additional information that it requests. §262(l)(2)(B). These disclosures enable the sponsor to evaluate the biosimilar for possible infringement of patents it holds on the reference product (i.e., the corresponding biologic). §262(l)(1)(D). The information the applicant provides is subject to strict confidentiality rules, enforceable by injunction. See §262(l)(1)(H). The first question presented by these cases is whether §262(l)(2)(A)’s requirement—that the applicant provide its application and manufacturing information to the sponsor—is itself enforceable by injunction.
+
+After the applicant makes the requisite disclosures, the parties exchange information to identify relevant patents and to flesh out the legal arguments that they might raise in future litigation. Within 60 days of receiving the application and manufacturing information, the sponsor “shall provide” to the applicant “a list of patents” for which it believes it could assert an infringement claim if a person without a license made, used, offered to sell, sold, or imported “the biological product that is the subject of the [biosimilar] application.” §262(l)(3)(A)(i). The sponsor must also identify any patents on the list that it would be willing to license. §262(l)(3)(A)(ii).
+
+Next, within 60 days of receiving the sponsor’s list, the applicant may provide to the sponsor a list of patents that the applicant believes are relevant but that the sponsor omitted from its own list, §262(l)(3)(B)(i), and “shall provide” to the sponsor reasons why it could not be held liable for infringing the relevant patents, §262(l)(3)(B)(ii). The applicant may argue that the relevant patents are invalid, unenforceable, or not infringed, or the applicant may agree not to market the biosimilar until a particular patent has expired. Ibid. The applicant must also respond to the sponsor’s offers to license particular patents. §262(l)(3)(B)(iii). Then, within 60 days of receiving the applicant’s responses, the sponsor “shall provide” to the applicant its own arguments concerning infringement, enforceability, and validity as to each relevant patent. §262(l)(3)(C).
+
+Following this exchange, the BPCIA channels the parties into two phases of patent litigation. In the first phase, the parties collaborate to identify patents that they would like to litigate immediately. The second phase is triggered by the applicant’s notice of commercial marketing and involves any patents that were included on the parties’ §262(l)(3) lists but not litigated in the first phase.
+
+At the outset of the first phase, the applicant and the sponsor must negotiate to determine which patents included on the §262(l)(3) lists will be litigated immediately. See §§262(l)(4)(A), (l)(6). If they cannot agree, then they must engage in another list exchange. §262(l)(4)(B). The applicant “shall notify” the sponsor of the number of patents it intends to list for litigation, §262(l)(5)(A), and, within five days, the parties “shall simultaneously exchange” lists of the patents they would like to litigate immediately. §262(l)(5)(B)(i). This process gives the applicant substantial control over the scope of the first phase of litigation: The number of patents on the sponsor’s list is limited to the number contained in the applicant’s list, though the sponsor always has the right to list at least one patent. §262(l)(5)(B)(ii).
+
+The parties then proceed to litigate infringement with respect to the patents they agreed to litigate or, if they failed to agree, the patents contained on the lists they simultaneously exchanged under §262(l)(5). §§262(l)(6)(A), (B). Section 271(e)(2)(C)(i) facilitates this first phase of litigation by making it an act of artificial infringement, with respect to any patent included on the parties’ §262(l)(3) lists, to submit an application for a license from the FDA. The sponsor “shall bring an action” in court within 30 days of the date of agreement or the simultaneous list exchange. §§262(l)(6)(A), (B). If the sponsor brings a timely action and prevails, it may obtain a remedy provided by §271(e)(4).
+
+The second phase of litigation involves patents that were included on the original §262(l)(3) lists but not litigated in the first phase (and any patents that the sponsor acquired after the §262(l)(3) exchange occurred and added to the lists, see §262(l)(7)). The second phase is commenced by the applicant’s notice of commercial marketing, which the applicant “shall provide” to the sponsor “not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” §262(l)(8)(A). The BPCIA bars any declaratory judgment action prior to this notice. §262(l)(9)(A) (prohibiting, in situations where the parties have complied with each step of the BPCIA process, either the sponsor or the applicant from seeking a “declaration of infringement, validity, or enforceability of any patent” that was included on the §262(l)(3) lists but not litigated in the first phase “prior to the date notice is received under paragraph (8)(A)”). Because the applicant (subject to certain constraints) chooses when to begin commercial marketing and when to give notice, it wields substantial control over the timing of the second phase of litigation. The second question presented is whether notice is effective if an applicant provides it prior to the FDA’s decision to license the biosimilar.
+
+In this second phase of litigation, either party may sue for declaratory relief. See §262(l)(9)(A). In addition, prior to the date of first commercial marketing, the sponsor may “seek a preliminary injunction prohibiting the [biosimilar] applicant from engaging in the commercial manufacture or sale of [the biosimilar] until the court decides the issue of patent validity, enforcement, and infringement with respect to any patent that” was included on the §262(l)(3) lists but not litigated in the first phase. §262(l)(8)(B).
+
+If the parties comply with each step outlined in the BPCIA, they will have the opportunity to litigate the relevant patents before the biosimilar is marketed. To encourage parties to comply with its procedural requirements, the BPCIA includes various consequences for failing to do so. Two of the BPCIA’s remedial provisions are at issue here. Under §262(l)(9)(C), if an applicant fails to provide its application and manufacturing information to the sponsor—thus effectively pretermitting the entire two-phase litigation process—then the sponsor, but not the applicant, may immediately bring an action “for a declaration of infringement, validity, or enforceability of any patent that claims the biological product or a use of the biological product.” Section 271(e)(2)(C)(ii) facilitates this action by making it an artificial act of infringement, with respect to any patent that could have been included on the §262(l)(3) lists, to submit a biosimilar application. Similarly, when an applicant provides the application and manufacturing information but fails to complete a subsequent step, §262(l)(9)(B) provides that the sponsor, but not the applicant, may bring a declaratory-judgment action with respect to any patent included on the sponsor’s §262(l)(3)(A) list of patents (as well as those it acquired later and added to the list). As noted, it is an act of artificial infringement, with respect to any patent on the §262(l)(3) lists, to submit an application to the FDA. See §271(e)(2)(C)(i).",introduction,Biosimilars,strongly disagree,The BPCIA’s Statutory Scheme,strongly agree,Background of the Biologics Price Competition and Innovation Act (BPCIA),1
+G16,13,0,2,A,"A biologic is a type of drug derived from natural, biological sources such as animals or microorganisms. Biologics thus differ from traditional drugs, which are typically synthesized from chemicals.1 A manufacturer of a biologic may market the drug only if the FDA has licensed it pursuant to either of two review processes set forth in §262. The default pathway for approval, used for new biologics, is set forth in §262(a). Under that subsection, the FDA may license a new biologic if, among other things, the manufacturer demonstrates that it is “safe, pure, and potent.” §262(a)(2)(C)(i)(I). In addition to this default route, the statute also prescribes an alternative, abbreviated route for FDA approval of biosimilars, which is set forth in §262(k).
+
+To obtain approval through the BPCIA’s abbreviated process, the manufacturer of a biosimilar (applicant) does not need to show that the product is “safe, pure, and potent.” Instead, the applicant may piggyback on the showing made by the manufacturer (sponsor) of a previously licensed biologic (reference product). See §262(k)(2)(A)(iii). An applicant must show that its product is “highly similar” to the reference product and that there are no “clinically meaningful differences” between the two in terms of “safety, purity, and potency.” §§262(i)(2)(A), (B); see also §262(k)(2)(A)(i)(I). An applicant may not submit an application until 4 years after the reference product is first licensed, and the FDA may not license a biosimilar until 12 years after the reference product is first licensed. §§262(k)(7)(A), (B). As a result, the manufacturer of a new biologic enjoys a 12-year period when its biologic may be marketed without competition from biosimilars.",facts,Biosimilars,strongly agree,The BPCIA’s Abbreviated Process,strongly agree,The Food and Drug Administration (FDA) and License of Biosimilars,1
+G16,13,0,2,B,"A sponsor may hold multiple patents covering the biologic, its therapeutic uses, and the processes used to manufacture it. Those patents may constrain an applicant’s ability to market its biosimilar even after the expiration of the 12-year exclusivity period contained in §262(k)(7)(A).
+
+The BPCIA facilitates litigation during the period preceding FDA approval so that the parties do not have to wait until commercial marketing to resolve their patent disputes. It enables the parties to bring infringement actions at certain points in the application process, even if the applicant has not yet committed an act that would traditionally constitute patent infringement. See 35 U.S. C. §271(a) (traditionally infringing acts include making, using, offering to sell, or selling any patented invention within the United States without authority to do so). Specifically, it provides that the mere submission of a biosimilar application constitutes an act of infringement. §§271(e)(2)(C)(i), (ii). We will refer to this kind of preapproval infringement as “artificial” infringement. Section 271(e)(4) provides remedies for artificial infringement, including injunctive relief and damages.",analysis,Preapproval Infringement,strongly agree,The BPCI,strongly disagree,Infringement Actions,2
+G16,13,0,2,C,"The BPCIA sets forth a carefully calibrated scheme for preparing to adjudicate, and then adjudicating, claims of infringement. See 42 U.S. C. §262(l). When the FDA accepts an application for review, it notifies the applicant, who within 20 days “shall provide” to the sponsor a copy of the application and information about how the biosimilar is manufactured. §262(l)(2)(A). The applicant also “may provide” the sponsor with any additional information that it requests. §262(l)(2)(B). These disclosures enable the sponsor to evaluate the biosimilar for possible infringement of patents it holds on the reference product (i.e., the corresponding biologic). §262(l)(1)(D). The information the applicant provides is subject to strict confidentiality rules, enforceable by injunction. See §262(l)(1)(H). The first question presented by these cases is whether §262(l)(2)(A)’s requirement—that the applicant provide its application and manufacturing information to the sponsor—is itself enforceable by injunction.
+
+After the applicant makes the requisite disclosures, the parties exchange information to identify relevant patents and to flesh out the legal arguments that they might raise in future litigation. Within 60 days of receiving the application and manufacturing information, the sponsor “shall provide” to the applicant “a list of patents” for which it believes it could assert an infringement claim if a person without a license made, used, offered to sell, sold, or imported “the biological product that is the subject of the [biosimilar] application.” §262(l)(3)(A)(i). The sponsor must also identify any patents on the list that it would be willing to license. §262(l)(3)(A)(ii).
+
+Next, within 60 days of receiving the sponsor’s list, the applicant may provide to the sponsor a list of patents that the applicant believes are relevant but that the sponsor omitted from its own list, §262(l)(3)(B)(i), and “shall provide” to the sponsor reasons why it could not be held liable for infringing the relevant patents, §262(l)(3)(B)(ii). The applicant may argue that the relevant patents are invalid, unenforceable, or not infringed, or the applicant may agree not to market the biosimilar until a particular patent has expired. Ibid. The applicant must also respond to the sponsor’s offers to license particular patents. §262(l)(3)(B)(iii). Then, within 60 days of receiving the applicant’s responses, the sponsor “shall provide” to the applicant its own arguments concerning infringement, enforceability, and validity as to each relevant patent. §262(l)(3)(C).
+
+Following this exchange, the BPCIA channels the parties into two phases of patent litigation. In the first phase, the parties collaborate to identify patents that they would like to litigate immediately. The second phase is triggered by the applicant’s notice of commercial marketing and involves any patents that were included on the parties’ §262(l)(3) lists but not litigated in the first phase.
+
+At the outset of the first phase, the applicant and the sponsor must negotiate to determine which patents included on the §262(l)(3) lists will be litigated immediately. See §§262(l)(4)(A), (l)(6). If they cannot agree, then they must engage in another list exchange. §262(l)(4)(B). The applicant “shall notify” the sponsor of the number of patents it intends to list for litigation, §262(l)(5)(A), and, within five days, the parties “shall simultaneously exchange” lists of the patents they would like to litigate immediately. §262(l)(5)(B)(i). This process gives the applicant substantial control over the scope of the first phase of litigation: The number of patents on the sponsor’s list is limited to the number contained in the applicant’s list, though the sponsor always has the right to list at least one patent. §262(l)(5)(B)(ii).
+
+The parties then proceed to litigate infringement with respect to the patents they agreed to litigate or, if they failed to agree, the patents contained on the lists they simultaneously exchanged under §262(l)(5). §§262(l)(6)(A), (B). Section 271(e)(2)(C)(i) facilitates this first phase of litigation by making it an act of artificial infringement, with respect to any patent included on the parties’ §262(l)(3) lists, to submit an application for a license from the FDA. The sponsor “shall bring an action” in court within 30 days of the date of agreement or the simultaneous list exchange. §§262(l)(6)(A), (B). If the sponsor brings a timely action and prevails, it may obtain a remedy provided by §271(e)(4).
+
+The second phase of litigation involves patents that were included on the original §262(l)(3) lists but not litigated in the first phase (and any patents that the sponsor acquired after the §262(l)(3) exchange occurred and added to the lists, see §262(l)(7)). The second phase is commenced by the applicant’s notice of commercial marketing, which the applicant “shall provide” to the sponsor “not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” §262(l)(8)(A). The BPCIA bars any declaratory judgment action prior to this notice. §262(l)(9)(A) (prohibiting, in situations where the parties have complied with each step of the BPCIA process, either the sponsor or the applicant from seeking a “declaration of infringement, validity, or enforceability of any patent” that was included on the §262(l)(3) lists but not litigated in the first phase “prior to the date notice is received under paragraph (8)(A)”). Because the applicant (subject to certain constraints) chooses when to begin commercial marketing and when to give notice, it wields substantial control over the timing of the second phase of litigation. The second question presented is whether notice is effective if an applicant provides it prior to the FDA’s decision to license the biosimilar.
+
+In this second phase of litigation, either party may sue for declaratory relief. See §262(l)(9)(A). In addition, prior to the date of first commercial marketing, the sponsor may “seek a preliminary injunction prohibiting the [biosimilar] applicant from engaging in the commercial manufacture or sale of [the biosimilar] until the court decides the issue of patent validity, enforcement, and infringement with respect to any patent that” was included on the §262(l)(3) lists but not litigated in the first phase. §262(l)(8)(B).",analysis,The BPCIA’s Disclosure Scheme,agree,The BPCIA’s Injunction Requirement,agree,"Description of the provisions of the Biologics Price Competition
+and Innovation Act (BPCIA)",3
+G16,13,0,2,D,"If the parties comply with each step outlined in the BPCIA, they will have the opportunity to litigate the relevant patents before the biosimilar is marketed. To encourage parties to comply with its procedural requirements, the BPCIA includes various consequences for failing to do so. Two of the BPCIA’s remedial provisions are at issue here. Under §262(l)(9)(C), if an applicant fails to provide its application and manufacturing information to the sponsor—thus effectively pretermitting the entire two-phase litigation process—then the sponsor, but not the applicant, may immediately bring an action “for a declaration of infringement, validity, or enforceability of any patent that claims the biological product or a use of the biological product.” Section 271(e)(2)(C)(ii) facilitates this action by making it an artificial act of infringement, with respect to any patent that could have been included on the §262(l)(3) lists, to submit a biosimilar application. Similarly, when an applicant provides the application and manufacturing information but fails to complete a subsequent step, §262(l)(9)(B) provides that the sponsor, but not the applicant, may bring a declaratory-judgment action with respect to any patent included on the sponsor’s §262(l)(3)(A) list of patents (as well as those it acquired later and added to the list). As noted, it is an act of artificial infringement, with respect to any patent on the §262(l)(3) lists, to submit an application to the FDA. See §271(e)(2)(C)(i).",analysis,BPCIA Remedial Provisions,disagree,The BPCIA’s Remedial Provisions,disagree,Procedural Requirements for Contesting a Patent,4
+G16,13,0,1,II,"These cases concern filgrastim, a biologic used to stimulate the production of white blood cells. Amgen, the respondent in No. 15–1039 and the petitioner in No. 15– 1195, has marketed a filgrastim product called Neupogen since 1991 and claims to hold patents on methods of manufacturing and using filgrastim. In May 2014, Sandoz, the petitioner in No. 15–1039 and the respondent in No. 15– 1195, filed an application with the FDA seeking approval to market a filgrastim biosimilar under the brand name Zarxio, with Neupogen as the reference product. The FDA informed Sandoz on July 7, 2014, that it had accepted the application for review. One day later, Sandoz notified Amgen both that it had submitted an application and that it intended to begin marketing Zarxio immediately upon receiving FDA approval, which it expected in the first half of 2015. Sandoz later confirmed that it did not intend to provide the requisite application and manufacturing information under §262(l)(2)(A) and informed Amgen that Amgen could sue for infringement immediately under §262(l)(9)(C).
+
+In October 2014, Amgen sued Sandoz for patent infringement. Amgen also asserted two claims under California’s unfair competition law, which prohibits “any unlawful . . . business act or practice.” Cal. Bus. & Prof. Code Ann. §17200 (West 2008). A “business act or practice” is “unlawful” under the unfair competition law if it violates a rule contained in some other state or federal statute. Rose v. Bank of America, N. A., 57 Cal. 4th 390, 396, 304 P.3d 181, 185 (2013). Amgen alleged that Sandoz engaged in “unlawful” conduct when it failed to provide its application and manufacturing information under §262(l)(2)(A), and when it provided notice of commercial marketing under §262(l)(8)(A) before, rather than after, the FDA licensed its biosimilar. Amgen sought injunctions to enforce both requirements. Sandoz counterclaimed for declaratory judgments that the asserted patent was invalid and not infringed and that it had not violated the BPCIA.
+
+While the case was pending in the District Court, the FDA licensed Zarxio, and Sandoz provided Amgen a further notice of commercial marketing. The District Court subsequently granted partial judgment on the pleadings to Sandoz on its BPCIA counterclaims and dismissed Amgen’s unfair competition claims with prejudice. 2015 WL 1264756, *7–*9 (ND Cal., Mar. 19, 2015). After the District Court entered final judgment as to these claims, Amgen appealed to the Federal Circuit, which granted an injunction pending appeal against the commercial marketing of Zarxio.
+
+A divided Federal Circuit affirmed in part, vacated in part, and remanded. First, the court affirmed the dismissal of Amgen’s state-law claim based on Sandoz’s alleged violation of §262(l)(2)(A). It held that Sandoz did not violate the BPCIA in failing to disclose its application and manufacturing information. It further held that the remedies contained in the BPCIA are the exclusive remedies for an applicant’s failure to comply with §262(l)(2)(A). 794 F.3d 1347, 1357, 1360 (2015).
+
+Second, the court held that an applicant may provide effective notice of commercial marketing only after the FDA has licensed the biosimilar. Id., at 1358. Accordingly, the 180-day clock began after Sandoz’s second, postlicensure notice. The Federal Circuit further concluded that the notice requirement is mandatory and extended its injunction pending appeal to bar Sandoz from marketing Zarxio until 180 days after the date it provided its second notice. Id., at 1360–1361.
+
+We granted Sandoz’s petition for certiorari, No. 15– 1039, and Amgen’s conditional cross-petition for certiorari, No. 15–1195, and consolidated the cases. 580 U. S. ___ (2017).",facts,Sandoz v. Amgen,strongly agree,The Patent Infringement Claims,strongly agree,Respondent's Motion for Patent Infringement,2
+G16,13,0,1,III,"The first question we must answer is whether §262(l)(2)(A)’s requirement that an applicant provide the sponsor with its application and manufacturing information is enforceable by an injunction under either federal or state law.
+
+We agree with the Federal Circuit that an injunction under federal law is not available to enforce §262(l)(2)(A), though for slightly different reasons than those provided by the court below. The Federal Circuit held that “42 U.S. C. §262(l)(9)(C) and 35 U.S. C. §271(e) expressly provide the only remedies” for a violation of §262(l)(2)(A), 794 F.3d, at 1357, and neither of those provisions authorizes a court to compel compliance with §262(l)(2)(A). In concluding that the remedies specified in the BPCIA are exclusive, the Federal Circuit relied primarily on §271(e)(4), which states that it provides “ ‘the only remedies which may be granted by a court for an act of [artificial] infringement.’ ” Id., at 1356 (emphasis deleted).
+
+The flaw in the Federal Circuit’s reasoning is that Sandoz’s failure to disclose its application and manufacturing information was not an act of artificial infringement, and thus was not remediable under §271(e)(4). Submitting an application constitutes an act of artificial infringement. See §§271(e)(2)(C)(i), (ii) (“It shall be an act of infringement to submit . . . an application seeking approval of a biological product”). Failing to disclose the application and manufacturing information under §262(l)(2)(A) does not.
+
+In reaching the opposite conclusion, the Federal Circuit relied on §271(e)(2)(C)(ii), which states that “[i]t shall be an act of infringement to submit[,] if the applicant for the application fails to provide the application and information required under [§262(l)(2)(A)], an application seeking approval of a biological product for a patent that could be identified pursuant to [§262(l)(3)(A)(i)].” (Emphasis added.) The court appeared to conclude, based on the italicized language, that an applicant’s noncompliance with §262(l)(2)(A) is an element of the act of artificial infringement (along with the submission of the application). 794 F.3d, at 1356. We disagree. The italicized language merely assists in identifying which patents will be the subject of the artificial infringement suit. It does not define the act of artificial infringement itself.
+
+This conclusion follows from the structure of §271(e)(2)(C). Clause (i) of §271(e)(2)(C) defines artificial infringement in the situation where the parties proceed through the list exchange process and the patents subject to suit are those contained in the §262(l)(3) lists, as supplemented under §262(l)(7). That clause provides that it is an act of artificial infringement to submit, “with respect to a patent that is identified in the list of patents described in [§262(l)(3)] (including as provided under [§262(l)(7)]), an application seeking approval of a biological product.” (Emphasis added.) Clause (ii) of §271(e)(2)(C), in contrast, defines artificial infringement in the situation where an applicant fails to disclose its application and manufacturing information altogether and the parties never prepare the §262(l)(3) lists. That clause provides that the submission of the application represents an act of artificial infringement with respect to any patent that could have been included on the lists.
+
+In this way, the two clauses of §271(e)(2)(C) work in tandem. They both treat submission of the application as the act of artificial infringement for which §271(e)(4) provides the remedies. And they both identify the patents subject to suit, although by different means depending on whether the applicant disclosed its application and manufacturing information under §262(l)(2)(A). If the applicant made the disclosures, clause (i) applies; if it did not, clause (ii) applies. In neither instance is the applicant’s failure to provide its application and manufacturing information an element of the act of artificial infringement, and in neither instance does §271(e)(4) provide a remedy for that failure. See Brief for Amgen Inc. et al. 66–67 (conceding both points).
+
+A separate provision of §262, however, does provide a remedy for an applicant’s failure to turn over its application and manufacturing information. When an applicant fails to comply with §262(l)(2)(A), §262(l)(9)(C) authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action for artificial infringement as defined in §271(e)(2)(C)(ii). Section 262(l)(9)(C) thus vests in the sponsor the control that the applicant would otherwise have exercised over the scope and timing of the patent litigation. It also deprives the applicant of the certainty that it could have obtained by bringing a declaratory-judgment action prior to marketing its product.
+
+The remedy provided by §262(l)(9)(C) excludes all other federal remedies, including injunctive relief. Where, as here, “a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.” Karahalios v. Federal Employees, 489 U.S. 527, 533 (1989). The BPCIA’s “carefully crafted and detailed enforcement scheme provides strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 (2002) (internal quotation marks omitted). The presence of §262(l)(9)(C), coupled with the absence of any other textually specified remedies, indicates that Congress did not intend sponsors to have access to injunctive relief, at least as a matter of federal law, to enforce the disclosure requirement.
+
+Statutory context further confirms that Congress did not authorize courts to enforce §262(l)(2)(A) by injunction. Section 262(l)(1)(H) provides that “the court shall consider immediate injunctive relief to be an appropriate and necessary remedy for any violation or threatened violation” of the rules governing the confidentiality of information disclosed under §262(l). We assume that Congress acted intentionally when it provided an injunctive remedy for breach of the confidentiality requirements but not for breach of §262(l)(2)(A)’s disclosure requirement. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979) (“[W]hen Congress wished to provide a private damage remedy, it knew how to do so and did so expressly”).2 Accordingly, the Federal Circuit properly declined to grant an injunction under federal law.
+
+B
+
+The Federal Circuit rejected Amgen’s request for an injunction under state law for two reasons. First, it interpreted California’s unfair competition law not to provide a remedy when the underlying statute specifies an “expressly . . . exclusive” remedy. 794 F.3d, at 1360 (citing Cal. Bus. & Prof. Code Ann. §17205; Loeffler v. Target Corp., 58 Cal. 4th 1081, 1125–1126, 324 P.3d 50, 76 (2014)). It further held that §271(e)(4), by its text, “provides ‘the only remedies’ ” for an applicant’s failure to disclose its application and manufacturing information. 794 F.3d, at 1360 (quoting §271(e)(4)). The court thus concluded that no state remedy was available for Sandoz’s alleged violation of §262(l)(2)(A) under the terms of California’s unfair competition law.
+
+This state-law holding rests on an incorrect interpretation of federal law. As we have explained, failure to comply with §262(l)(2)(A) is not an act of artificial infringement. Because §271(e)(4) provides remedies only for artificial infringement, it provides no remedy at all, much less an “expressly . . . exclusive” one, for Sandoz’s failure to comply with §262(l)(2)(A).
+
+Second, the Federal Circuit held in the alternative that Sandoz’s failure to disclose its application and manufacturing information was not “unlawful” under California’s unfair competition law. In the court’s view, when an applicant declines to provide its application and manufacturing information to the sponsor, it takes a path “expressly contemplated by” §262(l)(9)(C) and §271(e)(2)(C)(ii) and thus does not violate the BPCIA. 794 F.3d, at 1357, 1360. In their briefs before this Court, the parties frame this issue as whether the §262(l)(2)(A) requirement is mandatory in all circumstances, see Brief for Amgen Inc. et al. 58, or merely a condition precedent to the information exchange process, see Reply Brief for Sandoz Inc. 33. If it is only a condition precedent, then an applicant effectively has the option to withhold its application and manufacturing information and does not commit an “unlawful” act in doing so.
+
+We decline to resolve this particular dispute definitively because it does not present a question of federal law. The BPCIA, standing alone, does not require a court to decide whether §262(l)(2)(A) is mandatory or conditional; the court need only determine whether the applicant supplied the sponsor with the information required under §262(l)(2)(A). If the applicant failed to provide that information, then the sponsor, but not the applicant, could bring an immediate declaratory-judgment action pursuant to §262(l)(9)(C). The parties in these cases agree—as did the Federal Circuit—that Sandoz failed to comply with §262(l)(2)(A), thus subjecting itself to that consequence. There is no dispute about how the federal scheme actually works, and thus nothing for us to decide as a matter of federal law. The mandatory or conditional nature of the BPCIA’s requirements matters only for purposes of California’s unfair competition law, which penalizes “unlawful” conduct. Whether Sandoz’s conduct was “unlawful” under the unfair competition law is a state-law question, and the court below erred in attempting to answer that question by referring to the BPCIA alone.
+
+On remand, the Federal Circuit should determine whether California law would treat noncompliance with §262(l)(2)(A) as “unlawful.” If the answer is yes, then the court should proceed to determine whether the BPCIA pre-empts any additional remedy available under state law for an applicant’s failure to comply with §262(l)(2)(A) (and whether Sandoz has forfeited any pre-emption defense, see 794 F.3d, at 1360, n. 5). The court is also of course free to address the pre-emption question first by assuming that a remedy under state law exists.",analysis,Enforcement of the BPCIA,strongly agree,The Injunction,strongly agree,The Legal Issue of Injunction,3
+G16,13,0,2,A,"We agree with the Federal Circuit that an injunction under federal law is not available to enforce §262(l)(2)(A), though for slightly different reasons than those provided by the court below. The Federal Circuit held that “42 U.S. C. §262(l)(9)(C) and 35 U.S. C. §271(e) expressly provide the only remedies” for a violation of §262(l)(2)(A), 794 F.3d, at 1357, and neither of those provisions authorizes a court to compel compliance with §262(l)(2)(A). In concluding that the remedies specified in the BPCIA are exclusive, the Federal Circuit relied primarily on §271(e)(4), which states that it provides “ ‘the only remedies which may be granted by a court for an act of [artificial] infringement.’ ” Id., at 1356 (emphasis deleted).
+
+The flaw in the Federal Circuit’s reasoning is that Sandoz’s failure to disclose its application and manufacturing information was not an act of artificial infringement, and thus was not remediable under §271(e)(4). Submitting an application constitutes an act of artificial infringement. See §§271(e)(2)(C)(i), (ii) (“It shall be an act of infringement to submit . . . an application seeking approval of a biological product”). Failing to disclose the application and manufacturing information under §262(l)(2)(A) does not.
+
+In reaching the opposite conclusion, the Federal Circuit relied on §271(e)(2)(C)(ii), which states that “[i]t shall be an act of infringement to submit[,] if the applicant for the application fails to provide the application and information required under [§262(l)(2)(A)], an application seeking approval of a biological product for a patent that could be identified pursuant to [§262(l)(3)(A)(i)].” (Emphasis added.) The court appeared to conclude, based on the italicized language, that an applicant’s noncompliance with §262(l)(2)(A) is an element of the act of artificial infringement (along with the submission of the application). 794 F.3d, at 1356. We disagree. The italicized language merely assists in identifying which patents will be the subject of the artificial infringement suit. It does not define the act of artificial infringement itself.
+
+This conclusion follows from the structure of §271(e)(2)(C). Clause (i) of §271(e)(2)(C) defines artificial infringement in the situation where the parties proceed through the list exchange process and the patents subject to suit are those contained in the §262(l)(3) lists, as supplemented under §262(l)(7). That clause provides that it is an act of artificial infringement to submit, “with respect to a patent that is identified in the list of patents described in [§262(l)(3)] (including as provided under [§262(l)(7)]), an application seeking approval of a biological product.” (Emphasis added.) Clause (ii) of §271(e)(2)(C), in contrast, defines artificial infringement in the situation where an applicant fails to disclose its application and manufacturing information altogether and the parties never prepare the §262(l)(3) lists. That clause provides that the submission of the application represents an act of artificial infringement with respect to any patent that could have been included on the lists.
+
+In this way, the two clauses of §271(e)(2)(C) work in tandem. They both treat submission of the application as the act of artificial infringement for which §271(e)(4) provides the remedies. And they both identify the patents subject to suit, although by different means depending on whether the applicant disclosed its application and manufacturing information under §262(l)(2)(A). If the applicant made the disclosures, clause (i) applies; if it did not, clause (ii) applies. In neither instance is the applicant’s failure to provide its application and manufacturing information an element of the act of artificial infringement, and in neither instance does §271(e)(4) provide a remedy for that failure. See Brief for Amgen Inc. et al. 66–67 (conceding both points).
+
+A separate provision of §262, however, does provide a remedy for an applicant’s failure to turn over its application and manufacturing information. When an applicant fails to comply with §262(l)(2)(A), §262(l)(9)(C) authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action for artificial infringement as defined in §271(e)(2)(C)(ii). Section 262(l)(9)(C) thus vests in the sponsor the control that the applicant would otherwise have exercised over the scope and timing of the patent litigation. It also deprives the applicant of the certainty that it could have obtained by bringing a declaratory-judgment action prior to marketing its product.
+
+The remedy provided by §262(l)(9)(C) excludes all other federal remedies, including injunctive relief. Where, as here, “a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.” Karahalios v. Federal Employees, 489 U.S. 527, 533 (1989). The BPCIA’s “carefully crafted and detailed enforcement scheme provides strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 (2002) (internal quotation marks omitted). The presence of §262(l)(9)(C), coupled with the absence of any other textually specified remedies, indicates that Congress did not intend sponsors to have access to injunctive relief, at least as a matter of federal law, to enforce the disclosure requirement.
+
+Statutory context further confirms that Congress did not authorize courts to enforce §262(l)(2)(A) by injunction. Section 262(l)(1)(H) provides that “the court shall consider immediate injunctive relief to be an appropriate and necessary remedy for any violation or threatened violation” of the rules governing the confidentiality of information disclosed under §262(l). We assume that Congress acted intentionally when it provided an injunctive remedy for breach of the confidentiality requirements but not for breach of §262(l)(2)(A)’s disclosure requirement. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979) (“[W]hen Congress wished to provide a private damage remedy, it knew how to do so and did so expressly”).2 Accordingly, the Federal Circuit properly declined to grant an injunction under federal law.
+
+B",analysis,The Federal Circuit’s Decision,strongly agree,The Federal Circuit’s Injunction,agree,Approval of the Federal Circuit's Injuction Argument,1
+G16,13,0,2,B,"The Federal Circuit rejected Amgen’s request for an injunction under state law for two reasons. First, it interpreted California’s unfair competition law not to provide a remedy when the underlying statute specifies an “expressly . . . exclusive” remedy. 794 F.3d, at 1360 (citing Cal. Bus. & Prof. Code Ann. §17205; Loeffler v. Target Corp., 58 Cal. 4th 1081, 1125–1126, 324 P.3d 50, 76 (2014)). It further held that §271(e)(4), by its text, “provides ‘the only remedies’ ” for an applicant’s failure to disclose its application and manufacturing information. 794 F.3d, at 1360 (quoting §271(e)(4)). The court thus concluded that no state remedy was available for Sandoz’s alleged violation of §262(l)(2)(A) under the terms of California’s unfair competition law.
+
+This state-law holding rests on an incorrect interpretation of federal law. As we have explained, failure to comply with §262(l)(2)(A) is not an act of artificial infringement. Because §271(e)(4) provides remedies only for artificial infringement, it provides no remedy at all, much less an “expressly . . . exclusive” one, for Sandoz’s failure to comply with §262(l)(2)(A).
+
+Second, the Federal Circuit held in the alternative that Sandoz’s failure to disclose its application and manufacturing information was not “unlawful” under California’s unfair competition law. In the court’s view, when an applicant declines to provide its application and manufacturing information to the sponsor, it takes a path “expressly contemplated by” §262(l)(9)(C) and §271(e)(2)(C)(ii) and thus does not violate the BPCIA. 794 F.3d, at 1357, 1360. In their briefs before this Court, the parties frame this issue as whether the §262(l)(2)(A) requirement is mandatory in all circumstances, see Brief for Amgen Inc. et al. 58, or merely a condition precedent to the information exchange process, see Reply Brief for Sandoz Inc. 33. If it is only a condition precedent, then an applicant effectively has the option to withhold its application and manufacturing information and does not commit an “unlawful” act in doing so.
+
+We decline to resolve this particular dispute definitively because it does not present a question of federal law. The BPCIA, standing alone, does not require a court to decide whether §262(l)(2)(A) is mandatory or conditional; the court need only determine whether the applicant supplied the sponsor with the information required under §262(l)(2)(A). If the applicant failed to provide that information, then the sponsor, but not the applicant, could bring an immediate declaratory-judgment action pursuant to §262(l)(9)(C). The parties in these cases agree—as did the Federal Circuit—that Sandoz failed to comply with §262(l)(2)(A), thus subjecting itself to that consequence. There is no dispute about how the federal scheme actually works, and thus nothing for us to decide as a matter of federal law. The mandatory or conditional nature of the BPCIA’s requirements matters only for purposes of California’s unfair competition law, which penalizes “unlawful” conduct. Whether Sandoz’s conduct was “unlawful” under the unfair competition law is a state-law question, and the court below erred in attempting to answer that question by referring to the BPCIA alone.
+
+On remand, the Federal Circuit should determine whether California law would treat noncompliance with §262(l)(2)(A) as “unlawful.” If the answer is yes, then the court should proceed to determine whether the BPCIA pre-empts any additional remedy available under state law for an applicant’s failure to comply with §262(l)(2)(A) (and whether Sandoz has forfeited any pre-emption defense, see 794 F.3d, at 1360, n. 5). The court is also of course free to address the pre-emption question first by assuming that a remedy under state law exists.",analysis,Federal Circuit Decision,disagree,State Law Remedy,agree,Decline to resolve the dispute because it does not present a question of federal law,2
+G16,13,0,1,IV,"The second question at issue in these cases is whether an applicant must provide notice after the FDA licenses its biosimilar, or if it may also provide effective notice before licensure. Section 262(l)(8)(A) states that the applicant “shall provide notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” The Federal Circuit held that an applicant’s biosimilar must already be “licensed” at the time the applicant gives notice. 794 F.3d, at 1358.
+
+We disagree. The applicant must give “notice” at least 180 days “before the date of the first commercial marketing.” “[C]ommercial marketing,” in turn, must be “of the biological product licensed under subsection (k).” §262(l)(8)(A). Because this latter phrase modifies “commercial marketing” rather than “notice,” “commercial marketing” is the point in time by which the biosimilar must be “licensed.” The statute’s use of the word “licensed” merely reflects the fact that, on the “date of the first commercial marketing,” the product must be “licensed.” See §262(a)(1)(A). Accordingly, the applicant may provide notice either before or after receiving FDA approval.
+
+Statutory context confirms this interpretation. Section 262(l)(8)(A) contains a single timing requirement: The applicant must provide notice at least 180 days prior to marketing its biosimilar. The Federal Circuit, however, interpreted the provision to impose two timing requirements: The applicant must provide notice after the FDA licenses the biosimilar and at least 180 days before the applicant markets the biosimilar. An adjacent provision expressly sets forth just that type of dual timing requirement. See §262(l)(8)(B) (“After receiving notice under subparagraph (A) and before such date of the first commercial marketing of such biological product, the reference product sponsor may seek a preliminary injunction” (emphasis added)). But Congress did not use that structure in §262(l)(8)(A). “Had Congress intended to” impose two timing requirements in §262(l)(8)(A), “it presumably would have done so expressly as it did in the immediately following” subparagraph. Russello v. United States, 464 U.S. 16, 23 (1983).
+
+We are not persuaded by Amgen’s arguments to the contrary. Amgen points out that other provisions refer to “ ‘the biological product that is the subject of ’ ” the application, rather than the “ ‘biological product licensed under subsection (k).’ ” Brief for Amgen Inc. et al. 28 (emphasis added). In its view, this variation “is a strong textual indication that §262(l)(8)(A), unlike the other provisions, refers to a product that has already been ‘licensed’ by the FDA.” Ibid.
+
+Amgen’s interpretation is not necessary to harmonize Congress’ use of the two different phrases. The provision upon which Amgen primarily relies (and that is generally illustrative of the other provisions it cites) requires the applicant to explain why the sponsor’s patents are “ ‘invalid, unenforceable, or will not be infringed by the commercial marketing of the biological product that is the subject of the subsection (k) application.’ ” Id., at 29–30 (quoting §262(l)(3)(B)(ii)(I); emphasis deleted). This provision uses the phrase “subject of the subsection (k) application” rather than “product licensed under subsection (k)” because the applicant can evaluate validity, enforceability, and infringement with respect to the biosimilar only as it exists when the applicant is conducting the evaluation, which it does before licensure. The applicant cannot make the same evaluation with respect to the biosimilar as it will exist after licensure, because the biosimilar’s specifications may change during the application process. See, e.g., 794 F.3d, at 1358. In contrast, nothing in §262(l)(8)(A) turns on the precise status or characteristics of the biosimilar application.
+
+Amgen also advances a host of policy arguments that prelicensure notice is undesirable. See Brief for Amgen Inc. et al. 35–42. Sandoz and the Government, in turn, respond with their own bevy of arguments that Amgen’s concerns are misplaced and that prelicensure notice affirmatively furthers Congress’ intent. See Brief for Sandoz Inc. 39–42, 56; Brief for United States as Amicus Curiae 28–29. The plausibility of the contentions on both sides illustrates why such disputes are appropriately addressed to Congress, not the courts. Even if we were persuaded that Amgen had the better of the policy arguments, those arguments could not overcome the statute’s plain language, which is our “primary guide” to Congress’ preferred policy. McFarland v. Scott, 512 U.S. 849, 865 (1994) (THOMAS, J., dissenting).
+
+In sum, because Sandoz fully complied with §262(l)(8)(A) when it first gave notice (before licensure) in July 2014, the Federal Circuit erred in issuing a federal injunction prohibiting Sandoz from marketing Zarxio until 180 days after licensure. Furthermore, because Amgen’s request for state-law relief is predicated on its argument that the BPCIA forbids prelicensure notice, its claim under California’s unfair competition law also fails. We accordingly reverse the Federal Circuit’s judgment as to the notice provision.
+",analysis,Timing Requirements,strongly disagree,The Timeliness of the Biosimilar,strongly disagree,The Issue of Provide Notice,4
+G16,13,0,1,*,"For the foregoing reasons, the judgment of the Court of Appeals is vacated in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.
+",conclusion,on remand for further proceedings,agree,order of remand,agree,Supreme Court's holding,5
+G16,15,0,1,I,"
+
+Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an “interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute . . . upon the ground of the unconstitutionality of such statute.” 28 U. S. C. §2281 (1970 ed.), repealed, Pub. L. 94–381, §1, 90 Stat. 1119. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3–12 (1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U. S. C. §1253.
+
+In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94–381, §1, 90 Stat. 1119 (repealing 28 U. S. C. §2281), but was mandated for “an action . . . challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” Id., §3, now codified at 28 U. S. C. §2284(a).
+
+Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: “The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(1) (1970 ed.). The amended statute provides: “Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(b)(1) (2012 ed.) (emphasis added). The dispute here concerns the scope of the italicized text.
+
+In response to the 2010 Census, Maryland enacted a statute in October 2011 establishing—or, more pejoratively, gerrymandering—the districts for the State’s eight congressional seats. Dissatisfied with the crazy-quilt results, see App. to Pet. for Cert. 23a, petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court. Their amended complaint alleges, inter alia, that Maryland’s redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case.
+
+The District Judge, however, thought the claim “not one for which relief can be granted.” Benisek v. Mack, 11 F. Supp. 3d 516, 526 (Md. 2014). “[N]othing about the congressional districts at issue in this case affects in any proscribed way [petitioners’] ability to participate in the political debate in any of the Maryland congressional districts in which they might find themselves. They are free to join preexisting political committees, form new ones, or use whatever other means are at their disposal to influence the opinions of their congressional representatives.” Ibid. (brackets, ellipsis, and internal quotation marks omitted).
+
+For that reason, instead of notifying the Chief Judge of the Circuit of the need for a three-judge court, the District Judge dismissed the action. The Fourth Circuit summarily affirmed in an unpublished disposition. Benisek v. Mack, 584 Fed. Appx. 140 (CA4 2014). Seeking review in this Court, petitioners pointed out that at least two other Circuits consider it reversible error for a district judge to dismiss a case under §2284 for failure to state a claim for relief rather than refer it for transfer to a three-judge court. See LaRouche v. Fowler, 152 F. 3d 974, 981–983 (CADC 1998); LULAC v. Texas, 113 F. 3d 53, 55–56 (CA5 1997) (per curiam). We granted certiorari. Shapiro v. Mack, 576 U. S. ___ (2015).",introduction,Three-Judge District Court Decisions,strongly agree,The Three-Judge District Court,strongly agree,,1
+G16,15,0,2,A,"Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an “interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute . . . upon the ground of the unconstitutionality of such statute.” 28 U. S. C. §2281 (1970 ed.), repealed, Pub. L. 94–381, §1, 90 Stat. 1119. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3–12 (1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U. S. C. §1253.
+
+In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94–381, §1, 90 Stat. 1119 (repealing 28 U. S. C. §2281), but was mandated for “an action . . . challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” Id., §3, now codified at 28 U. S. C. §2284(a).
+
+Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: “The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(1) (1970 ed.). The amended statute provides: “Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(b)(1) (2012 ed.) (emphasis added). The dispute here concerns the scope of the italicized text.",facts,Three-judge district courts,agree,The Three-Judge Court,agree,Historical review of the composition of the Three-Judge District courts,1
+G16,15,0,2,B,"In response to the 2010 Census, Maryland enacted a statute in October 2011 establishing—or, more pejoratively, gerrymandering—the districts for the State’s eight congressional seats. Dissatisfied with the crazy-quilt results, see App. to Pet. for Cert. 23a, petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court. Their amended complaint alleges, inter alia, that Maryland’s redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case.
+
+The District Judge, however, thought the claim “not one for which relief can be granted.” Benisek v. Mack, 11 F. Supp. 3d 516, 526 (Md. 2014). “[N]othing about the congressional districts at issue in this case affects in any proscribed way [petitioners’] ability to participate in the political debate in any of the Maryland congressional districts in which they might find themselves. They are free to join preexisting political committees, form new ones, or use whatever other means are at their disposal to influence the opinions of their congressional representatives.” Ibid. (brackets, ellipsis, and internal quotation marks omitted).
+
+For that reason, instead of notifying the Chief Judge of the Circuit of the need for a three-judge court, the District Judge dismissed the action. The Fourth Circuit summarily affirmed in an unpublished disposition. Benisek v. Mack, 584 Fed. Appx. 140 (CA4 2014). Seeking review in this Court, petitioners pointed out that at least two other Circuits consider it reversible error for a district judge to dismiss a case under §2284 for failure to state a claim for relief rather than refer it for transfer to a three-judge court. See LaRouche v. Fowler, 152 F. 3d 974, 981–983 (CADC 1998); LULAC v. Texas, 113 F. 3d 53, 55–56 (CA5 1997) (per curiam). We granted certiorari. Shapiro v. Mack, 576 U. S. ___ (2015).",facts,Petitioners’ Suit in Federal District Court,agree,The Maryland Redistricting Plan,agree,Request to convene a Three-judge court to hear the case,2
+G16,15,0,1,II,"Petitioners’ sole contention is that the District Judge had no authority to dismiss the case rather than initiate the procedures to convene a three-judge court. Not so, argue respondents; the 1976 addition to §2284(b)(1) of the clause “unless he determines that three judges are not required” is precisely such a grant of authority. Moreover, say respondents, Congress declined to specify a standard to constrain the exercise of this authority. Choosing, as the District Judge did, the familiar standard for dismissal under Federal Rule of Civil Procedure 12(b)(6) best serves the purposes of a three-judge court, which (in respondents’ view) is to protect States from “hasty, imprudent invalidation” of their statutes by rogue district judges acting alone. Brief for Respondents 27.
+
+Whatever the purposes of a three-judge court may be, respondents’ argument needlessly produces a contradiction in the statutory text. That text’s initial prescription could not be clearer: “A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts . . . .” 28 U. S. C. §2284(a) (emphasis added). Nobody disputes that the present suit is “an action . . . challenging the constitutionality of the apportionment of congressional districts.” It follows that the district judge was required to refer the case to a three-judge court, for §2284(a) admits of no exception, and “the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998); see also National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 661–662 (2007) (same).
+
+The subsequent provision of §2284(b)(1), that the district judge shall commence the process for appointment of a three-judge panel “unless he determines that three judges are not required,” need not and therefore should not be read as a grant of discretion to the district judge to ignore §2284(a). It is not even framed as a proviso, or an exception from that provision, but rather as an administrative detail that is entirely compatible with §2284(a). The old §2284(1) triggered the district judge’s duty to refer the matter for the convening of a three-judge court “[o]n the filing of the application” to enjoin an unconstitutional state law. By contrast, the current §2284(b)(1) triggers the district judge’s duty “[u]pon the filing of a request for three judges” (emphasis added). But of course a party may—whether in good faith or bad, through ignorance or hope or malice—file a request for a three-judge court even if the case does not merit one under §2284(a). Section 2284(b)(1) merely clarifies that a district judge need not unthinkingly initiate the procedures to convene a threejudge court without first examining the allegations in the complaint. In short, all the district judge must “determin[e]” is whether the “request for three judges” is made in a case covered by §2284(a)—no more, no less.
+
+That conclusion is bolstered by §2284(b)(3)’s explicit command that “[a] single judge shall not . . . enter judgment on the merits.” It would be an odd interpretation that allowed a district judge to do under §2284(b)(1) what he is forbidden to do under §2284(b)(3). More likely that Congress intended a three-judge court, and not a single district judge, to enter all final judgments in cases satisfying the criteria of §2284(a).",analysis,Dismissal of the Case,strongly agree,The District Judge’s Authority to Dismiss,strongly agree,Petitioners' contention on the Authority of the District Court to dismiss the case,2
+G16,15,0,1,III,"Respondents argue in the alternative that a district judge is not required to refer a case for the convening of a three-judge court if the constitutional claim is (as they assert petitioners’ claim to be) “insubstantial.” In Goosby v. Osser, 409 U. S. 512 (1973), we stated that the filing of a “constitutionally insubstantial” claim did not trigger the three-judge-court requirement under the pre-1976 statutory regime. Id., at 518. Goosby rested not on an interpretation of statutory text, but on the familiar proposition that “[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented.” Ex parte Poresky, 290 U. S. 30, 31 (1933) (per curiam) (emphasis added). Absent a substantial federal question, even a single-judge district court lacks jurisdiction, and “[a] three-judge court is not required where the district court itself lacks jurisdiction of the complaint or the complaint is not justiciable in the federal courts.” Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 100 (1974).
+
+In the present case, however, the District Judge dismissed petitioners’ complaint not because he thought he lacked jurisdiction, but because he concluded that the allegations failed to state a claim for relief on the merits, citing Ashcroft v. Iqbal, 556 U. S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007). See 11 F. Supp. 3d, at 520. That was in accord with Fourth Circuit precedent, which holds that where the “pleadings do not state a claim, then by definition they are insubstantial and so properly are subject to dismissal by the district court without convening a three-judge court.” Duckworth v. State Admin. Bd. of Election Laws, 332 F. 3d 769, 772– 773 (CA4 2003) (emphasis added).
+
+We think this standard both too demanding and inconsistent with our precedents. “[C]onstitutional claims will not lightly be found insubstantial for purposes of ” the three-judge-court statute. Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 147–148 (1980). We have long distinguished between failing to raise a substantial federal question for jurisdictional purposes—which is what Goosby addressed—and failing to state a claim for relief on the merits; only “wholly insubstantial and frivolous” claims implicate the former. Bell v. Hood, 327 U. S. 678, 682–683 (1946); see also Hannis Distilling Co. v. Mayor and City Council of Baltimore, 216 U. S. 285, 288 (1910) (“obviously frivolous or plainly insubstantial”); Bailey v. Patterson, 369 U. S. 31, 33 (1962) (per curiam) (“wholly insubstantial,” “legally speaking non-existent,” “essentially fictitious”); Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (“frivolous or immaterial”). Absent such frivolity, “the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Bell, supra, at 682. Consistent with this principle, Goosby clarified that “ ‘[c]onstitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously without merit.’ ” 409 U. S., at 518 (citations omitted). And the adverbs were no mere throwaways; “[t]he limiting words ‘wholly’ and ‘obviously’ have cogent legal significance.” Ibid.
+
+Without expressing any view on the merits of petitioners’ claim, we believe it easily clears Goosby’s low bar; after all, the amended complaint specifically challenges Maryland’s apportionment “along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U. S. 267 (2004)].” App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, JUSTICE KENNEDY, concurring in the judgment, surmised that if “a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. . . . Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315 (2004). Whatever “wholly insubstantial,” “obviously frivolous,” etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as “constitutionally insubstantial” under Goosby. Perhaps petitioners will ultimately fail on the merits of their suit, but §2284 entitles them to make their case before a threejudge district court.
+",analysis,The Three-Judge-Court Requirement,strongly agree,The Three-Judge Requirement,strongly agree,Defendant's contention on the requirement to Refer the Case to a Three-judge court,3
+G16,15,0,1,*,"The judgment of the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.
+",conclusion, order remanding for further proceedings,agree,The Fourth Circuit's Order,strongly disagree,Supreme Court's holding,4
+G16,16,0,1,I,"The Freedom of Information Act (FOIA) accords ""any person"" a right to request any records held by a federal agency. 5 U.S.C. § 552(a)(3)(A) (2006 ed.). No reason need be given for a FOIA request, and unless the requested materials fall within one of the Act's enumerated exemptions, see § 552(a)(3)(E), (b), the agency must ""make the records promptly available"" to the requester, § 552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction ""order[ing] the production of any agency records improperly withheld."" § 552(a)(4)(B).
+
+The courts below held the instant FOIA suit barred by the judgment in earlier litigation seeking the same records. Because the lower courts' decisions turned on the connection between the two lawsuits, we begin with a full account of each action.
+
+The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F-45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930's. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F-45 contained in the agency's records.
+
+To gain a certificate authorizing the manufacture and sale of the F-45, FEAC had submitted to the FAA's predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA's records. The FAA denied Herrick's request, however, upon finding that the documents he sought are subject to FOIA's exemption for ""trade secrets and commercial or financial information obtained from a person and privileged or confidential,"" 5 U.S.C. § 552(b)(4) (2006 ed.). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC's corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision.
+
+Herrick then filed suit in the U.S. District Court for the District of Wyoming. Challenging the FAA's invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public ""for use in making repairs or replacement parts for aircraft produced by Fairchild."" Herrick v. Garvey, 298 F.3d 1184, 1193 (C.A.10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F-45 certification records held by the FAA could not be regarded as ""secre[t]"" or ""confidential"" within the meaning of § 552(b)(4).
+
+Rejecting Herrick's argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328-1329 (D.Wyo.2000). The 1955 letter, the court reasoned, did not deprive the F-45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter's blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully ""reversed"" the waiver by objecting to the FAA's release of the records to Herrick. Ibid.
+
+On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F.3d, at 1194. But the Court of Appeals upheld the District Court's alternative determination _x0097_i.e., that Fairchild had restored trade-secret status by objecting to Herrick's FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA.
+
+In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court's decision. First, the District Court assumed trade-secret status could be ""restored"" to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only ""after Herrick had initiated his request"" for the F-45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194-1195, n. 10.
+
+The Tenth Circuit's decision issued on July 24, 2002. Less than a month later, on August 22, petitioner Brent Taylor_x0097_a friend of Herrick's and an antique aircraft enthusiast in his own right_x0097_submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U.S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC's 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit.
+
+After Fairchild intervened as a defendant,[1] the District Court in D.C. concluded that Taylor's suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick's suit. Relying on the Eighth Circuit's decision in Tyus v. Schoemehl, 93 F.3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was ""virtually represented"" by a party. App. to Pet. for Cert. 30a-31a.
+
+The Eighth Circuit's seven-factor test for virtual representation, adopted by the District Court in Taylor's case, requires an ""identity of interests"" between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F.3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit's test, but are not prerequisites: (1) a ""close relationship"" between the present party and a party to the judgment alleged to be preclusive; (2) ""participation in the prior litigation"" by the present party; (3) the present party's ""apparent acquiescence"" to the preclusive effect of the judgment; (4) ""deliberat[e] maneuver[ing]"" to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a ""public law"" rather than a ""private law"" issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F.3d, at 454-456). These factors, the D.C. District Court observed, ""constitute a fluid test with imprecise boundaries"" and call for ""a broad, case-by-case inquiry."" App. to Pet. for Cert. 32a.
+
+The record before the District Court in Taylor's suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are ""close associate[s],"" App. 54; Herrick asked Taylor to help restore Herrick's F-45, though they had no contract or agreement for Taylor's participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit.
+
+Fairchild and the FAA conceded that Taylor had not participated in Herrick's suit. App. to Pet. for Cert. 32a. The D.C. District Court determined, however, that Herrick ranked as Taylor's virtual representative because the facts fit each of the other six indicators on the Eighth Circuit's list. See id., at 32a-35a. Accordingly, the District Court held Taylor's suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a.
+
+The D.C. Circuit affirmed. It observed, first, that other Circuits ""vary widely"" in their approaches to virtual representation. Taylor v. Blakey, 490 F.3d 965, 971 (2007). In this regard, the D.C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D.C. District Court with the Fourth Circuit's narrower approach, which ""treats a party as a virtual representative only if the party is `accountable to the nonparties who file a subsequent suit' and has `the tacit approval of the court' to act on the nonpart[ies'] behalf."" Ibid. (quoting Klugh v. United States, 818 F.2d 294, 300 (C.A.4 1987)).
+
+Rejecting both of these approaches, the D.C. Circuit announced its own five-factor test. The first two factors_x0097_""identity of interests"" and ""adequate representation""_x0097_ are necessary but not sufficient for virtual representation. 490 F.3d, at 971-972. In addition, at least one of three other factors must be established: ""a close relationship between the present party and his putative representative,"" ""substantial participation by the present party in the first case,"" or ""tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment."" Id., at 972.
+
+Applying this test to the record in Taylor's case, the D.C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result_x0097_release of the F-45 documents. Moreover, the D.C. Circuit observed, Herrick owned an F-45 airplane, and therefore had ""if anything, a stronger incentive to litigate"" than Taylor, who had only a ""general interest in public disclosure and the preservation of antique aircraft heritage."" Id., at 973 (internal quotation marks omitted).
+
+Turning to adequacy of representation, the D.C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973-974 (citing Perez v. Volvo Car Corp., 247 F.3d 303, 312 (C.A.1 2001), and Tice v. American Airlines, Inc., 162 F.3d 966, 973 (C.A.7 1998)). Disagreeing with these courts, the D.C. Circuit deemed notice an ""important"" but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick's suit. For this conclusion, the appeals court relied on Herrick's ""strong incentive to litigate"" and Taylor's later engagement of the same attorney, which indicated to the court Taylor's satisfaction with that attorney's performance in Herrick's case. See 490 F.3d, at 974-975.
+
+The D.C. Circuit also found its ""close relationship"" criterion met, for Herrick had ""asked Taylor to assist him in restoring his F-45"" and ""provided information to Taylor that Herrick had obtained through discovery""; furthermore, Taylor ""did not oppose Fairchild's characterization of Herrick as his `close associate.'"" Id., at 975. Because the three above-described factors sufficed to establish virtual representation under the D.C. Circuit's five-factor test, the appeals court left open the question whether Taylor had engaged in ""tactical maneuvering."" See id., at 976 (calling the facts bearing on tactical maneuvering ""ambigu[ous]"").[2]
+
+We granted certiorari, 552 U.S. ___, 128 S. Ct. 977, 169 L. Ed. 2d 800 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on ""virtual representation.""[3]",introduction,The First FOIA Suit,strongly disagree, The FOIA Suit,strongly disagree,The Freedom of Information Act (FOIA) and the Right to Request any Federal Agency Records,1
+G16,16,0,2,A,"The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F-45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930's. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F-45 contained in the agency's records.
+
+To gain a certificate authorizing the manufacture and sale of the F-45, FEAC had submitted to the FAA's predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA's records. The FAA denied Herrick's request, however, upon finding that the documents he sought are subject to FOIA's exemption for ""trade secrets and commercial or financial information obtained from a person and privileged or confidential,"" 5 U.S.C. § 552(b)(4) (2006 ed.). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC's corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision.
+
+Herrick then filed suit in the U.S. District Court for the District of Wyoming. Challenging the FAA's invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public ""for use in making repairs or replacement parts for aircraft produced by Fairchild."" Herrick v. Garvey, 298 F.3d 1184, 1193 (C.A.10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F-45 certification records held by the FAA could not be regarded as ""secre[t]"" or ""confidential"" within the meaning of § 552(b)(4).
+
+Rejecting Herrick's argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328-1329 (D.Wyo.2000). The 1955 letter, the court reasoned, did not deprive the F-45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter's blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully ""reversed"" the waiver by objecting to the FAA's release of the records to Herrick. Ibid.
+
+On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F.3d, at 1194. But the Court of Appeals upheld the District Court's alternative determination _x0097_i.e., that Fairchild had restored trade-secret status by objecting to Herrick's FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA.
+
+In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court's decision. First, the District Court assumed trade-secret status could be ""restored"" to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only ""after Herrick had initiated his request"" for the F-45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194-1195, n. 10.",facts, The Herrick Suit,strongly agree,Herrick v. FAA,strongly agree,First Lawsuit to Request Documents from the Federal Aviation Administration (FAA),1
+G16,16,0,2,B,"The Tenth Circuit's decision issued on July 24, 2002. Less than a month later, on August 22, petitioner Brent Taylor_x0097_a friend of Herrick's and an antique aircraft enthusiast in his own right_x0097_submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U.S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC's 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit.
+
+After Fairchild intervened as a defendant,[1] the District Court in D.C. concluded that Taylor's suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick's suit. Relying on the Eighth Circuit's decision in Tyus v. Schoemehl, 93 F.3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was ""virtually represented"" by a party. App. to Pet. for Cert. 30a-31a.
+
+The Eighth Circuit's seven-factor test for virtual representation, adopted by the District Court in Taylor's case, requires an ""identity of interests"" between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F.3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit's test, but are not prerequisites: (1) a ""close relationship"" between the present party and a party to the judgment alleged to be preclusive; (2) ""participation in the prior litigation"" by the present party; (3) the present party's ""apparent acquiescence"" to the preclusive effect of the judgment; (4) ""deliberat[e] maneuver[ing]"" to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a ""public law"" rather than a ""private law"" issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F.3d, at 454-456). These factors, the D.C. District Court observed, ""constitute a fluid test with imprecise boundaries"" and call for ""a broad, case-by-case inquiry."" App. to Pet. for Cert. 32a.
+
+The record before the District Court in Taylor's suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are ""close associate[s],"" App. 54; Herrick asked Taylor to help restore Herrick's F-45, though they had no contract or agreement for Taylor's participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit.
+
+Fairchild and the FAA conceded that Taylor had not participated in Herrick's suit. App. to Pet. for Cert. 32a. The D.C. District Court determined, however, that Herrick ranked as Taylor's virtual representative because the facts fit each of the other six indicators on the Eighth Circuit's list. See id., at 32a-35a. Accordingly, the District Court held Taylor's suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a.
+
+The D.C. Circuit affirmed. It observed, first, that other Circuits ""vary widely"" in their approaches to virtual representation. Taylor v. Blakey, 490 F.3d 965, 971 (2007). In this regard, the D.C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D.C. District Court with the Fourth Circuit's narrower approach, which ""treats a party as a virtual representative only if the party is `accountable to the nonparties who file a subsequent suit' and has `the tacit approval of the court' to act on the nonpart[ies'] behalf."" Ibid. (quoting Klugh v. United States, 818 F.2d 294, 300 (C.A.4 1987)).
+
+Rejecting both of these approaches, the D.C. Circuit announced its own five-factor test. The first two factors_x0097_""identity of interests"" and ""adequate representation""_x0097_ are necessary but not sufficient for virtual representation. 490 F.3d, at 971-972. In addition, at least one of three other factors must be established: ""a close relationship between the present party and his putative representative,"" ""substantial participation by the present party in the first case,"" or ""tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment."" Id., at 972.
+
+Applying this test to the record in Taylor's case, the D.C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result_x0097_release of the F-45 documents. Moreover, the D.C. Circuit observed, Herrick owned an F-45 airplane, and therefore had ""if anything, a stronger incentive to litigate"" than Taylor, who had only a ""general interest in public disclosure and the preservation of antique aircraft heritage."" Id., at 973 (internal quotation marks omitted).
+
+Turning to adequacy of representation, the D.C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973-974 (citing Perez v. Volvo Car Corp., 247 F.3d 303, 312 (C.A.1 2001), and Tice v. American Airlines, Inc., 162 F.3d 966, 973 (C.A.7 1998)). Disagreeing with these courts, the D.C. Circuit deemed notice an ""important"" but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick's suit. For this conclusion, the appeals court relied on Herrick's ""strong incentive to litigate"" and Taylor's later engagement of the same attorney, which indicated to the court Taylor's satisfaction with that attorney's performance in Herrick's case. See 490 F.3d, at 974-975.
+
+The D.C. Circuit also found its ""close relationship"" criterion met, for Herrick had ""asked Taylor to assist him in restoring his F-45"" and ""provided information to Taylor that Herrick had obtained through discovery""; furthermore, Taylor ""did not oppose Fairchild's characterization of Herrick as his `close associate.'"" Id., at 975. Because the three above-described factors sufficed to establish virtual representation under the D.C. Circuit's five-factor test, the appeals court left open the question whether Taylor had engaged in ""tactical maneuvering."" See id., at 976 (calling the facts bearing on tactical maneuvering ""ambigu[ous]"").[2]
+
+We granted certiorari, 552 U.S. ___, 128 S. Ct. 977, 169 L. Ed. 2d 800 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on ""virtual representation.""[3]",facts,Taylor v. Fairchild,strongly disagree,The Taylor Case,strongly agree,Second Lawsuit to Request Documents from the Federal Aviation Administration (FAA),2
+G16,16,0,1,II,"The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-508, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001). For judgments in federal-question cases_x0097_ for example, Herrick's FOIA suit _x0097_ federal courts participate in developing ""uniform federal rule[s]"" of res judicata, which this Court has ultimate authority to determine and declare. Id., at 508, 121 S. Ct. 1021.[4] The federal common law of preclusion is, of course, subject to due process limitations. See Richards v. Jefferson County, 517 U.S. 793, 797, 116 S. Ct. 1761, 135 L. Ed. 2d 76 (1996).
+
+Taylor's case presents an issue of first impression in this sense: Until now, we have never addressed the doctrine of ""virtual representation"" adopted (in varying forms) by several Circuits and relied upon by the courts below. Our inquiry, however, is guided by well-established precedent regarding the propriety of nonparty preclusion. We review that precedent before taking up directly the issue of virtual representation.
+
+The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ""res judicata.""[5] Under the doctrine of claim preclusion, a final judgment forecloses ""successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit."" New Hampshire v. Maine, 532 U.S. 742, 748, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). Issue preclusion, in contrast, bars ""successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,"" even if the issue recurs in the context of a different claim. Id., at 748-749, 121 S. Ct. 1808. By ""preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,"" these two doctrines protect against ""the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions."" Montana v. United States, 440 U.S. 147, 153-154, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979).
+
+A person who was not a party to a suit generally has not had a ""full and fair opportunity to litigate"" the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the ""deep-rooted historic tradition that everyone should have his own day in court."" Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that ""one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process."" Hansberry, 311 U.S., at 40, 61 S. Ct. 115. See also, e.g., Richards, 517 U.S., at 798, 116 S. Ct. 1761; Martin v. Wilks, 490 U.S. 755, 761, 109 S. Ct. 2180, 104 L. Ed. 2d 835 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969).
+
+Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present purposes, the recognized exceptions can be grouped into six categories.[6]
+
+First, ""[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement."" 1 Restatement (Second) of Judgments § 40, p. 390 (1980) (hereinafter Restatement). For example, ""if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant's liability will be definitely determined, one way or the other, in a `test case.'"" D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77-78 (2001) (hereinafter Shapiro). See also California v. Texas, 459 U.S. 1096, 1097, 103 S. Ct. 714, 74 L. Ed. 2d 944 (1983) (dismissing certain defendants from a suit based on a stipulation ""that each of said defendants . . . will be bound by a final judgment of this Court"" on a specified issue).[7]
+
+Second, nonparty preclusion may be justified based on a variety of pre-existing ""substantive legal relationship[s]"" between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U.S., at 798, 116 S. Ct. 1761. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§ 43-44, 52, 55. These exceptions originated ""as much from the needs of property law as from the values of preclusion by judgment."" 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4448, p. 329 (2d ed.2002) (hereinafter Wright & Miller).[8]
+
+Third, we have confirmed that, ""in certain limited circumstances,"" a nonparty may be bound by a judgment because she was ""adequately represented by someone with the same interests who [wa]s a party"" to the suit. Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974). See also 1 Restatement § 41.
+
+Fourth, a nonparty is bound by a judgment if she ""assume[d] control"" over the litigation in which that judgment was rendered. Montana, 440 U.S., at 154, 99 S. Ct. 970. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 262, n. 4, 81 S. Ct. 557, 5 L. Ed. 2d 546 (1961); 1 Restatement § 39. Because such a person has had ""the opportunity to present proofs and argument,"" he has already ""had his day in court"" even though he was not a formal party to the litigation. Id., Comment a, p. 382.
+
+Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R.I. & P.R. Co. v. Schendel, 270 U.S. 611, 620, 623, 46 S. Ct. 420, 70 L. Ed. 757 (1926); 18A Wright & Miller § 4454, pp. 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment. See id., § 4449, p. 335.
+
+Sixth, in certain circumstances a special statutory scheme may ""expressly foreclos[e] successive litigation by nonlitigants. . . if the scheme is otherwise consistent with due process."" Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180. Examples of such schemes include bankruptcy and probate proceedings, see ibid., and quo warranto actions or other suits that, ""under [the governing] law, [may] be brought only on behalf of the public at large,"" Richards, 517 U.S., at 804, 116 S. Ct. 1761.",analysis,The Federal Common Law of Preclusion,agree,The Preclusion of Virtual Representation,agree,The Issue of Virtual Representation,2
+G16,16,0,2,A,"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ""res judicata.""[5] Under the doctrine of claim preclusion, a final judgment forecloses ""successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit."" New Hampshire v. Maine, 532 U.S. 742, 748, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). Issue preclusion, in contrast, bars ""successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,"" even if the issue recurs in the context of a different claim. Id., at 748-749, 121 S. Ct. 1808. By ""preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,"" these two doctrines protect against ""the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions."" Montana v. United States, 440 U.S. 147, 153-154, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979).
+
+A person who was not a party to a suit generally has not had a ""full and fair opportunity to litigate"" the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the ""deep-rooted historic tradition that everyone should have his own day in court."" Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that ""one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process."" Hansberry, 311 U.S., at 40, 61 S. Ct. 115. See also, e.g., Richards, 517 U.S., at 798, 116 S. Ct. 1761; Martin v. Wilks, 490 U.S. 755, 761, 109 S. Ct. 2180, 104 L. Ed. 2d 835 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969).",analysis,Claim Preclusion and Issue Preclusion,strongly agree,The Preclusive Effect of the Judgment,strongly agree,Preclusive Effect with nonparties,1
+G16,16,0,2,B,"Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present purposes, the recognized exceptions can be grouped into six categories.[6]
+
+First, ""[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement."" 1 Restatement (Second) of Judgments § 40, p. 390 (1980) (hereinafter Restatement). For example, ""if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant's liability will be definitely determined, one way or the other, in a `test case.'"" D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77-78 (2001) (hereinafter Shapiro). See also California v. Texas, 459 U.S. 1096, 1097, 103 S. Ct. 714, 74 L. Ed. 2d 944 (1983) (dismissing certain defendants from a suit based on a stipulation ""that each of said defendants . . . will be bound by a final judgment of this Court"" on a specified issue).[7]
+
+Second, nonparty preclusion may be justified based on a variety of pre-existing ""substantive legal relationship[s]"" between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U.S., at 798, 116 S. Ct. 1761. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§ 43-44, 52, 55. These exceptions originated ""as much from the needs of property law as from the values of preclusion by judgment."" 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4448, p. 329 (2d ed.2002) (hereinafter Wright & Miller).[8]
+
+Third, we have confirmed that, ""in certain limited circumstances,"" a nonparty may be bound by a judgment because she was ""adequately represented by someone with the same interests who [wa]s a party"" to the suit. Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974). See also 1 Restatement § 41.
+
+Fourth, a nonparty is bound by a judgment if she ""assume[d] control"" over the litigation in which that judgment was rendered. Montana, 440 U.S., at 154, 99 S. Ct. 970. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 262, n. 4, 81 S. Ct. 557, 5 L. Ed. 2d 546 (1961); 1 Restatement § 39. Because such a person has had ""the opportunity to present proofs and argument,"" he has already ""had his day in court"" even though he was not a formal party to the litigation. Id., Comment a, p. 382.
+
+Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R.I. & P.R. Co. v. Schendel, 270 U.S. 611, 620, 623, 46 S. Ct. 420, 70 L. Ed. 757 (1926); 18A Wright & Miller § 4454, pp. 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment. See id., § 4449, p. 335.
+
+Sixth, in certain circumstances a special statutory scheme may ""expressly foreclos[e] successive litigation by nonlitigants. . . if the scheme is otherwise consistent with due process."" Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180. Examples of such schemes include bankruptcy and probate proceedings, see ibid., and quo warranto actions or other suits that, ""under [the governing] law, [may] be brought only on behalf of the public at large,"" Richards, 517 U.S., at 804, 116 S. Ct. 1761.",analysis,Exceptions to Preclusion,strongly agree,The Exceptions,strongly agree,Exceptions to Nonparty Preclusion,2
+G16,16,0,1,III,"Reaching beyond these six established categories, some lower courts have recognized a ""virtual representation"" exception to the rule against nonparty preclusion. Decisions of these courts, however, have been far from consistent. See 18A Wright & Miller § 4457, p. 513 (virtual representation lacks a ""clear or coherent theory""; decisions applying it have ""an episodic quality""). Some Circuits use the label, but define ""virtual representation"" so that it is no broader than the recognized exception for adequate representation. See, e.g., Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F.3d 415, 423, 427 (C.A.6 1999). But other courts, including the Eighth, Ninth, and D.C. Circuits, apply multifactor tests for virtual representation that permit nonparty preclusion in cases that do not fit within any of the established exceptions. See supra, at 2168-2170, and n. 3.
+
+The D.C. Circuit, the FAA, and Fairchild have presented three arguments in support of an expansive doctrine of virtual representation. We find none of them persuasive.
+
+The D.C. Circuit purported to ground its virtual representation doctrine in this Court's decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F.3d, at 970-971. But the D.C. Circuit's definition of ""adequate representation"" strayed from the meaning our decisions have attributed to that term.
+
+In Richards, we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U.S., at 795-797, 116 S. Ct. 1761. The plaintiffs in the first suit ""did not sue on behalf of a class,"" their complaint ""did not purport to assert any claim against or on behalf of any nonparties,"" and the judgment ""did not purport to bind"" nonparties. Id., at 801, 116 S. Ct. 1761. There was no indication, we emphasized, that the court in the first suit ""took care to protect the interests"" of absent parties, or that the parties to that litigation ""understood their suit to be on behalf of absent [parties]."" Id., at 802, 116 S. Ct. 1761. In these circumstances, we held, the application of claim preclusion was inconsistent with ""the due process of law guaranteed by the Fourteenth Amendment."" Id., at 797, 116 S. Ct. 1761.
+
+The D.C. Circuit stated, without elaboration, that it did not ""read Richards to hold a nonparty . . . adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty."" 490 F.3d, at 971. As the D.C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick's lawyer, suggesting Taylor's ""satisfaction with the attorney's performance in the prior case."" Id., at 975.
+
+The D.C. Circuit misapprehended Richards. As just recounted, our holding that the Alabama Supreme Court's application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties' interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761. Richards thus established that representation is ""adequate"" for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present.
+
+We restated Richards' core holding in South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180, 143 L. Ed. 2d 258 (1999). In that case, as in Richards, the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U.S., at 164-165, 119 S. Ct. 1180. In South Central Bell, however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id., at 167-168, 119 S. Ct. 1180. Under the D.C. Circuit's decision in Taylor's case, these factors apparently would have sufficed to establish adequate representation. See 490 F.3d, at 973-975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U.S., at 168, 119 S. Ct. 1180.
+
+Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D.C. Circuit's broad theory of virtual representation.
+
+Fairchild and the FAA do not argue that the D.C. Circuit's virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever ""the relationship between a party and a non-party is `close enough' to bring the second litigant within the judgment."" Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22-24. Courts should make the ""close enough"" determination, they urge, through a ""heavily fact-driven"" and ""equitable"" inquiry. Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22 (""there is no clear test"" for nonparty preclusion; rather, an ""equitable and fact-intensive"" inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fairchild and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate.
+
+We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e.g., Richards, 517 U.S., at 798-799, 116 S. Ct. 1761; Martin, 490 U.S., at 761-762, 109 S. Ct. 2180. Accordingly, we have endeavored to delineate discrete exceptions that apply in ""limited circumstances."" Id., at 762, n. 2, 109 S. Ct. 2180. Respondents' amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance.
+
+Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps, 317 U.S. 406, 411, 63 S. Ct. 291, 87 L. Ed. 363 (1943), that privity ""turns on the facts of particular cases."" See Brief for Respondent Fairchild 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test.[9] Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 334, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), which stated that estoppel questions turn on ""the trial courts' sense of justice and equity."" See Brief for Respondent Fairchild 20. This passing statement, however, was not made with nonparty preclusion in mind; it appeared in a discussion recognizing district courts' discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue, 402 U.S., at 334, 91 S. Ct. 1434.
+
+The FAA relies on United States v. Des Moines Valley R. Co., 84 F. 40 (C.A.8 1897), an opinion we quoted with approval in Schendel, 270 U.S., at 619-620, 46 S. Ct. 420. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had ""no interest in the land"" and had ""simply permitted [the landowner] to use its name as the nominal plaintiff."" 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: ""[W]here the government lends its name as a plaintiff . . . to enable one private person to maintain a suit against another,"" the government is ""subject to the same defenses which exist . . . against the real party in interest."" Id., at 43. Des Moines Valley, the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31-33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See supra, at 2172-2173.[10] We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents.
+
+Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party's representation of a nonparty is ""adequate"" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry, 311 U.S., at 43, 61 S. Ct. 115; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards, 517 U.S., at 801-802, 116 S. Ct. 1761; supra, at 2173-2174. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards, 517 U.S., at 801, 116 S. Ct. 1761.[11] In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23.
+
+An expansive doctrine of virtual representation, however, would ""recogniz[e], in effect, a common-law kind of class action."" Tice, 162 F.3d, at 972 (internal quotation marks omitted). That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry, Richards, and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to ""create de facto class actions at will."" Tice, 162 F.3d, at 973.
+
+Third, a diffuse balancing approach to nonparty preclusion would likely create more headaches than it relieves. Most obviously, it could significantly complicate the task of district courts faced in the first instance with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under seven- or five-prong tests. And after the relevant facts are established, district judges would be called upon to evaluate them under a standard that provides no firm guidance. See Tyus, 93 F.3d, at 455 (conceding that ""there is no clear test for determining the applicability of"" the virtual representation doctrine announced in that case). Preclusion doctrine, it should be recalled, is intended to reduce the burden of litigation on courts and parties. Cf. Montana, 440 U.S., at 153-154, 99 S. Ct. 970. ""In this area of the law,"" we agree, ""`crisp rules with sharp corners' are preferable to a round-about doctrine of opaque standards."" Bittinger v. Tecumseh Products Co., 123 F.3d 877, 881 (C.A.6 1997).
+",analysis,Virtual Representation,agree,Virtual Representation,agree,Arguments in support of expansive doctrine of virtual representation,3
+G16,16,0,2,A,"The D.C. Circuit purported to ground its virtual representation doctrine in this Court's decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F.3d, at 970-971. But the D.C. Circuit's definition of ""adequate representation"" strayed from the meaning our decisions have attributed to that term.
+
+In Richards, we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U.S., at 795-797, 116 S. Ct. 1761. The plaintiffs in the first suit ""did not sue on behalf of a class,"" their complaint ""did not purport to assert any claim against or on behalf of any nonparties,"" and the judgment ""did not purport to bind"" nonparties. Id., at 801, 116 S. Ct. 1761. There was no indication, we emphasized, that the court in the first suit ""took care to protect the interests"" of absent parties, or that the parties to that litigation ""understood their suit to be on behalf of absent [parties]."" Id., at 802, 116 S. Ct. 1761. In these circumstances, we held, the application of claim preclusion was inconsistent with ""the due process of law guaranteed by the Fourteenth Amendment."" Id., at 797, 116 S. Ct. 1761.
+
+The D.C. Circuit stated, without elaboration, that it did not ""read Richards to hold a nonparty . . . adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty."" 490 F.3d, at 971. As the D.C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick's lawyer, suggesting Taylor's ""satisfaction with the attorney's performance in the prior case."" Id., at 975.
+
+The D.C. Circuit misapprehended Richards. As just recounted, our holding that the Alabama Supreme Court's application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties' interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761. Richards thus established that representation is ""adequate"" for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present.
+
+We restated Richards' core holding in South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180, 143 L. Ed. 2d 258 (1999). In that case, as in Richards, the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U.S., at 164-165, 119 S. Ct. 1180. In South Central Bell, however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id., at 167-168, 119 S. Ct. 1180. Under the D.C. Circuit's decision in Taylor's case, these factors apparently would have sufficed to establish adequate representation. See 490 F.3d, at 973-975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U.S., at 168, 119 S. Ct. 1180.
+
+Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D.C. Circuit's broad theory of virtual representation.",analysis, The D.C. Circuit's View of Richards,strongly agree, The D.C. Circuit's Definition of Adequate Representation,strongly agree,Rejection of the DC Circuit’s definition of “adequate representation”,1
+G16,16,0,2,B,"Fairchild and the FAA do not argue that the D.C. Circuit's virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever ""the relationship between a party and a non-party is `close enough' to bring the second litigant within the judgment."" Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22-24. Courts should make the ""close enough"" determination, they urge, through a ""heavily fact-driven"" and ""equitable"" inquiry. Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22 (""there is no clear test"" for nonparty preclusion; rather, an ""equitable and fact-intensive"" inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fairchild and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate.
+
+We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e.g., Richards, 517 U.S., at 798-799, 116 S. Ct. 1761; Martin, 490 U.S., at 761-762, 109 S. Ct. 2180. Accordingly, we have endeavored to delineate discrete exceptions that apply in ""limited circumstances."" Id., at 762, n. 2, 109 S. Ct. 2180. Respondents' amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance.
+
+Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps, 317 U.S. 406, 411, 63 S. Ct. 291, 87 L. Ed. 363 (1943), that privity ""turns on the facts of particular cases."" See Brief for Respondent Fairchild 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test.[9] Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 334, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), which stated that estoppel questions turn on ""the trial courts' sense of justice and equity."" See Brief for Respondent Fairchild 20. This passing statement, however, was not made with nonparty preclusion in mind; it appeared in a discussion recognizing district courts' discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue, 402 U.S., at 334, 91 S. Ct. 1434.
+
+The FAA relies on United States v. Des Moines Valley R. Co., 84 F. 40 (C.A.8 1897), an opinion we quoted with approval in Schendel, 270 U.S., at 619-620, 46 S. Ct. 420. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had ""no interest in the land"" and had ""simply permitted [the landowner] to use its name as the nominal plaintiff."" 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: ""[W]here the government lends its name as a plaintiff . . . to enable one private person to maintain a suit against another,"" the government is ""subject to the same defenses which exist . . . against the real party in interest."" Id., at 43. Des Moines Valley, the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31-33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See supra, at 2172-2173.[10] We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents.
+
+Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party's representation of a nonparty is ""adequate"" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry, 311 U.S., at 43, 61 S. Ct. 115; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards, 517 U.S., at 801-802, 116 S. Ct. 1761; supra, at 2173-2174. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards, 517 U.S., at 801, 116 S. Ct. 1761.[11] In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23.
+
+An expansive doctrine of virtual representation, however, would ""recogniz[e], in effect, a common-law kind of class action."" Tice, 162 F.3d, at 972 (internal quotation marks omitted). That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry, Richards, and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to ""create de facto class actions at will."" Tice, 162 F.3d, at 973.
+
+Third, a diffuse balancing approach to nonparty preclusion would likely create more headaches than it relieves. Most obviously, it could significantly complicate the task of district courts faced in the first instance with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under seven- or five-prong tests. And after the relevant facts are established, district judges would be called upon to evaluate them under a standard that provides no firm guidance. See Tyus, 93 F.3d, at 455 (conceding that ""there is no clear test for determining the applicability of"" the virtual representation doctrine announced in that case). Preclusion doctrine, it should be recalled, is intended to reduce the burden of litigation on courts and parties. Cf. Montana, 440 U.S., at 153-154, 99 S. Ct. 970. ""In this area of the law,"" we agree, ""`crisp rules with sharp corners' are preferable to a round-about doctrine of opaque standards."" Bittinger v. Tecumseh Products Co., 123 F.3d 877, 881 (C.A.6 1997).
+",analysis,Fairchild and the FAA,agree,"  Fairchild and the FAA
+",agree,"Rejection of the Fairchild and the Federal Aviation Administration (FAA) argument of a close enough"" determination",2
+G16,16,0,,C,"Finally, relying on the Eighth Circuit's decision in Tyus, 93 F.3d, at 456, the FAA maintains that nonparty preclusion should apply more broadly in ""public-law"" litigation than in ""private-law"" controversies. To support this position, the FAA offers two arguments. First, the FAA urges, our decision in Richards acknowledges that, in certain cases, the plaintiff has a reduced interest in controlling the litigation ""because of the public nature of the right at issue."" Brief for Respondent FAA 28. When a taxpayer challenges ""an alleged misuse of public funds"" or ""other public action,"" we observed in Richards, the suit ""has only an indirect impact on [the plaintiff's] interests."" 517 U.S., at 803, 116 S. Ct. 1761. In actions of this character, the Court said, ""we may assume that the States have wide latitude to establish procedures . . . to limit the number of judicial proceedings that may be entertained."" Ibid.
+
+Taylor's FOIA action falls within the category described in Richards, the FAA contends, because ""the duty to disclose under FOIA is owed to the public generally."" See Brief for Respondent FAA 34. The opening sentence of FOIA, it is true, states that agencies ""shall make [information] available to the public."" 5 U.S.C. § 552(a) (2006 ed.). Equally true, we have several times said that FOIA vindicates a ""public"" interest. E.g., National Archives and Records Admin. v. Favish, 541 U.S. 157, 172, 124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004). The Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the ""person"" making the request. § 552(a)(3)(A). See also § 552(a)(3)(B) (""In making any record available to a person under this paragraph, an agency shall provide the record in any [readily reproducible] form or format requested by the person . . . ."" (emphasis added)); Brief for National Security Archive et al. as Amici Curiae 10 (""Government agencies do not systematically make released records available to the general public.""). Thus, in contrast to the public-law litigation contemplated in Richards, a successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large.
+
+Furthermore, we said in Richards only that, for the type of public-law claims there envisioned, States are free to adopt procedures limiting repetitive litigation. See 517 U.S., at 803, 116 S. Ct. 1761. In this regard, we referred to instances in which the first judgment foreclosed successive litigation by other plaintiffs because, ""under state law, [the suit] could be brought only on behalf of the public at large."" Id., at 804, 116 S. Ct. 1761.[12]Richards spoke of state legislation, but it appears equally evident that Congress, in providing for actions vindicating a public interest, may ""limit the number of judicial proceedings that may be entertained."" Id., at 803, 116 S. Ct. 1761. It hardly follows, however, that this Court should proscribe or confine successive FOIA suits by different requesters. Indeed, Congress' provision for FOIA suits with no statutory constraint on successive actions counsels against judicial imposition of constraints through extraordinary application of the common law of preclusion.
+
+The FAA next argues that ""the threat of vexatious litigation is heightened"" in public-law cases because ""the number of plaintiffs with standing is potentially limitless."" Brief for Respondent FAA 28 (internal quotation marks omitted). FOIA does allow ""any person"" whose request is denied to resort to federal court for review of the agency's determination. 5 U.S.C. § 552(a)(3)(A), (4)(B) (2006 ed.). Thus it is theoretically possible that several persons could coordinate to mount a series of repetitive lawsuits.
+
+But we are not convinced that this risk justifies departure from the usual rules governing nonparty preclusion. First, stare decisis will allow courts swiftly to dispose of repetitive suits brought in the same circuit. Second, even when stare decisis is not dispositive, ""the human tendency not to waste money will deter the bringing of suits based on claims or issues that have already been adversely determined against others."" Shapiro 97. This intuition seems to be borne out by experience: The FAA has not called our attention to any instances of abusive FOIA suits in the Circuits that reject the virtual-representation theory respondents advocate here.",analysis,Public-Law Litigation,disagree,Tyus,strongly disagree,"Rejection of the Federal Aviation Administration (FAA) argument of an application of the nonparty preclusion more broadly in ""public-law"" litigation than in ""private-law"" controversies",3
+G16,16,0,1,IV,"For the foregoing reasons, we disapprove the theory of virtual representation on which the decision below rested. The preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion described in this opinion. See Part II-B, supra.
+
+Although references to ""virtual representation"" have proliferated in the lower courts, our decision is unlikely to occasion any great shift in actual practice. Many opinions use the term ""virtual representation"" in reaching results at least arguably defensible on established grounds. See 18A Wright & Miller § 4457, pp. 535-539, and n. 38 (collecting cases). In these cases, dropping the ""virtual representation"" label would lead to clearer analysis with little, if any, change in outcomes. See Tice, 162 F.3d, at 971. (""[T]he term `virtual representation' has cast more shadows than light on the problem [of nonparty preclusion]."").
+
+In some cases, however, lower courts have relied on virtual representation to extend nonparty preclusion beyond the latter doctrine's proper bounds. We now turn back to Taylor's action to determine whether his suit is such a case, or whether the result reached by the courts below can be justified on one of the recognized grounds for nonparty preclusion.
+
+
+It is uncontested that four of the six grounds for nonparty preclusion have no application here: There is no indication that Taylor agreed to be bound by Herrick's litigation, that Taylor and Herrick have any legal relationship, that Taylor exercised any control over Herrick's suit, or that this suit implicates any special statutory scheme limiting relitigation. Neither the FAA nor Fairchild contends otherwise.
+
+It is equally clear that preclusion cannot be justified on the theory that Taylor was adequately represented in Herrick's suit. Nothing in the record indicates that Herrick understood himself to be suing on Taylor's behalf, that Taylor even knew of Herrick's suit, or that the Wyoming District Court took special care to protect Taylor's interests. Under our pathmarking precedent, therefore, Herrick's representation was not ""adequate."" See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761.
+
+That leaves only the fifth category: preclusion because a nonparty to an earlier litigation has brought suit as a representative or agent of a party who is bound by the prior adjudication. Taylor is not Herrick's legal representative and he has not purported to sue in a representative capacity. He concedes, however, that preclusion would be appropriate if respondents could demonstrate that he is acting as Herrick's ""undisclosed agen[t]."" Brief for Petitioner 23, n. 4. See also id., at 24, n. 5.
+
+Respondents argue here, as they did below, that Taylor's suit is a collusive attempt to relitigate Herrick's action. See Brief for Respondent Fairchild 32, and n. 18; Brief for Respondent FAA 18-19, 33, 39. The D.C. Circuit considered a similar question in addressing the ""tactical maneuvering"" prong of its virtual representation test. See 490 F.3d, at 976. The Court of Appeals did not, however, treat the issue as one of agency, and it expressly declined to reach any definitive conclusions due to ""the ambiguity of the facts."" Ibid. We therefore remand to give the courts below an opportunity to determine whether Taylor, in pursuing the instant FOIA suit, is acting as Herrick's agent. Taylor concedes that such a remand is appropriate. See Tr. of Oral Arg. 56-57.
+
+We have never defined the showing required to establish that a nonparty to a prior adjudication has become a litigating agent for a party to the earlier case. Because the issue has not been briefed in any detail, we do not discuss the matter elaboratively here. We note, however, that courts should be cautious about finding preclusion on this basis. A mere whiff of ""tactical maneuvering"" will not suffice; instead, principles of agency law are suggestive. They indicate that preclusion is appropriate only if the putative agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication. See 1 Restatement (Second) of Agency § 14, p. 60 (1957) (""A principal has the right to control the conduct of the agent with respect to matters entrusted to him."").[13]
+
+
+On remand, Fairchild suggests, Taylor should bear the burden of proving he is not acting as Herrick's agent. When a defendant points to evidence establishing a close relationship between successive litigants, Fairchild maintains, ""the burden [should] shif[t] to the second litigant to submit evidence refuting the charge"" of agency. Brief for Respondent Fairchild 27-28. Fairchild justifies this proposed burden-shift on the ground that ""it is unlikely an opposing party will have access to direct evidence of collusion."" Id., at 28, n. 14.
+
+We reject Fairchild's suggestion. Claim preclusion, like issue preclusion, is an affirmative defense. See Fed. Rule Civ. Proc. 8(c); Blonder-Tongue, 402 U.S., at 350, 91 S. Ct. 1434. Ordinarily, it is incumbent on the defendant to plead and prove such a defense, see Jones v. Bock, 549 U.S. 199, 204, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007), and we have never recognized claim preclusion as an exception to that general rule, see 18 Wright & Miller § 4405, p. 83 (""[A] party asserting preclusion must carry the burden of establishing all necessary elements.""). We acknowledge that direct evidence justifying nonparty preclusion is often in the hands of plaintiffs rather than defendants. See, e.g., Montana, 440 U.S., at 155, 99 S. Ct. 970 (listing evidence of control over a prior suit). But ""[v]ery often one must plead and prove matters as to which his adversary has superior access to the proof."" 2 K. Broun, McCormick on Evidence § 337, p. 475 (6th ed.2006). In these situations, targeted interrogatories or deposition questions can reduce the information disparity. We see no greater cause here than in other matters of affirmative defense to disturb the traditional allocation of the proof burden.",analysis,Virtual Representation,disagree,The Theory of Virtual Representation,disagree,Disapproval of virtual representation theory,4
+G16,16,0,2,A,"It is uncontested that four of the six grounds for nonparty preclusion have no application here: There is no indication that Taylor agreed to be bound by Herrick's litigation, that Taylor and Herrick have any legal relationship, that Taylor exercised any control over Herrick's suit, or that this suit implicates any special statutory scheme limiting relitigation. Neither the FAA nor Fairchild contends otherwise.
+
+It is equally clear that preclusion cannot be justified on the theory that Taylor was adequately represented in Herrick's suit. Nothing in the record indicates that Herrick understood himself to be suing on Taylor's behalf, that Taylor even knew of Herrick's suit, or that the Wyoming District Court took special care to protect Taylor's interests. Under our pathmarking precedent, therefore, Herrick's representation was not ""adequate."" See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761.
+
+That leaves only the fifth category: preclusion because a nonparty to an earlier litigation has brought suit as a representative or agent of a party who is bound by the prior adjudication. Taylor is not Herrick's legal representative and he has not purported to sue in a representative capacity. He concedes, however, that preclusion would be appropriate if respondents could demonstrate that he is acting as Herrick's ""undisclosed agen[t]."" Brief for Petitioner 23, n. 4. See also id., at 24, n. 5.
+
+Respondents argue here, as they did below, that Taylor's suit is a collusive attempt to relitigate Herrick's action. See Brief for Respondent Fairchild 32, and n. 18; Brief for Respondent FAA 18-19, 33, 39. The D.C. Circuit considered a similar question in addressing the ""tactical maneuvering"" prong of its virtual representation test. See 490 F.3d, at 976. The Court of Appeals did not, however, treat the issue as one of agency, and it expressly declined to reach any definitive conclusions due to ""the ambiguity of the facts."" Ibid. We therefore remand to give the courts below an opportunity to determine whether Taylor, in pursuing the instant FOIA suit, is acting as Herrick's agent. Taylor concedes that such a remand is appropriate. See Tr. of Oral Arg. 56-57.
+
+We have never defined the showing required to establish that a nonparty to a prior adjudication has become a litigating agent for a party to the earlier case. Because the issue has not been briefed in any detail, we do not discuss the matter elaboratively here. We note, however, that courts should be cautious about finding preclusion on this basis. A mere whiff of ""tactical maneuvering"" will not suffice; instead, principles of agency law are suggestive. They indicate that preclusion is appropriate only if the putative agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication. See 1 Restatement (Second) of Agency § 14, p. 60 (1957) (""A principal has the right to control the conduct of the agent with respect to matters entrusted to him."").[13]
+",analysis,Taylor's Representation,strongly agree,Taylor's Preclusion,strongly agree,"Disapproval of the Doctrine of preclusion by “virtual
+representation in the present case",1
+G16,16,0,2,B,"On remand, Fairchild suggests, Taylor should bear the burden of proving he is not acting as Herrick's agent. When a defendant points to evidence establishing a close relationship between successive litigants, Fairchild maintains, ""the burden [should] shif[t] to the second litigant to submit evidence refuting the charge"" of agency. Brief for Respondent Fairchild 27-28. Fairchild justifies this proposed burden-shift on the ground that ""it is unlikely an opposing party will have access to direct evidence of collusion."" Id., at 28, n. 14.
+
+We reject Fairchild's suggestion. Claim preclusion, like issue preclusion, is an affirmative defense. See Fed. Rule Civ. Proc. 8(c); Blonder-Tongue, 402 U.S., at 350, 91 S. Ct. 1434. Ordinarily, it is incumbent on the defendant to plead and prove such a defense, see Jones v. Bock, 549 U.S. 199, 204, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007), and we have never recognized claim preclusion as an exception to that general rule, see 18 Wright & Miller § 4405, p. 83 (""[A] party asserting preclusion must carry the burden of establishing all necessary elements.""). We acknowledge that direct evidence justifying nonparty preclusion is often in the hands of plaintiffs rather than defendants. See, e.g., Montana, 440 U.S., at 155, 99 S. Ct. 970 (listing evidence of control over a prior suit). But ""[v]ery often one must plead and prove matters as to which his adversary has superior access to the proof."" 2 K. Broun, McCormick on Evidence § 337, p. 475 (6th ed.2006). In these situations, targeted interrogatories or deposition questions can reduce the information disparity. We see no greater cause here than in other matters of affirmative defense to disturb the traditional allocation of the proof burden.",analysis,Burden-Shifting on Remand,strongly agree, Burden Shifting,agree,Rejection of Fairchild suggestion,2
+G16,16,0,1,*,"For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.
+",conclusion,on remand for further proceedings,agree,remand for further proceedings,agree,Supreme Court's holding,5
+G16,17,0,1,I,"Early in this century, Congress recognized that farmers had a tremendous need for long-term capital at low interest rates. This led to the enactment of the Federal Farm Loan Act of 1916, 39 Stat. 360, as amended, 12 U.S. C. § 641 et seq. The immediate purpose of the bill was ""to afford those who [were] engaged in farming or who desire[d] to engage in that occupation a vastly greater volume of land credit on more favorable terms and at materially lower and more nearly uniform interest rates than [were] present[ly] available."" H. R. Rep. No. 630, 64th Cong., 1st Sess., 2. The longrange purpose was to stimulate and foster a cooperative spirit among farmers who, it was hoped, would work together to seek agricultural improvements which they would finance themselves. Id., at 2-3; S. Rep. No. 144, 64th Cong., 1st Sess., 5.
+
+The 1916 Act divided the United States into 12 regional districts under the general supervision of a Federal Farm Loan Board. Each district contained a federal land bank designed to loan money to farmers at low interest rates. Persons desiring to borrow were required to organize into groups of 10 or more which were called ""national farm loan associations."" Sec. 7, 39 Stat. 365.
+
+In order to borrow from the district bank, an association had to establish that each of its members was an owner or a prospective owner of a farm, that the loan desired by each member was not less than $100 nor more than $10,000, and that the aggregate of the loans was not less than $20,000. Each association also had to subscribe for capital stock of the bank in the amount of 5% of the total loan sought by its members. The association, in turn, was required to compel each of its members to purchase stock in the association equal to 5% of the amount of the loan sought by that member. Hence, there were two separate levels of cooperative association.[5]
+
+The legislative history and the language of the Act itself indicate that Congress faced somewhat of a dilemma in structuring the land bank system. On the one hand, there was a strong congressional desire to stimulate a privately controlled, privately owned, and privately financed program based upon the cooperative efforts of dedicated farmers. This desire was effectuated in large measure in the stock-purchase requirements discussed above. On the other hand, Congress realized that without federal help, the existing plight of the farmers would probably render them unable to support the system themselves, and it would thus be doomed to failure:
+
+""The greatest difficulty in the establishment of a rural-credit system, based upon the cooperative principle, is met in connection with the inauguration of the system. Ample capital is absolutely necessary at the start and whatever sums the first borrowers might be able to contribute would in no wise suffice to get the system into successful operation. The system must be endowed, temporarily at least, with capital from sources other than the subscriptions to capital stock among the borrowers."" H. R. Rep. No. 630, 64th Cong., 1st Sess., 9.
+Accord, S. Rep. No. 144, 64th Cong., 1st Sess., 4.
+
+To resolve the dilemma, Congress provided for temporary public financing without charge to supplement the stock-purchase requirements of the statute. Congress also provided that each land bank must periodically increase its capital shares in order to achieve the goal of private ownership of the system, and to repay the temporary federal financing.
+
+The land bank system remained virtually untouched[6] until the economic depression of the 1930's when Congress determined that more action was needed to aid farmers in establishing privately owned institutions designed to provide ready sources of long-term credit. The Farm Credit Act of 1933 was passed to supplement the 1916 legislation. It established, inter alia, regional Banks for Cooperatives in each of the 12 land bank districts and a Central Bank for Cooperatives in Washington, D. C.[7]
+
+These Banks were authorized to make loans to ""cooperative associations,"" defined as ""association[s] in which farmers act together in processing, preparing for market, handling, and/or marketing the farm products of persons so engaged, and also . . . association[s] in which farmers act together in purchasing, testing, grading, processing, distributing, and/or furnishing farm supplies and/or farm business services."" Agricultural Marketing Act § 15, 46 Stat. 18, as amended, 12 U.S. C. § 1141j.
+
+The new Banks paralleled in many ways those already established under the 1916 legislation. The same regional districts were used, many of the same persons were eligible for loans from both institutions, and borrowers from both banks were required to be stockholders. The 1933 Act required cooperative associations to own, at the time a loan was made, an amount of stock in the Bank for Cooperatives equal in fair book value (not to exceed par value) to $100 per $2,000 of the amount of the loan, or 5%, the same amount of stock required of borrowers from land banks under the 1916 Act.
+
+One notable difference between the 1916 and the 1933 Acts was that the latter did not regulate the membership of the cooperative association to any great degree. For example, members of cooperative associations did not have to own stock in the associations, only in the Banks; they did not have to borrow a minimum amount; and they did not have to be farm owners or prospective farm owners, but could be processors, handlers, testers, or marketers. This is in sharp contrast to the stringent requirements of the 1916 legislation. Another notable difference is that Congress invested substantially more money in the 1933 program ($110,000,000) than it had invested in the land banks ($9,000,000). See S. Rep. No. 1201, 84th Cong., 1st Sess., 5, 7.
+
+As time passed, Congress watched the land bank system develop as planned. The temporary Government capitalization that had solidified the program in its inception was gradually replaced by private capital, and by the end of 1947, the Government's capital had been completely returned. S. Doc. No. 7, 84th Cong., 1st Sess., 4; S. Rep. No. 1201, 84th Cong., 1st Sess., 7. The land banks became totally private concerns _x0097_owned, operated, and financed by farmers without Government assistance.
+
+Congress also watched the development of the Banks for Cooperatives and became concerned about their lack of success in attracting and keeping private investment. By the 1950's, the Government still retained over 88% of the stock in the Banks. In § 2 of the Farm Credit Act of 1953, 67 Stat. 390, 12 U.S. C. § 636a, Congress stated that ""[i]t is declared to be the policy of the Congress to encourage and facilitate increased borrower participation in the management, control, and ultimate ownership of the permanent system of agricultural credit made available through institutions operating under the supervision of the Farm Credit Administration . . . ."" A Federal Farm Credit Board was created for the purpose, inter alia, of making recommendations concerning the best way to convert the Banks for Cooperatives from predominantly Government-owned to predominantly privately owned institutions.
+
+The result of the Board's report and recommendations was the Farm Credit Act of 1955, 69 Stat. 655. It sought to effectuate Congress' policy by providing for the orderly withdrawal of Government capital from the Banks and the continual influx and retention of substitute private financing. See S. Doc. No. 7, 84th Cong., 1st Sess., 6; S. Rep. No. 1201, 84th Cong., 1st Sess., 1; Hearings on Farm Credit Act of 1955 before the House Committee on Agriculture, 84th Cong., 1st Sess., 30-31.",facts,The Federal Farm Loan Act of 1916,strongly agree,Federal Farm Loan Act of 1916,strongly agree, Legislative history and Language of the Federal Farm Loan Act of 1916,1
+G16,17,0,1,II,"Under the Farm Credit Act of 1933, there was only one class of capital stock in the Banks for Cooperatives. The Farm Credit Act of 1955 provided for three distinct classes of stock_x0097_A, B, and C.
+
+Class A stock may only be held by the Governor of the Farm Credit Association on behalf of the United States. Whatever stock the Government held in the Banks prior to the 1955 Act was converted to Class A stock. This stock is nonvoting and receives no dividends. Class A stock must be retired each year in an amount equal to the amount of Class C stock issued during the year. 12 U.S. C. § 1134d (a) (1). Once the United States' stock is completely redeemed, the Government will invest no more in the Banks, except that it may purchase additional shares of the Class A stock if an emergency makes it necessary in order for the bank to meet the credit needs of eligible borrowers.[8] See 12 U.S. C. §§ 1134d (a) (1), 1134b, 1134i.
+
+Class B stock represents a new approach to capitalizing the Banks. It is an investment stock available to the public. It pays noncumulative dividends upon certain conditions. Class B stock may be retired only after all Class A stock. 12 U.S. C. § 1134d (a) (2).[9]
+
+Class C stock may be issued only to farmers' cooperative associations, except that each regional bank is required to purchase such shares from the Central Bank. This stock may be obtained under four circumstances. One share is required to initially qualify any association as a borrower of a regional Bank. Each borrower must then make the quarterly stock purchases which gave rise to this lawsuit. In addition, 12 U.S. C. § 1134l (b) provides that after certain expenditures are made each year, patronage refunds may be allocated to borrowers in the form of Class C stock. ""All patronage refunds shall be paid in the proportion that the amount of interest earned on the loans of each borrower bears to the total interest earned on the loans of all borrowers during the fiscal year."" Ibid.[10] Borrowers also receive at the end of each fiscal year an ""allocated surplus"" credit which is payable out of the Bank's net savings. Like patronage refunds, allocated surplus is credited to each member in accordance with the proportion that the interest on its loans bears to the interest on all loans. When the surplus account reaches 25% of the total outstanding capital stock of the Bank, the excess may be distributed to members in the form of Class C stock.
+
+Only the tax treatment of the quarterly purchases is disputed here.[11] The taxpayers correctly note that the Class C stock has attributes which would make a normal commercial stock undesirable. For example, the C stock pays no dividends;[12] it is transferable only between cooperatives and only under rare circumstances; additional shares do not provide additional voting power;[13] and the stock cannot be redeemed until all A, all B issued earlier or in the same year, and all earlier issued C shares have been called for redemption. These characteristics render the market for C shares virtually nonexistent.
+
+It must be remembered, however, that the stock was intentionally given these characteristics by a Congress with definite goals in mind.[14] The legislative history of the Farm Credit Act of 1955 indicates that Congress placed much of the blame for the Bank's inability to repay the capital extended by the Government and to retain private capital on the provision in the 1933 legislation which permitted borrowers to redeem their stock for cash upon paying off their loans. The restrictions on redemption and transferability and the dividend prohibition were designed to obviate this difficulty and to provide both a stable membership and permanent capital, two necessities for the success of any cooperative venture.",analysis,The Farm Credit Act of 1933,strongly agree,The Farm Credit Act of 1955,strongly agree,Description of the provisions of the Farm Credit Act of 1933,2
+G16,17,0,1,III,"The taxpayers do not seek to deduct the cost of their initial shares in the Bank as interest. They accept the fact that these shares represent one cost of membership and that this cost is a capital expense because membership is a valuable asset in more than one taxable year. But, they argue that once they purchased their initial shares, they obtained full membership rights, and, a fortiori, that Congress must have intended the quarterly expenditures for stock to be a charge for borrowing money since the stock has no value. The fact is, however, that the stock purchased quarterly is indeed valuable. The amounts paid for C shares become part of the permanent capital structure of the Bank, thereby increasing the stability of the Bank and insuring its continued ability to extend credit. Each share also provides an opportunity for more patronage and surplus dividends, an ultimate right of redemption, and an asset that may be used as a set-off in case of a default on the loan. In sum, every share of stock purchased quarterly by the taxpayers is nearly as valuable as the shares purchased initially. It is therefore difficult to understand why these different purchases should receive radically different tax treatment. If Congress had required 1,000 or 100,000 shares of Class C stock to be purchased before an association could borrow from the Banks, under the taxpayers' theory of the case the cost of those shares would be a nondeductible capital expense. Simply because Congress eased the burden on farmers by spreading the requirement of capital investment over a period of time rather than requiring it as a prerequisite to borrowing, the taxpayers are entitled to no more favorable tax treatment.
+
+It is important not to lose sight of the congressional purposes in enacting the farm credit legislation. The immediate goal was to provide loans to farmers at low interest rates. It would, therefore, be odd for Congress to provide a ""hidden"" interest charge in the legislation. The long-range goal was to make the Banks ""fully cooperative and to place full ownership and responsibility for their operations and success in the hands of those eligible to borrow from them."" Hearings on Farm Credit Act of 1955 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 84th Cong., 1st Sess., 60. Congress felt, in light of its experience under the Farm Credit Act of 1933, that the long-range goal could only be achieved if Bank members made longterm investments in the Banks. Hence, Congress created Class C stock, a security with a special value in cooperative ventures. While this security is sui generis, the congressional scheme makes it clear that it has value over the long run.
+
+Since the security is of value in more than one taxable year, it is a capital asset within the meaning of § 1221 of the Internal Revenue Code, and its cost is nondeductible. Cf. Commissioner v. Lincoln Savings & Loan Assn., 403 U.S. 345 (1971); Old Colony R. Co. v. United States, 284 U.S. 552 (1932); 26 CFR § 1.461-1.
+
+We reject the contention that while the Class C stock may be a capital asset, it is worth only $1,[15] and that the additional $99 paid for each share must represent interest. Were we dealing with the traditional corporate structure in this case, the taxpayers' argument would have strength. But, as we have pointed out previously, the essential nature of cooperatives and corporations differs. The value of the Class C stock derives primarily from attributes other than marketability. The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity. The stock also has value because it enables the farmers to work together toward common goals. It enables them to share in a venture of common concerns and to reap the rewards of knowing that they can finance themselves without the assistance of the Federal Government. It is perhaps debatable whether these attributes should properly be valued at $100 per share, but we are not called upon merely to resolve a question of valuation. Rather, we must decide whether it is artificial to characterize these unique expenditures as payments for a capital asset. We find that it is not.
+
+The taxpayers and the Government each allege that the other is looking at form rather than substance. At some point, however, the form in which a transaction is cast must have considerable impact. Guterman, Substance v. Form in the Taxation of Personal and Business Transactions, N. Y. U. 20th Inst. on Fed. Tax. 951 (1962). Congress chose to make the taxpayers buy stock; Congress determined that the stock was worth $100 a share; and this stock was endowed with a long-term value. While Congress might have been able to achieve the same ends through additional interest payments, it chose the form of stock purchases. This form assures long-term commitment and has bearing on the tax consequences of the purchases.
+
+Accordingly, the decision of the Court of Appeals is reversed and the case is remanded with direction that judgment be entered for the United States.
+
+It is so ordered.",analysis,Interest on Stock Purchases,agree,The Taxpayers' Theory of the Case,strongly agree,The Argument Put Forward by the Taxpayers,3
+G2,1,1,1,I,"Respondent Monfort of Colorado, Inc. (Monfort), the plaintiff below, owns and operates three integrated beef-packing plants, that is, plants for both the slaughter of cattle and the fabrication of beef.[1] Monfort operates in both the market for fed cattle (the input market) and the market for fabricated beef (the output market). These markets are highly competitive, and the profit margins of the major beef packers are low. The current markets are a product of two decades of intense competition, during which time packers with modern integrated plants have gradually displaced packers with separate slaughter and fabrication plants.
+
+Monfort is the country's fifth-largest beef packer. Petitioner Excel Corporation (Excel), one of the two defendants below, is the second-largest packer. Excel operates five integrated plants and one fabrication plant. It is a wholly owned subsidiary of Cargill, Inc., the other defendant below, a large privately owned corporation with more than 150 subsidiaries in at least 35 countries.
+
+On June 17, 1983, Excel signed an agreement to acquire the third-largest packer in the market, Spencer Beef, a division of the Land O'Lakes agricultural cooperative. Spencer Beef owned two integrated plants and one slaughtering plant. After the acquisition, Excel would still be the second-largest packer, but would command a market share almost equal to that of the largest packer, IBP, Inc. (IBP).[2]
+
+Monfort brought an action under § 16 of the Clayton Act, 15 U.S. C. § 26, to enjoin the prospective merger.[3] Its complaint alleged that the acquisition would ""violat[e] Section 7 of the Clayton Act because the effect of the proposed acquisition may be substantially to lessen competition or tend to create a monopoly in several different ways . . . ."" 1 Ohio App. 19. Monfort described the injury that it allegedly would suffer in this way:
+
+""(f) Impairment of plaintiff's ability to compete. The proposed acquisition will result in a concentration of economic power in the relevant markets which threatens Monfort's supply of fed cattle and its ability to compete in the boxed beef market."" Id., at 20.
+Upon agreement of the parties, the District Court consolidated the motion for a preliminary injunction with a full trial on the merits. On the second day of trial, Excel moved for involuntary dismissal on the ground, inter alia, that Monfort had failed to allege or show that it would suffer antitrust injury as defined in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977). The District Court denied the motion. After the trial, the court entered a memorandum opinion and order enjoining the proposed merger. The court held that Monfort's allegation of ""price-cost `squeeze' "" that would ""severely narro[w]"" Monfort's profit margins constituted an allegation of antitrust injury. 591 F. Supp. 683, 691-692 (Colo. 1983). It also held that Monfort had shown that the proposed merger would cause this profit squeeze to occur, and that the merger violated § 7 of the Clayton Act.[4]Id., at 709-710.
+
+On appeal, Excel argued that an allegation of lost profits due to a ""price-cost squeeze"" was nothing more than an allegation of losses due to vigorous competition, and that losses from competition do not constitute antitrust injury. It also argued that the District Court erred in analyzing the facts relevant to the § 7 inquiry. The Court of Appeals affirmed the judgment in all respects. It held that Monfort's allegation of a ""price-cost squeeze"" was not simply an allegation of injury from competition; in its view, the alleged ""price-cost squeeze"" was a claim that Monfort would be injured by what the Court of Appeals ""consider[ed] to be a form of predatory pricing in which Excel will drive other companies out of the market by paying more to its cattle suppliers and charging less for boxed beef that it sells to institutional buyers and consumers."" 761 F.2d 570, 575 (CA10 1985). On the § 7 issue, the Court of Appeals held that the District Court's decision was not clearly erroneous. We granted certiorari, 474 U.S. 1049 (1985).",facts,The Monfort Case,agree,The Clayton Act and the Defendants' Actions,agree,The Allegations of Breaches of Clayton Act by the Petitioner,1
+G2,1,1,1,II,"This case requires us to decide, at the outset, a question we have not previously addressed: whether a private plaintiff seeking an injunction under § 16 of the Clayton Act must show a threat of antitrust injury. To decide the question, we must look first to the source of the antitrust injury requirement, which lies in a related provision of the Clayton Act, § 4, 15 U.S. C. § 15.
+
+Like § 16, § 4 provides a vehicle for private enforcement of the antitrust laws. Under § 4, ""any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States . . . , and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."" 15 U.S. C. § 15. In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, we held that plaintiffs seeking treble damages under § 4 must show more than simply an ""injury causally linked"" to a particular merger; instead, ""plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful."" Id., at 489 (emphasis in original). The plaintiffs in Brunswick did not prove such injury. The plaintiffs were 3 of the 10 bowling centers owned by a relatively small bowling chain. The defendant, one of the two largest bowling chains in the country, acquired several bowling centers located in the plaintiffs' market that would have gone out of business but for the acquisition. The plaintiffs sought treble damages under § 4, alleging as injury ""the loss of income that would have accrued had the acquired centers gone bankrupt"" and had competition in their markets consequently been reduced. Id., at 487. We held that this injury, although causally related to a merger alleged to violate § 7, was not an antitrust injury, since ""[i]t is inimical to [the antitrust] laws to award damages"" for losses stemming from continued competition. Id., at 488. This reasoning in Brunswick was consistent with the principle that ""the antitrust laws . . . were enacted for `the protection of competition, not competitors.' "" Ibid., quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962) (emphasis in original).
+
+Subsequent decisions confirmed the importance of showing antitrust injury under § 4. In Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982), we found that a health-plan subscriber suffered antitrust injury as a result of the plan's ""purposefully anticompetitive scheme"" to reduce competition for psychotherapeutic services by reimbursing subscribers for services provided by psychiatrists but not for services provided by psychologists. Id., at 483. We noted that antitrust injury, ""as analyzed in Brunswick, is one factor to be considered in determining the redressability of a particular form of injury under § 4,"" id., at 483, n. 19, and found it ""plain that McCready's injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws."" Id., at 483. Similarly, in Associated General Contractors of California, Inc. v. Carpenters, 459 U.S. 519 (1983), we applied ""the Brunswick test,"" and found that the petitioner had failed to allege antitrust injury. Id., at 539-540.[5]
+
+Section 16 of the Clayton Act provides in part that ""[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief . . . against threatened loss or damage by a violation of the antitrust laws . . . ."" 15 U.S. C. § 26. It is plain that § 16 and § 4 do differ in various ways. For example, § 4 requires a plaintiff to show actual injury, but § 16 requires a showing only of ""threatened"" loss or damage; similarly, § 4 requires a showing of injury to ""business or property,"" cf. Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), while § 16 contains no such limitation.[6] Although these differences do affect the nature of the injury cognizable under each section, the lower courts, including the courts below, have found that under both § 16 and § 4 the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent.[7] We agree.
+
+The wording concerning the relationship of the injury to the violation of the antitrust laws in each section is comparable. Section 4 requires proof of injury ""by reason of anything forbidden in the antitrust laws""; § 16 requires proof of ""threatened loss or damage by a violation of the antitrust laws."" It would be anomalous, we think, to read the Clayton Act to authorize a private plaintiff to secure an injunction against a threatened injury for which he would not be entitled to compensation if the injury actually occurred.
+
+There is no indication that Congress intended such a result. Indeed, the legislative history of § 16 is consistent with the view that § 16 affords private plaintiffs injunctive relief only for those injuries cognizable under § 4. According to the House Report:
+
+""Under section 7 of the act of July 2, 1890 [revised and incorporated into Clayton Act as § 4], a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law, may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law."" H. R. Rep. No. 627, 63d Cong., 2d Sess., pt. 1, p. 21 (1914) (emphasis added).[8]
+Sections 4 and 16 are thus best understood as providing complementary remedies for a single set of injuries. Accordingly, we conclude that in order to seek injunctive relief under § 16, a private plaintiff must allege threatened loss or damage ""of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful."" Brunswick, 429 U. S., at 489. We therefore turn to the question whether the proposed merger in this case threatened respondent with antitrust injury.",analysis,Threat of Antitrust Injury,strongly agree,The Threat of Antitrust Injury,strongly agree,The Threat of Antitrust Injury,2
+G2,1,1,1,III,"Initially, we confront the problem of determining what Monfort alleged the source of its injury to be. Monfort's complaint is of little assistance in this regard, since the injury alleged therein _x0097_ ""an impairment of plaintiff's ability to compete"" _x0097_ is alleged to result from ""a concentration of economic power."" 1 Ohio App. 19. The pretrial order largely restates these general allegations. Record 37. At trial, however, Monfort did present testimony and other evidence that helped define the threatened loss. Monfort alleged that after the merger, Excel would attempt to increase its market share at the expense of smaller rivals, such as Monfort. To that end, Monfort claimed, Excel would bid up the price it would pay for cattle, and reduce the price at which it sold boxed beef. Although such a strategy, which Monfort labeled a ""price-cost squeeze,"" would reduce Excel's profits, Excel's parent corporation had the financial reserves to enable Excel to pursue such a strategy. Eventually, according to Monfort, smaller competitors lacking significant reserves and unable to match Excel's prices would be driven from the market; at this point Excel would raise the price of its boxed beef to supracompetitive levels, and would more than recoup the profits it lost during the initial phase. 591 F. Supp., at 691-692.
+
+From this scenario two theories of injury to Monfort emerge: (1) a threat of a loss of profits stemming from the possibility that Excel, after the merger, would lower its prices to a level at or only slightly above its costs; (2) a threat of being driven out of business by the possibility that Excel, after the merger, would lower its prices to a level below its costs.[9] We discuss each theory in turn.
+
+Monfort's first claim is that after the merger, Excel would lower its prices to some level at or slightly above its costs in order to compete with other packers for market share. Excel would be in a position to do this because of the multi-plant efficiencies its acquisition of Spencer would provide, 1 Ohio App. 74-75, 369-370. To remain competitive, Monfort would have to lower its prices; as a result, Monfort would suffer a loss in profitability, but would not be driven out of business.[10] The question is whether Monfort's loss of profits in such circumstances constitutes antitrust injury.
+
+To resolve the question, we look again to Brunswick v. Pueblo Bowl-O-Mat, supra. In Brunswick, we evaluated the antitrust significance of several competitors' loss of profits resulting from the entry of a large firm into its market. We concluded:
+
+""[T]he antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for `the protection of competition, not competitors,' Brown Shoe Co. v. United States, 370 U. S., at 320. It is inimical to the purposes of these laws to award damages for the type of injury claimed here."" Id., at 488.
+The loss of profits to the competitors in Brunswick was not of concern under the antitrust laws, since it resulted only from continued competition. Respondent argues that the losses in Brunswick can be distinguished from the losses alleged here, since the latter will result from an increase, rather than from a mere continuation, of competition. The range of actions unlawful under § 7 of the Clayton Act is broad enough, respondent claims, to support a finding of antitrust injury whenever a competitor is faced with a threat of losses from increased competition.[11] We find respondent's proposed construction of § 7 too broad, for reasons that Brunswick illustrates. Brunswick holds that the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws. The kind of competition that Monfort alleges here, competition for increased market share, is not activity forbidden by the antitrust laws. It is simply, as petitioners claim, vigorous competition. To hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust laws require no such perverse result, for ""[i]t is in the interest of competition to permit dominant firms to engage in vigorous competition, including price competition."" Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F.2d 1050, 1057 (CA6), cert. denied, 469 U.S. 1036 (1984). The logic of Brunswick compels the conclusion that the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury.
+
+
+
+The second theory of injury argued here is that after the merger Excel would attempt to drive Monfort out of business by engaging in sustained predatory pricing. Predatory pricing may be defined as pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short run and reducing competition in the long run.[12] It is a practice that harms both competitors and competition. In contrast to price cutting aimed simply at increasing market share, predatory pricing has as its aim the elimination of competition. Predatory pricing is thus a practice ""inimical to the purposes of [the antitrust] laws,"" Brunswick, 429 U. S., at 488, and one capable of inflicting antitrust injury.[13]
+
+The Court of Appeals held that Monfort had alleged ""what we consider to be a form of predatory pricing . . . ."" 761 F.2d, at 575. The court also found that Monfort ""could only be harmed by sustained predatory pricing,"" and that ""it is impossible to tell in advance of the acquisition"" whether Excel would in fact engage in such a course of conduct; because it could not rule out the possibility that Excel would engage in predatory pricing, it found that Monfort was threatened with antitrust injury. Id., at 576.
+
+Although the Court of Appeals did not explicitly define what it meant by predatory pricing, two interpretations are plausible. First, the court can be understood to mean that Monfort's allegation of losses from the above-cost ""price-cost squeeze"" was equivalent to an allegation of injury from predatory conduct. If this is the proper interpretation, then the court's judgment is clearly erroneous because (a) Monfort made no allegation that Excel would act with predatory intent after the merger, and (b) price competition is not predatory activity, for the reasons discussed in Part III-A, supra.
+
+Second, the Court of Appeals can be understood to mean that Monfort had shown a credible threat of injury from below-cost pricing. To the extent the judgment rests on this ground, however, it must also be reversed, because Monfort did not allege injury from below-cost pricing before the District Court. The District Court twice noted that Monfort had made no assertion that Excel would engage in predatory pricing. See 591 F. Supp., at 691 (""Plaintiff does not contend that predatory practices would be engaged in by Excel or IBP""); id., at 710 (""Monfort does not allege that IBP and Excel will in fact engage in predatory activities as part of the cost-price squeeze"").[14] Monfort argues that there is evidence in the record to support its view that it did raise a claim of predatory pricing below. This evidence, however, consists only of four passing references, three in deposition testimony, to the possibility that Excel's prices might dip below costs. See 1 Ohio App. 276; 2 Ohio App. 626, 666, 669. Such references fall far short of establishing an allegation of injury from predatory pricing. We conclude that Monfort neither raised nor proved any claim of predatory pricing before the District Court.[15]",analysis,The Source of Monfort's Injury,strongly agree,The Source of Injury,agree,The Source of Monfort's Alleged Injury,3
+G2,1,1,2,A,"Monfort's first claim is that after the merger, Excel would lower its prices to some level at or slightly above its costs in order to compete with other packers for market share. Excel would be in a position to do this because of the multi-plant efficiencies its acquisition of Spencer would provide, 1 Ohio App. 74-75, 369-370. To remain competitive, Monfort would have to lower its prices; as a result, Monfort would suffer a loss in profitability, but would not be driven out of business.[10] The question is whether Monfort's loss of profits in such circumstances constitutes antitrust injury.
+
+To resolve the question, we look again to Brunswick v. Pueblo Bowl-O-Mat, supra. In Brunswick, we evaluated the antitrust significance of several competitors' loss of profits resulting from the entry of a large firm into its market. We concluded:
+
+""[T]he antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for `the protection of competition, not competitors,' Brown Shoe Co. v. United States, 370 U. S., at 320. It is inimical to the purposes of these laws to award damages for the type of injury claimed here."" Id., at 488.
+The loss of profits to the competitors in Brunswick was not of concern under the antitrust laws, since it resulted only from continued competition. Respondent argues that the losses in Brunswick can be distinguished from the losses alleged here, since the latter will result from an increase, rather than from a mere continuation, of competition. The range of actions unlawful under § 7 of the Clayton Act is broad enough, respondent claims, to support a finding of antitrust injury whenever a competitor is faced with a threat of losses from increased competition.[11] We find respondent's proposed construction of § 7 too broad, for reasons that Brunswick illustrates. Brunswick holds that the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws. The kind of competition that Monfort alleges here, competition for increased market share, is not activity forbidden by the antitrust laws. It is simply, as petitioners claim, vigorous competition. To hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust laws require no such perverse result, for ""[i]t is in the interest of competition to permit dominant firms to engage in vigorous competition, including price competition."" Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F.2d 1050, 1057 (CA6), cert. denied, 469 U.S. 1036 (1984). The logic of Brunswick compels the conclusion that the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury.
+
+",analysis, Loss of Profits,agree,Loss of Profits from Increased Competition,strongly agree,The Threatened Loss of Profits from Increased Competition,1
+G2,1,1,2,B,"The second theory of injury argued here is that after the merger Excel would attempt to drive Monfort out of business by engaging in sustained predatory pricing. Predatory pricing may be defined as pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short run and reducing competition in the long run.[12] It is a practice that harms both competitors and competition. In contrast to price cutting aimed simply at increasing market share, predatory pricing has as its aim the elimination of competition. Predatory pricing is thus a practice ""inimical to the purposes of [the antitrust] laws,"" Brunswick, 429 U. S., at 488, and one capable of inflicting antitrust injury.[13]
+
+The Court of Appeals held that Monfort had alleged ""what we consider to be a form of predatory pricing . . . ."" 761 F.2d, at 575. The court also found that Monfort ""could only be harmed by sustained predatory pricing,"" and that ""it is impossible to tell in advance of the acquisition"" whether Excel would in fact engage in such a course of conduct; because it could not rule out the possibility that Excel would engage in predatory pricing, it found that Monfort was threatened with antitrust injury. Id., at 576.
+
+Although the Court of Appeals did not explicitly define what it meant by predatory pricing, two interpretations are plausible. First, the court can be understood to mean that Monfort's allegation of losses from the above-cost ""price-cost squeeze"" was equivalent to an allegation of injury from predatory conduct. If this is the proper interpretation, then the court's judgment is clearly erroneous because (a) Monfort made no allegation that Excel would act with predatory intent after the merger, and (b) price competition is not predatory activity, for the reasons discussed in Part III-A, supra.
+
+Second, the Court of Appeals can be understood to mean that Monfort had shown a credible threat of injury from below-cost pricing. To the extent the judgment rests on this ground, however, it must also be reversed, because Monfort did not allege injury from below-cost pricing before the District Court. The District Court twice noted that Monfort had made no assertion that Excel would engage in predatory pricing. See 591 F. Supp., at 691 (""Plaintiff does not contend that predatory practices would be engaged in by Excel or IBP""); id., at 710 (""Monfort does not allege that IBP and Excel will in fact engage in predatory activities as part of the cost-price squeeze"").[14] Monfort argues that there is evidence in the record to support its view that it did raise a claim of predatory pricing below. This evidence, however, consists only of four passing references, three in deposition testimony, to the possibility that Excel's prices might dip below costs. See 1 Ohio App. 276; 2 Ohio App. 626, 666, 669. Such references fall far short of establishing an allegation of injury from predatory pricing. We conclude that Monfort neither raised nor proved any claim of predatory pricing before the District Court.[15]",analysis,Sustained Predatory Pricing,strongly agree,Predatory Pricing,strongly agree,The Threatened Bankruptcy due to Predatory Princing,2
+G2,1,1,1,IV,"In its amicus brief, the United States argues that the ""danger of allowing a competitor to challenge an acquisition on the basis of necessarily speculative claims of post-acquisition predatory pricing far outweighs the danger that any anticompetitive merger will go unchallenged."" Brief for United States as Amicus Curiae 25. On this basis, the United States invites the Court to adopt in effect a per se rule ""denying competitors standing to challenge acquisitions on the basis of predatory pricing theories."" Id., at 10.
+
+We decline the invitation. As the foregoing discussion makes plain, supra, at 117-118, predatory pricing is an anticompetitive practice forbidden by the antitrust laws. While firms may engage in the practice only infrequently, there is ample evidence suggesting that the practice does occur.[16] It would be novel indeed for a court to deny standing to a party seeking an injunction against threatened injury merely because such injuries rarely occur.[17] In any case, nothing in the language or legislative history of the Clayton Act suggests that Congress intended this Court to ignore injuries caused by such anticompetitive practices as predatory pricing.",analysis,The United States' Amicus Brief,disagree,Predatory Pricing,agree,Predatory Princing Theories Standing under the Clayton Act,4
+G2,1,1,1,V,"We hold that a plaintiff seeking injunctive relief under § 16 of the Clayton Act must show a threat of antitrust injury, and that a showing of loss or damage due merely to increased competition does not constitute such injury. The record below does not support a finding of antitrust injury, but only of threatened loss from increased competition. Because respondent has therefore failed to make the showing § 16 requires, we need not reach the question whether the proposed merger violates § 7. 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.",conclusion,Threat of Antitrust Injury,agree,Threat of Antitrust Injury,agree,The Lack of a Real Threat of Antitrust Injury ,5
+G2,2,1,1,I,"In Chisholm v. Georgia, 2 Dall. 419 (1793), we asserted jurisdiction over an action in assumpsit brought by a South Carolina citizen against the State of Georgia. In so doing, we reasoned that Georgia's sovereign immunity was qualified by the general jurisdictional provisions of Article III, and, most specifically, by the provision extending the federal judicial power to controversies ""between a State and Citizens of another State."" U. S. Const., Art. III, § 2, cl. 1. The ""shock of surprise"" created by this decision, Principality of Monaco v. Mississippi, 292 U.S. 313, 325 (1934), prompted the immediate adoption of the Eleventh Amendment, which provides:
+
+""The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.""
+Though its precise terms bar only federal jurisdiction over suits brought against one State by citizens of another State or foreign state, we have long recognized that the Eleventh Amendment accomplished much more: It repudiated the central premise of Chisholm that the jurisdictional heads of Article III superseded the sovereign immunity that the States possessed before entering the Union. This has been our understanding of the Amendment since the landmark case of Hans v. Louisiana, 134 U.S. 1 (1890). See also Ex parte New York, 256 U.S. 490, 497-498 (1921); Principality of Monaco, supra, at 320-328, Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 97-98 (1984); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 66-68 (1996).
+
+While this immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment_x0097_an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federalstate balance. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U.S. 436, 447-448 (1883). This case turns on whether either of these two circumstances is present.",analysis,The Eleventh Amendment and Sovereign Immunity,agree,The Eleventh Amendment and the Fourteenth Amendment,strongly agree,The Sovereign Immunity Doctrine and its Limitations,1
+G2,2,1,1,II,"Section 43(a) of the Lanham Act, 15 U.S. C. § 1125(a), enacted in 1946, created a private right of action against ""[a]ny person"" who uses false descriptions or makes false representations in commerce. The TRCA amends § 43(a) by defining ""any person"" to include ""any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity."" § 3(c), 106 Stat. 3568. The TRCA further amends the Lanham Act to provide that such state entities ""shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity for any violation under this Act,"" and that remedies shall be available against such state entities ""to the same extent as such remedies are available . . . in a suit against"" a nonstate entity. § 3(b) (codified in 15 U.S. C. § 1122).
+
+Petitioner College Savings Bank is a New Jersey chartered bank located in Princeton, New Jersey. Since 1987, it has marketed and sold CollegeSure certificates of deposit designed to finance the costs of college education. College Savings holds a patent upon the methodology of administering its CollegeSure certificates. Respondent Florida Prepaid Postsecondary Education Expense Board (Florida Prepaid) is an arm of the State of Florida. Since 1988, it has administered a tuition prepayment program designed to provide individuals with sufficient funds to cover future college expenses. College Savings brought a patent infringement action against Florida Prepaid in United States District Court in New Jersey. That action is the subject of today's decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, ante, p. 627. In addition, and in the same court, College Savings filed the instant action alleging that Florida Prepaid violated § 43(a) of the Lanham Act by making misstatements about its own tuition savings plans in its brochures and annual reports.
+
+Florida Prepaid moved to dismiss this action on the ground that it was barred by sovereign immunity. It argued that Congress had not abrogated sovereign immunity in this case because the TRCA was enacted pursuant to Congress's powers under Article I of the Constitution and, under our decisions in Seminole Tribe, supra, and Fitzpatrick, supra, Congress can abrogate state sovereign immunity only when it legislates to enforce the Fourteenth Amendment. The United States intervened to defend the constitutionality of the TRCA. Both it and College Savings argued that, under the doctrine of constructive waiver articulated in Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184 (1964), Florida Prepaid had waived its immunity from Lanham Act suits by engaging in the interstate marketing and administration of its program after the TRCA made clear that such activity would subject Florida Prepaid to suit. College Savings also argued that Congress's purported abrogation of Florida Prepaid's sovereign immunity in the TRCA was effective, since it was enacted not merely pursuant to Article I but also to enforce the Due Process Clause of the Fourteenth Amendment. The District Court rejected both of these arguments and granted Florida Prepaid's motion to dismiss. 948 F. Supp. 400 (N. J. 1996). The Court of Appeals affirmed. 131 F.3d 353 (CA3 1997). We granted certiorari. 525 U.S. 1063 (1999).",facts,The Parties and the TRCA,strongly agree,The TRCA and the Lanham Act,agree,Petitioner TRCA Action Against Respondent,2
+G2,2,1,1,III,"We turn first to the contention that Florida's sovereign immunity was validly abrogated. Our decision three Terms ago in Seminole Tribe, supra, held that the power ""to regulate Commerce"" conferred by Article I of the Constitution gives Congress no authority to abrogate state sovereign immunity. As authority for the abrogation in the present case, petitioner relies upon § 5 of the Fourteenth Amendment, which we held in Fitzpatrick v. Bitzer, supra, and reaffirmed in Seminole Tribe, see 517 U.S., at 72-73, could be used for that purpose.
+
+Section 1 of the Fourteenth Amendment provides that no State shall ""deprive any person of . . . property . . . without due process of law."" Section 5 provides that ""[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article."" We made clear in City of Boerne v. Flores, 521 U.S. 507, 516-529 (1997), that the term ""enforce"" is to be taken seriously_x0097_that the object of valid § 5 legislation must be the carefully delimited remediation or prevention of constitutional violations. Petitioner claims that, with respect to § 43(a) of the Lanham Act, Congress enacted the TRCA to remedy and prevent state deprivations without due process of two species of ""property"" rights: (1) a right to be free from a business competitor's false advertising about its own product, and (2) a more generalized right to be secure in one's business interests. Neither of these qualifies as a property right protected by the Due Process Clause.
+
+As to the first: The hallmark of a protected property interest is the right to exclude others. That is ""one of the most essential sticks in the bundle of rights that are commonly characterized as property."" Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). That is why the right that we all possess to use the public lands is not the ""property"" right of anyone_x0097_hence the sardonic maxim, explaining what economists call the ""tragedy of the commons,""[1]res publica, res nullius. The Lanham Act may well contain provisions that protect constitutionally cognizable property interests_x0097_notably, its provisions dealing with infringement of trademarks, which are the ""property"" of the owner because he can exclude others from using them. See, e. g., K mart Corp. v. Cartier, Inc., 485 U.S. 176, 185-186 (1988) (""Trademark law, like contract law, confers private rights, which are themselves rights of exclusion. It grants the trademark owner a bundle of such rights""). The Lanham Act's false-advertising provisions, however, bear no relationship to any right to exclude; and Florida Prepaid's alleged misrepresentations concerning its own products intruded upon no interest over which petitioner had exclusive dominion.
+
+Unsurprisingly, petitioner points to no decision of this Court (or of any other court, for that matter) recognizing a property right in freedom from a competitor's false advertising about its own products. The closest petitioner comes is dicta in International News Service v. Associated Press, 248 U.S. 215, 236 (1918), where the Court found equity jurisdiction over an unfair-competition claim because ""[t]he rule that a court of equity concerns itself only in the protection of property rights treats any civil right of a pecuniary nature as a property right."" But to say that a court of equity ""treats any civil right of a pecuniary nature as a property right"" is not to say that all civil rights of a pecuniary nature are property rights. In fact, when one reads the full passage from which this statement is taken it is clear that the Court was saying just the opposite, namely, that equity will treat civil rights of a pecuniary nature as property rights even though they are properly not such:
+
+""In order to sustain the jurisdiction of equity over the controversy, we need not affirm any general and absolute property in the news as such. The rule that a court of equity concerns itself only in the protection of property rights treats any civil right of a pecuniary nature as a property right . . . ; and the right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right to guard property already acquired. . . . It is this right that furnishes the basis of the jurisdiction in the ordinary case of unfair competition."" Id., at 236-237.
+We may also note that the unfair competition at issue in International News Service amounted to nothing short of theft of proprietary information, something in which a power to ""exclude others"" could be said to exist. See id., at 233.
+
+Petitioner argues that the common-law tort of unfair competition ""by definition"" protects property interests, Brief for Petitioner 15, and thus the TRCA ""by definition"" is designed to remedy and prevent deprivations of such interests in the false-advertising context. Even as a logical matter, that does not follow, since not everything which protects property interests is designed to remedy or prevent deprivations of those property interests. A municipal ordinance prohibiting billboards in residential areas protects the property interests of homeowners, although erecting billboards would ordinarily not deprive them of property. To sweep within the Fourteenth Amendment the elusive property interests that are ""by definition"" protected by unfair-competition law would violate our frequent admonition that the Due Process Clause is not merely a ""font of tort law."" Paul v. Davis, 424 U.S. 693, 701 (1976).
+
+Petitioner's second assertion of a property interest rests upon an argument similar to the one just discussed, and suffers from the same flaw. Petitioner argues that businesses are ""property"" within the meaning of the Due Process Clause, and that Congress legislates under § 5 when it passes a law that prevents state interference with business (which false advertising does). Brief for Petitioner 19-20. The assets of a business (including its good will) unquestionably are property, and any state taking of those assets is unquestionably a ""deprivation"" under the Fourteenth Amendment. But business in the sense of the activity of doing business, or the activity of making a profit is not property in the ordinary sense_x0097_and it is only that, and not any business asset, which is impinged upon by a competitor's false advertising.
+
+Finding that there is no deprivation of property at issue here, we need not pursue the follow-on question that City of Boerne would otherwise require us to resolve: whether the prophylactic measure taken under purported authority of § 5 (viz., prohibition of States' sovereign-immunity claims, which are not in themselves violations of the Fourteenth Amendment) was genuinely necessary to prevent violation of the Fourteenth Amendment. We turn next to the question whether Florida's sovereign immunity, though not abrogated, was voluntarily waived.",analysis,The Constitutionality of Florida's Sovereign Immunity,disagree,Florida's Sovereign Immunity,agree,Absence of Abrogation of Florida's Sovereign Immunity by Congress' Enactment of the TRCA,3
+G2,2,1,1,IV,"We have long recognized that a State's sovereign immunity is ""a personal privilege which it may waive at pleasure."" Clark v. Barnard, 108 U. S., at 447. The decision to waive that immunity, however, ""is altogether voluntary on the part of the sovereignty."" Beers v. Arkansas, 20 How. 527, 529 (1858). Accordingly, our ""test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one."" Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985). Generally, we will find a waiver either if the State voluntarily invokes our jurisdiction, Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284 (1906), or else if the State makes a ""clear declaration"" that it intends to submit itself to our jurisdiction, Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944). See also Pennhurst State School and Hospital v. Halderman, 465 U. S., at 99 (State's consent to suit must be ""unequivocally expressed""). Thus, a State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation. Smith v. Reeves, 178 U.S. 436, 441-445 (1900). Nor does it consent to suit in federal court merely by stating its intention to ""sue and be sued,"" Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U.S. 147, 149-150 (1981) (per curiam), or even by authorizing suits against it ""`in any court of competent jurisdiction,'"" Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 577-579 (1946). We have even held that a State may, absent any contractual commitment to the contrary, alter the conditions of its waiver and apply those changes to a pending suit. Beers v. Arkansas, supra.
+
+There is no suggestion here that respondent Florida Prepaid expressly consented to being sued in federal court. Nor is this a case in which the State has affirmatively invoked our jurisdiction. Rather, petitioner College Savings and the United States both maintain that Florida Prepaid has ""impliedly"" or ""constructively"" waived its immunity from Lanham Act suit. They do so on the authority of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184 (1964)_x0097_ an elliptical opinion that stands at the nadir of our waiver (and, for that matter, sovereign-immunity) jurisprudence. In Parden, we permitted employees of a railroad owned and operated by Alabama to bring an action under the Federal Employers' Liability Act (FELA) against their employer. Despite the absence of any provision in the statute specifically referring to the States, we held that the Act authorized suits against the States by virtue of its general provision subjecting to suit ""[e]very common carrier by railroad . . . engaging in commerce between . . . the several States,"" 45 U.S. C. § 51 (1940 ed.). We further held that Alabama had waived its immunity from FELA suit even though Alabama law expressly disavowed any such waiver:
+
+""By enacting the [FELA] . . . Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit."" 377 U.S., at 192.
+The four dissenting Justices in Parden refused to infer a waiver because Congress had not ""expressly declared"" that a State operating in commerce would be subject to liability, but they went on to acknowledge_x0097_in a concession that, strictly speaking, was not necessary to their analysis_x0097_that Congress possessed the power to effect such a waiver of the State's constitutionally protected immunity so long as it did so with clarity. Id., at 198-200 (opinion of White, J.).
+
+Only nine years later, in Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279 (1973), we began to retreat from Parden. That case held_x0097_in an opinion written by one of the Parden dissenters over the solitary dissent of Parden's author_x0097_that the State of Missouri was immune from a suit brought under the Fair Labor Standards Act by employees of its state health facilities. Although the statute specifically covered the state hospitals in question, see 29 U.S. C. § 203(d) (1964 ed.), and such coverage was unquestionably enforceable in federal court by the United States, 411 U.S., at 285-286, we did not think that the statute expressed with clarity Congress's intention to supersede the States' immunity from suits brought by individuals. We ""put to one side"" the Parden case, which we characterized as involving ""dramatic circumstances"" and ""a rather isolated state activity,"" 411 U. S., at 285, unlike the provision of the Fair Labor Standards Act in question that applied to a broad class of state employees. We also distinguished the railroad in Parden on the ground that it was ""operated for profit"" ""in the area where private persons and corporations normally ran the enterprise."" 411 U.S., at 284. Justice Marshall, joined by Justice Stewart, went even further, concluding that although, in their view, Congress had clearly purported to subject the States to suits by individuals in federal courts, it lacked the constitutional authority to do so. Id., at 287, 289-290 (opinion concurring in result).
+
+The next year, we observed (in dictum) that there is ""no place"" for the doctrine of constructive waiver in our sovereign-immunity jurisprudence, and we emphasized that we would ""find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction."" Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal quotation marks omitted). Several Terms later, in Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468 (1987), although we expressly avoided addressing the constitutionality of Congress's conditioning a State's engaging in Commerce Clause activity upon the State's waiver of sovereign immunity, we said there was ""no doubt that Parden's discussion of congressional intent to negate Eleventh Amendment immunity is no longer good law,"" and overruled Parden ""to the extent [it] is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language,"" 483 U.S., at 478, and n. 8.[2]
+
+College Savings and the United States concede, as they surely must, that these intervening decisions have seriously limited the holding of Parden. They maintain, however, that Employees and Welch are distinguishable, and that a core principle of Parden remains good law. A Parden -style waiver of immunity, they say, is still possible after Employees and Welch so long as the following two conditions are satisfied: First, Congress must provide unambiguously that the State will be subject to suit if it engages in certain specified conduct governed by federal regulation. Second, the State must voluntarily elect to engage in the federally regulated conduct that subjects it to suit. In this latter regard, their argument goes, a State is never deemed to have constructively waived its sovereign immunity by engaging in activities that it cannot realistically choose to abandon, such as the operation of a police force; but constructive waiver is appropriate where a State runs an enterprise for profit, operates in a field traditionally occupied by private persons or corporations, engages in activities sufficiently removed from ""core [state] functions,"" Reply Brief for United States 3, or otherwise acts as a ""market participant"" in interstate commerce, cf. White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 206-208 (1983). On this theory, Florida Prepaid constructively waived its immunity from suit by engaging in the voluntary and nonessential activity of selling and advertising a for-profit educational investment vehicle in interstate commerce after being put on notice by the clear language of the TRCA that it would be subject to Lanham Act liability for doing so.
+
+We think that the constructive-waiver experiment of Parden was ill conceived, and see no merit in attempting to salvage any remnant of it. As we explain below in detail, Parden broke sharply with prior cases, and is fundamentally incompatible with later ones. We have never applied the holding of Parden to another statute, and in fact have narrowed the case in every subsequent opinion in which it has been under consideration. In short, Parden stands as an anomaly in the jurisprudence of sovereign immunity, and indeed in the jurisprudence of constitutional law. Today, we drop the other shoe: Whatever may remain of our decision in Parden is expressly overruled.
+
+To begin with, we cannot square Parden with our cases requiring that a State's express waiver of sovereign immunity be unequivocal. See, e. g., Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). The whole point of requiring a ""clear declaration"" by the State of its waiver is to be certain that the State in fact consents to suit. But there is little reason to assume actual consent based upon the State's mere presence in a field subject to congressional regulation. There is a fundamental difference between a State's expressing unequivocally that it waives its immunity and Congress's expressing unequivocally its intention that if the State takes certain action it shall be deemed to have waived that immunity. In the latter situation, the most that can be said with certainty is that the State has been put on notice that Congress intends to subject it to suits brought by individuals. That is very far from concluding that the State made an ""altogether voluntary"" decision to waive its immunity. Beers, 20 How., at 529.[3]
+
+Indeed, Parden -style waivers are simply unheard of in the context of other constitutionally protected privileges. As we said in Edelman, ""[c]onstructive consent is not a doctrine commonly associated with the surrender of constitutional rights."" 415 U.S., at 673. For example, imagine if Congress amended the securities laws to provide with unmistakable clarity that anyone committing fraud in connection with the buying or selling of securities in interstate commerce would not be entitled to a jury in any federal criminal prosecution of such fraud. Would persons engaging in securities fraud after the adoption of such an amendment be deemed to have ""constructively waived"" their constitutionally protected rights to trial by jury in criminal cases? After all, the trading of securities is not so vital an activity that any one person's decision to trade cannot be regarded as a voluntary choice. The answer, of course, is no. The classic description of an effective waiver of a constitutional right is the ""intentional relinquishment or abandonment of a known right or privilege."" Johnson v. Zerbst, 304 U.S. 458, 464 (1938). ""[C]ourts indulge every reasonable presumption against waiver"" of fundamental constitutional rights. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393 (1937). See also Ohio Bell Telephone Co. v. Public Util. Comm'n of Ohio, 301 U.S. 292, 307 (1937) (we ""do not presume acquiescence in the loss of fundamental rights""). State sovereign immunity, no less than the right to trial by jury in criminal cases, is constitutionally protected. Great Northern, supra, at 51; Pennhurst, 465 U. S., at 98. And in the context of federal sovereign immunity_x0097_obviously the closest analogy to the present case_x0097_it is well established that waivers are not implied. See, e. g., United States v. King, 395 U.S. 1, 4 (1969) (describing the ""settled propositio[n]"" that the United States' waiver of sovereign immunity ""cannot be implied but must be unequivocally expressed""). We see no reason why the rule should be different with respect to state sovereign immunity.
+
+Given how anomalous it is to speak of the ""constructive waiver"" of a constitutionally protected privilege, it is not surprising that the very cornerstone of the Parden opinion was the notion that state sovereign immunity is not constitutionally grounded. Parden's discussion of waiver began with the observation:
+
+""By empowering Congress to regulate commerce . . . the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to such a railroad cannot be precluded by sovereign immunity."" 377 U.S., at 192.
+See also id., at 193-194, n. 11. Our more recent decision in Seminole Tribe expressly repudiates that proposition, and in formally overruling Parden we do no more than make explicit what that case implied.
+
+Recognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe. Forced waiver and abrogation are not even different sides of the same coin_x0097_they are the same side of the same coin. ""All congressional creations of private rights of action attach recovery to the defendant's commission of some act, or possession of some status, in a field where Congress has authority to regulate conduct. Thus, all federal prescriptions are, insofar as their prospective application is concerned, in a sense conditional, and_x0097_to the extent that the objects of the prescriptions consciously engage in the activity or hold the status that produces liability_x0097_can be redescribed as invitations to `waiver.'"" Pennsylvania v. Union Gas Co., 491 U.S. 1, 43 (1989) (Scalia, J., dissenting). See also Fitzpatrick, 427 U. S., at 451-452 (referring to congressional intent to ""abrogate"" state sovereign immunity as a ""necessary predicate"" for Parden -style waiver). There is little more than a verbal distinction between saying that Congress can make Florida liable to private parties for false or misleading advertising in interstate commerce of its prepaid tuition program, and saying the same thing but adding at the end ""if Florida chooses to engage in such advertising."" As further evidence that constructive waiver is little more than abrogation under another name, consider the revealing facts of this case: The statutory provision relied upon to demonstrate that Florida constructively waived its sovereign immunity is the very same provision that purported to abrogate it.
+
+Nor do we think that the constitutionally grounded principle of state sovereign immunity is any less robust where, as here, the asserted basis for constructive waiver is conduct that the State realistically could choose to abandon, that is undertaken for profit, that is traditionally performed by private citizens and corporations, and that otherwise resembles the behavior of ""market participants."" Permitting abrogation or constructive waiver of the constitutional right only when these conditions exist would of course limit the evil_x0097_ but it is hard to say that that limitation has any more support in text or tradition than, say, limiting abrogation or constructive waiver to the last Friday of the month. Since sovereign immunity itself was not traditionally limited by these factors, and since they have no bearing upon the voluntariness of the waiver, there is no principled reason why they should enter into our waiver analysis. When we held in Seminole Tribe that sovereign immunity barred an action brought under the Indian Gaming Regulatory Act against the State of Florida for its alleged failure to negotiate a gambling compact with the Seminole Tribe of Indians, we did not pause to consider whether Florida's decision not to negotiate was somehow involuntary. Nor did we pause to consider whether running a tugboat towing service at ""fair and reasonable rates"" was for profit, was traditionally performed by private citizens and corporations, and otherwise resembled the behavior of ""market participants"" when we held, in Ex parte New York, 256 U.S. 490 (1921), that sovereign immunity foreclosed an admiralty action against the State of New York for damages caused by the State's engaging in such activity. Hans itself involved an action against Louisiana to recover coupons on a bond_x0097_the issuance of which surely rendered Louisiana a participant in the financial markets.
+
+The ""market participant"" cases from our dormant Commerce Clause jurisprudence, relied upon by the United States, are inapposite. See, e. g., White v.Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204 (1983); Reeves, Inc. v. Stake, 447 U.S. 429 (1980); and Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976). Those cases hold that, where a State acts as a participant in the private market, it may prefer the goods or services of its own citizens, even though it could not do so while acting as a market regulator. Since ""state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants,"" ""[e]venhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the [dormant] Commerce Clause."" White, supra, at 207-208, n. 3. The ""market participant"" exception to judicially created dormant Commerce Clause restrictions makes sense because the evil addressed by those restrictions_x0097_the prospect that States will use custom duties, exclusionary trade regulations, and other exercises of governmental power (as opposed to the expenditure of state resources) to favor their own citizens, see Hughes, supra, at 808_x0097_is entirely absent where the States are buying and selling in the market. In contrast, a suit by an individual against an unconsenting State is the very evil at which the Eleventh Amendment is directed_x0097_and it exists whether or not the State is acting for profit, in a traditionally ""private"" enterprise, and as a ""market participant."" In the sovereign-immunity context, moreover, ""[e]venhandness"" between individuals and States is not to be expected: ""[T]he constitutional role of the States sets them apart from other employers and defendants."" Welch, 483 U. S., at 477. Cf. Atascadero, 473 U. S., at 246.[4]
+
+The United States points to two other contexts in which it asserts we have permitted Congress, in the exercise of its Article I powers, to extract ""constructive waivers"" of state sovereign immunity. In Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959), we held that a bistate commission which had been created pursuant to an interstate compact (and which we assumed partook of state sovereign immunity) had consented to suit by reason of a suability provision attached to the congressional approval of the compact. And we have held in such cases as South Dakota v. Dole, 483 U.S. 203 (1987), that Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions. These cases seem to us fundamentally different from the present one. Under the Compact Clause, U. S. Const., Art. I, § 10, cl. 3, States cannot form an interstate compact without first obtaining the express consent of Congress; the granting of such consent is a gratuity. So also, Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts. In the present case, however, what Congress threatens if the State refuses to agree to its condition is not the denial of a gift or gratuity, but a sanction: exclusion of the State from otherwise permissible activity. Justice Breyer's dissent acknowledges the intuitive difference between the two, but asserts that it disappears when the gift that is threatened to be withheld is substantial enough. Post, at 697. Perhaps so, which is why, in cases involving conditions attached to federal funding, we have acknowledged that ""the financial inducement offered by Congress might be so coercive as to pass the point at which `pressure turns into compulsion.'"" Dole, supra, at 211, quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937). In any event, we think where the constitutionally guaranteed protection of the States' sovereign immunity is involved, the point of coercion is automatically passed_x0097_and the voluntariness of waiver destroyed_x0097_when what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity.",analysis,Waiver of Immunity from Federal Court Jurisdiction,agree,Waiver of Immunity,agree,Florida's Non-Waived Sovereign Immunity,4
+G2,2,1,1,V,"The principal thrust of Justice Breyer's dissent is an attack upon the very legitimacy of state sovereign immunity itself. In this regard, Justice Breyer and the other dissenters proclaim that they are ""not yet ready,"" post, at 699 (emphasis added), to adhere to the still-warm precedent of Seminole Tribe and to the 110-year-old decision in Hans that supports it.[5] Accordingly, Justice Breyer reiterates (but only in outline form, thankfully) the now-fashionable revisionist accounts of the Eleventh Amendment set forth in other opinions in a degree of repetitive detail that has despoiled our northern woods. Compare post, at 700-701, with Atascadero, supra, at 258-302 (Brennan, J., dissenting); Welch, supra, at 504-516 (Brennan, J., dissenting); Seminole Tribe, 517 U. S., at 76-99 (Stevens, J., dissenting); id., at 100-185 (Souter, J., dissenting). But see Alden v. Maine, post, at 760-808 (Souter, J., dissenting). The arguments recited in these sources have been soundly refuted, and the position for which they have been marshaled has been rejected by constitutional tradition and precedent as clear and conclusive, and almost as venerable, as that which consigns debate over whether Marbury v. Madison, 1 Cranch 137 (1803), was wrongly decided to forums more otherworldly than ours. See Union Gas, 491 U. S., at 33-34, 35-42 (Scalia, J., dissenting); Seminole Tribe, supra, at 54-73; Alden, post, at 712-730. On this score, we think nothing further need be said except two minor observations peculiar to this case.
+
+First, Justice Breyer and the other dissenters have adopted a decidedly perverse theory of stare decisis. While finding themselves entirely unconstrained by a venerable precedent such as Hans, embedded within our legal system for over a century, see, e. g., Welch, 483 U. S., at 494, n. 27; Union Gas, supra, at 34-35 (Scalia, J., dissenting), at the same time they cling desperately to an anomalous and severely undermined decision (Parden) from the 1960's. Surely this approach to stare decisis is exactly backwards_x0097_ unless, of course, one wishes to use it as a weapon rather than a guide, in which case any old approach will do. Second, while we stress that the following observation has no bearing upon our resolution of this case, we find it puzzling that Justice Breyer would choose this occasion to criticize our sovereign-immunity jurisprudence as being ungrounded in constitutional text, since the present lawsuit that he would allow to go forward_x0097_having apparently been commenced against a State (Florida) by a citizen of another State (College Savings Bank of New Jersey), 948 F. Supp., at 401-402_x0097_ seems to fall foursquare within the literal text of the Eleventh Amendment: ""The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . ."" U. S. Const., Amdt. 11 (emphasis added). See Seminole Tribe, supra, at 82, n. 8 (Stevens, J., dissenting).
+
+As for the more diffuse treatment of the subject of federalism contained in the last portion of Justice Breyer's opinion: It is alarming to learn that so many Members of this Court subscribe to a theory of federalism that rejects ""the details of any particular federalist doctrine""_x0097_which it says can and should ""change to reflect the Nation's changing needs""_x0097_and that puts forward as the only ""unchanging goal"" of federalism worth mentioning ""the protection of liberty,"" which it believes is most directly achieved by ""promoting the sharing among citizens of governmental decisionmaking authority,"" which in turn demands (we finally come to the point) ""necessary legislative flexibility"" for the people's representatives in Congress. Post, at 702-703. The proposition that ""the protection of liberty"" is most directly achieved by ""promoting the sharing among citizens of governmental decisionmaking authority"" might well have dropped from the lips of Robespierre, but surely not from those of Madison, Jefferson, or Hamilton, whose north star was that governmental power, even_x0097_indeed, especially_x0097_governmental power wielded by the people, had to be dispersed and countered. And to say that the degree of dispersal to the States, and hence the degree of check by the States, is to be governed by Congress's need for ""legislative flexibility"" is to deny federalism utterly. (Justice Breyer's opinion comes close to admitting this when the only example of a ""federalism"" constraint that it can bear to acknowledge as being appropriate for judicial recognition is the invalidation of a State's law under_x0097_of all things, given the passion for text that characterizes some parts of his opinion_x0097_the ""dormant Commerce Clause,"" post, at 703.) Legislative flexibility on the part of Congress will be the touchstone of federalism when the capacity to support combustion becomes the acid test of a fire extinguisher. Congressional flexibility is desirable, of course_x0097_but only within the bounds of federal power established by the Constitution. Beyond those bounds (the theory of our Constitution goes), it is a menace. Our opinion today has sought to discern what the bounds are; Justice Breyer's dissent denies them any permanent place.
+
+Finally, we must comment upon Justice Breyer's comparison of our decision today with the discredited substantive-due-process case of Lochner v. New York, 198 U.S. 45 (1905). It resembles Lochner, of course, in the respect that it rejects a novel assertion of governmental power which the legislature believed to be justified. But if that alone were enough to qualify as a mini-Lochner, the list of mini-Lochners would be endless. Most of our judgments invalidating state and federal laws fit that description. We had always thought that the distinctive feature of Lochner, nicely captured in Justice Holmes's dissenting remark about ""Mr. Herbert Spencer's Social Statics,"" id., at 75, was that it sought to impose a particular economic philosophy upon the Constitution. And we think that feature aptly characterizes, not our opinion, but Justice Breyer's dissent, which believes that States should not enjoy the normal constitutional protections of sovereign immunity when they step out of their proper economic role to engage in (we are sure Mr. Herbert Spencer would be shocked) ""ordinary commercial ventures,"" post, at 694. What ever happened to the need for ""legislative flexibility""?
+",analysis,Stare Decisis,strongly disagree,The Legitimacy of State Sovereign Immunity,strongly agree,Justice Breyer's Criticism Against State Sovereign Immunity Doctrine,5
+G2,2,1,1,*,"Concluding, for the foregoing reasons, that the sovereign immunity of the State of Florida was neither validly abrogated by the Trademark Remedy Clarification Act, nor voluntarily waived by the State's activities in interstate commerce, we hold that the federal courts are without jurisdiction to entertain this suit against an arm of the State of Florida. The judgment of the Third Circuit dismissing the action is affirmed.
+
+It is so ordered.",conclusion,Jurisdiction over the State of Florida,strongly agree,The State of Florida,disagree,The Lack of Jurisdiction over Florida,6
+G2,5,1,1,I,"As enacted in 1938, the FLSA, 29 U.S.C. § 201 et seq., required employers engaged in the production of goods for commerce to pay their employees a minimum wage of ""not less than 25 cents an hour,"" § 6(a)(1), 52 Stat. 1062, and prohibited the employment of any person for workweeks in excess of 40 hours after the second year following the legislation ""unless such employee receives compensation for his employment in excess of [40] hours . . . at a rate not less than one and one-half times the regular rate at which he is employed,"" id., § 7(a)(3), at 1063. Neither ""work"" nor ""workweek"" is defined in the statute.[1]
+
+Our early cases defined those terms broadly. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944), we held that time spent traveling from iron ore mine portals to underground working areas was compensable; relying on the remedial purposes of the statute and Webster's Dictionary, we described ""work or employment"" as ""physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business."" Id., at 598; see id., at 598, n. 11. The same year, in Armour & Co. v. Wantock, 323 U.S. 126 (1944), we clarified that ""exertion"" was not in fact necessary for an activity to constitute ""work"" under the FLSA. We pointed out that ""an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen."" Id., at 133. Two years later, in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), we defined ""the statutory workweek"" to ""includ[e] all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace."" Id., at 690-691. Accordingly, we held that the time necessarily spent by employees walking from timeclocks near the factory entrance gate to their workstations must be treated as part of the workweek. Id., at 691-692.
+
+The year after our decision in Anderson, Congress passed the Portal-to-Portal Act, amending certain provisions of the FLSA. Based on findings that judicial interpretations of the FLSA had superseded ""long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation,"" 61 Stat. 84, it responded with two statutory remedies, the first relating to ""existing claims,"" id., at 85-86, and the second to ""future claims,"" id., at 87-88. Both remedies distinguish between working time that is compensable pursuant to contract or custom and practice, on the one hand, and time that was found compensable under this Court's expansive reading of the FLSA, on the other. Like the original FLSA, however, the Portal-to-Portal Act omits any definition of the term ""work.""
+
+With respect to existing claims, the Portal-to-Portal Act provided that employers would not incur liability on account of their failure to pay minimum wages or overtime compensation for any activity that was not compensable by either an express contract or an established custom or practice.[2] With respect to ""future claims,"" the Act preserved potential liability for working time not made compensable by contract or custom but narrowed the coverage of the FLSA by excepting two activities that had been treated as compensable under our cases: walking on the employer's premises to and from the actual place of performance of the principal activity of the employee, and activities that are ""preliminary or postliminary"" to that principal activity.
+
+Specifically, Part III of the Portal-to-Portal Act, entitled ""FUTURE CLAIMS,"" provides in relevant part:
+
+""SEC. 4. RELIEF FROM CERTAIN FUTURE CLAIMS UNDER THE FAIR LABOR STANDARDS ACT OF 1938 . . . _x0097_
+""(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act_x0097_
+""(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
+""(2) activities which are preliminary to or postliminary to said principal activity or activities, ""which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities."" 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a)).
+Other than its express exceptions for travel to and from the location of the employee's ""principal activity,"" and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal Act does not purport to change this Court's earlier descriptions of the terms ""work"" and ""workweek,"" or to define the term ""workday."" A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked ""within"" the workday. That regulation states: ""[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [§ 4] have no application."" 29 CFR § 790.6(a) (2005).[3] Similarly, consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the ""workday"" is generally defined as ""the period between the commencement and completion on the same workday of an employee's principal activity or activities."" § 790.6(b). These regulations have remained in effect since 1947, see 12 Fed. Reg. 7658 (1947), and no party disputes the validity of the continuous workday rule.
+
+In 1955, eight years after the enactment of the Portal-to-Portal Act and the promulgation of these interpretive regulations, we were confronted with the question whether workers in a battery plant had a statutory right to compensation for the ""time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide . . . ."" Steiner v. Mitchell, 350 U.S. 247, 248 (1956). After distinguishing ""changing clothes and showering under normal conditions"" and stressing the important health and safety risks associated with the production of batteries, id., at 249, the Court endorsed the Court of Appeals' conclusion that these activities were compensable under the FLSA.
+
+In reaching this result, we specifically agreed with the Court of Appeals that ""the term `principal activity or activities' in Section 4 [of the Portal-to-Portal Act] embraces all activities which are an `integral and indispensable part of the principal activities,' and that the activities in question fall within this category."" Id., at 252-253. Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are ""performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1)."" Id., at 256.
+
+The principal question presented by these consolidated cases_x0097_both of which involve required protective gear that the courts below found integral and indispensable to the employees' work_x0097_is whether postdonning and predoffing walking time is specifically excluded by § 4(a)(1). We conclude that it is not.",analysis, The FLSA,disagree,The FLSA and the Workweek,agree,Paid Working Time According to the FLSA and the Portal-to-Portal Act,1
+G2,5,1,1,II,"Petitioner in No. 03-1238, IBP, Inc. (IBP), is a large producer of fresh beef, pork, and related products. At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division. All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass armguards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear.
+
+Production workers' pay is based on the time spent cutting and bagging meat. Pay begins with the first piece of meat and ends with the last piece of meat. Since 1998, however, IBP has also paid for four minutes of clothes-changing time.[4] In 1999, respondents, IBP employees, filed this class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts.
+
+After a lengthy bench trial, the District Court for the Eastern District of Washington held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such equipment. Moreover, consistent with the continuous workday rule, the District Court concluded that, for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the workday.[5] The court did not, however, allow any recovery for ordinary clothes changing and washing, or for the ""donning and doffing of hard hat[s], ear plugs, safety glasses, boots [or] hairnet[s]."" App. to Pet. for Cert. in No. 03-1238, p. 65a.
+
+The District Court proceeded to apply these legal conclusions in making detailed factual findings with regard to the different groups of employees. For example, the District Court found that, under its view of what was covered by the FLSA, processing division knife users were entitled to compensation for between 12 and 14 minutes of preproduction and postproduction work, including 3.3 to 4.4 minutes of walking time.
+
+The Court of Appeals agreed with the District Court's ultimate conclusions on these issues, but in part for different reasons. 339 F.3d 894 (CA9 2003). After noting that the question whether activities ""`are an integral and indispensable part of the principal activities'"" within the meaning of Steiner is ""context specific,"" 339 F.3d, at 902, the Court of Appeals endorsed the distinction between the burdensome donning and doffing of elaborate protective gear, on the one hand, and the time spent donning and doffing nonunique gear such as hardhats and safety goggles, on the other. It did so not because donning and doffing nonunique gear are categorically excluded from being ""principal activities"" as defined by the Portal-to-Portal Act, but rather because, in the context of this case, the time employees spent donning and doffing nonunique protective gear was ""`de minimis as a matter of law.'"" Id., at 904.
+
+IBP does not challenge the holding below that, in light of Steiner, the donning and doffing of unique protective gear are ""principal activities"" under § 4 of the Portal-to-Portal Act. Moreover, IBP has not asked us to overrule Steiner. Considerations of stare decisis are particularly forceful in the area of statutory construction, especially when a unanimous interpretation of a statute has been accepted as settled law for several decades. Thus, the only question for us to decide is whether the Court of Appeals correctly rejected IBP's contention that the walking between the locker rooms and the production areas is excluded from FLSA coverage by § 4(a)(1) of the Portal-to-Portal Act.
+
+IBP argues that the text of § 4(a)(1), the history and purpose of its enactment, and the Department of Labor's interpretive guidance compel the conclusion that the Portal-to-Portal Act excludes this walking time from the scope of the FLSA. We find each of these arguments unpersuasive.",facts,The IBP Class Action,disagree,"IBP, Inc.",strongly disagree,The IBP Suit,2
+G2,5,1,1,Text,"IBP correctly points out that our decision in Steiner held only that the donning and doffing of protective gear in that case were activities ""integral and indispensable"" to the workers' principal activity of making batteries. 350 U.S., at 256. In IBP's view, a category of ""integral and indispensable"" activities that may be compensable because they are not merely preliminary or postliminary within the meaning of § 4(a)(2) is not necessarily coextensive with the actual ""principal activities"" which the employee ""is employed to perform"" within the meaning of § 4(a)(1). In other words, IBP argues that, even though the court below concluded that donning and doffing of unique protective gear are ""integral and indispensable"" to the employees' principal activity, this means only that the donning and doffing of such gear are themselves covered by the FLSA. According to IBP, the donning is not a ""principal activity"" that starts the workday, and the walking that occurs immediately after donning and immediately before doffing is not compensable. In effect, IBP asks us to create a third category of activities_x0097_those that are ""integral and indispensable"" to a ""principal activity"" and thus not excluded from coverage by § 4(a)(2), but that are not themselves ""principal activities"" as that term is defined by § 4(a)(1).
+
+IBP's submission is foreclosed by Steiner. As noted above, in Steiner we made it clear that § 4 of the Portal-to-Portal Act does not remove activities which are ""`integral and indispensable'"" to ""`principal activities'"" from FLSA coverage precisely because such activities are themselves ""`principal activities.'"" Id., at 253. While Steiner specifically addressed the proper interpretation of the term ""principal activity or activities"" in § 4(a)(2), there is no plausible argument that these terms mean something different in § 4(a)(2) than they do in § 4(a)(1).[6] This is not only because of the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning. E. g., Sullivan v. Stroop, 496 U.S. 478, 484 (1990). It is also because § 4(a)(2) refers to ""said principal activity or activities."" 61 Stat. 87 (emphasis added). The ""said"" is an explicit reference to the use of the identical term in § 4(a)(1).
+
+Indeed, IBP has not offered any support for the unlikely proposition that Congress intended to create an intermediate category of activities that would be sufficiently ""principal"" to be compensable, but not sufficiently principal to commence the workday. Accepting the necessary import of our holding in Steiner, we conclude that the locker rooms where the special safety gear is donned and doffed are the relevant ""place of performance"" of the principal activity that the employee was employed to perform within the meaning of § 4(a)(1). Walking to that place before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced.",analysis,Integral and Indispensable Activities,agree,The Donning and Doffing of Protective Gear,agree,The Donning and Doffing of Protective Gear as Integral and Indispensable to the Principal Activity,3
+G2,5,1,1,Purpose,"IBP emphasizes that our decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, may well have been the proximate cause of the enactment of the Portal-to-Portal Act. In that case we held that the FLSA mandated compensation for the time that employees spent walking from timeclocks located near the plant entrance to their respective places of work prior to the start of their productive labor. Id., at 690-691. In IBP's view, Congress' forceful repudiation of that holding reflects a purpose to exclude what IBP regards as the quite similar walking time spent by respondents before and after their work slaughtering cattle and processing meat. Even if there is ambiguity in the statute, we should construe it to effectuate that important purpose.
+
+This argument is also unpersuasive. There is a critical difference between the walking at issue in Anderson and the walking at issue in this case. In Anderson the walking preceded the employees' principal activity; it occurred before the workday began. The relevant walking in this case occurs after the workday begins and before it ends. Only if we were to endorse IBP's novel submission that an activity can be sufficiently ""principal"" to be compensable, but not sufficiently so to start the workday, would this case be comparable to Anderson.
+
+Moreover, there is a significant difference between the open-ended and potentially expansive liability that might result from a rule that treated travel before the workday begins as compensable, and the rule at issue in this case. Indeed, for processing division knife users, the largest segment of the work force at IBP's plant, the walking time in dispute here consumes less time than the donning and doffing activities that precede or follow it. It is more comparable to time spent walking between two different positions on an assembly line than to the prework walking in Anderson.",analysis,Comparison to Anderson,strongly agree,The Proximate Cause of the Portal-to-Portal Act,strongly disagree,Comparison of the Facts to Anderson,4
+G2,5,1,1,Regulations,"The regulations adopted by the Secretary of Labor in 1947 support respondents' view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday. Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line. See 29 CFR § 790.7(c) (2005) (explaining that the Portal-to-Portal Act does not affect the compensability of time spent traveling from the place of performance of one principal activity to that of another). See also § 785.38 (explaining, in a later regulation interpreting the FLSA, that ""[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked ..."").
+
+IBP argues, however, that two provisions in the regulations point to a different conclusion_x0097_the use of the phrase ""whistle to whistle"" in discussing the limits of the ""workday,"" § 790.6, and a footnote stating that postchanging walking time is not ""necessarily"" excluded from the scope of § 4(a)(1), § 790.7(g), n. 49.
+
+The ""whistle to whistle"" reference does reflect the view that in most situations the workday will be defined by the beginning and ending of the primary productive activity. But the relevant text describes the workday as ""roughly the period `from whistle to whistle.'"" § 790.6(a) (emphasis added). Indeed, the next subsection of this same regulation states: ""`Workday' as used in the Portal Act means, in general, the period between the commencement and completion on the same workday of an employee's principal activity or activities."" § 790.6(b). IBP's emphasis on the ""whistle to whistle"" reference is unavailing.
+
+The footnote on which IBP relies states:
+
+""Washing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee's `principal activity.' This does not necessarily mean, however, that travel between the washroom or clothes-changing place and the actual place of performance of the specific work the employee is employed to perform, would be excluded from the type of travel to which section 4(a) refers."" § 790.7(g), n. 49 (emphasis added; citations omitted).
+This footnote does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be. That assumption is, of course, inconsistent with IBP's submission that such walking is always excluded by § 4(a), just as it is inconsistent with respondents' view that such walking is never excluded. Whatever the correct explanation for the Secretary's ambiguous (and apparently ambivalent) statement may be, it is not sufficient to overcome the clear statements in the text of the regulations that support our holding. And it surely is not sufficient to overcome the statute itself, whose meaning is definitively resolved by Steiner.
+
+For the foregoing reasons, we hold that any activity that is ""integral and indispensable"" to a ""principal activity"" is itself a ""principal activity"" under § 4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA.",analysis,The Portal-to-Portal Act,disagree, The Regulations and the Workday,strongly agree,Secretary of Labor's Regulations on the Workday,5
+G2,5,1,1,III,"Respondent in No. 04-66, Barber Foods, Inc. (Barber), operates a poultry processing plant in Portland, Maine, that employs about 300 production workers. These employees operate six production lines and perform a variety of tasks that require different combinations of protective clothing. They are paid by the hour from the time they punch in to computerized timeclocks located at the entrances to the production floor.
+
+Petitioners are Barber employees and former employees who brought this action to recover compensation for alleged unrecorded work covered by the FLSA. Specifically, they claimed that Barber's failure to compensate them for (a) donning and doffing required protective gear and (b) the attendant walking and waiting violated the statute.
+
+After extensive discovery, the Magistrate Judge issued a comprehensive opinion analyzing the facts in detail, and recommending the entry of partial summary judgment in favor of Barber. That opinion, which was later adopted by the District Court for Maine, included two critical rulings.
+
+First, the Magistrate Judge held that ""the donning and doffing of clothing and equipment required by the defendant or by government regulation, as opposed to clothing and equipment which employees choose to wear or use at their option, is an integral part of the plaintiffs' work [and therefore are] not excluded from compensation under the Portalto-Portal Act as preliminary or postliminary activities."" App. to Pet. for Cert. in No. 04-66, pp. 36a-40a.
+
+Second, the Magistrate Judge rejected petitioners' claims for ""compensation for the time spent before obtaining their clothing and equipment."" Id., at 33a. Such time, in the Magistrate Judge's view, ""could [not] reasonably be construed to be an integral part of employees' work activities any more than walking to the cage from which hairnets and earplugs are dispensed . . . ."" Ibid. Accordingly, Barber was ""entitled to summary judgment on any claims based on time spent walking from the plant entrances to an employee's workstation, locker, time clock or site where clothing and equipment required to be worn on the job is to be obtained and any claims based on time spent waiting to punch in or out for such clothing or equipment."" Id., at 33a-34a.
+
+The Magistrate Judge's opinion did not specifically address the question whether the walking time between the production line and the place of donning and doffing was encompassed by § 4 of the Portal-to-Portal Act, and thus excluded from coverage under the FLSA. Whatever the intended scope of the Magistrate's grant of partial summary judgment, the questions submitted to the jury after trial asked jurors to consider only whether Barber was required to compensate petitioners for the time they spent actually donning and doffing various gear.
+
+Before the case was submitted to the jury, the parties stipulated that four categories of workers_x0097_rotating, setup, meatroom, and shipping and receiving associates_x0097_were required to don protective gear at the beginning of their shifts and were required to doff this gear at the end of their shifts. The jury then made factual findings with regard to the amount of time reasonably required for each category of employees to don and doff such items; the jury concluded that such time was de minimis and therefore not compensable. The jury further concluded that two other categories of employees_x0097_maintenance and sanitation associates_x0097_were not required to don protective gear before starting their shifts.[7] Accordingly, the jury ruled for Barber on all counts.
+
+On appeal, petitioners argued, among other things, that the District Court had improperly excluded as noncompensable the time employees spend walking to the production floor after donning required safety gear and the time they spend walking from the production floor to the area where they doff such gear. The Court of Appeals rejected petitioners' argument, concluding that such walking time was a species of preliminary and postliminary activity excluded from FLSA coverage by §§ 4(a)(1) and (2) of the Portal-to-Portal Act. 360 F.3d, at 281. As we have explained in our discussion of IBP's submission, see Part II, supra, that categorical conclusion was incorrect.
+
+Petitioners also argued in the Court of Appeals that the waiting time associated with the donning and doffing of clothes was compensable. The Court of Appeals disagreed, holding that the waiting time qualified as a ""preliminary or postliminary activity"" and thus was excluded from FLSA coverage by the Portal-to-Portal Act. 360 F.3d, at 282. Our analysis in Part II, supra, demonstrates that the Court of Appeals was incorrect with regard to the predoffing waiting time. Because doffing gear that is ""integral and indispensable"" to employees' work is a ""principal activity"" under the statute, the continuous workday rule mandates that time spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by the FLSA.
+
+The time spent waiting to don_x0097_time that elapses before the principal activity of donning integral and indispensable gear_x0097_presents the quite different question whether it should have the effect of advancing the time when the workday begins. Barber argues that such predonning waiting time is explicitly covered by § 4(a)(2) of the Portal-to-Portal Act, which, as noted above, excludes ""activities which are preliminary to or postliminary to [a] principal activity or activities"" from the scope of the FLSA. 29 U.S.C. § 254(a)(2).
+
+By contrast, petitioners, supported by the United States as amicus curiae, maintain that the predonning waiting time is ""integral and indispensable"" to the ""principal activity"" of donning, and is therefore itself a principal activity. However, unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not ""integral and indispensable"" in the same sense that the donning is. It does, however, always comfortably qualify as a ""preliminary"" activity.
+
+We thus do not agree with petitioners that the predonning waiting time at issue in this case is a ""principal activity"" under § 4(a).[8] As Barber points out, the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are ""integral and indispensable"" to a ""principal activity"" under Steiner. For example, walking from a timeclock near the factory gate to a workstation is certainly necessary for employees to begin their work, but it is indisputable that the Portal-to-Portal Act evinces Congress' intent to repudiate Anderson's holding that such walking time was compensable under the FLSA. We discern no limiting principle that would allow us to conclude that the waiting time in dispute here is a ""principal activity"" under § 4(a), without also leading to the logical (but untenable) conclusion that the walking time at issue in Anderson would be a ""principal activity"" under § 4(a) and would thus be unaffected by the Portal-to-Portal Act.
+
+The Government also relies on a regulation promulgated by the Secretary of Labor as supporting petitioners' view. That regulation, 29 CFR § 790.7(h) (2005), states that when an employee ""is required by his employer to report at a particular hour at his workbench or other place where he performs his principal activity, if the employee is there at that hour ready and willing to work but for some reason beyond his control there is no work for him to perform until some time has elapsed, waiting for work would be an integral part of the employee's principal activities."" That regulation would be applicable if Barber required its workers to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed, but there is no such evidence in the record in this case.
+
+More pertinent, we believe, is the portion of § 790.7 that characterizes the time that employees must spend waiting to check in or waiting to receive their paychecks as generally a ""preliminary"" activity covered by the Portal-to-Portal Act. See § 790.7(g). That regulation is fully consistent with the statutory provisions that allow the compensability of such collateral activities to depend on either the agreement of the parties or the custom and practice in the particular industry.
+
+In short, we are not persuaded that such waiting_x0097_which in this case is two steps removed from the productive activity on the assembly line_x0097_is ""integral and indispensable"" to a ""principal activity"" that identifies the time when the continuous workday begins. Accordingly, we hold that § 4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday.",analysis,Barber's Claim,agree,The Maine Appeal,strongly disagree,The Barber Suit,6
+G2,5,1,1,IV,"For the reasons stated above, we affirm the judgment of the Court of Appeals for the Ninth Circuit in No. 03-1238. We affirm in part and reverse in part the judgment of the Court of Appeals for the First Circuit in No. 04-66, and we remand the case for further proceedings consistent with this opinion.
+
+It is so ordered.",conclusion,Order of the Court of Appeals,disagree,The Order of the Court of Appeals for the Ninth Circuit,disagree,Conclusion and Orders on the Suits,7
+G2,6,1,1,I,"Petitioner, then 19 years of age, and his companion, Amanda Miles, decided to rob Allsup's convenience store in Snyder, Texas, on March 23, 1986. After agreeing that there should be no witnesses to the crime, the pair went to the store to survey its layout and, in particular, to determine the number of employees working in the store that evening. They found that the only employee present during the predawn hours was a clerk, Jack Huddleston. Petitioner and Miles left the store to make their final plans.
+
+They returned to Allsup's a short time later. Petitioner, a handgun in his pocket, reentered the store with Miles. After waiting for other customers to leave, petitioner asked Huddleston whether the store had any orange juice in one gallon plastic jugs because there were none on the shelves. Saying he would check, Huddleston went to the store's cooler. Petitioner followed Huddleston there, told Huddleston the store was being robbed, and ordered him to lie on the floor. After Huddleston complied with the order and placed his hands behind his head, petitioner shot him in the back of the neck, killing him. When petitioner emerged from the cooler, Miles had emptied the cash registers of about $160. They each grabbed a carton of cigarettes and fled.
+
+In April 1986, a few weeks after this crime, petitioner was arrested for a subsequent robbery and attempted murder of a store clerk in Colorado City, Texas. He confessed to the murder of Jack Huddleston and the robbery of Allsup's and was tried and convicted of capital murder. The homicide qualified as a capital offense under Texas law because petitioner intentionally or knowingly caused Huddleston's death and the murder was carried out in the course of committing a robbery. Tex. Penal Code Ann. §§ 19.02(a)(1), 19.03(a)(2) (1989).
+
+After the jury determined that petitioner was guilty of capital murder, a separate punishment phase of the proceedings was conducted in which petitioner's sentence was determined. In conformity with the Texas capital sentencing statute then in effect, see Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981),[1] the trial court instructed the jury that it was to answer two special issues:
+
+""[(1)] Was the conduct of the Defendant, Dorsie Lee Johnson, Jr., that caused the death of the deceased, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
+. . . . .
+
+""[(2)] Is there a probability that the Defendant, Dorsie Lee Johnson, Jr., would commit criminal acts of violence that would constitute a continuing threat to society?""[2] App. 148-149.
+The trial court made clear to the jury the consequences of its answers to the special issues:
+
+""You are further instructed that if the jury returns affirmative or `yes' answer [sic] to all the Issues submitted, this Court shall sentence the Defendant to death. If the jury returns a negative or `no' answer to any Issue submitted, the Court shall sentence the Defendant to life in prison."" Id., at 146.
+The jury was instructed not to consider or discuss the possibility of parole. Id., at 147. The trial court also instructed the jury as follows concerning its consideration of mitigating evidence:
+
+""In determining each of these Issues, you may take into consideration all the evidence submitted to you in the trial of this case, whether aggravating or mitigating in nature, that is, all the evidence in the first part of the trial when you were called upon to determine the guilt or innocence of the Defendant and all the evidence, if any, in the second part of the trial wherein you are called upon to determine the answers to the Special Issues."" Ibid.
+Although petitioner's counsel filed various objections to the jury charge, there was no request that a more expansive instruction be given concerning any particular mitigating circumstance, including petitioner's youth.
+
+In anticipation of the trial court's instructions, the State during the punishment phase of the proceedings presented numerous witnesses who testified to petitioner's violent tendencies. The most serious evidence related to the April convenience store robbery in Colorado City. Witnesses testified that petitioner had shot that store clerk in the face, resulting in the victim's permanent disfigurement and brain damage. Other witnesses testified that petitioner had fired two shots at a man outside a restaurant in Snyder only six days after the murder of Huddleston, and a sheriff's deputy who worked in the jail where petitioner was being held testified that petitioner had threatened to ""get"" the deputy when he got out of jail.
+
+Petitioner's acts of violence were not limited to strangers. A long-time friend of petitioner, Beverly Johnson, testified that in early 1986 petitioner had hit her, thrown a large rock at her head, and pointed a gun at her on several occasions. Petitioner's girlfriend, Paula Williams, reported that, after petitioner had become angry with her one afternoon in 1986, he threatened her with an axe. There were other incidents, of less gravity, before 1986. One of petitioner's classmates testified that petitioner cut him with a piece of glass while they were in the seventh grade. Another classmate testified that petitioner also cut him with glass just a year later, and there was additional evidence presented that petitioner had stabbed a third classmate with a pencil.
+
+The State established that the crimes committed in 1986 were not petitioner's first experience with the criminal justice system. Petitioner had been convicted in 1985 of a store burglary in Waco, Texas. Petitioner twice violated the terms of probation for that offense by smoking marijuana. Petitioner was still on probation when he committed the Huddleston murder.
+
+The defense presented petitioner's father, Dorsie Johnson, Sr., as its only witness. The elder Johnson attributed his son's criminal activities to his drug use and his youth. When asked by defense counsel whether his son at the age of 19 was ""a real mature person,"" petitioner's father answered:
+
+""No, no. Age of nineteen? No, sir. That, also, I find to be a foolish age. That's a foolish age. They tend to want to be macho, built-up, trying to step into manhood. You're not mature-lized for it."" Id., at 27.
+At the close of his testimony, Johnson summarized the role that he thought youth had played in his son's crime:
+
+""[A]ll I can say is I still think that a kid eighteen or nineteen years old has an undeveloped mind, undeveloped sense of assembling not_x0097_I don't say what is right or wrong, but the evaluation of it, how much, you know, that might be_x0097_well, he just don't_x0097_he just don't evaluate what is worth_x0097_what's worth and what's isn't like he should like a thirty or thirty-five year old man would. He would take under consideration a lot of things that a younger person that age wouldn't."" Id., at 47.
+The father also testified that his son had been a regular churchgoer and his problems were attributable in large part to the death of his mother following a stroke in 1984 and the murder of his sister in 1985. Finally, the senior Johnson testified to his son's remorse over the killing of Huddleston.
+
+At the voir dire phase of the proceedings, during which more than 90 prospective jurors were questioned over the course of 15 days, petitioner's counsel asked the venirepersons whether they believed that people were capable of change and whether the venirepersons had ever done things as youths that they would not do now. See, e. g., Tr. of Voir Dire in No. 5575 (132d Jud. Dist. Ct., Scurry County, Tex.), pp. 1526-1529 (Juror Swigert); id., at 1691-1692 (Juror Freeman); id., at 2366 (Juror Witte); id., at 2630-2632 (Juror Raborn).[3] Petitioner's counsel returned to this theme in his closing argument:
+
+""The question_x0097_the real question, I think, is whether you believe that there is a possibility that he can change. You will remember that that was one thing every one of you told me you agreed_x0097_every one of you agreed with me that people can change. If you agree that people can change, then that means that Dorsie can change and that takes question two [regarding future dangerousness] out of the realm of probability and into possibility, you see, because if he can change, then it is no longer probable that he will do these things, but only possible that he can and will do these things, you see.
+""If people couldn't change, if you could say I know people cannot change, then you could say probably. But every one of you knows in your heart and in your mind that people can and people do change and Dorsie Johnson can change and, therefore, the answer to question two should be no."" App. 81.
+Counsel also urged the jury to remember the testimony of petitioner's father. Id., at 73-74.
+
+The jury was instructed that the State bore the burden of proving each special issue beyond a reasonable doubt. Id., at 145. A unanimous jury found that the answer to both special issues was yes, and the trial court sentenced petitioner to death, as required by law. Tex. Code Crim. Proc. Ann., Art. 37.071(e) (Vernon 1981).
+
+On appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence after rejecting petitioner's seven allegations of error, none of which involved a challenge to the punishment-phase jury instructions. 773 S. W. 2d 322 (1989). Five days after that state court ruling, we issued our opinion in Penry v. Lynaugh, 492 U. S. 302 (1989). Petitioner filed a motion for rehearing in the Texas Court of Criminal Appeals arguing, among other points, that the special issues did not allow for adequate consideration of his youth. Citing Penry, petitioner claimed that a separate instruction should have been given that would have allowed the jury to consider petitioner's age as a mitigating factor. Although petitioner had not requested such an instruction at trial and had not argued the point prior to the rehearing stage on appeal, no procedural bar was interposed. Instead, the Court of Criminal Appeals considered the argument on the merits and rejected it. After noting that it had already indicated in Lackey v. State, 819 S. W. 2d 111, 134 (Tex. Crim. App. 1989), that youth was relevant to the jury's consideration of the second special issue, the court reasoned that ""[i]f a juror believed that [petitioner's] violent actions were a result of his youth, that same juror would naturally believe that [petitioner] would cease to behave violently as he grew older."" App. 180. The court concluded that ""the jury was able to express a reasoned moral response to [petitioner's] mitigating evidence within the scope of the art. 37.071 instructions given to them by the trial court."" Id., at 180-181.
+
+Petitioner filed a petition for certiorari, which we granted. 506 U. S. 1090 (1993).",facts,The Murder of Jack Huddleston and the Capital Murder of Amanda Miles,disagree,The Robbery and Murder of Jack Huddleston,strongly agree,Petitioner's Robbery and Murder of J. Huddleston,1
+G2,6,1,1,II,"
+
+This is the latest in a series of decisions in which the Court has explained the requirements imposed by the Eighth and Fourteenth Amendments regarding consideration of mitigating circumstances by sentencers in capital cases. The earliest case in the decisional line is Furman v. Georgia, 408 U. S. 238 (1972). At the time of Furman, sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death, resulting in a system in which there was ""no meaningful basis for distinguishing the few cases in which [death was] imposed from the many cases in which it [was] not."" Id., at 313 (White, J., concurring). Although no two Justices could agree on a single rationale, a majority of the Court in Furman concluded that this system was ""cruel and unusual"" within the meaning of the Eighth Amendment. The guiding principle that emerged from Furman was that States were required to channel the discretion of sentencing juries in order to avoid a system in which the death penalty would be imposed in a ""wanto[n]"" and ""freakis[h]"" manner. Id., at 310 (Stewart, J., concurring).
+
+Four Terms after Furman, we decided five cases, in opinions issued on the same day, concerning the constitutionality of various capital sentencing systems. Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, 428 U. S. 280 (1976); Roberts v. Louisiana, 428 U. S. 325 (1976). In the wake of Furman, at least 35 States had abandoned sentencing schemes that vested complete discretion in juries in favor of systems that either (i) ""specif[ied] the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence,"" or (ii) ""ma[de] the death penalty mandatory for certain crimes."" Gregg, supra, at 179-180 (opinion of Stewart, Powell, and Stevens, JJ.). In the five cases, the controlling joint opinion of three Justices reaffirmed the principle of Furman that ""discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action."" 428 U. S., at 189; accord, Proffitt, supra, at 258 (opinion of Stewart, Powell, and Stevens, JJ.).
+
+Based upon this principle, it might have been thought that statutes mandating imposition of the death penalty if a defendant was found guilty of certain crimes would be consistent with the Constitution. But the joint opinions of Justices Stewart, Powell, and Stevens indicated that there was a second principle, in some tension with the first, to be considered in assessing the constitutionality of a capital sentencing scheme. According to the three Justices, ""consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death."" Woodson, supra, at 304 (plurality opinion); accord, Gregg, supra, at 189-190, n. 38 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek, supra, at 273-274 (opinion of Stewart, Powell, and Stevens, JJ.); Roberts, supra, at 333 (plurality opinion of Stewart, Powell, and Stevens, JJ.). Based upon this second principle, the Court struck down mandatory imposition of the death penalty for specified crimes as inconsistent with the requirements of the Eighth and Fourteenth Amendments. See Woodson, supra, at 305; Roberts, supra, at 335-336.
+
+Two Terms later, a plurality of the Court in Lockett v. Ohio, 438 U. S. 586 (1978), refined the requirements related to the consideration of mitigating evidence by a capital sentencer. Unlike the mandatory schemes struck down in Woodson and Roberts in which all mitigating evidence was excluded, the Ohio system at issue in Lockett permitted a limited range of mitigating circumstances to be considered by the sentencer.[4] The plurality nonetheless found this system to be unconstitutional, holding that ""the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."" 438 U. S., at 604. A majority of the Court adopted the Lockett rule in Eddings v. Oklahoma, 455 U. S. 104 (1982); accord, Hitchcock v. Dugger, 481 U. S. 393, 398-399 (1987); Skipper v. South Carolina, 476 U. S. 1, 4 (1986), and we have not altered the rule's central requirement. ""Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all."" McKoy v. North Carolina, 494 U. S. 433, 456 (1990) (Kennedy, J., concurring in judgment); see also Graham, 506 U. S., at 475; Saffle v. Parks, 494 U. S. 484, 490-491 (1990).
+
+Although Lockett and Eddings prevent a State from placing relevant mitigating evidence ""beyond the effective reach of the sentencer,"" Graham, supra, at 475, those cases and others in that decisional line do not bar a State from guiding the sentencer's consideration of mitigating evidence. Indeed, we have held that ""there is no . . . constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence `in an effort to achieve a more rational and equitable administration of the death penalty,' "" Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)); see also Saffle, supra, at 490.
+
+The Texas law under which petitioner was sentenced has been the principal concern of four previous opinions in our Court. See Jurek v. Texas, supra; Franklin v. Lynaugh, supra; Penry v. Lynaugh, 492 U. S. 302 (1989); Graham, supra. As we have mentioned, Jurek was included in the group of five cases addressing the post-Furman statutes in 1976.
+
+In Jurek, the joint opinion of Justices Stewart, Powell, and Stevens first noted that there was no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment, the statute having adopted five different classifications of murder for that purpose. See Jurek, 428 U. S., at 270-271. Turning to the mitigation side of the sentencing system, the three Justices said: ""[T]he constitutionality of the Texas procedures turns on whether the enumerated [special issues] allow consideration of particularized mitigating factors."" Id., at 272. In assessing the constitutionality of the mitigation side of this scheme, the three Justices examined in detail only the second special issue, which asks whether ""`there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.'"" Although the statute did not define these terms, the joint opinion noted that the Texas Court of Criminal Appeals had indicated that it would interpret the question in a manner that allowed the defendant to bring all relevant mitigating evidence to the jury's attention:
+
+""`In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.'
+[Jurek v. State, ] 522 S. W. 2d [934], 939-940 [(Tex. Crim. App. 1975)]."" Id., at 272-273.
+The joint opinion determined that the Texas system satisfied the requirements of the Eighth and Fourteenth Amendments concerning the consideration of mitigating evidence: ""By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function."" Id., at 276. Three other Justices agreed that the Texas system satisfied constitutional requirements. See id., at 277 (White, J., concurring in judgment).
+
+We next considered a constitutional challenge involving the Texas special issues in Franklin v. Lynaugh, supra. Although the defendant in that case recognized that we had upheld the constitutionality of the Texas system as a general matter in Jurek, he claimed that the special issues did not allow the jury to give adequate weight to his mitigating evidence concerning his good prison disciplinary record and that the jury, therefore, should have been instructed that it could consider this mitigating evidence independent of the special issues. 487 U. S., at 171-172. A plurality of the Court rejected the defendant's claim, holding that the second special issue provided an adequate vehicle for consideration of the defendant's prison record as it bore on his character. Id., at 178. The plurality also noted that Jurek foreclosed the defendant's argument that the jury was still entitled to cast an ""independent"" vote against the death penalty even if it answered yes to the special issues. 487 U. S., at 180. The plurality concluded that, with its special issues system, Texas had guided the jury's consideration of mitigating evidence while still providing for sufficient jury discretion. See id., at 182. Although Justice O'Connor expressed reservations about the Texas scheme for other cases, she agreed that the special issues had not inhibited the jury's consideration of the defendant's mitigating evidence in that case. See id., at 183-186 (opinion concurring in judgment).
+
+The third case in which we considered the Texas statute is the pivotal one from petitioner's point of view, for there we set aside a capital sentence because the Texas special issues did not allow for sufficient consideration of the defendant's mitigating evidence. Penry v. Lynaugh, supra. In Penry, the condemned prisoner had presented mitigating evidence of his mental retardation and childhood abuse. We agreed that the jury instructions were too limited for the appropriate consideration of this mitigating evidence in light of Penry's particular circumstances. We noted that ""[t]he jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence."" 492 U. S., at 320. Absent any definition for the term ""deliberately,"" we could not ""be sure that the jury was able to give effect to the mitigating evidence . . . in answering the first special issue,"" id., at 323, so we turned to the second special issue, future dangerousness. The evidence in the case suggested that Penry's mental retardation rendered him unable to learn from his mistakes. As a consequence, we decided the mitigating evidence was relevant to the second special issue ""only as an aggravating factor because it suggests a `yes' answer to the question of future dangerousness."" Ibid. The Court concluded that the trial court had erred in not instructing the jury that it could ""consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty."" Id., at 328. The Court was most explicit in rejecting the dissent's concern that Penry was seeking a new rule, in contravention of Teague v. Lane, 489 U. S. 288 (1989). Indeed, the Court characterized its holding in Penry as a straightforward application of our earlier rulings in Jurek, Lockett, and Eddings, making it clear that these cases can stand together with Penry. See Penry, 492 U. S., at 314-318.
+
+We confirmed this limited view of Penry and its scope in Graham v. Collins. There we confronted a claim by a defendant that the Texas system had not allowed for adequate consideration of mitigating evidence concerning his youth, family background, and positive character traits. In rejecting the contention that Penry dictated a ruling in the defendant's favor, we stated that Penry did not ""effec[t] a sea change in this Court's view of the constitutionality of the former Texas death penalty statute,"" 506 U. S., at 474, and we noted that a contrary view of Penry would be inconsistent with the Penry Court's conclusion that it was not creating a ""new rule,"" 506 U. S., at 474. We also did not accept the view that the Lockett and Eddings line of cases, upon which Penry rested, compelled a holding for the defendant in Graham:
+
+""In those cases, the constitutional defect lay in the fact that relevant mitigating evidence was placed beyond the effective reach of the sentencer. In Lockett, Eddings, Skipper, and Hitchcock, the sentencer was precluded from even considering certain types of mitigating evidence. In Penry, the defendant's evidence was placed before the sentencer but the sentencer had no reliable means of giving mitigating effect to that evidence. In this case, however, Graham's mitigating evidence was not placed beyond the jury's effective reach."" Graham, 506 U. S., at 475.
+In addition, we held that Graham's case differed from Penry in that ""Graham's evidence_x0097_unlike Penry's_x0097_had mitigating relevance to the second special issue concerning his likely future dangerousness."" 506 U. S., at 475. We concluded that, even with the benefit of the subsequent Penry decision, reasonable jurists at the time of Graham's sentencing ""would [not] have deemed themselves compelled to accept Graham's claim."" 506 U. S., at 477. Thus, we held that a ruling in favor of Graham would have required the impermissible application of a new rule under Teague. 506 U. S., at 477.",analysis,Furman v. Georgia,disagree,The Eighth and Fourteenth Amendment,disagree,The Constitutionality of Texas' Capital Sentencing System,2
+G2,6,1,2,A,"This is the latest in a series of decisions in which the Court has explained the requirements imposed by the Eighth and Fourteenth Amendments regarding consideration of mitigating circumstances by sentencers in capital cases. The earliest case in the decisional line is Furman v. Georgia, 408 U. S. 238 (1972). At the time of Furman, sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death, resulting in a system in which there was ""no meaningful basis for distinguishing the few cases in which [death was] imposed from the many cases in which it [was] not."" Id., at 313 (White, J., concurring). Although no two Justices could agree on a single rationale, a majority of the Court in Furman concluded that this system was ""cruel and unusual"" within the meaning of the Eighth Amendment. The guiding principle that emerged from Furman was that States were required to channel the discretion of sentencing juries in order to avoid a system in which the death penalty would be imposed in a ""wanto[n]"" and ""freakis[h]"" manner. Id., at 310 (Stewart, J., concurring).
+
+Four Terms after Furman, we decided five cases, in opinions issued on the same day, concerning the constitutionality of various capital sentencing systems. Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, 428 U. S. 280 (1976); Roberts v. Louisiana, 428 U. S. 325 (1976). In the wake of Furman, at least 35 States had abandoned sentencing schemes that vested complete discretion in juries in favor of systems that either (i) ""specif[ied] the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence,"" or (ii) ""ma[de] the death penalty mandatory for certain crimes."" Gregg, supra, at 179-180 (opinion of Stewart, Powell, and Stevens, JJ.). In the five cases, the controlling joint opinion of three Justices reaffirmed the principle of Furman that ""discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action."" 428 U. S., at 189; accord, Proffitt, supra, at 258 (opinion of Stewart, Powell, and Stevens, JJ.).
+
+Based upon this principle, it might have been thought that statutes mandating imposition of the death penalty if a defendant was found guilty of certain crimes would be consistent with the Constitution. But the joint opinions of Justices Stewart, Powell, and Stevens indicated that there was a second principle, in some tension with the first, to be considered in assessing the constitutionality of a capital sentencing scheme. According to the three Justices, ""consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death."" Woodson, supra, at 304 (plurality opinion); accord, Gregg, supra, at 189-190, n. 38 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek, supra, at 273-274 (opinion of Stewart, Powell, and Stevens, JJ.); Roberts, supra, at 333 (plurality opinion of Stewart, Powell, and Stevens, JJ.). Based upon this second principle, the Court struck down mandatory imposition of the death penalty for specified crimes as inconsistent with the requirements of the Eighth and Fourteenth Amendments. See Woodson, supra, at 305; Roberts, supra, at 335-336.
+
+Two Terms later, a plurality of the Court in Lockett v. Ohio, 438 U. S. 586 (1978), refined the requirements related to the consideration of mitigating evidence by a capital sentencer. Unlike the mandatory schemes struck down in Woodson and Roberts in which all mitigating evidence was excluded, the Ohio system at issue in Lockett permitted a limited range of mitigating circumstances to be considered by the sentencer.[4] The plurality nonetheless found this system to be unconstitutional, holding that ""the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."" 438 U. S., at 604. A majority of the Court adopted the Lockett rule in Eddings v. Oklahoma, 455 U. S. 104 (1982); accord, Hitchcock v. Dugger, 481 U. S. 393, 398-399 (1987); Skipper v. South Carolina, 476 U. S. 1, 4 (1986), and we have not altered the rule's central requirement. ""Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all."" McKoy v. North Carolina, 494 U. S. 433, 456 (1990) (Kennedy, J., concurring in judgment); see also Graham, 506 U. S., at 475; Saffle v. Parks, 494 U. S. 484, 490-491 (1990).
+
+Although Lockett and Eddings prevent a State from placing relevant mitigating evidence ""beyond the effective reach of the sentencer,"" Graham, supra, at 475, those cases and others in that decisional line do not bar a State from guiding the sentencer's consideration of mitigating evidence. Indeed, we have held that ""there is no . . . constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence `in an effort to achieve a more rational and equitable administration of the death penalty,' "" Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)); see also Saffle, supra, at 490.",analysis,Furman v. Georgia,disagree,The Constitutionality of the Capital Sentencing System,agree,The Constitutional Requirements of a Capital Sentencing System,1
+G2,6,1,2,B,"The Texas law under which petitioner was sentenced has been the principal concern of four previous opinions in our Court. See Jurek v. Texas, supra; Franklin v. Lynaugh, supra; Penry v. Lynaugh, 492 U. S. 302 (1989); Graham, supra. As we have mentioned, Jurek was included in the group of five cases addressing the post-Furman statutes in 1976.
+
+In Jurek, the joint opinion of Justices Stewart, Powell, and Stevens first noted that there was no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment, the statute having adopted five different classifications of murder for that purpose. See Jurek, 428 U. S., at 270-271. Turning to the mitigation side of the sentencing system, the three Justices said: ""[T]he constitutionality of the Texas procedures turns on whether the enumerated [special issues] allow consideration of particularized mitigating factors."" Id., at 272. In assessing the constitutionality of the mitigation side of this scheme, the three Justices examined in detail only the second special issue, which asks whether ""`there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.'"" Although the statute did not define these terms, the joint opinion noted that the Texas Court of Criminal Appeals had indicated that it would interpret the question in a manner that allowed the defendant to bring all relevant mitigating evidence to the jury's attention:
+
+""`In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.'
+[Jurek v. State, ] 522 S. W. 2d [934], 939-940 [(Tex. Crim. App. 1975)]."" Id., at 272-273.
+The joint opinion determined that the Texas system satisfied the requirements of the Eighth and Fourteenth Amendments concerning the consideration of mitigating evidence: ""By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function."" Id., at 276. Three other Justices agreed that the Texas system satisfied constitutional requirements. See id., at 277 (White, J., concurring in judgment).
+
+We next considered a constitutional challenge involving the Texas special issues in Franklin v. Lynaugh, supra. Although the defendant in that case recognized that we had upheld the constitutionality of the Texas system as a general matter in Jurek, he claimed that the special issues did not allow the jury to give adequate weight to his mitigating evidence concerning his good prison disciplinary record and that the jury, therefore, should have been instructed that it could consider this mitigating evidence independent of the special issues. 487 U. S., at 171-172. A plurality of the Court rejected the defendant's claim, holding that the second special issue provided an adequate vehicle for consideration of the defendant's prison record as it bore on his character. Id., at 178. The plurality also noted that Jurek foreclosed the defendant's argument that the jury was still entitled to cast an ""independent"" vote against the death penalty even if it answered yes to the special issues. 487 U. S., at 180. The plurality concluded that, with its special issues system, Texas had guided the jury's consideration of mitigating evidence while still providing for sufficient jury discretion. See id., at 182. Although Justice O'Connor expressed reservations about the Texas scheme for other cases, she agreed that the special issues had not inhibited the jury's consideration of the defendant's mitigating evidence in that case. See id., at 183-186 (opinion concurring in judgment).
+
+The third case in which we considered the Texas statute is the pivotal one from petitioner's point of view, for there we set aside a capital sentence because the Texas special issues did not allow for sufficient consideration of the defendant's mitigating evidence. Penry v. Lynaugh, supra. In Penry, the condemned prisoner had presented mitigating evidence of his mental retardation and childhood abuse. We agreed that the jury instructions were too limited for the appropriate consideration of this mitigating evidence in light of Penry's particular circumstances. We noted that ""[t]he jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence."" 492 U. S., at 320. Absent any definition for the term ""deliberately,"" we could not ""be sure that the jury was able to give effect to the mitigating evidence . . . in answering the first special issue,"" id., at 323, so we turned to the second special issue, future dangerousness. The evidence in the case suggested that Penry's mental retardation rendered him unable to learn from his mistakes. As a consequence, we decided the mitigating evidence was relevant to the second special issue ""only as an aggravating factor because it suggests a `yes' answer to the question of future dangerousness."" Ibid. The Court concluded that the trial court had erred in not instructing the jury that it could ""consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty."" Id., at 328. The Court was most explicit in rejecting the dissent's concern that Penry was seeking a new rule, in contravention of Teague v. Lane, 489 U. S. 288 (1989). Indeed, the Court characterized its holding in Penry as a straightforward application of our earlier rulings in Jurek, Lockett, and Eddings, making it clear that these cases can stand together with Penry. See Penry, 492 U. S., at 314-318.
+
+We confirmed this limited view of Penry and its scope in Graham v. Collins. There we confronted a claim by a defendant that the Texas system had not allowed for adequate consideration of mitigating evidence concerning his youth, family background, and positive character traits. In rejecting the contention that Penry dictated a ruling in the defendant's favor, we stated that Penry did not ""effec[t] a sea change in this Court's view of the constitutionality of the former Texas death penalty statute,"" 506 U. S., at 474, and we noted that a contrary view of Penry would be inconsistent with the Penry Court's conclusion that it was not creating a ""new rule,"" 506 U. S., at 474. We also did not accept the view that the Lockett and Eddings line of cases, upon which Penry rested, compelled a holding for the defendant in Graham:
+
+""In those cases, the constitutional defect lay in the fact that relevant mitigating evidence was placed beyond the effective reach of the sentencer. In Lockett, Eddings, Skipper, and Hitchcock, the sentencer was precluded from even considering certain types of mitigating evidence. In Penry, the defendant's evidence was placed before the sentencer but the sentencer had no reliable means of giving mitigating effect to that evidence. In this case, however, Graham's mitigating evidence was not placed beyond the jury's effective reach."" Graham, 506 U. S., at 475.
+In addition, we held that Graham's case differed from Penry in that ""Graham's evidence_x0097_unlike Penry's_x0097_had mitigating relevance to the second special issue concerning his likely future dangerousness."" 506 U. S., at 475. We concluded that, even with the benefit of the subsequent Penry decision, reasonable jurists at the time of Graham's sentencing ""would [not] have deemed themselves compelled to accept Graham's claim."" 506 U. S., at 477. Thus, we held that a ruling in favor of Graham would have required the impermissible application of a new rule under Teague. 506 U. S., at 477.",analysis,Jurek and the Texas Sentencing System,agree,Jurek and the Post-Furman Statutes,agree,Supreme Court's Precedents Pertaining To Texas' Capital Sentencing Law,2
+G2,6,1,1,III,"Today we are asked to take the step that would have been a new rule had we taken it in Graham. Like Graham, petitioner contends that the Texas sentencing system did not allow the jury to give adequate mitigating effect to the evidence of his youth. Unlike Graham, petitioner comes here on direct review, so Teague presents no bar to the rule he seeks. The force of stare decisis, though, which rests on considerations parallel in many respects to Teague, is applicable here. The interests of the State of Texas, and of the victims whose rights it must vindicate, ought not to be turned aside when the State relies upon an interpretation of the Eighth Amendment approved by this Court, absent demonstration that our earlier cases were themselves a misinterpretation of some constitutional command. See, e. g., Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986); Arizona v. Rumsey, 467 U. S. 203, 212 (1984).
+
+There is no dispute that a defendant's youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death sentence is to meet the requirements of Lockett and Eddings. See, e. g., Sumner v. Shuman, 483 U. S. 66, 81-82 (1987); Eddings , 455 U. S., at 115; Lockett, 438 U. S., at 608 (plurality opinion). Our cases recognize that ""youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage."" Eddings, supra, at 115. A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and illconsidered actions and decisions. A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.
+
+The question presented here is whether the Texas special issues allowed adequate consideration of petitioner's youth. An argument that youth can never be given proper mitigating force under the Texas scheme is inconsistent with our holdings in Jurek, Graham, and Penry itself. The standard against which we assess whether jury instructions satisfy the rule of Lockett and Eddings was set forth in Boyde v. California, 494 U. S. 370 (1990). There we held that a reviewing court must determine ""whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."" Id., at 380. Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar. Ibid. In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would_x0097_with a ""commonsense understanding of the instructions in the light of all that has taken place at the trial."" Id., at 381.
+
+We decide that there is no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner's youth. Pursuant to the second special issue, the jury was instructed to decide whether there was ""a probability that [petitioner] would commit criminal acts of violence that would constitute a continuing threat to society."" App. 149. The jury also was told that, in answering the special issues, it could consider all the mitigating evidence that had been presented during the guilt and punishment phases of petitioner's trial. Id., at 147. Even on a cold record, one cannot be unmoved by the testimony of petitioner's father urging that his son's actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination. As we recognized in Graham, the fact that a juror might view the evidence of youth as aggravating, as opposed to mitigating, does not mean that the rule of Lockett is violated. Graham, 506 U. S., at 475-476. As long as the mitigating evidence is within ""the effective reach of the sentencer,"" the requirements of the Eighth Amendment are satisfied. Ibid.
+
+That the jury had a meaningful basis to consider the relevant mitigating qualities of petitioner's youth is what distinguishes this case from Penry. In Penry, there was expert medical testimony that the defendant was mentally retarded and that his condition prevented him from learning from experience. 492 U. S., at 308-309. Although the evidence of the mental illness fell short of providing Penry a defense to prosecution for his crimes, the Court held that the second special issue did not allow the jury to give mitigating effect to this evidence. Penry's condition left him unable to learn from his mistakes, and the Court reasoned that the only logical manner in which the evidence of his mental retardation could be considered within the future dangerousness inquiry was as an aggravating factor. Id., at 323. Penry remains the law and must be given a fair reading. The evidence of petitioner's youth, however, falls outside Penry's ambit. Unlike Penry's mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue.
+
+Petitioner does not contest that the evidence of youth could be given some effect under the second special issue. Instead, petitioner argues that the forward-looking perspective of the future dangerousness inquiry did not allow the jury to take account of how petitioner's youth bore upon his personal culpability for the murder he committed. According to petitioner, ""[a] prediction of future behavior is not the same thing as an assessment of moral culpability for a crime already committed."" Brief for Petitioner 38. Contrary to petitioner's suggestion, however, this forward-looking inquiry is not independent of an assessment of personal culpability. It is both logical and fair for the jury to make its determination of a defendant's future dangerousness by asking the extent to which youth influenced the defendant's conduct. See Skipper, 476 U. S., at 5 (""Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing""). If any jurors believed that the transient qualities of petitioner's youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner's future dangerousness. It is true that Texas has structured consideration of the relevant qualities of petitioner's youth, but in so doing, the State still ""allow[s] the jury to give effect to [this] mitigating evidence in making the sentencing decision."" Saffle, 494 U. S., at 491. Although Texas might have provided other vehicles for consideration of petitioner's youth, no additional instruction beyond that given as to future dangerousness was required in order for the jury to be able to consider the mitigating qualities of youth presented to it.
+
+In a related argument, petitioner, quoting a portion of our decision in Penry, supra, at 328, claims that the jurors were not able to make a ""reasoned moral response"" to the evidence of petitioner's youth because the second special issue called for a narrow factual inquiry into future dangerousness. We, however, have previously interpreted the Texas special issues system as requiring jurors to ""exercise a range of judgment and discretion."" Adams v. Texas, 448 U. S. 38, 46 (1980). This view accords with a ""commonsense understanding"" of how the jurors were likely to view their instructions and to implement the charge that they were entitled to consider all mitigating evidence from both the trial and sentencing phases. Boyde, 494 U. S., at 381. The crucial term employed in the second special issue_x0097_""continuing threat to society""_x0097_affords the jury room for independent judgment in reaching its decision. Indeed, we cannot forget that ""a Texas capital jury deliberating over the Special Issues is aware of the consequences of its answers, and is likely to weigh mitigating evidence as it formulates these answers in a manner similar to that employed by capital juries in `pure balancing' States."" Franklin, 487 U. S., at 182, n. 12 (plurality opinion). In Blystone v. Pennsylvania, 494 U. S. 299 (1990), four Members of the Court in dissent used the Texas statute as an example of a capital sentencing system that permitted the exercise of judgment. That opinion stated:
+
+""[The two special issues] require the jury to do more than find facts supporting a legislatively defined aggravating circumstance. Instead, by focusing on the deliberateness of the defendant's actions and his future dangerousness, the questions compel the jury to make a moral judgment about the severity of the crime and the defendant's culpability. The Texas statute directs the imposition of the death penalty only after the jury has decided that the defendant's actions were sufficiently egregious to warrant death."" Id., at 322 (Brennan, J., dissenting).
+The Texas Court of Criminal Appeals' view of the future dangerousness inquiry supports our conclusion that consideration of the second special issue is a comprehensive inquiry that is more than a question of historical fact. In reviewing death sentences imposed under the former Texas system, that court has consistently looked to a nonexclusive list of eight factors, which includes the defendant's age, in deciding whether there was sufficient evidence to support a yes answer to the second special issue. See, e. g., Ellason v. State, 815 S. W. 2d 656, 660 (1991); Brasfield v. State, 600 S. W. 2d 288 (1980).
+
+There might have been a juror who, on the basis solely of sympathy or mercy, would have opted against the death penalty had there been a vehicle to do so under the Texas special issues scheme. But we have not construed the Lockett line of cases to mean that a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant. Indeed, we have said that ""[i]t would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary."" Saffle v. Parks, 494 U. S., at 493; see also California v. Brown, 479 U. S. 538, 542-543 (1987) (permitting an instruction that the jury could not base its sentencing decision on sympathy).
+
+For us to find a constitutional defect in petitioner's death sentence, we would have to alter in significant fashion this Court's capital sentencing jurisprudence. The first casualty of a holding in petitioner's favor would be Jurek. The inevitable consequence of petitioner's argument is that the Texas special issues system in almost every case would have to be supplemented by a further instruction. As we said in Graham:
+
+""[H]olding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues . . . would be to require in all cases that a fourth `special issue' be put to the jury: ` ""Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?""` "" 506 U. S., at 476 (quoting Franklin, supra, at 180, n. 10).
+In addition to overruling Jurek, accepting petitioner's arguments would entail an alteration of the rule of Lockett and Eddings. Instead of requiring that a jury be able to consider in some manner all of a defendant's relevant mitigating evidence, the rule would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.
+
+The fundamental flaw in petitioner's position is its failure to recognize that ""[t]here is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making its sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision."" Saffle, supra, at 490. To rule in petitioner's favor, we would have to require that a jury be instructed in a manner that leaves it free to depart from the special issues in every case. This would, of course, remove allpower on the part of the States to structure the consideration of mitigating evidence_x0097_a result we have been consistent in rejecting. See, e. g., Boyde, 494 U. S., at 377; Saffle, supra, at 493; Franklin, supra, at 181 (plurality opinion).
+
+The reconciliation of competing principles is the function of law. Our capital sentencing jurisprudence seeks to reconcile two competing, and valid, principles in Furman, which are to allow mitigating evidence to be considered and to guide the discretion of the sentencer. Our holding in Jurek reflected the understanding that the Texas sentencing scheme ""accommodates both of these concerns."" Franklin, supra, at 182 (plurality opinion). The special issues structure in this regard satisfies the Eighth Amendment and our precedents that interpret its force. There was no constitutional infirmity in its application here.
+
+The judgment of the Texas Court of Criminal Appeals is affirmed.
+
+It is so ordered.",analysis," Jurek, Graham, and Penry",strongly disagree,Youth as a Mitigating Circumstance,agree,Jury's Instruction on Petitioner's Youth as a Mitigating Circumstance ,3
+G2,7,1,1,I,"Respondent Paul Spink was employed by petitioner Lockheed Corporation from 1939 until 1950, when he left to work for one of Lockheed's competitors. In 1979, Lockheed persuaded Spink to return. Spink was 61 years old when he resumed employment with Lockheed. At that time, the terms of the Lockheed Retirement Plan for Certain Salaried Individuals (Plan), a defined benefit plan, excluded from participation employees who were over the age of 60 when hired. This was expressly permitted by ERISA. See 29 U. S. C. Section(s) 1052(a)(2)(B) (1982 ed.).
+
+3
+Congress subsequently passed the Omnibus Budget Reconciliation Act of 1986 (OBRA), Pub. L. 99-509, 100 Stat. 1874. Section 9203(a)(1) of OBRA, 100 Stat. 1979, repealed the age-based exclusion provision of ERISA, and the statute now flatly mandates that ""[n]o pension plan may exclude from participation (on the basis of age) employees who have attained a specified age."" 29 U. S. C. Section(s) 1052(a)(2). Sections 9201 and 9202 of OBRA, 100 Stat. 1973-1978, amended ERISA and the ADEA to prohibit age-based cessations of benefit accruals and age-based reductions in benefit accrual rates. See 29 U. S. C. Section(s) 1054(b)(1)(H)(i), 623(i)(1).
+
+4
+In an effort to comply with these new laws, Lockheed ceased its prior practice of age-based exclusion from the Plan, effective December 25, 1988. As of that date, all employees, including Spink, who had previously been ineligible to participate in the Plan due to their age at the time of hiring became members of the Plan. Lockheed made clear, however, that it would not credit those employees for years of service rendered before they became members.
+
+5
+When later faced with the need to streamline its operations, Lockheed amended the Plan to provide financial incentives for certain employees to retire early. Lockheed established two programs, both of which offered increased pension benefits to employees who would retire early, payable out of the Plan's surplus assets. Both programs required as a condition of the receipt of benefits that participants release any employment-related claims they might have against Lockheed. Though Spink was eligible for one of the programs, he declined to participate because he did not wish to waive any ADEA or ERISA claims. He then retired, without earning any extra benefits for doing so.
+
+6
+Spink brought this suit, in his individual capacity and on behalf of others similarly situated, against Lockheed and several of its directors and officers. Among other things, the complaint alleged that Lockheed and the members of the board of directors violated ERISA's duty of care and prohibited transaction provisions, 29 U. S. C. Section(s) 1104(a), 1106(a), by amending the Plan to create the retirement programs. Relatedly, the complaint alleged that the members of Lockheed's Retirement Committee, who implemented the Plan as amended by the board, violated those same parts of ERISA. The complaint also asserted that the OBRA amendments to ERISA and the ADEA required Lockheed to count Spink's pre-1988 service years toward his accrued pension benefits. For these alleged ERISA violations, Spink sought monetary, declaratory, and injunctive relief pursuant to Section(s) 502(a)(2) and (3) of ERISA's civil enforcement provisions, 29 U. S. C. Section(s) 1132(a)(2), (3). Lockheed moved to dismiss the complaint for failure to state a claim, and the District Court granted the motion. 60 F. 3d 616 (1995). The Court of Appeals held that the amendments to
+
+7
+The Court of Appeals for the Ninth Circuit reversed in relevant part. the Plan were unlawful under ERISA Section(s) 406(a)(1)(D), 29 U. S. C. Section(s) 1106(a)(1)(D), which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to a party in interest or involves the use of plan assets for the benefit of a party in interest. The court reasoned that because the amendments offered increased benefits in exchange for a release of employment claims, they constituted a use of Plan assets to ""purchase"" a significant benefit for Lockheed. 60 F. 3d, at 624. Though the court found a violation of Section(s) 406(a)(1)(D), it decided that there was no need to address Lockheed's status as a fiduciary. Id., at 623, n. 5. In addition, the Court of Appeals agreed with Spink that Lockheed had violated the OBRA amendments by refusing to include Spink's service years prior to 1988 in determining his benefits. In so holding, the court found that the OBRA amendments apply retroactively. See id., at 620, n. 1. We issued a writ of certiorari, 516 U. S. ___ (1996), and now reverse.",facts,Spink's Employment with Lockheed,agree,The Lockheed Retirement Plan,strongly agree,The Lockheed Retirement Plan,1
+G2,7,1,1,II,"Nothing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 91 (1983); Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 511 (1981). ERISA does, however, seek to ensure that employees will not be left empty-handed once employers have guaranteed them certain benefits. As we said in Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359 (1980), when Congress enacted ERISA it ""wanted to . . . mak[e] sure that if a worker has been promised a defined pension benefit upon retirement--and if he has fulfilled whatever conditions are required to obtain a vested benefit--he actually will receive it."" Id., at 375. Accordingly, ERISA tries to ""make as certain as possible that pension fund assets [will] be adequate"" to meet expected benefits payments. Ibid.
+
+9
+To increase the chances that employers will be able to honor their benefits commitments--that is, to guard against the possibility of bankrupt pension funds--Congress incorporated several key measures into the Act. Section 302 of ERISA sets minimum annual funding levels for all covered plans, see 29 U. S. C. Section(s) 1082(a), 1082(b), and creates tax liens in favor of such plans when those funding levels are not met, see Section(s) 1082(f). Sections 404 and 409 of ERISA impose respectively a duty of care with respect to the management of existing trust funds, along with liability for breach of that duty, upon plan fiduciaries. See Section(s) 1104(a), 1109(a). Finally, Section(s) 406 of ERISA prohibits fiduciaries from involving the plan and its assets in certain kinds of business deals. See Section(s) 1106. It is this last feature of ERISA that is at issue today.
+
+10
+Congress enacted Section(s) 406 ""to bar categorically a transaction that [is] likely to injure the pension plan."" Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 160 (1993). That section mandates, in relevant part, that ""[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the plan."" 29 U. S. C. Section(s) 1106(a)(1)(D).1 The question here is whether this provision of ERISA prevents an employer from conditioning the receipt of early retirement benefits upon the participants' waiver of employment claims. For the following reasons, we hold that it does not.",analysis,ERISA's Benefits Provisions,agree,ERISA's Requirements for Employee Benefits Plans,strongly agree,ERISA's Requirements for Employee Retirement Benefits Plans,2
+G2,7,1,1,III,"Section 406(a)(1) regulates the conduct of plan fiduciaries, placing certain transactions outside the scope of their lawful authority. When a fiduciary violates the rules set forth in Section(s) 406(a)(1), Section(s) 409 of ERISA renders him personally liable for any losses incurred by the plan, any ill-gotten profits, and other equitable and remedial relief deemed appropriate by the court. See 29 U. S. C. Section(s) 1109(a). But in order to sustain an alleged transgression of Section(s) 406(a), a plaintiff must show that a fiduciary caused the plan to engage in the allegedly unlawful transaction.2 Unless a plaintiff can make that showing, there can be no violation of Section(s) 406(a)(1) to warrant relief under the enforcement provisions. Cf. Peacock v. Thomas, 516 U. S. __, __ (1996) (slip op., at 3-4) (""Section 502(a)(3) `does not, after all, authorize ""appropriate equitable relief"" at large, but only ""appropriate equitable relief for the purpose of ""redress[ing any] violations or . . . enforc[ing] any provisions"" of ERISA'"") (quoting Mertens v. Hewitt Associates, 508 U. S. 248, 253 (1993)). The Court of Appeals erred by not asking whether fiduciary status existed in this case before it found a violation of Section(s) 406(a)(1)(D).3
+
+We first address the allegation in Spink's complaint that Lockheed and the board of directors breached their fiduciary duties when they adopted the amendments establishing the early retirement programs. Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. ___ (1995), ""[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans."" Id., at ___ (slip op., at 4) (citing Adams v. Avondale Industries, Inc., 905 F. 2d 943, 947 (CA6 1990)). When employers undertake those actions, they do not act as fiduciaries, 514 U. S., at ___ (slip op., at ___), but are analogous to the settlors of a trust, see Johnson v. Georgia-Pacific Corp., 19 F. 3d 1184, 1188 (CA7 1994).
+
+13
+This rule is rooted in the text of ERISA's definition of fiduciary. See 29 U. S. C. Section(s) 1002(21)(A) (quoted n. 2, supra). As the Second Circuit has observed, ""only when fulfilling certain defined functions, including the exercise of discretionary authority or control over plan management or administration,"" does a person become a fiduciary under Section(s) 3(21)(A). Siskind v. Sperry Retirement Program, Unisys, 47 F. 3d 498, 505 (1995). ""[B]ecause [the] defined functions [in the definition of fiduciary] do not include plan design, an employer may decide to amend an employee benefit plan without being subject to fiduciary review."" Ibid. We recently recognized this very point, noting that ""it may be true that amending or terminating a plan . . . cannot be an act of plan `management' or `administration.'"" Varity Corp. v. Howe, 516 U. S. __, __ (1995) (slip op., at 15). As noted above, we in fact said as much in Curtiss-Wright, see 514 U. S., at ___ (slip op., at ___), at least with respect to welfare benefit plans.
+
+14
+We see no reason why the rule of Curtiss-Wright should not be extended to pension benefit plans. Indeed, there are compelling reasons to apply the same rule to cases involving both kinds of plans, as most Circuit Courts have done.4 The definition of fiduciary makes no distinction between persons exercising authority over welfare benefit plans and those exercising authority over pension plans. It speaks simply of a ""fiduciary with respect to a plan,"" 29 U. S. C. Section(s) 1002(21)(A), and of ""management"" and ""administration"" of ""such plan,"" ibid. And ERISA defines a ""plan"" as being either a welfare or pension plan, or both. See Section(s) 1002(3). Likewise, the fiduciary duty provisions of ERISA are phrased in general terms and apply with equal force to welfare and pension plans. See, e.g., Section(s) 1104(a) (specifying duties of a ""fiduciary . . . with respect to a plan""). See also Shaw v. Delta Air Lines, Inc., 463 U. S., at 91 (ERISA ""sets various uniform standards, including rules concerning . . . fiduciary responsibility, for both pension and welfare plans""). Given ERISA's definition of fiduciary and the applicability of the duties that attend that status, we think that the rules regarding fiduciary capacity--including the settlor-fiduciary distinction--should apply to pension and welfare plans alike.
+
+15
+Lockheed acted not as a fiduciary but as a settlor when it amended the terms of the Plan to include the retirement programs. Thus, Section(s) 406(a)'s requirement of fiduciary status is not met. While other portions of ERISA govern plan amendments, see, e.g., 29 U. S. C. Section(s) 1054(g) (amendment generally may not decrease accrued benefits); Section(s) 1085b (if adoption of an amendment results in underfunding of a defined benefit plan, the sponsor must post security for the amount of the deficiency), the act of amending a pension plan does not trigger ERISA's fiduciary provisions.
+
+Spink also alleged that the members of Lockheed's Retirement Committee who implemented the amended Plan violated Section(s) 406(a)(1)(D). As with the question whether Lockheed and the board members can be held liable under ERISA's fiduciary rules, the Court of Appeals erred in holding that the Retirement Committee members violated the prohibited transaction section of ERISA without making the requisite finding of fiduciary status. It is not necessary for us to decide the question whether the Retirement Committee members acted as fiduciaries when they paid out benefits according to the terms of the amended Plan, however, because we do not think that they engaged in any conduct prohibited by Section(s) 406(a)(1)(D).
+
+17
+The ""transaction"" in which fiduciaries may not cause a plan to engage is one that ""constitutes a direct or indirect . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the plan."" 29 U. S. C. Section(s) 1106(a)(1)(D). Spink reads Section(s) 406(a)(1)(D) to apply in cases where the benefit received by the party in interest--in this case, the employer--is not merely a ""natural inciden[t] of the administration of pension plans."" Brief for Respondent 10. Lockheed, on the other hand, maintains that a plan administrator's payment of benefits to plan participants and beneficiaries pursuant to the terms of an otherwise lawful plan5 is wholly outside the scope of Section(s) 406(a)(1)(D). See Reply Brief for Petitioners 10. We agree with Lockheed.
+
+18
+Section 406(a)(1)(D) does not in direct terms include the payment of benefits by a plan administrator. And the surrounding provisions suggest that the payment of benefits is in fact not a ""transaction"" in the sense that Congress used that term in Section(s) 406(a). Section 406(a) forbids fiduciaries from engaging the plan in the ""sale,"" ""exchange,"" or ""leasing"" of property, 29 U. S. C. Section(s) 1106(a)(1)(A); the ""lending of money"" or ""extension of credit,"" Section(s) 1106(a)(1)(B); the ""furnishing of goods, services, or facilities,"" Section(s) 1106(a)(1)(C); and the ""acquisition . . . of any employer security or employer real property,"" Section(s) 1106(a)(1)(E), with a party in interest. See also Section(s) 1108(b) (listing similar types of ""transactions""). These are commercial bargains that present a special risk of plan underfunding because they are struck with plan insiders, presumably not at arms-length. See Commissioner v. Keystone Consol. Industries, Inc., 508 U. S., at 160. What the ""transactions"" identified in Section(s) 406(a) thus have in common is that they generally involve uses of plan assets that are potentially harmful to the plan. Cf. id., at 160-161 (reasoning that a transfer of unencumbered property to the plan by the employer for the purpose of applying it toward the employer's funding obligation fell within Section(s) 406(a)(1)'s companion tax provision, 26 U. S. C. Section(s) 4975, because it could ""jeopardize the ability of the plan to pay promised benefits""). The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic.
+
+19
+According to Spink and the Court of Appeals, however, Lockheed's early retirement programs were prohibited transactions within the meaning of Section(s) 406(a)(1)(D) because the required release of employment-related claims by participants created a ""significant benefit"" for Lockheed. 60 F. 3d, at 624. Spink concedes, however, that among the ""incidental"" and thus legitimate benefits that a plan sponsor may receive from the operation of a pension plan are attracting and retaining employees, paying deferred compensation, settling or avoiding strikes, providing increased compensation without increasing wages, increasing employee turnover, and reducing the likelihood of lawsuits by encouraging employees who would otherwise have been laid off to depart voluntarily. Brief for Respondent 11.
+
+20
+We do not see how obtaining waivers of employment-related claims can meaningfully be distinguished from these admittedly permissible objectives. Each involves, at bottom, a quid pro quo between the plan sponsor and the participant: that is, the employer promises to pay increased benefits in exchange for the performance of some condition by the employee. By Spink's admission, the employer can ask the employee to continue to work for the employer, to cross a picket line, or to retire early. The execution of a release of claims against the employer is functionally no different; like these other conditions, it is an act that the employee performs for the employer in return for benefits. Certainly, there is no basis in Section(s) 406(a)(1)(D) for distinguishing a valid from an invalid quid pro quo. Section 406(a)(1)(D) simply does not address what an employer can and cannot ask an employee to do in return for benefits. See generally Alessi v. Raybestos-Manhattan, Inc., 451 U. S., at 511 (ERISA ""leaves th[e] question"" of the content of benefits ""to the private parties creating the plan. . . . [T]he private parties, not the Government, control the level of benefits"").6 Furthermore, if an employer can avoid litigation that might result from laying off an employee by enticing him to retire early, as Spink concedes, it stands to reason that the employer can also protect itself from suits arising out of that retirement by asking the employee to release any employment-related claims he may have.7
+
+21
+In short, whatever the precise boundaries of the prohibition in Section(s) 406(a)(1)(D), there is one use of plan assets that it cannot logically encompass: a quid pro quo between the employer and plan participants in which the plan pays out benefits to the participants pursuant to its terms. When Section(s) 406(a)(1)(D) is read in the context of the other prohibited transaction provisions, it becomes clear that the payment of benefits in exchange for the performance of some condition by the employee is not a ""transaction"" within the meaning of Section(s) 406(a)(1). A standard that allows some benefits agreements but not others, as Spink suggests, lacks a basis in Section(s) 406(a)(1)(D); it also would provide little guidance to lower courts and those who must comply with ERISA. We thus hold that the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction.8",analysis,Breach of Fiduciary Duties,agree,The Alleged Violation of Section(s) 406(a)(1),agree,Petitioner's Allegations Against Lockheed,3
+G2,7,1,2,A,"We first address the allegation in Spink's complaint that Lockheed and the board of directors breached their fiduciary duties when they adopted the amendments establishing the early retirement programs. Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. ___ (1995), ""[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans."" Id., at ___ (slip op., at 4) (citing Adams v. Avondale Industries, Inc., 905 F. 2d 943, 947 (CA6 1990)). When employers undertake those actions, they do not act as fiduciaries, 514 U. S., at ___ (slip op., at ___), but are analogous to the settlors of a trust, see Johnson v. Georgia-Pacific Corp., 19 F. 3d 1184, 1188 (CA7 1994).
+
+13
+This rule is rooted in the text of ERISA's definition of fiduciary. See 29 U. S. C. Section(s) 1002(21)(A) (quoted n. 2, supra). As the Second Circuit has observed, ""only when fulfilling certain defined functions, including the exercise of discretionary authority or control over plan management or administration,"" does a person become a fiduciary under Section(s) 3(21)(A). Siskind v. Sperry Retirement Program, Unisys, 47 F. 3d 498, 505 (1995). ""[B]ecause [the] defined functions [in the definition of fiduciary] do not include plan design, an employer may decide to amend an employee benefit plan without being subject to fiduciary review."" Ibid. We recently recognized this very point, noting that ""it may be true that amending or terminating a plan . . . cannot be an act of plan `management' or `administration.'"" Varity Corp. v. Howe, 516 U. S. __, __ (1995) (slip op., at 15). As noted above, we in fact said as much in Curtiss-Wright, see 514 U. S., at ___ (slip op., at ___), at least with respect to welfare benefit plans.
+
+14
+We see no reason why the rule of Curtiss-Wright should not be extended to pension benefit plans. Indeed, there are compelling reasons to apply the same rule to cases involving both kinds of plans, as most Circuit Courts have done.4 The definition of fiduciary makes no distinction between persons exercising authority over welfare benefit plans and those exercising authority over pension plans. It speaks simply of a ""fiduciary with respect to a plan,"" 29 U. S. C. Section(s) 1002(21)(A), and of ""management"" and ""administration"" of ""such plan,"" ibid. And ERISA defines a ""plan"" as being either a welfare or pension plan, or both. See Section(s) 1002(3). Likewise, the fiduciary duty provisions of ERISA are phrased in general terms and apply with equal force to welfare and pension plans. See, e.g., Section(s) 1104(a) (specifying duties of a ""fiduciary . . . with respect to a plan""). See also Shaw v. Delta Air Lines, Inc., 463 U. S., at 91 (ERISA ""sets various uniform standards, including rules concerning . . . fiduciary responsibility, for both pension and welfare plans""). Given ERISA's definition of fiduciary and the applicability of the duties that attend that status, we think that the rules regarding fiduciary capacity--including the settlor-fiduciary distinction--should apply to pension and welfare plans alike.
+
+15
+Lockheed acted not as a fiduciary but as a settlor when it amended the terms of the Plan to include the retirement programs. Thus, Section(s) 406(a)'s requirement of fiduciary status is not met. While other portions of ERISA govern plan amendments, see, e.g., 29 U. S. C. Section(s) 1054(g) (amendment generally may not decrease accrued benefits); Section(s) 1085b (if adoption of an amendment results in underfunding of a defined benefit plan, the sponsor must post security for the amount of the deficiency), the act of amending a pension plan does not trigger ERISA's fiduciary provisions.",analysis,Amendment of the Early Retirement Programs,disagree,The Fiduciary Duty Claim,strongly agree,Lockheed's Alleged Breach of Fiduciary Duties,1
+G2,7,1,2,B,"Spink also alleged that the members of Lockheed's Retirement Committee who implemented the amended Plan violated Section(s) 406(a)(1)(D). As with the question whether Lockheed and the board members can be held liable under ERISA's fiduciary rules, the Court of Appeals erred in holding that the Retirement Committee members violated the prohibited transaction section of ERISA without making the requisite finding of fiduciary status. It is not necessary for us to decide the question whether the Retirement Committee members acted as fiduciaries when they paid out benefits according to the terms of the amended Plan, however, because we do not think that they engaged in any conduct prohibited by Section(s) 406(a)(1)(D).
+
+17
+The ""transaction"" in which fiduciaries may not cause a plan to engage is one that ""constitutes a direct or indirect . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the plan."" 29 U. S. C. Section(s) 1106(a)(1)(D). Spink reads Section(s) 406(a)(1)(D) to apply in cases where the benefit received by the party in interest--in this case, the employer--is not merely a ""natural inciden[t] of the administration of pension plans."" Brief for Respondent 10. Lockheed, on the other hand, maintains that a plan administrator's payment of benefits to plan participants and beneficiaries pursuant to the terms of an otherwise lawful plan5 is wholly outside the scope of Section(s) 406(a)(1)(D). See Reply Brief for Petitioners 10. We agree with Lockheed.
+
+18
+Section 406(a)(1)(D) does not in direct terms include the payment of benefits by a plan administrator. And the surrounding provisions suggest that the payment of benefits is in fact not a ""transaction"" in the sense that Congress used that term in Section(s) 406(a). Section 406(a) forbids fiduciaries from engaging the plan in the ""sale,"" ""exchange,"" or ""leasing"" of property, 29 U. S. C. Section(s) 1106(a)(1)(A); the ""lending of money"" or ""extension of credit,"" Section(s) 1106(a)(1)(B); the ""furnishing of goods, services, or facilities,"" Section(s) 1106(a)(1)(C); and the ""acquisition . . . of any employer security or employer real property,"" Section(s) 1106(a)(1)(E), with a party in interest. See also Section(s) 1108(b) (listing similar types of ""transactions""). These are commercial bargains that present a special risk of plan underfunding because they are struck with plan insiders, presumably not at arms-length. See Commissioner v. Keystone Consol. Industries, Inc., 508 U. S., at 160. What the ""transactions"" identified in Section(s) 406(a) thus have in common is that they generally involve uses of plan assets that are potentially harmful to the plan. Cf. id., at 160-161 (reasoning that a transfer of unencumbered property to the plan by the employer for the purpose of applying it toward the employer's funding obligation fell within Section(s) 406(a)(1)'s companion tax provision, 26 U. S. C. Section(s) 4975, because it could ""jeopardize the ability of the plan to pay promised benefits""). The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic.
+
+19
+According to Spink and the Court of Appeals, however, Lockheed's early retirement programs were prohibited transactions within the meaning of Section(s) 406(a)(1)(D) because the required release of employment-related claims by participants created a ""significant benefit"" for Lockheed. 60 F. 3d, at 624. Spink concedes, however, that among the ""incidental"" and thus legitimate benefits that a plan sponsor may receive from the operation of a pension plan are attracting and retaining employees, paying deferred compensation, settling or avoiding strikes, providing increased compensation without increasing wages, increasing employee turnover, and reducing the likelihood of lawsuits by encouraging employees who would otherwise have been laid off to depart voluntarily. Brief for Respondent 11.
+
+20
+We do not see how obtaining waivers of employment-related claims can meaningfully be distinguished from these admittedly permissible objectives. Each involves, at bottom, a quid pro quo between the plan sponsor and the participant: that is, the employer promises to pay increased benefits in exchange for the performance of some condition by the employee. By Spink's admission, the employer can ask the employee to continue to work for the employer, to cross a picket line, or to retire early. The execution of a release of claims against the employer is functionally no different; like these other conditions, it is an act that the employee performs for the employer in return for benefits. Certainly, there is no basis in Section(s) 406(a)(1)(D) for distinguishing a valid from an invalid quid pro quo. Section 406(a)(1)(D) simply does not address what an employer can and cannot ask an employee to do in return for benefits. See generally Alessi v. Raybestos-Manhattan, Inc., 451 U. S., at 511 (ERISA ""leaves th[e] question"" of the content of benefits ""to the private parties creating the plan. . . . [T]he private parties, not the Government, control the level of benefits"").6 Furthermore, if an employer can avoid litigation that might result from laying off an employee by enticing him to retire early, as Spink concedes, it stands to reason that the employer can also protect itself from suits arising out of that retirement by asking the employee to release any employment-related claims he may have.7
+
+21
+In short, whatever the precise boundaries of the prohibition in Section(s) 406(a)(1)(D), there is one use of plan assets that it cannot logically encompass: a quid pro quo between the employer and plan participants in which the plan pays out benefits to the participants pursuant to its terms. When Section(s) 406(a)(1)(D) is read in the context of the other prohibited transaction provisions, it becomes clear that the payment of benefits in exchange for the performance of some condition by the employee is not a ""transaction"" within the meaning of Section(s) 406(a)(1). A standard that allows some benefits agreements but not others, as Spink suggests, lacks a basis in Section(s) 406(a)(1)(D); it also would provide little guidance to lower courts and those who must comply with ERISA. We thus hold that the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction.8",analysis,Retirement Committee Members,disagree,The Retirement Committee,disagree,Lockheed's Alleged Violation of §406(a)(1)(D),2
+G2,7,1,1,IV,"Finally, we address whether Section(s) 9201 and 9202(a) of OBRA, which amended respectively the ADEA and ERISA to prohibit age-based benefit accrual rules, apply retroactively.9 Two Terms ago, we set forth the proper approach for determining the retroactive effect of a statute in Landgraf v. USI Film Products, Inc., 511 U. S. __ (1994). We stated that ""[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach."" Id., at ___ (slip op., at 36). Thus, we must determine whether Congress has plainly delineated the temporal scope of the OBRA amendments to ERISA and the ADEA.
+
+23
+Section 9204(a)(1) of OBRA, 100 Stat. 1979, expressly provides that ""[t]he amendments made by sections 9201 and 9202 shall apply only with respect to plan years beginning on or after January 1, 1988, and only to employees who have 1 hour of service in any plan year to which such amendments apply."" 29 U. S. C. Section(s) 623 note. This language compels the conclusion that the amendments are prospective. For plan years that began on or after January 1, 1988, age-based accrual rules are unlawful under the amendments; further, only employees who have one hour of service in such a plan year are entitled to the protection of the amendments. But for plan years prior to the effective date, employers cannot be held liable for using age-based accrual rules. Where, as here, the temporal effect of a statute is manifest on its face, ""there is no need to resort to judicial default rules,"" Landgraf v. USI Film Products, Inc., 511 U. S., at __ (slip op., at 36), and inquiry is at an end.
+
+24
+Notwithstanding the clarity of Section(s) 9204(a)(1), the Court of Appeals believed that the text of Section(s) 9201 and 9202(a) require retroactive application of the benefit accrual rules. To deny an employee credit for service years during which he was excluded from the plan based on age, even though that exclusion was lawful at the time, the Court of Appeals reasoned, is to reduce the rate of benefits accrual for that employee.10 60 F. 3d, at 620. When Congress includes a provision that specifically addresses the temporal effect of a statute, that provision trumps any general inferences that might be drawn from the substantive provisions of the statute. See generally Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992); Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 228-229 (1957). Even if it were proper to disregard the express time limitations in Section(s) 9204(a)(1) in favor of more general language, Section(s) 9201 and 9202(a) cannot bear the weight of the Court of Appeals' construction. A reduction in total benefits due is not the same thing as a reduction in the rate of benefit accrual; the former is the final outcome of the calculation, whereas the latter is one of the factors in the equation.
+
+25
+The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
+
+26
+It is so ordered.",analysis,Retroactivity of the OBRA Amendments,strongly agree,Retroactivity of OBRA,strongly agree,Retroactivity of OBRA's §§9201 and 9202(a),4
+G6,1,1,1,I,"The facts are not in dispute. Respondent Perini North River Associates (Perini) contracted to build the foundation of a sewage treatment plant that extends approximately 700 feet over the Hudson River between 135th and 145th Streets in Manhattan. The project required that Perini place large, hollow circular pipes called caissons in the river, down to embedded rock, fill the caissons with concrete, connect the caissons together above the water with concrete beams, and place precast concrete slabs on the beams. The caissons were delivered by rail to the shore, where they were loaded onto supply barges and towed across the river to await unloading and installation.
+
+The injured worker, Raymond Churchill, was an employee of Perini in charge of all work performed on a cargo barge used to unload caissons and other materials from the supply barges and to set caissons in position for insertion into the embedded rock. Churchill was on the deck of the cargo barge giving directions to a crane operator engaged in unloading a caisson from a supply barge when a line used to keep the caissons in position snapped and struck Churchill. He sustained injuries to his head, leg, and thumb.[4]
+
+Churchill filed a claim for compensation under the LHWCA. Perini denied that Churchill was covered by the Act, and after a formal hearing pursuant to § 19 of the Act, 33 U.S. C. § 919 (1976 ed. and Supp. V), an Administrative Law Judge determined that Churchill was not ""engaged in maritime employment"" under § 2(3) of the Act because his job lacked ""some relationship to navigation and commerce on navigable waters."" App. to Pet. for Cert. 31a. Churchill and the Director, Office of Workers' Compensation Programs *301 (Director), appealed to the Benefits Review Board, pursuant to § 21(b)(3) of the Act, 33 U.S. C. § 921(b)(3). The Board affirmed the Administrative Law Judge's denial of coverage, on the theory that marine construction workers involved in building facilities not ultimately used in navigation or commerce upon navigable waters are not engaged in ""maritime employment."" 12 BRBS 929, 933 (1980).[5] One Board Member dissented, arguing that ""all injuries sustained in the course of employment by employees over `navigable waters' as that term was defined prior to the 1972 Amendments, are covered under the [amended] Act."" Id., at 935.[6]
+
+Churchill then sought review of the Board's decision in the Court of Appeals for the Second Circuit, under § 21(c) of the Act, 33 U.S. C. § 921(c).[7] The Director participated as respondent, and filed a brief in support of Churchill's position. The Second Circuit denied Churchill's petition, relying on its decision in Fusco v. Perini North River Associates, 622 F.2d 1111 (1980), cert. denied, 449 U.S. 1131 (1981). According to the Second Circuit, Churchill was not in ""maritime employment"" because his employment lacked a "" `significant relationship to navigation or to commerce on navigable waters.' "" Churchill v. Perini North River Associates, 652 F.2d 255, 256, n. 1 (1981). The Director now seeks review of the Second Circuit denial of Churchill's petition. The Director agrees with the position taken by the dissenting member of the Benefits Review Board: the LHWCA does not require *302 that an employee show that his employment possesses a ""significant relationship to navigation or to commerce,"" where, as here, the employee is injured while working upon the actual navigable waters in the course of his employment, and would have been covered under the pre-1972 LHWCA.[8]",facts,the accident and the lhwca,agree,The LHWCA Claim,disagree,Respondent's Accident and his LHWCA Claim,1
+G6,1,1,1,II,"Before we consider whether Churchill is covered by the Act, we must address Perini's threshold contention that the Director does not have standing to seek review of the decision below. According to Perini, the Director's only interest in this case is in furthering a different interpretation of the Act than the one rendered by the Administrative Law Judge, the Benefits Review Board, and the Court of Appeals.[9]
+
+Perini's claim ignores the procedural posture in which this case comes before the Court. That posture makes it unnecessary for us to consider whether the Director, as the agency *303 official ""responsible for the administration and enforcement"" of the Act,[10] has standing as an aggrieved party to seek review of the decision below.[11] The Director is not alone in arguing that Churchill is covered under the LHWCA. Churchill, the injured employee, is before the Court as well. He has filed a brief in support of the Director's request for a writ of certiorari, and a brief addressing the merits of his claim, in which he presents the same arguments presented by the Director. But, for some reason that is not entirely clear, Churchill has not elected to seek review as a petitioner, and by virtue of the Rules of this Court, he is considered a party *304 respondent.[12] It is in this procedural context that Perini's challenge to Art. III standing must be considered. Perini concedes that the Director was a proper party respondent before the Court of Appeals in this litigation.[13] As party respondent below, the Director is entitled under 28 U.S. C. § 1254(1) to petition for a writ of certiorari. Although the Director has statutory authority to seek review in this Court, he may not have Art. III standing to argue the merits of Churchill's claim because the Director's presence does not guarantee the existence of a justiciable controversy with respect to the merits of Churchill's coverage under the LHWCA. However, the Director's petition makes Churchill an automatic respondent under our Rule 19.6, and in that capacity, Churchill ""may seek reversal of the judgment of the Court of Appeals on any ground urged in that court."" O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 783-784, n. 14 (1980). The Director's petition, filed under 28 *305 U. S. C. § 1254(1), brings Churchill before this Court, and there is no doubt that Churchill, as the injured employee, has a sufficient interest in this question to give him standing to urge our consideration of the merits of the Second Circuit decision.
+
+The constitutional dimension of standing theory requires, at the very least, that there be an ""actual injury redressable by the court."" Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976). This requirement is meant ""to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action,"" as well as to assure ""an actual factual setting in which the litigant asserts a claim of injury in fact."" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). The presence of Churchill as a party respondent arguing for his coverage under the Act assures that an admittedly justiciable controversy is now before the Court.",analysis,Art. III Standing,disagree,The Director's Standing,strongly agree,The Director's Standing in the litigation,2
+G6,1,1,1,III,"The question of Churchill's coverage is an issue of statutory construction and legislative intent. For reasons that we explain below, there is no doubt that Churchill, as a marine construction worker injured upon actual navigable waters in the course of his employment upon those waters, would have been covered by the LHWCA before Congress amended it in 1972. In deciding whether Congress intended to restrict the scope of coverage by adding the § 2(3) status requirement, we must consider the scope of coverage under the pre-1972 Act and our cases construing the relevant portions of that Act. We must then focus on the legislative history and purposes of the 1972 Amendments to the LHWCA to determine their effect on pre-existing coverage.
+
+*306 Beginning with our decision in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), we held that there were certain circumstances in which States could not, consistently with Art. III, § 2, of the Constitution, provide compensation to injured maritime workers.[14] If the employment of an injured worker was determined to have no ""direct relation"" to navigation or commerce, and ""the application of local law [would not] materially affect"" the uniformity of maritime law, then the employment would be characterized as ""maritime but local,"" and the State could provide a compensation remedy. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477 (1922). See also Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921). If the employment could not be characterized as ""maritime but local,"" then the injured employee would be left without a compensation remedy.
+
+After several unsuccessful attempts to permit state compensation remedies to apply to injured maritime workers whose employment was not local,[15] Congress passed the LHWCA in 1927, 44 Stat. (part 2) 1424. Under the original statutory scheme, a worker had to satisfy five primary conditions in order to be covered under the Act. First, the worker had to satisfy the ""negative"" definition of ""employee"" contained in § 2(3) of the 1927 Act in that he could not be a ""master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."" Id., at 1425.[16] Second, the *307 worker had to suffer an ""injury"" defined by § 2(2) as ""accidental injury or death arising out of and in the course of employment. . . ."" Ibid. Third, the worker had to be employed by a statutory ""employer,"" defined by § 2(4) as ""an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock)."" Ibid.[17] Fourth, the worker had to meet a ""situs"" requirement contained in § 3(a) of the Act that limited coverage to workers whose ""disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock)."" Id., at 1426. Fifth, § 3(a) precluded federal compensation unless ""recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law."" Ibid.
+
+Federal compensation under the LHWCA did not initially extend to all maritime employees injured on the navigable waters in the course of their employment. As mentioned, § 3(a) of the 1927 Act permitted federal compensation only if compensation ""may not validly be provided by State law."" Ibid. This language was interpreted to exclude from LHWCA coverage those employees whose employment was ""maritime but local."" See, e. g., Crowell v. Benson, 285 U.S. 22 (1932). Application of the ""maritime but local"" doctrine required case-by-case determinations, and a worker was often required to make a perilous jurisdictional ""guess"" as to which of two mutually exclusive compensation schemes was applicable to cover his injury. Employers faced uncertainty as to whether their contributions to a state insurance fund would be sufficient to protect them from liability.
+
+In Davis v. Department of Labor, 317 U.S. 249 (1942), this Court recognized that despite its many cases involving the *308 ""maritime but local"" doctrine, it had ""been unable to give any guiding, definite rule to determine the extent of state power in advance of litigation . . . ."" Id., at 253. Employees and employers alike were thrust on ""[t]he horns of [a] jurisdictional dilemma."" Id., at 255.[18]Davis involved an employee *309 who was injured while dismantling a bridge from a standing position on a barge. We upheld the application of the state compensation law in Davis not because the employee was engaged in ""maritime but local"" employment, but because we viewed the case as in a ""twilight zone"" of concurrent jurisdiction where LHWCA coverage was available and where the applicability of state law was difficult to determine. We held that doubt concerning the applicability of state compensation Acts was to be resolved in favor of the constitutionality of the state remedy. Relying in part on Davis, the Court in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), created further overlap between federal and state coverage for injured maritime workers. In Calbeck, we held that the LHWCA was ""designed to ensure that a compensation remedy existed for all injuries sustained by employees [of statutory employers] on navigable waters, and to avoid uncertainty as to the source, state or federal, of that remedy."" Id., at 124. Our examination in Calbeck of the ""complete legislative history"" of the 1927 LHWCA revealed that Congress did not intend to incorporate the ""maritime but local"" doctrine in the Act. Id., at 120. ""Congress used the phrase `if recovery . . . may not validly be provided by State law' in a sense consistent with the delineation of coverage as reaching injuries occurring on navigable waters."" Id., at 126.[19]
+
+Before 1972, there was little litigation concerning whether an employee was ""in maritime employment"" for purposes of being the employee of a statutory employer: ""Workers who *310 are not seamen but who nevertheless suffer injury on navigable waters are no doubt (or so the courts have been willing to assume) engaged in `maritime employment.' "" G. Gilmore & C. Black, Law of Admiralty 428 (2d ed. 1975) (Gilmore & Black). One case in which we did discuss the maritime employment requirement was Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941). In Parker, the injured worker, hired as a janitor, was drowned while riding in one of his employer's motorboats keeping lookout for hidden objects under the water. When the employee's beneficiary sought LHWCA compensation, the employer argued that the employment was "" `so local in character' "" that the State could validly have provided a remedy, and the § 3(a) language (""if recovery . . . may not validly be provided by State law"") precluded federal relief. Id., at 246. A unanimous Court rejected the employer's argument, and held that the employee was engaged in maritime employment and that LHWCA coverage extended to an employee injured on the navigable waters in the course of his employment, without any further inquiry whether the injured worker's employment had a direct relation to navigation or commerce.[20] In abolishing the ""jurisdictional dilemma"" created by the ""maritime but local"" doctrine, Calbeck relied heavily on Parker, see 370 U.S., at 127-128.
+
+*311 It becomes clear from this discussion that the 1927 Act, as interpreted by Parker, Davis, and Calbeck, provided coverage to those employees of statutory ""employers,"" injured while working upon navigable waters in the course of their employment. Indeed, the consistent interpretation given to the LHWCA before 1972 by the Director, the Deputy Commissioners, the courts, and the commentators was that (except for those workers specifically excepted in the statute), any worker injured upon navigable waters in the course of employment was ""covered . . . without any inquiry into what he was doing (or supposed to be doing) at the time of his injury."" Gilmore & Black, at 429-430.[21] As a marine construction *312 worker required to work upon navigable waters, and injured while performing his duties on navigable waters, there can be no doubt that Churchill would have been covered under the 1927 LHWCA.
+
+In its ""first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it,"" Congress amended the LHWCA in 1972. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977). The purposes of the 1972 Amendments were to raise the amount of compensation available under the LHWCA, to extend coverage of the Act to include certain contiguous land areas, to eliminate the longshoremen's strict-liability seaworthiness remedy against shipowners, to eliminate shipowner's claims for indemnification from stevedores, and to promulgate certain administrative reforms. See S. Rep. No. 92-1125, p. 1 (1972) (hereinafter S. Rep.); H. R. Rep. No. 92-1441 (1972) (hereinafter H. R. Rep.).
+For purposes of the present inquiry, the important changes effected by the 1972 Amendments concerned the definition of ""employee"" in § 2(3), 33 U.S. C. § 902(3), and the description of coverage in § 3(a), 33 U.S. C. § 903(a). These amended sections provide:
+""The term `employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."" § 2(3), 33 U.S. C. § 902(3).""Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel) . . . ."" § 3(a), as set forth in 33 U.S. C. § 903(a).[22]
+""The 1972 Amendments thus changed what had been essentially only a `situs' test of eligibility for compensation to one looking to both the `situs' of the injury and the `status' of the injured."" Northeast Marine Terminal Co., supra, at 264-265. In expanding the covered situs in § 3(a), Congress also removed the requirement, present in § 3(a) of the 1927 Act, that federal compensation would be available only if recovery ""may not validly be provided by State law."" The definition of ""injury"" remained the same,[23] and the definition of ""employer"" was changed to reflect the new definition of ""employee"" in § 2(3).[24]
+The Director and Churchill claim that when Congress added the status requirement in § 3(a), providing that a covered employee must be ""engaged in maritime employment,"" it intended to restrict or define the scope of the increased coverage provided by the expanded situs provision in § 3(a), but that Congress had no intention to exclude from coverage workers, like Churchill, who were injured upon actual navigable waters, i. e., navigable waters as previously defined, in the course of their employment upon those waters.
+According to Perini, Congress intended to overrule legislatively this Court's decision in Calbeck, and the status requirement was added to ensure that both the landward coverage and seaward coverage would depend on the nature of the employee's duties at the time he was injured. Perini's theory, adopted by the court below, is that all coverage under the amended LHWCA requires employment having a ""significant relationship to navigation or to commerce on navigable waters.""[25] Perini argues further that Churchill cannot meet the status test because he was injured while working on the construction of a foundation for a sewage treatment plant — an activity not typically associated with navigation or commerce on navigable waters.
+We agree with the Director and Churchill. We are unable to find any congressional intent to withdraw coverage of the LHWCA from those workers injured on navigable waters in the course of their employment, and who would have been covered by the Act before 1972. As we have long held, ""[t]his Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results."" Voris v. Eikel, 346 U.S. 328, 333 (1953). See also Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414 (1932); Northeast Marine Terminal Co., 432 U. S., at 268.
+It is necessary to consider the context in which the 1972 Amendments were passed, especially as that context relates directly to the coverage changes that were effected. Despite the fact that Calbeck extended protection of the LHWCA to all employees injured upon navigable waters in the course of their employment, LHWCA coverage still stopped at the water's edge — a line of demarcation established by Jensen. In Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969), we held that the LHWCA did not extend to longshoremen whose injuries occurred on the pier attached to the land. We recognized that there was much to be said for the uniform treatment of longshoremen irrespective of whether they were performing their duties upon the navigable waters (in which case they would be covered under Calbeck), or whether they were performing those same duties on a pier. We concluded, however, that although Congress could exercise its authority to cover land-based maritime activity, ""[t]he invitation to move that [Jensen] line landward must be addressed to Congress, not to this Court."" 396 U.S., at 224. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 216 (1971).
+""Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972."" P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73 (1979). The 1972 Amendments were enacted after Committees in both the House and Senate prepared full Reports that summarized the general purposes of the legislation and contained an analysis of the changes proposed for each section. See S. Rep., supra; H. R. Rep., supra. These legislative Reports indicate clearly that Congress intended to ""extend coverage to protect additional workers."" S. Rep., at 1 (emphasis added).[26] Although the legislative history surrounding the addition of the status requirement is not as clear as that concerning the reasons for the extended situs, it is clear that ""with the definition of `navigable waters' expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate."" Northeast Marine Terminal Co., supra, at 264. This necessity gave rise to the status requirement: ""The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity."" S. Rep., at 13; H. R. Rep., at 11. This comment indicates that Congress intended the status requirement to define the scope of the extended landward coverage.[27]
+There is nothing in these comments, or anywhere else in the legislative Reports, to suggest, as Perini claims, that Congress intended the status language to require that an employee injured upon the navigable waters in the course of his employment had to show that his employment possessed a direct (or substantial) relation to navigation or commerce in order to be covered. Congress was concerned with injuries on land, and assumed that injuries occurring on the actual navigable waters were covered, and would remain covered.[28] In discussing the added status requirement, the Senate Report states explicitly that the ""maritime employment"" requirement in § 3(a) was not meant to ""exclude other employees traditionally covered."" S. Rep., at 16. We may presume ""that our elected representatives, like other citizens, know the law,"" Cannon v. University of Chicago, 441 U.S. 677, 696-697 (1979), and that their use of ""employees traditionally covered"" was intended to refer to those employees included in the scope of coverage under Parker, Davis, and Calbeck.[29]
+Other aspects of the statutory scheme support our understanding of the ""maritime employment"" status requirement. Congress removed from § 3(a) the requirement that, as a prerequisite to federal coverage, there can be no valid recovery under state law.[30] As we noted in our discussion in Part III-A, supra, the continued use of the ""maritime but local"" doctrine occurred after passage of the 1927 Act because the original coverage section contained this requirement that Congress explicitly deleted in 1972. Surely, if Congress wished to repeal Calbeck and other cases legislatively, it would do so by clear language and not by removing from the statute the exact phrase that Calbeck found was responsible for continued emphasis on the ""maritime but local"" doctrine.[31]
+Congressional intent to adhere to Calbeck is also indicated by the fact that the legislative Reports clearly identified those decisions that Congress wished to overrule by the 1972 Amendments. As mentioned above, the 1972 Amendments had other purposes apart from an expansion of coverage to shoreside areas. Two other purposes involved the elimination of a strict-liability unseaworthiness remedy against a vessel owner afforded to longshoremen by Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and an indemnity claim against the stevedore by the vessel owner afforded by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124 (1956). The legislative Reports explicitly identified these decisions as intended to be overruled legislatively by the 1972 Amendments. See S. Rep., at 8-12; H. R. Rep., at 4-8. It is, therefore, highly unlikely that Congress would have intended to return to the ""jurisdictional monstrosity"" that Calbeck sought to lay to rest without at least some indication of its intent to do so.
+In considering the scope of the status test as applied to land-based employees in Northeast Marine Terminal Co., we rejected the ""point of rest"" theory proposed by the employer, under which landward coverage under the 1972 Amendments would include only the portion of the unloading process that takes place before longshoremen place the cargo onto the dock. We reasoned that the ""point of rest"" concept is ""[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage . . . ."" The absence of the concept, ""claimed to be so well known in the industry is both conspicuous and telling."" 432 U.S., at 278-279, 275. In the same sense, the absence of even the slightest congressional allusion to the ""maritime but local"" doctrine, a concept that plagued maritime compensation law for over 40 years and that would have the effect of restricting coverage in the face of congressional intent not to ""exclude other employees traditionally covered,"" is equally conspicuous and telling.
+Finally, we note that our conclusion concerning the continued coverage of employees injured on actual navigable waters in the course of their employment is consistent with, and supported by, our recent decision in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). In Sun Ship, the issue before the Court was whether extended shoreside coverage under the 1972 Amendments had the effect of displacing concurrent state remedies for landward injuries. After a review of the development of the ""maritime but local"" doctrine, and review of certain portions of the legislative history of the 1972 Amendments, we concluded that those Amendments were not intended to resurrect the dilemma, created by mutually exclusive spheres of jurisdiction, that Calbeck and Davis eliminated. Our reasoning was based, in part, on the removal by Congress of the language in the 1927 Act that made federal compensation available if recovery could not validly be provided by state law: ""[T]he deletion of that language in 1972 — if it indicates anything — may logically only imply acquiescence in Calbec[k] . . . ."" 447 U.S., at 721.
+Sun Ship held that with respect to land-based injuries, ""the . . . extension of federal jurisdiction supplements, rather than supplants, state compensation law."" Id., at 720. If we were to hold that the addition of the status requirement was meant to exclude from coverage some employees injured on the actual navigable waters in the course of their employment, a most peculiar result would follow. Concurrent jurisdiction will exist with respect to the class of employees to whom Congress extended protection in 1972, while employees ""traditionally covered"" before 1972 would be faced with a hazardous pre-Davis choice of two exclusive jurisdictions from which to seek compensation. Such an anomalous result could not have been intended by Congress. We also note that a return to exclusive spheres of jurisdiction for workers injured upon the actual navigable waters would be inconsistent with express congressional desire to extend LHWCA jurisdiction landward in light of the inadequacy of most state compensation systems. See S. Rep., at 12; H. R. Rep., at 10.
+In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the ""maritime employment"" language.[32] We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3), and is covered under the LHWCA, providing, of course, that he is the employee of a statutory ""employer,"" and is not excluded by any other provision of the Act.[33] We consider these employees to be ""engaged in maritime employment"" not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters.[34]",analysis,Statutory Construction and Legislative Intent,strongly disagree,The scope of coverage under the LHWCA,strongly agree,The Scope of Coverage Under the LHWCA Before and After 1972,3
+G6,1,1,2,B,"In its ""first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it,"" Congress amended the LHWCA in 1972. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977). The purposes of the 1972 Amendments were to raise the amount of compensation available under the LHWCA, to extend coverage of the Act to include certain contiguous land areas, to eliminate the longshoremen's strict-liability seaworthiness remedy against shipowners, to eliminate shipowner's claims for indemnification from stevedores, and to promulgate certain administrative reforms. See S. Rep. No. 92-1125, p. 1 (1972) (hereinafter S. Rep.); H. R. Rep. No. 92-1441 (1972) (hereinafter H. R. Rep.).
+For purposes of the present inquiry, the important changes effected by the 1972 Amendments concerned the definition of ""employee"" in § 2(3), 33 U.S. C. § 902(3), and the description of coverage in § 3(a), 33 U.S. C. § 903(a). These amended sections provide:
+""The term `employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."" § 2(3), 33 U.S. C. § 902(3).""Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel) . . . ."" § 3(a), as set forth in 33 U.S. C. § 903(a).[22]
+""The 1972 Amendments thus changed what had been essentially only a `situs' test of eligibility for compensation to one looking to both the `situs' of the injury and the `status' of the injured."" Northeast Marine Terminal Co., supra, at 264-265. In expanding the covered situs in § 3(a), Congress also removed the requirement, present in § 3(a) of the 1927 Act, that federal compensation would be available only if recovery ""may not validly be provided by State law."" The definition of ""injury"" remained the same,[23] and the definition of ""employer"" was changed to reflect the new definition of ""employee"" in § 2(3).[24]
+The Director and Churchill claim that when Congress added the status requirement in § 3(a), providing that a covered employee must be ""engaged in maritime employment,"" it intended to restrict or define the scope of the increased coverage provided by the expanded situs provision in § 3(a), but that Congress had no intention to exclude from coverage workers, like Churchill, who were injured upon actual navigable waters, i. e., navigable waters as previously defined, in the course of their employment upon those waters.
+According to Perini, Congress intended to overrule legislatively this Court's decision in Calbeck, and the status requirement was added to ensure that both the landward coverage and seaward coverage would depend on the nature of the employee's duties at the time he was injured. Perini's theory, adopted by the court below, is that all coverage under the amended LHWCA requires employment having a ""significant relationship to navigation or to commerce on navigable waters.""[25] Perini argues further that Churchill cannot meet the status test because he was injured while working on the construction of a foundation for a sewage treatment plant — an activity not typically associated with navigation or commerce on navigable waters.
+We agree with the Director and Churchill. We are unable to find any congressional intent to withdraw coverage of the LHWCA from those workers injured on navigable waters in the course of their employment, and who would have been covered by the Act before 1972. As we have long held, ""[t]his Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results."" Voris v. Eikel, 346 U.S. 328, 333 (1953). See also Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414 (1932); Northeast Marine Terminal Co., 432 U. S., at 268.
+It is necessary to consider the context in which the 1972 Amendments were passed, especially as that context relates directly to the coverage changes that were effected. Despite the fact that Calbeck extended protection of the LHWCA to all employees injured upon navigable waters in the course of their employment, LHWCA coverage still stopped at the water's edge — a line of demarcation established by Jensen. In Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969), we held that the LHWCA did not extend to longshoremen whose injuries occurred on the pier attached to the land. We recognized that there was much to be said for the uniform treatment of longshoremen irrespective of whether they were performing their duties upon the navigable waters (in which case they would be covered under Calbeck), or whether they were performing those same duties on a pier. We concluded, however, that although Congress could exercise its authority to cover land-based maritime activity, ""[t]he invitation to move that [Jensen] line landward must be addressed to Congress, not to this Court."" 396 U.S., at 224. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 216 (1971).
+""Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972."" P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73 (1979). The 1972 Amendments were enacted after Committees in both the House and Senate prepared full Reports that summarized the general purposes of the legislation and contained an analysis of the changes proposed for each section. See S. Rep., supra; H. R. Rep., supra. These legislative Reports indicate clearly that Congress intended to ""extend coverage to protect additional workers."" S. Rep., at 1 (emphasis added).[26] Although the legislative history surrounding the addition of the status requirement is not as clear as that concerning the reasons for the extended situs, it is clear that ""with the definition of `navigable waters' expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate."" Northeast Marine Terminal Co., supra, at 264. This necessity gave rise to the status requirement: ""The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity."" S. Rep., at 13; H. R. Rep., at 11. This comment indicates that Congress intended the status requirement to define the scope of the extended landward coverage.[27]
+There is nothing in these comments, or anywhere else in the legislative Reports, to suggest, as Perini claims, that Congress intended the status language to require that an employee injured upon the navigable waters in the course of his employment had to show that his employment possessed a direct (or substantial) relation to navigation or commerce in order to be covered. Congress was concerned with injuries on land, and assumed that injuries occurring on the actual navigable waters were covered, and would remain covered.[28] In discussing the added status requirement, the Senate Report states explicitly that the ""maritime employment"" requirement in § 3(a) was not meant to ""exclude other employees traditionally covered."" S. Rep., at 16. We may presume ""that our elected representatives, like other citizens, know the law,"" Cannon v. University of Chicago, 441 U.S. 677, 696-697 (1979), and that their use of ""employees traditionally covered"" was intended to refer to those employees included in the scope of coverage under Parker, Davis, and Calbeck.[29]
+Other aspects of the statutory scheme support our understanding of the ""maritime employment"" status requirement. Congress removed from § 3(a) the requirement that, as a prerequisite to federal coverage, there can be no valid recovery under state law.[30] As we noted in our discussion in Part III-A, supra, the continued use of the ""maritime but local"" doctrine occurred after passage of the 1927 Act because the original coverage section contained this requirement that Congress explicitly deleted in 1972. Surely, if Congress wished to repeal Calbeck and other cases legislatively, it would do so by clear language and not by removing from the statute the exact phrase that Calbeck found was responsible for continued emphasis on the ""maritime but local"" doctrine.[31]
+Congressional intent to adhere to Calbeck is also indicated by the fact that the legislative Reports clearly identified those decisions that Congress wished to overrule by the 1972 Amendments. As mentioned above, the 1972 Amendments had other purposes apart from an expansion of coverage to shoreside areas. Two other purposes involved the elimination of a strict-liability unseaworthiness remedy against a vessel owner afforded to longshoremen by Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and an indemnity claim against the stevedore by the vessel owner afforded by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124 (1956). The legislative Reports explicitly identified these decisions as intended to be overruled legislatively by the 1972 Amendments. See S. Rep., at 8-12; H. R. Rep., at 4-8. It is, therefore, highly unlikely that Congress would have intended to return to the ""jurisdictional monstrosity"" that Calbeck sought to lay to rest without at least some indication of its intent to do so.
+In considering the scope of the status test as applied to land-based employees in Northeast Marine Terminal Co., we rejected the ""point of rest"" theory proposed by the employer, under which landward coverage under the 1972 Amendments would include only the portion of the unloading process that takes place before longshoremen place the cargo onto the dock. We reasoned that the ""point of rest"" concept is ""[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage . . . ."" The absence of the concept, ""claimed to be so well known in the industry is both conspicuous and telling."" 432 U.S., at 278-279, 275. In the same sense, the absence of even the slightest congressional allusion to the ""maritime but local"" doctrine, a concept that plagued maritime compensation law for over 40 years and that would have the effect of restricting coverage in the face of congressional intent not to ""exclude other employees traditionally covered,"" is equally conspicuous and telling.
+Finally, we note that our conclusion concerning the continued coverage of employees injured on actual navigable waters in the course of their employment is consistent with, and supported by, our recent decision in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). In Sun Ship, the issue before the Court was whether extended shoreside coverage under the 1972 Amendments had the effect of displacing concurrent state remedies for landward injuries. After a review of the development of the ""maritime but local"" doctrine, and review of certain portions of the legislative history of the 1972 Amendments, we concluded that those Amendments were not intended to resurrect the dilemma, created by mutually exclusive spheres of jurisdiction, that Calbeck and Davis eliminated. Our reasoning was based, in part, on the removal by Congress of the language in the 1927 Act that made federal compensation available if recovery could not validly be provided by state law: ""[T]he deletion of that language in 1972 — if it indicates anything — may logically only imply acquiescence in Calbec[k] . . . ."" 447 U.S., at 721.
+Sun Ship held that with respect to land-based injuries, ""the . . . extension of federal jurisdiction supplements, rather than supplants, state compensation law."" Id., at 720. If we were to hold that the addition of the status requirement was meant to exclude from coverage some employees injured on the actual navigable waters in the course of their employment, a most peculiar result would follow. Concurrent jurisdiction will exist with respect to the class of employees to whom Congress extended protection in 1972, while employees ""traditionally covered"" before 1972 would be faced with a hazardous pre-Davis choice of two exclusive jurisdictions from which to seek compensation. Such an anomalous result could not have been intended by Congress. We also note that a return to exclusive spheres of jurisdiction for workers injured upon the actual navigable waters would be inconsistent with express congressional desire to extend LHWCA jurisdiction landward in light of the inadequacy of most state compensation systems. See S. Rep., at 12; H. R. Rep., at 10.
+In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the ""maritime employment"" language.[32] We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3), and is covered under the LHWCA, providing, of course, that he is the employee of a statutory ""employer,"" and is not excluded by any other provision of the Act.[33] We consider these employees to be ""engaged in maritime employment"" not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters.[34]",analysis,The 1972 Amendments to the LHWCA,agree,1972 Amendments to the LHWCA,agree,LHWCA Coverage after the 1972 Amendments,2
+G6,1,1,1,IV,"In conclusion, we are unable to find anything in the legislative history or in the 1972 Amendments themselves that indicate that Congress intended to withdraw coverage from employees injured on the navigable waters in the course of their employment as that coverage existed before the 1972 Amendments. On the contrary, the legislative history indicates that Congress did not intend to ""exclude other employees traditionally covered."" Moreover, Congress explicitly deleted the language from § 3(a) that we found in Calbeck to be responsible for the ""jurisdictional dilemma"" caused by two mutually exclusive spheres of jurisdiction over maritime injuries. Accordingly, the decision of the Court of Appeals is hereby reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
+
+It is so ordered.",conclusion,Legislative History and 1972 Amendments,strongly disagree,The 1972 Amendments and the Court of Appeals' Decision,agree,Conclusion on the LHWCA and reversal of the Court of Appeals' decision,4
+G6,2,1,1,I,"Federal jurisdiction over cases commenced by federal agencies is conferred by 28 U.S. C. § 1345. That section provides:
+
+*85 ""Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.""
+Three limits on this grant of jurisdiction are plain from its text. It applies only to civil litigation ""commenced"" by the federal party; it requires that the agency be ""expressly authorized to sue""; and it is subject to such exceptions as may be ""otherwise provided by Act of Congress."" In view of the fact that this case was commenced by the FSLIC, and the fact that the FSLIC is expressly authorized to sue and be sued,[3] § 1345 supports federal jurisdiction unless another statute otherwise provides. The question, then, is whether 12 U.S. C. § 1730(k)(1) is such a statute.
+
+",analysis,Federal Jurisdiction Over Civil Litigation Committed by Federal Agencies,disagree,Federal Jurisdiction Over Civil Litigation commenced by Federal Agency,disagree,The Federal Jurisdiction Over FSLIC's Claim ,1
+G6,2,1,1,II,"The text of § 1730(k)(1)[4] indicates that it is a statute that confirms and enlarges federal-court jurisdiction over cases to which the FSLIC is a party. It does so in two ways.
+
+Prior to the enactment of § 1730(k)(1) in 1966, at least one court had expressed some doubt concerning the FSLIC's status as an agency of the United States for purposes of asserting jurisdiction under § 1345. See Acron Investments, Inc. v. FSLIC, 363 F.2d 236 (CA9), cert. denied, 385 U.S. 970 (1966). Clause (A) of the statute removed that doubt. The manifest purpose of enacting clause (A) was to foreclose the possible argument that § 1345 does not confer federal agency jurisdiction in cases brought by the FSLIC. Thus, clause (A) lends added support to the jurisdictional basis found in § 1345.
+
+*86 In addition, clause (B) enlarges the category of FSLIC litigation over which federal courts have jurisdiction because it covers all civil cases in which the FSLIC ""shall be a party,"" whereas § 1345 applies only to those ""commenced"" by the FSLIC. Thus, the grant of federal jurisdiction in § 1345 is expanded to include cases in which the FSLIC is named as a defendant as well as those in which it intervenes after proceedings are underway. Clause (C) further enlarges federal jurisdiction in cases involving the FSLIC by giving the agency the right to remove civil proceedings from state court to the appropriate federal district court. Thus, placing the proviso to one side for the moment, it is evident that each of the three clauses of § 1730(k)(1) was intended to buttress the FSLIC's access to a federal forum.
+
+There is no doubt that the proviso imposes a limit on this broad grant of federal jurisdiction. It is equally clear, however, that the proviso does not extend to clause (A) and the agency jurisdiction conferred by § 1345. Clause (B) provides that any civil suit in which the FSLIC is a party ""shall be deemed to arise under the laws of the United States."" Clause (C), in turn, permits the FSLIC to remove ""any such action"" to federal court. Accordingly, these jurisdictional grants are predicated on the congressional finding that actions to which the FSLIC is a party ""shall be deemed to arise under the laws of the United States."" The proviso qualifies this finding by describing a subcategory of cases to which the FSLIC is a party that ""shall not be deemed to arise under the laws of the United States."" (Emphasis supplied.) Clause (A), however, does not rely on the presence of a federal question as a jurisdictional prerequisite, but rather confirms that the party-based jurisdiction of § 1345 is applicable in cases brought by the FSLIC. As a result, the proviso's partial retraction of federal-question jurisdiction *87 has no effect on clause (A), and, a fortiori, no effect on § 1345.[5]
+
+The Court of Appeals suggested that notwithstanding the plain language of the statute, Congress must have intended that the proviso apply to clause (A). 832 F.2d, at 1443-1444. The court reasoned that because clause (B) applies to all civil cases in which the FSLIC is a party _x0097_ whether as plaintiff or defendant _x0097_ and because Congress intended to limit this grant of jurisdiction in the manner set out in the proviso, Congress must have intended that the proviso apply to clause (A) as well. To read the proviso otherwise, the court explained, would allow clause (A) ""to grant jurisdiction indirectly in those cases that were deliberately and specifically excluded from the jurisdiction granted by part B."" Id., at 1444. The problem with this argument is that in an attempt to give the proviso full effect as applied to each class of cases that might fall within clause (B), the court renders clause (A) entirely redundant. Moreover, reading the proviso so as not to apply to clause (A) does not fail to give the proviso full effect as applied to clause (B). Clause (B) provides federal-question jurisdiction in any case in which the FSLIC is a party and the proviso limits this grant. The fact that clause (A) and § 1345 may provide agency jurisdiction in some of these same cases does not change the fact that the proviso has a real effect _x0097_ it removes one basis of jurisdiction. We thus conclude that the language of § 1730(k)(1) not only plainly provides that the proviso does not apply to clause (A), but also is given its fullest effect by so reading the statute.
+
+Because the proviso does not apply to clause (A), § 1730 (k)(1) is not an Act of Congress that has ""otherwise provided"" a limitation on the jurisdictional grant in § 1345. Accordingly, *88 the District Court has federal agency jurisdiction over the FSLIC's action.[6]
+
+The judgment of the Court of Appeals is reversed.
+
+It is so ordered.",analysis,The Provisions of Section 1730(k)(1),disagree,The Statute's Interpretation of the Statute,strongly disagree,Absence of Limitations on Federal Jurisdiction over FSLIC under §1730(k)(1),2
+G6,3,1,1,I,"The University of Texas at Austin (or University) relies upon a complex system of admissions that has undergone significant evolution over the past two decades. Until 1996, the University made its admissions decisions pri­ marily based on a measure called “Academic Index” (or AI), which it calculated by combining an applicant’s SAT score and academic performance in high school. In assessing applicants, preference was given to racial minorities.
+
+In 1996, the Court of Appeals for the Fifth Circuit inval­ idated this admissions system, holding that any considera­ tion of race in college admissions violates the Equal Pro­ tection Clause. See Hopwood v. Texas, 78 F. 3d 932, 934– 935, 948.
+
+One year later the University adopted a new admissions policy. Instead of considering race, the University began making admissions decisions based on an applicant’s AI and his or her “Personal Achievement Index” (PAI). The PAI was a numerical score based on a holistic review of an application. Included in the number were the applicant’s essays, leadership and work experience, extracurricular activities, community service, and other “special charac­ teristics” that might give the admissions committee in­ sight into a student’s background. Consistent with Hopwood, race was not a consideration in calculating an applicant’s AI or PAI.
+
+The Texas Legislature responded to Hopwood as well. It enacted H. B. 588, commonly known as the Top Ten Per­ cent Law. Tex. Educ. Code Ann. ��51.803 (West Cum. Supp. 2015). As its name suggests, the Top Ten Percent Law guarantees college admission to students who gradu­ ate from a Texas high school in the top 10 percent of their class. Those students may choose to attend any of the public universities in the State.
+
+The University implemented the Top Ten Percent Law in 1998. After first admitting any student who qualified for admission under that law, the University filled the remainder of its incoming freshman class using a combi­ nation of an applicant’s AI and PAI scores—again, without considering race.
+
+The University used this admissions system until 2003, when this Court decided the companion cases of Grutter v. Bollinger, 539 U. S. 306, and Gratz v. Bollinger, 539 U. S. 244. In Gratz, this Court struck down the University of Michigan’s undergraduate system of admissions, which at the time allocated predetermined points to racial minority candidates. See 539 U. S., at 255, 275–276. In Grutter, however, the Court upheld the University of Michigan Law School’s system of holistic review—a system that did not mechanically assign points but rather treated race as a relevant feature within the broader context of a candi­ date’s application. See 539 U. S., at 337, 343–344. In upholding this nuanced use of race, Grutter implicitly overruled Hopwood’s categorical prohibition.
+
+In the wake of Grutter, the University embarked upon a year-long study seeking to ascertain whether its admis­ sions policy was allowing it to provide “the educational benefits of a diverse student body . . . to all of the Univer­ sity’s undergraduate students.” App. 481a–482a (affidavit of N. Bruce Walker ¶11 (Walker Aff.)); see also id., at 445a–447a. The University concluded that its admissions policy was not providing these benefits. Supp. App. 24a– 25a.
+
+To change its system, the University submitted a pro­ posal to the Board of Regents that requested permission to begin taking race into consideration as one of “the many ways in which [an] academically qualified individual might contribute to, and benefit from, the rich, diverse, and challenging educational environment of the Univer­ sity.” Id., at 23a. After the board approved the proposal, the University adopted a new admissions policy to imple­ ment it. The University has continued to use that admis­ sions policy to this day.
+
+Although the University’s new admissions policy was a direct result of Grutter, it is not identical to the policy this Court approved in that case. Instead, consistent with the State’s legislative directive, the University continues to fill a significant majority of its class through the Top Ten Percent Plan (or Plan). Today, up to 75 percent of the places in the freshman class are filled through the Plan. As a practical matter, this 75 percent cap, which has now been fixed by statute, means that, while the Plan contin­ ues to be referenced as a “Top Ten Percent Plan,” a stu­ dent actually needs to finish in the top seven or eight percent of his or her class in order to be admitted under this category.
+
+The University did adopt an approach similar to the one in Grutter for the remaining 25 percent or so of the incom­ ing class. This portion of the class continues to be admit­ ted based on a combination of their AI and PAI scores. Now, however, race is given weight as a subfactor within the PAI. The PAI is a number from 1 to 6 (6 is the best) that is based on two primary components. The first com­ ponent is the average score a reader gives the applicant on two required essays. The second component is a full-file review that results in another 1-to-6 score, the “Personal Achievement Score” or PAS. The PAS is determined by a separate reader, who (1) rereads the applicant’s required essays, (2) reviews any supplemental information the applicant submits (letters of recommendation, resumes, an additional optional essay, writing samples, artwork, etc.), and (3) evaluates the applicant’s potential contributions to the University’s student body based on the applicant’s leadership experience, extracurricular activities, awards/honors, community service, and other “special circumstances.”
+
+“Special circumstances” include the socioeconomic sta­ tus of the applicant’s family, the socioeconomic status of the applicant’s school, the applicant’s family responsibili­ ties, whether the applicant lives in a single-parent home, the applicant’s SAT score in relation to the average SAT score at the applicant’s school, the language spoken at the applicant’s home, and, finally, the applicant’s race. See App. 218a–220a, 430a.
+
+Both the essay readers and the full-file readers who assign applicants their PAI undergo extensive training to ensure that they are scoring applicants consistently. Deposition of Brian Breman 9–14, Record in No. 1: 08– CV–00263, (WD Tex.), Doc. 96–3. The Admissions Office also undertakes regular “reliability analyses” to “measure the frequency of readers scoring within one point of each other.” App. 474a (affidavit of Gary M. Lavergne ¶8); see also id., at 253a (deposition of Kedra Ishop (Ishop Dep.)). Both the intensive training and the reliability analyses aim to ensure that similarly situated applicants are being treated identically regardless of which admissions officer reads the file.
+
+Once the essay and full-file readers have calculated each applicant’s AI and PAI scores, admissions officers from each school within the University set a cutoff PAI/AI score combination for admission, and then admit all of the applicants who are above that cutoff point. In setting the cutoff, those admissions officers only know how many applicants received a given PAI/AI score combination. They do not know what factors went into calculating those applicants’ scores. The admissions officers who make the final decision as to whether a particular applicant will be admitted make that decision without knowing the appli­ cant’s race. Race enters the admissions process, then, at one stage and one stage only—the calculation of the PAS.
+
+Therefore, although admissions officers can consider race as a positive feature of a minority student’s applica­ tion, there is no dispute that race is but a “factor of a factor of a factor” in the holistic-review calculus. 645 F. Supp. 2d 587, 608 (WD Tex. 2009). Furthermore, con­ sideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities. Id., at 606 (“Plaintiffs cite no evidence to show racial groups other than African-Americans and Hispanics are excluded from benefitting from UT’s consideration of race in admissions. As the Defendants point out, the consider­ ation of race, within the full context of the entire applica­ tion, may be beneficial to any UT Austin applicant— including whites and Asian-Americans”); see also Brief for Asian American Legal Defense and Education Fund et al. as Amici Curiae 12 (the contention that the University discriminates against Asian-Americans is “entirely un­ supported by evidence in the record or empirical data”). There is also no dispute, however, that race, when consid­ ered in conjunction with other aspects of an applicant’s background, can alter an applicant’s PAS score. Thus, race, in this indirect fashion, considered with all of the other factors that make up an applicant’s AI and PAI scores, can make a difference to whether an application is accepted or rejected.
+
+Petitioner Abigail Fisher applied for admission to the University’s 2008 freshman class. She was not in the top 10 percent of her high school class, so she was evaluated for admission through holistic, full-file review. Petition­ er’s application was rejected.
+
+Petitioner then filed suit alleging that the University’s consideration of race as part of its holistic-review process disadvantaged her and other Caucasian applicants, in violation of the Equal Protection Clause. See U. S. Const., Amdt. 14, §1 (no State shall “deny to any person within its jurisdiction the equal protection of the laws”). The Dis­ trict Court entered summary judgment in the University’s favor, and the Court of Appeals affirmed.
+
+This Court granted certiorari and vacated the judgment of the Court of Appeals, Fisher v. University of Tex. at Austin, 570 U. S. ___ (2013) (Fisher I ), because it had applied an overly deferential “good-faith” standard in assessing the constitutionality of the University’s pro­ gram. The Court remanded the case for the Court of Appeals to assess the parties’ claims under the correct legal standard.
+
+Without further remanding to the District Court, the Court of Appeals again affirmed the entry of summary judgment in the University’s favor. 758 F. 3d 633 (CA5 2014). This Court granted certiorari for a second time, 576 U. S. ___ (2015), and now affirms.",facts,Texas at Austin’s Admissions System,agree,The University of Texas at Austin Admissions System,agree,The University Race-Conscious Admissions Systems,1
+G6,3,1,1,II,"Fisher I set forth three controlling principles relevant to assessing the constitutionality of a public university’s affirmative-action program. First, “because racial charac­ teristics so seldom provide a relevant basis for disparate treatment,” Richmond v. J. A. Croson Co., 488 U. S. 469, 505 (1989), “[r]ace may not be considered [by a university] unless the admissions process can withstand strict scru­ tiny,” Fisher I, 570 U. S., at ___ (slip op., at 7). Strict scrutiny requires the university to demonstrate with clarity that its “ ‘purpose or interest is both constitutionally per­ missible and substantial, and that its use of the classifica­ tion is necessary . . . to the accomplishment of its pur­ pose.’ ” Ibid.
+
+Second, Fisher I confirmed that “the decision to pursue ‘the educational benefits that flow from student body diversity’ . . . is, in substantial measure, an academic judgment to which some, but not complete, judicial defer­ ence is proper.” Id., at ___ (slip op, at 9). A university cannot impose a fixed quota or otherwise “define diversity as ‘some specified percentage of a particular group merely because of its race or ethnic origin.’ ” Ibid. Once, however, a university gives “a reasoned, principled explanation” for its decision, deference must be given “to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.” Ibid. (internal quotation marks and citation omitted).
+
+Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. Id., at ___ (slip op., at 10). A university, Fisher I explained, bears the burden of proving a “nonracial approach” would not pro­ mote its interest in the educational benefits of diversity “about as well and at tolerable administrative expense.” Id., at ___ (slip op., at 11) (internal quotation marks omit­ ted). Though “[n]arrow tailoring does not require exhaus­ tion of every conceivable race-neutral alternative” or “require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups,” Grutter, 539 U. S., at 339, it does impose “on the university the ultimate burden of demonstrating” that “race-neutral alternatives” that are both “available” and “workable” “do not suffice.” Fisher I, 570 U. S., at ___ (slip op., at 11).
+
+Fisher I set forth these controlling principles, while taking no position on the constitutionality of the admis­ sions program at issue in this case. The Court held only that the District Court and the Court of Appeals had “confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications.” Id., at ___ (slip op., at 12) The Court remanded the case, with instructions to evaluate the record under the correct standard and to determine whether the University had made “a showing that its plan is narrowly tailored to achieve” the educational benefits that flow from diversity. Id., at ___ (slip op., at 13). On remand, the Court of Appeals determined that the pro­ gram conformed with the strict scrutiny mandated by Fisher I. See 758 F. 3d, at 659–660. Judge Garza dissented.",analysis,Fisher I,strongly agree,Fisher I,strongly agree,Fisher I's Ruling,2
+G6,3,1,1,III,"The University’s program is sui generis. Unlike other approaches to college admissions considered by this Court, it combines holistic review with a percentage plan. This approach gave rise to an unusual consequence in this case: The component of the University’s admissions policy that had the largest impact on petitioner’s chances of admis­ sion was not the school’s consideration of race under its holistic-review process but rather the Top Ten Percent Plan. Because petitioner did not graduate in the top 10 percent of her high school class, she was categorically ineligible for more than three-fourths of the slots in the incoming freshman class. It seems quite plausible, then, to think that petitioner would have had a better chance of being admitted to the University if the school used raceconscious holistic review to select its entire incoming class, as was the case in Grutter.
+
+Despite the Top Ten Percent Plan’s outsized effect on petitioner’s chances of admission, she has not challenged it. For that reason, throughout this litigation, the Top Ten Percent Plan has been taken, somewhat artificially, as a given premise.
+
+Petitioner’s acceptance of the Top Ten Percent Plan complicates this Court’s review. In particular, it has led to a record that is almost devoid of information about the students who secured admission to the University through the Plan. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.
+
+In an ordinary case, this evidentiary gap perhaps could be filled by a remand to the district court for further factfinding. When petitioner’s application was rejected, how­ ever, the University’s combined percentage-plan/holistic­ review approach to admission had been in effect for just three years. While studies undertaken over the eight years since then may be of significant value in determin­ ing the constitutionality of the University’s current admis­ sions policy, that evidence has little bearing on whether petitioner received equal treatment when her application was rejected in 2008. If the Court were to remand, there­ fore, further factfinding would be limited to a narrow 3­ year sample, review of which might yield little insight.
+
+Furthermore, as discussed above, the University lacks any authority to alter the role of the Top Ten Percent Plan in its admissions process. The Plan was mandated by the Texas Legislature in the wake of Hopwood, so the Univer­ sity, like petitioner in this litigation, has likely taken the Plan as a given since its implementation in 1998. If the University had no reason to think that it could deviate from the Top Ten Percent Plan, it similarly had no reason to keep extensive data on the Plan or the students admit­ ted under it—particularly in the years before Fisher I clarified the stringency of the strict-scrutiny burden for a school that employs race-conscious review.
+
+Under the circumstances of this case, then, a remand would do nothing more than prolong a suit that has al­ ready persisted for eight years and cost the parties on both sides significant resources. Petitioner long since has graduated from another college, and the University’s policy—and the data on which it first was based—may have evolved or changed in material ways.
+
+The fact that this case has been litigated on a somewhat artificial basis, furthermore, may limit its value for pro­ spective guidance. The Texas Legislature, in enacting the Top Ten Percent Plan, cannot much be criticized, for it was responding to Hopwood, which at the time was bind­ ing law in the State of Texas. That legislative response, in turn, circumscribed the University’s discretion in crafting its admissions policy. These circumstances refute any criticism that the University did not make good-faith efforts to comply with the law.
+
+That does not diminish, however, the University’s con­ tinuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances. The University engages in periodic reassessment of the constitutionality, and efficacy, of its admissions program. See Supp. App. 32a; App. 448a. Going forward, that assessment must be un­ dertaken in light of the experience the school has accumu­ lated and the data it has gathered since the adoption of its admissions plan.
+
+As the University examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diver­ sity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values. Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. The University’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the University must shape its admissions policy to satisfy strict scrutiny in the years to come. Here, however, the Court is necessarily limited to the narrow question before it: whether, drawing all reasonable infer­ ences in her favor, petitioner has shown by a preponder­ ance of the evidence that she was denied equal treatment at the time her application was rejected.
+
+",analysis,The University’s Program,agree,The University’s Admissions Program,agree,The Novelty of the University's Admissions Program,3
+G6,3,1,1,IV,"In seeking to reverse the judgment of the Court of Ap­ peals, petitioner makes four arguments. First, she argues that the University has not articulated its compelling interest with sufficient clarity. According to petitioner, the University must set forth more precisely the level of minority enrollment that would constitute a “critical mass.” Without a clearer sense of what the University’s ultimate goal is, petitioner argues, a reviewing court cannot assess whether the University’s admissions pro­ gram is narrowly tailored to that goal.
+
+As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from stu­ dent body diversity.” Fisher I, 570 U. S., at ___ (slip op., at 9) (internal quotation marks omitted); see also Grutter, 539 U. S., at 328. As this Court has said, enrolling a diverse student body “promotes cross-racial understand­ ing, helps to break down racial stereotypes, and enables students to better understand persons of different races.” Id., at 330 (internal quotation marks and alteration omit­ ted). Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” Ibid. (inter­ nal quotation marks omitted).
+
+Increasing minority enrollment may be instrumental to these educational benefits, but it is not, as petitioner seems to suggest, a goal that can or should be reduced to pure numbers. Indeed, since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.
+
+On the other hand, asserting an interest in the educa­ tional benefits of diversity writ large is insufficient. A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.
+
+The record reveals that in first setting forth its current admissions policy, the University articulated concrete and precise goals. On the first page of its 2004 “Proposal to Consider Race and Ethnicity in Admissions,” the University identifies the educational values it seeks to realize through its admissions process: the destruction of stereo­ types, the “ ‘promot[ion of] cross-racial understanding,’ ” the preparation of a student body “ ‘for an increasingly diverse workforce and society,’ ” and the “ ‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’ ” Supp. App. 1a; see also id., at 69a; App. 314a–315a (depo­ sition of N. Bruce Walker (Walker Dep.)), 478a–479a (Walker Aff. ¶4) (setting forth the same goals). Later in the proposal, the University explains that it strives to provide an “academic environment” that offers a “robust exchange of ideas, exposure to differing cultures, prepara­ tion for the challenges of an increasingly diverse work­ force, and acquisition of competencies required of future leaders.” Supp. App. 23a. All of these objectives, as a general matter, mirror the “compelling interest” this Court has approved in its prior cases.
+
+The University has provided in addition a “reasoned, principled explanation” for its decision to pursue these goals. Fisher I, supra, at ___ (slip op., at 9). The University’s 39-page proposal was written following a year-long study, which concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful” in “provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an in­ creasingly diverse workforce and society.” Supp. App. 25a; see also App. 481a–482a (Walker Aff. ¶¶8–12) (describing the “thoughtful review” the University undertook when it faced the “important decision . . . whether or not to use race in its admissions process”). Further support for the University’s conclusion can be found in the depositions and affidavits from various admissions officers, all of whom articulate the same, consistent “reasoned, princi­ pled explanation.” See, e.g., id., at 253a (Ishop Dep.), 314a–318a, 359a (Walker Dep.), 415a–416a (Defendant’s Statement of Facts), 478a–479a, 481a–482a (Walker Aff. ¶¶4, 10–13). Petitioner’s contention that the University’s goal was insufficiently concrete is rebutted by the record.
+
+Second, petitioner argues that the University has no need to consider race because it had already “achieved critical mass” by 2003 using the Top Ten Percent Plan and race-neutral holistic review. Brief for Petitioner 46. Petitioner is correct that a university bears a heavy bur­ den in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan. The record reveals, however, that, at the time of petitioner’s application, the University could not be faulted on this score. Before changing its policy the University conducted “months of study and deliberation, including retreats, interviews, [and] review of data,” App. 446a, and concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful in achieving” sufficient racial diversity at the University, Supp. App. 25a. At no stage in this litigation has petitioner challenged the Uni­ versity’s good faith in conducting its studies, and the Court properly declines to consider the extrarecord mate­ rials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to. See, e.g., post, at 45– 46 (opinion of ALITO, J.) (describing a 2015 report regard­ ing the admission of applicants who are related to ‘‘politi­ cally connected individuals’’).
+
+The record itself contains significant evidence, both statistical and anecdotal, in support of the University’s position. To start, the demographic data the University has submitted show consistent stagnation in terms of the percentage of minority students enrolling at the University from 1996 to 2002. In 1996, for example, 266 AfricanAmerican freshmen enrolled, a total that constituted 4.1 percent of the incoming class. In 2003, the year Grutter was decided, 267 African-American students enrolled— again, 4.1 percent of the incoming class. The numbers for Hispanic and Asian-American students tell a similar story. See Supp. App. 43a. Although demographics alone are by no means dispositive, they do have some value as a gauge of the University’s ability to enroll students who can offer underrepresented perspectives.
+
+In addition to this broad demographic data, the Univer­ sity put forward evidence that minority students admitted under the Hopwood regime experienced feelings of loneli­ ness and isolation. See, e.g., App. 317a–318a.
+
+This anecdotal evidence is, in turn, bolstered by further, more nuanced quantitative data. In 2002, 52 percent of undergraduate classes with at least five students had no African-American students enrolled in them, and 27 per­ cent had only one African-American student. Supp. App. 140a. In other words, only 21 percent of undergraduate classes with five or more students in them had more than one African-American student enrolled. Twelve percent of these classes had no Hispanic students, as compared to 10 percent in 1996. Id., at 74a, 140a. Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the Uni­ versity had not yet attained its goals.
+
+Third, petitioner argues that considering race was not necessary because such consideration has had only a “ ‘minimal impact’ in advancing the [University’s] compel­ ling interest.” Brief for Petitioner 46; see also Tr. of Oral Arg. 23:10–12; 24:13–25:2, 25:24–26:3. Again, the record does not support this assertion. In 2003, 11 percent of the Texas residents enrolled through holistic review were Hispanic and 3.5 percent were African-American. Supp. App. 157a. In 2007, by contrast, 16.9 percent of the Texas holistic-review freshmen were Hispanic and 6.8 percent were African-American. Ibid. Those increases—of 54 percent and 94 percent, respectively—show that consider­ ation of race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class.
+
+In any event, it is not a failure of narrow tailoring for the impact of racial consideration to be minor. The fact that race consciousness played a role in only a small por­ tion of admissions decisions should be a hallmark of nar­ row tailoring, not evidence of unconstitutionality.
+
+Petitioner’s final argument is that “there are numerous other available race-neutral means of achieving” the Uni­ versity’s compelling interest. Brief for Petitioner 47. A review of the record reveals, however, that, at the time of petitioner’s application, none of her proposed alternatives was a workable means for the University to attain the benefits of diversity it sought. For example, petitioner suggests that the University could intensify its outreach efforts to African-American and Hispanic applicants. But the University submitted extensive evidence of the many ways in which it already had intensified its outreach efforts to those students. The University has created three new scholarship programs, opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruit­ ment events. Supp. App. 29a–32a; App. 450a–452a (citing affidavit of Michael Orr ¶¶4–20). Perhaps more signifi­ cantly, in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review. None of these efforts succeeded, and petitioner fails to offer any meaningful way in which the University could have improved upon them at the time of her application.
+
+Petitioner also suggests altering the weight given to academic and socioeconomic factors in the University’s admissions calculus. This proposal ignores the fact that the University tried, and failed, to increase diversity through enhanced consideration of socioeconomic and other factors. And it further ignores this Court’s prece­ dent making clear that the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence. Grutter, 539 U. S., at 339.
+
+Petitioner’s final suggestion is to uncap the Top Ten Percent Plan, and admit more—if not all—the University’s students through a percentage plan. As an initial matter, petitioner overlooks the fact that the Top Ten Percent Plan, though facially neutral, cannot be understood apart from its basic purpose, which is to boost minority enroll­ ment. Percentage plans are “adopted with racially segre­ gated neighborhoods and schools front and center stage.” Fisher I, 570 U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 2). “It is race consciousness, not blindness to race, that drives such plans.” Ibid. Consequently, petitioner cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.
+
+Even if, as a matter of raw numbers, minority enroll­ ment would increase under such a regime, petitioner would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone. That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to main­ tain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.
+
+These are but examples of the general problem. Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it. See Grutter, supra, at 340 (explaining that percentage plans “may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university”); 758 F. 3d, at 653 (pointing out that the Top Ten Percent Law leaves out students “who fell outside their high school’s top ten percent but excelled in unique ways that would enrich the diversity of [the University’s] educational experience” and “leaves a gap in an admissions process seeking to create the multi­ dimensional diversity that [Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978),] envisions”). At its center, the Top Ten Percent Plan is a blunt instrument that may well compromise the University’s own definition of the diversity it seeks.
+
+In addition to these fundamental problems, an admis­ sions policy that relies exclusively on class rank creates perverse incentives for applicants. Percentage plans “encourage parents to keep their children in lowperforming segregated schools, and discourage students from taking challenging classes that might lower their grade point averages.” Gratz, 539 U. S., at 304, n. 10 (GINSBURG, J., dissenting).
+
+For all these reasons, although it may be true that the Top Ten Percent Plan in some instances may provide a path out of poverty for those who excel at schools lacking in resources, the Plan cannot serve as the admissions solution that petitioner suggests. Wherever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realisti­ cally, the exclusive use of a percentage plan.
+
+In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and de­ fined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected peti­ tioner’s application was narrowly tailored.",analysis,The University’s Compelling Interest,agree,The University’s Purpose,agree,The Educational Purposes of the Admissions Program,4
+G6,3,1,1,*,"A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
+
+In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admis­ sions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.
+
+The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admis­ sions policies.
+
+The judgment of the Court of Appeals is affirmed.
+
+It is so ordered.",conclusion,The University’s Admissions Policy,disagree,The University’s Remaining Challenges,strongly agree,Upholding of the University's Admission Program and Remaining Challenges,5
+G6,7,1,1,I,"New Jersey Wood is engaged in the manufacture of electrical insulation materials, some of which it sells to independent distributors who, in turn, sell to wire and cable manufacturers and fabricators. Minnesota Mining is a diversified company, with one of its divisions producing electrical insulation materials. Essex is a substantial consumer of electrical insulation material. It owned Insulation Wires which distributes that type of material.
+
+In August 1956 Minnesota Mining bought all the assets of Insulation Wires and in 1960 the Federal Trade Commission filed a proceeding against it under § 7 of the Clayton Act which resulted in a consent order directing the divestiture by Minnesota Mining of the assets so acquired. This order was dated August 24, 1961. The Commission charged that prior to 1953 Minnesota Mining was the leading manufacturer of electrical insulation tape; that through five transactions in the years 1952 through 1956 it had also brought under its control substantial shares of other major electrical product lines; and that its subsequent acquisition of two of the three largest distributors of these products might have the effect of actually or potentially lessening competition and tending to create a monopoly in various aspects of that commerce. One of the two distributors so acquired was Insulation Wires.
+
+Thereafter, within a year, this suit was filed. We need not detail the allegations of the complaint. It is sufficient to say that the gist of it was that prior to August 1956 Insulation Wires was the primary distributor of New Jersey Wood products throughout the United States; that in August 1956 Minnesota Mining acquired all of the assets of Insulation Wires and during the next month notified New Jersey Wood that beginning in January 1957 Insulation Wires would no longer distribute its products. The complaint also charged Minnesota Mining and Essex with conspiring to restrain trade and commerce in the manufacture, sale and distribution of electrical insulation products beginning with the acquisition of Insulation Wires and continuing until the filing of this suit. There were numerous overt acts alleged as being in furtherance of the conspiracy, the first of which was that acquisition.",facts,The Parties and the Allegations,strongly agree,The Complaint and the Proceedings,strongly agree,The Complaint and the Proceedings,1
+G6,7,1,1,II,"At the outset it is necessary to examine § 5 (a) of the Clayton Act[8] and its relationship to § 5 (b). The former makes a final judgment or decree in any civil or criminal proceeding brought by or on behalf of the United States prima facie evidence in subsequent private suits ""as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto."" Several distinctions between these sections are apparent and suggest that they are not wholly interdependent. First, the words ""final judgment or decree"" are used in § 5 (a) and are of crucial significance in its application. However, § 5 (b) tolls the statute of limitations set out in § 4B from the time suit is instituted by the United States regardless of whether a final judgment or decree is ultimately entered. Its applicability in no way turns on the success of the Government in prosecuting its case. Moreover, under § 5 (a) the judgment or decree may be used only as to matters respecting which it would operate as an estoppel between the parties. No such limitation appears in the tolling provision. It applies to every private right of action based in whole or in part on ""any matter"" complained of in the government suit.
+
+When we turn from the express language of these two statutory provisions to the congressional policies underlying them, it becomes even more apparent that the applicability of § 5 (a) to Federal Trade Commission actions should not control the question whether such proceedings toll the statute of limitations. We have discussed these policies at greater length below. At this juncture it is sufficient to say that in framing § 5 (a) Congress focused on the narrow issue of the use by private parties of judgments or decrees as prima facie evidence. This was recognized in Emich Motors Corp. v. General Motors Corp., 340 U. S. 558 (1951), where we stated that the purpose of § 5 (a) was ""to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in antitrust actions"" and to permit them ""as large an advantage as the estoppel doctrine would afford had the Government brought suit."" Id., at 568. As we shall show, however, its purpose in adopting § 5 (b) was not so limited, for it was not then dealing with the delicate area in which a judgment secured in an action between two parties may be used by a third. Whatever ambiguities may exist in the legislative history of these provisions as to other questions, it is plain that in § 5 (b) Congress meant to assist private litigants in utilizing any benefits they might cull from government antitrust actions. See S. Rep. No. 619, 84th Cong., 1st Sess., 6. The distinction was emphasized in Union Carbide & Carbon Corp. v. Nisley, 300 F. 2d 561 (1962), where the court, after noting the analysis of § 5 (a) set out in Emich Motors Corp., supra, stated that:
+
+""The corollary purpose of the tolling provisions of the second paragraph of Section 5 [now § 5 (b)] is to vouchsafe the intended benefits of related government proceedings by suspending the running of the statute of limitations until the termination of the government proceedings, and allowing the private suitor one year thereafter in which to prepare and file his suit. The competency of a government judgment in a private suit is necessarily restricted to the requirements of due process. But the tolling of the statute during the pendency of the government litigation is not so limited."" Id., at 569.
+In our view, therefore, the two sections are not necessarily coextensive; they are governed by different considerations as well as congressional policy objectives. This makes § 5 (b) readily severable from § 5 (a). Even if we assumed arguendo that § 5 (a) is inapplicable to Commission proceedings_x0097_a question upon which we venture no opinion_x0097_that conclusion would be immaterial in our consideration of § 5 (b) and § 4B. Congress has expressed its belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws. This construction will lend considerable impetus to that policy.",analysis,The Clayton Act and the Statute of Limitations,agree,The Clayton Act and its Relationship to  5 (b),disagree,The Relationship between Clayton Act's §§5(a) and (b),2
+G6,7,1,1,III,"Section 5, later §§ 5 (a) and 5 (b), was passed in response to the plea of President Wilson. In a speech to the Congress on January 20, 1914, he urged that a law be enacted which would permit victims of antitrust violations to have ""redress upon the facts and judgments proved and entered in suits by the Government"" and that ""the statute of limitations . . . be suffered to run against such litigants only from the date of the conclusion of the Government's action."" 51 Cong. Rec. 1964. The broad aim of this enactment was to use ""private self-interest as a means of enforcement"" of the antitrust laws. Bruce's Juices, Inc. v. American Can Co., 330 U. S. 743, 751 (1947). The ""entire provision [was] intended to help persons of small means who are injured in their property or business by combinations or corporations violating the antitrust laws."" H. R. Rep. No. 627, 63d Cong., 2d Sess., 14. See S. Rep. No. 619, supra, at 6.
+
+It may be, as Minnesota Mining contends, that when it was enacted the tolling provision was a logical backstop for the prima facie evidence clause of § 5 (a). But even though § 5 (b) complements § 5 (a) in this respect by permitting a litigant to await the outcome of government proceedings and use any judgment or decree rendered therein_x0097_a benefit which often is of limited practical value[9]_x0097_it is certainly not restricted to that effect. As we have pointed out, the textual distinctions as well as the policy basis of § 5 (b) indicate that it was to serve a more comprehensive function in the congressional scheme of things. The Government's initial action may aid the private litigant in a number of other ways. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. In fact, the rules of the Commission so provide. 16 CFR § 1.132 (e). See generally 16 CFR § 1.131 et seq. Moreover, difficult questions of law may be tested and definitively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may derive from a judgment or decree. Indeed, so useful is this service that government proceedings are recognized as a major source of evidence for private parties. See Bicks, The Department of Justice and Private Treble Damage Actions, 4 Antitrust Bull. 5 (1959); Loevinger, Handling a Plaintiff's Antitrust Damage Suit, 4 Antitrust Bull. 29 (1959).
+
+Admittedly, there is little in the legislative history to suggest that Congress consciously intended to include Commission actions within the sweep of the tolling provision. But neither is there any substantial evidence that it consciously intended to exclude them. The fact of the matter is that the record of the 1914 legislative proceedings reveals an almost complete absence of any discussion on the tolling problem. It seems that Congress simply did not consider the extent of its coverage in the course of its deliberations.
+
+It is in light of this legislative silence that we must determine whether § 4B is tolled by Commission proceedings. In resolving this question we must necessarily rely on the one element of congressional intention which is plain on the record_x0097_the clearly expressed desire that private parties be permitted the benefits of prior government actions. Implicit in such an objective is the necessity that the tolling provision include Commission proceedings. Otherwise the benefits flowing from a major segment of the Government's enforcement effort would, in many cases, be denied to private parties. In this connection, and of crucial significance, is the fact that the potential advantages available to such litigants because of § 5 (b) reach far beyond the specific and limited benefits accruing to them under § 5 (a). Furthermore, the § 5 (b) advantages flow as naturally from Commission proceedings as they do from Justice Department actions. Yet petitioner contends that § 4B must be tolled in the latter but not in the former. Such a grudging interpretation of the interrelationship of § 5 (b) and § 4B, however, would collide head-on with Congress' basic policy objectives. Acceptance of petitioner's position would make enjoyment of these intended benefits turn on the arbitrary allocation of enforcement responsibility between the Department and the Commission, and we must therefore reject it.
+
+It is true that the precise language of § 5 (b) does not clearly encompass Commission proceedings. But it is not the literal wording of such a provision that is controlling where, as here, Congress has evidenced neither acceptance nor rejection of either interpretation, yet one effects a clearly expressed congressional purpose while the other defeats it. We stated the pivotal question for determination in such an event only this Term in Burnett v. New York Central R. Co., 380 U. S. 424, 427 (1965): ""[W]hether congressional purpose is effectuated by tolling the statute of limitations in given circumstances."" In order to determine that intent, we must examine ""the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act."" Ibid. Guided by these criteria, we think it clear that congressional policy sustaining § 5 (b) would be effectively served only by tolling the statute of limitations in cases such as this, and we deem that policy controlling. This analysis is not a novel one. Mr. Justice Holmes, sitting on circuit, noted in Johnson v. United States, 163 F. 30, 32:
+
+""A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.""
+We hold, therefore, that the limitation provision of § 4B is tolled by Commission proceedings to the same extent and in the same circumstances as it is by Justice Department actions. In so holding we give effect to Congress' basic policy objectives in enacting § 5 (b)_x0097_objectives which would be frustrated should we reach a contrary conclusion and thereby deprive large numbers of private litigants of the benefits of government antitrust suits simply because those suits were pursued by one governmental agency rather than the other.
+",analysis,The Tolling Provision,strongly agree,The Tolling Provision,strongly agree,The FTC Proceedings and the Tolling Provision,3
+G6,7,1,1,IV,"Minnesota Mining further contends that even though § 5 (b) tolls Commission proceedings, the suit here, insofar as it asserts Sherman Act claims, is not based in part on any matter complained of in the Commission's proceeding. We cannot agree.
+
+New Jersey Wood's Sherman Act claims rest on an alleged conspiracy to restrain and attempt to monopolize trade and commerce in the manufacture, sale and distribution of electrical insulation products. The purposes of the conspiracy were alleged to be: (1) to control Insulation Wires; (2) to prevent it from distributing New Jersey Wood products; (3) to insure that Insulation Wires' supplies were purchased from a Minnesota Mining subsidiary; (4) to effect tie-in sales of electrical insulation products with other Minnesota Mining products; and (5) to have Essex deal only with Insulation Wires in purchasing electrical insulation products to the exclusion of competitive distributors handling New Jersey Wood products. The effect of the conspiracy was alleged to be the complete disruption of the pattern of manufacture, sale and distribution that New Jersey Wood had enjoyed with Insulation Wires and denial to it of access to substantial national markets for electrical insulation products.
+
+Certainly the allegations are based ""in part"" on the Commission action. It charged that the Insulation Wires acquisition, along with that of another distributor, placed in the hands of Minnesota Mining, a manufacturer, two of the three largest distributors in the business; that following the acquisitions these distributors discontinued distribution of the products of a number of manufacturers who had used them prior to their acquisition by Minnesota Mining; and that the effect of such action by Minnesota Mining was ""the actual or potential lessening of competition"" in the manufacture, sale and distribution of insulation products and the foreclosure of other manufacturers from a substantial share of the markets for said products. It appears to us that both suits set up substantially the same claims. It is true that the Commission's Clayton Act proceeding required proof only of a potential anticompetitive effect while the Sherman Act carries the more onerous burden of proof of an actual restraint. The Commission complaint, however, did allege an ""actual"" as well as a ""potential"" lessening of competition, i. e., manufacturers ""have been foreclosed from a substantial share of the markets."" Moreover, the monopolization count was phrased in terms of an ""attempt to monopolize,"" which may be illegal though not successful. See United States v. Columbia Steel Co., 334 U. S. 495, 525, 531-532 (1948).
+
+Minnesota Mining's claim seems to be that the crucial difference between the Commission and the New Jersey Wood proceedings is that the former alleges conduct that may substantially lessen competition while the latter asserts activity that has actually done so. We think that this is a distinction without a difference and does not deprive New Jersey Wood of the tolling effect of § 5 (b). That clause provides for tolling as long as the private claim is based ""in part on any matter complained of"" in the government proceedings. The fact that New Jersey Wood claims that the same conduct has a greater anti-competitive effect does not make the conduct challenged any less a matter complained of in the government action. It merely requires it to meet a greater burden of proof as to the effect of the conspiracy before a Sherman Act claim can be sustained.
+
+Affirmed.",analysis,Anticompetitive Effect of the Sherman Act,strongly disagree,The Sherman Act Claims,strongly disagree,The Adequacy between the FTC Proceedins and Respondent's Sherman Act Claims,4
+G6,9,1,1,I,"
+
+The LHWCA “is a comprehensive scheme to provide compensation ‘in respect of disability or death of an em­ ployee . . . if the disability or death results from an injury occurring upon the navigable waters of the United States.’ ” Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, 294 (1995) (quoting §903(a)). An employee’s compen­ sation depends on the severity of his disability and his preinjury pay. A totally disabled employee, for example, is entitled to two-thirds of his preinjury average weekly wage as long as he remains disabled. §§908(a)–(b), 910.
+
+Section 906, however, sets a cap on compensation.1 Disability benefits “shall not exceed” twice “the applicable national average weekly wage.” §906(b)(1). The national average weekly wage—“the national average weekly earn­ ings of production or nonsupervisory workers on private nonagricultural payrolls,” §902(19)—is recalculated by the Secretary of Labor each fiscal year. §906(b)(3). For most types of disability, the “applicable” national average week­ ly wage is the figure for the fiscal year in which a benefi­ ciary is “newly awarded compensation,” and the cap re­ mains constant as long as benefits continue. §906(c).2
+
+Consistent with the central bargain of workers’ compen­ sation regimes—limited liability for employers; certain, prompt recovery for employees—the LHWCA requires that employers pay benefits voluntarily, without formal admin­ istrative proceedings. Once an employee provides notice of a disabling injury, his employer must pay compensation “periodically, promptly, and directly . . . without an award, except where liability to pay compensation is controvert­ ed.” §914(a). In general, employers pay benefits without contesting liability. See Pallas Shipping Agency, Ltd. v. Duris, 461 U. S. 529, 532 (1983). In the mine run of cases, therefore, no compensation orders issue.
+
+If an employer controverts, or if an employee contests his employer’s actions with respect to his benefits, the dispute advances to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). See 20 CFR §§702.251–702.262 (2011). The OWCP district directors “are empowered to amicably and promptly resolve such problems by informal procedures.” §702.301. A district director’s informal disposition may result in a compensation order. §702.315(a). In practice, however, “many pending claims are amicably settled through voluntary payments without the necessity of a formal order.” Intercounty Constr. Corp. v. Walter, 422 U. S. 1, 4, n. 4 (1975). If informal resolution fails, the district director refers the dispute to an administrative law judge (ALJ). See 20 CFR §§702.316, 702.331–702.351. An ALJ’s decision after a hearing culminates in the entry of a compensation order. 33 U. S. C. §§919(c)–(e).3
+
+In fiscal year 2002, petitioner Dana Roberts slipped and fell on a patch of ice while employed at respondent SeaLand Services’ marine terminal in Dutch Harbor, Alaska. Roberts injured his neck and shoulder and did not return to work. On receiving notice of his disability, Sea-Land (except for a six-week period in 2003) voluntarily paid Roberts benefits absent a compensation order until fiscal year 2005. When Sea-Land discontinued voluntary pay­ ments, Roberts filed an LHWCA claim, and Sea-Land controverted. In fiscal year 2007, after a hearing, an ALJ awarded Roberts benefits at the statutory maximum rate of $966.08 per week. This was twice the national average weekly wage for fiscal year 2002, the fiscal year when Roberts became disabled.
+
+Roberts moved for reconsideration, arguing that the “ap­ plicable” national average weekly wage was the figure for fiscal year 2007, the fiscal year when he was “newly awarded compensation” by the ALJ’s order. The latter figure would have entitled Roberts to $1,114.44 per week. The ALJ denied reconsideration, and the Department of Labor’s Benefits Review Board (or BRB) affirmed, conclud­ ing that “the pertinent maximum rate is determined by the date the disability commences.” App. to Pet. for Cert. 20. The Ninth Circuit affirmed in relevant part, holding that an employee “is ‘newly awarded compensation’ within the meaning of [§906(c)] when he first becomes entitled to compensation.” Roberts v. Director, OWCP, 625 F. 3d 1204, 1208 (2010) (per curiam). We granted certiorari, 564 U. S. ___ (2011), to resolve a conflict among the Circuits with respect to the time when a beneficiary is “newly awarded compensation,” and now affirm.4",facts,The LHWCA,disagree,The LHWCA,disagree,Petitioner's LHCWA Claim,1
+G6,9,1,2,A,"The LHWCA “is a comprehensive scheme to provide compensation ‘in respect of disability or death of an em­ ployee . . . if the disability or death results from an injury occurring upon the navigable waters of the United States.’ ” Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, 294 (1995) (quoting §903(a)). An employee’s compen­ sation depends on the severity of his disability and his preinjury pay. A totally disabled employee, for example, is entitled to two-thirds of his preinjury average weekly wage as long as he remains disabled. §§908(a)–(b), 910.
+
+Section 906, however, sets a cap on compensation.1 Disability benefits “shall not exceed” twice “the applicable national average weekly wage.” §906(b)(1). The national average weekly wage—“the national average weekly earn­ ings of production or nonsupervisory workers on private nonagricultural payrolls,” §902(19)—is recalculated by the Secretary of Labor each fiscal year. §906(b)(3). For most types of disability, the “applicable” national average week­ ly wage is the figure for the fiscal year in which a benefi­ ciary is “newly awarded compensation,” and the cap re­ mains constant as long as benefits continue. §906(c).2
+
+Consistent with the central bargain of workers’ compen­ sation regimes—limited liability for employers; certain, prompt recovery for employees—the LHWCA requires that employers pay benefits voluntarily, without formal admin­ istrative proceedings. Once an employee provides notice of a disabling injury, his employer must pay compensation “periodically, promptly, and directly . . . without an award, except where liability to pay compensation is controvert­ ed.” §914(a). In general, employers pay benefits without contesting liability. See Pallas Shipping Agency, Ltd. v. Duris, 461 U. S. 529, 532 (1983). In the mine run of cases, therefore, no compensation orders issue.
+
+If an employer controverts, or if an employee contests his employer’s actions with respect to his benefits, the dispute advances to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). See 20 CFR §§702.251–702.262 (2011). The OWCP district directors “are empowered to amicably and promptly resolve such problems by informal procedures.” §702.301. A district director’s informal disposition may result in a compensation order. §702.315(a). In practice, however, “many pending claims are amicably settled through voluntary payments without the necessity of a formal order.” Intercounty Constr. Corp. v. Walter, 422 U. S. 1, 4, n. 4 (1975). If informal resolution fails, the district director refers the dispute to an administrative law judge (ALJ). See 20 CFR §§702.316, 702.331–702.351. An ALJ’s decision after a hearing culminates in the entry of a compensation order. 33 U. S. C. §§919(c)–(e).3",analysis,The LHWCA,strongly agree,The LHWCA,strongly agree,The LHWCA Statutory Scheme,1
+G6,9,1,2,B,"In fiscal year 2002, petitioner Dana Roberts slipped and fell on a patch of ice while employed at respondent SeaLand Services’ marine terminal in Dutch Harbor, Alaska. Roberts injured his neck and shoulder and did not return to work. On receiving notice of his disability, Sea-Land (except for a six-week period in 2003) voluntarily paid Roberts benefits absent a compensation order until fiscal year 2005. When Sea-Land discontinued voluntary pay­ ments, Roberts filed an LHWCA claim, and Sea-Land controverted. In fiscal year 2007, after a hearing, an ALJ awarded Roberts benefits at the statutory maximum rate of $966.08 per week. This was twice the national average weekly wage for fiscal year 2002, the fiscal year when Roberts became disabled.
+
+Roberts moved for reconsideration, arguing that the “ap­ plicable” national average weekly wage was the figure for fiscal year 2007, the fiscal year when he was “newly awarded compensation” by the ALJ’s order. The latter figure would have entitled Roberts to $1,114.44 per week. The ALJ denied reconsideration, and the Department of Labor’s Benefits Review Board (or BRB) affirmed, conclud­ ing that “the pertinent maximum rate is determined by the date the disability commences.” App. to Pet. for Cert. 20. The Ninth Circuit affirmed in relevant part, holding that an employee “is ‘newly awarded compensation’ within the meaning of [§906(c)] when he first becomes entitled to compensation.” Roberts v. Director, OWCP, 625 F. 3d 1204, 1208 (2010) (per curiam). We granted certiorari, 564 U. S. ___ (2011), to resolve a conflict among the Circuits with respect to the time when a beneficiary is “newly awarded compensation,” and now affirm.4",facts,Dana Roberts,strongly disagree,Roberts’s Disability,agree,Petitioner's Accident and Claim for Compensation,2
+G6,9,1,1,II,"Roberts contends that “awarded compensation” means “awarded compensation in a formal order.” Sea-Land, supported by the Director, OWCP, responds that “awarded compensation” means “statutorily entitled to compensa­ tion because of disability.” The text of §906(c), standing alone, admits of either interpretation. But “our task is to fit, if possible, all parts into an harmonious whole.” FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959). Only the interpretation advanced by Sea-Land and the Director makes §906 a working part of the statutory scheme; sup­ plies an administrable rule that results in equal treatment of similarly situated beneficiaries; and avoids gamesman­ ship in the claims process. In light of these contextual and structural considerations, we hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to bene­ fits under the Act, no matter whether, or when, a compen­ sation order issues on his behalf.
+
+We first consider “whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997). The LHWCA does not define “awarded,” but in construing the Act, as with any statute, “ ‘we look first to its language, giving the words used their ordinary meaning.’ ” Ingalls Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Programs, 519 U. S. 248, 255 (1997) (quoting Moskal v. United States, 498 U. S. 103, 108 (1990)). At first blush, Roberts’ position is ap­ pealing. In ordinary usage, “award” most often means “give by judicial decree” or “assign after careful judgment.” Webster’s Third New International Dictionary 152 (2002); see also, e.g., Black’s Law Dictionary 157 (9th ed. 2009) (“grant by formal process or by judicial decree”).
+
+But “award” can also mean “grant,” or “confer or bestow upon.” Webster’s Third New International Dictionary, at 152; see also ibid. (1971 ed.) (same). The LHWCA “grants” benefits to disabled employees, and so can be said to “award” compensation by force of its entitlement-creating provisions. Indeed, this Court has often said that statutes “award” entitlements. See, e.g., Astrue v. Ratliff, 560 U. S. ___, ___ (2010) (slip op., at 4) (referring to “statutes that award attorney’s fees to a prevailing party”); Barber v. Thomas, 560 U. S. ___, ___ (2010) (appendix to majority opinion) (slip op., at 19) (statute “awards” good-time cred­ its to federal prisoners); New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 271 (1988) (Ohio statute “awards a tax credit”); Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 500 (1939) (California workers’ compensation statute “award[s] compensation for injuries to an employee”); see also, e.g., Connecticut v. Doehr, 501 U. S. 1, 28 (1991) (Rehnquist, C. J., concurring in part and concurring in judgment) (“Materialman’s and mechanic’s lien statutes award an interest in real property to workers”). Similarly, this Court has described an em­ ployee’s survivors as “having been ‘newly awarded’ death benefits” by virtue of the employee’s death, without any reference to a formal order. Director, Office of Workers’ Compensation Programs v. Rasmussen, 440 U. S. 29, 44, n. 16 (1979) (quoting §906(c)’s predecessor provision, 33 U. S. C. §906(d) (1976 ed.)).
+
+In short, the text of §906(c), in isolation, is indetermi­ nate.
+
+Statutory language, however, “cannot be construed in a vacuum. It is a fundamental canon of statutory construc­ tion that the words of a statute must be read in their context and with a view to their place in the overall statu­ tory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). In the context of the LHWCA’s comprehensive, reticulated regime for worker benefits—in which §906 plays a pivotal role—“awarded compensation” is much more sensibly interpreted to mean “statutorily entitled to compensation because of disability.”5
+
+Section 906 governs compensation in all LHWCA cases. As explained above, see supra, at 3, the LHWCA requires employers to pay benefits voluntarily, and in the vast majority of cases, that is just what occurs. Under Roberts’ interpretation of §906(c), no employee receiving voluntary payments has been “awarded compensation,” so none is subject to an identifiable maximum rate of compensation. That result is incompatible with the Act’s design. Section 906(b)(1) caps “[c]ompensation for disability or death (other than compensation for death required . . . to be paid in a lump sum)” at twice “the applicable national average weekly wage, as determined by the Secretary under para­ graph (3).” Section 906(b)(3), in turn, directs the Secretary to “determine” the national average weekly wage before each fiscal year begins on October 1 and provides that “[s]uch determination shall be the applicable national average weekly wage” for the coming fiscal year. And §906(c), in its turn, provides that “[d]eterminations under subsection (b)(3) . . . with respect to” a fiscal year “shall apply to . . . those newly awarded compensation during such” fiscal year. Through a series of cross-references, the three provisions work together to cap disability benefits.
+
+By its terms, and subject to one express exception, §906(b)(1) specifies that the cap applies globally, to all disability claims. But all three provisions interlock, so the cap functions as Congress intended only if §906(c) also applies globally, to all such cases. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) (“A court must . . . interpret the statute ‘as a symmetrical and coherent regulatory scheme’ ” (quoting Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995))). If Roberts’ interpretation were correct, §906(c) would have no application at all in the many cases in which no formal orders issue, because employers make voluntary payments or the parties reach informal settlements. We will not construe §906(c) in a manner that renders it “entirely superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews, 534 U. S. 19, 29 (2001).
+
+Recognizing this deficiency in his reading of §906(c), Roberts proposes that orders issue in every case, so that employers can lock in the caps in effect at the time their employees become disabled. This is a solution in search of a problem. Under settled LHWCA practice, orders are rare. Roberts’ interpretation would set needless adminis­ trative machinery in motion and would disrupt the con­ gressionally preferred system of voluntary compensation and informal dispute resolution. The incongruity of Rob­ erts’ proposal is highlighted by his inability to identify a vehicle for the entry of an order in an uncontested case. Section 919(c), on which Roberts relies, applies only if an employee has filed a claim. Likewise, 20 CFR §702.315(a) applies only in the case of a claim or an employer’s notice of controversion. See §702.301. We doubt that an employee will file a claim for the sole purpose of assisting his employer in securing a lower cap. And we will not read §906(c) to compel an employer to file a baseless notice of controversion. Cf. 33 U. S. C. §§928(a), (d) (providing for assessment of attorney’s fees and costs against employers who controvert unsuccessfully). Roberts suggests that employers could threaten to terminate benefits in order to induce their employees to file claims, and thus initiate the administrative process. Construing any workers’ compen­ sation regime to encourage gratuitous confrontation be­ tween employers and employees strikes us as unsound.
+
+Using the national average weekly wage for the fiscal year in which an employee becomes disabled coheres with the LHWCA’s administrative structure. Section 914(b) requires an employer to pay benefits within 14 days of notice of an employee’s disability. To do so, an employer must be able to calculate the cap. An employer must also notify the Department of Labor of voluntary payments by filing a form that indicates, inter alia, whether the “maxi­ mum rate is being paid.” Dept. of Labor, Form LS–206, Payment of Compensation Without Award (2011), online at http://www.dol.gov/owcp/dlhwc/ls-206.pdf. On receipt of this form, an OWCP claims examiner must verify the rate of compensation in light of the applicable cap. See Dept. of Labor, Longshore (DLHWC) Procedure Manual §2–201(3)(b)(3) (hereinafter Longshore Procedure Manual), online at http://www.dol.gov/owcp/dlhwc/lspm/lspm2­ 201.htm. It is difficult to see how an employer can apply or certify a national average weekly wage other than the one in effect at the time an employee becomes disabled. An employer is powerless to predict when an employee might file a claim, when a compensation order might issue, or what the national average weekly wage will be at that later time. Likewise for a claims examiner.6
+
+Moreover, applying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA’s purpose to compensate disability, defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury.” 33 U. S. C. §902(10) (emphasis added). Just as the LHWCA takes “the average weekly wage of the injured employee at the time of the injury” as the “basis upon which to compute compensation,” §910, it is logical to apply the national average weekly wage for the same point in time. Administrative practice has long treated the time of injury as the relevant date. See, e.g., Dept. of Labor, Pamphlet LS–560, Workers’ Compensation Under the Longshoremen’s Act (rev. Dec. 2003) (“Compensation payable under the Act may not exceed 200% of the nation­ al average weekly wage, applicable at the time of injury”), online at http://www.dol.gov/owcp/dlhwc/LS-560pam.htm; Dept. of Labor, Workers’ Compensation Under the Long­ shoremen’s Act, Pamphlet LS–560 (rev. Nov. 1979) (same); see also, e.g., Dept. of Labor, LHWCA Bulletin No. 11–01, p. 2 (2010) (national average weekly wage for particular fiscal year applies to “disability incurred during” that fiscal year).7
+
+Applying the national average weekly wage at the time of onset of disability avoids disparate treatment of similarly situated employees. Under Roberts’ reading, two employees who earn the same salary and suffer the same injury on the same day could be entitled to different rates of compensation based on the happenstance of their ob­ taining orders in different fiscal years. We can imagine no reason why Congress would have intended, by choosing the words “newly awarded compensation,” to differentiate between employees based on such an arbitrary criterion.
+
+Finally, using the national average weekly wage for the fiscal year in which disability commences discourages gamesmanship in the claims process. If the fiscal year in which an order issues were to determine the cap, the fact that the national average weekly wage typically rises every year with inflation, see n. 2, supra, would become unduly significant. Every employee affected by the cap would seek the entry of a compensation order in a later fiscal year. Even an employee who has been receiving compensation at the proper rate for years would be well advised to file a claim for greater benefits in order to obtain an order at a later time. Likewise, an employee might delay the adjudicatory process to defer the entry of an order. And even in an adjudicated case where an em­ ployer is found to have paid benefits at the proper rate, an ALJ would adopt the later fiscal year’s national average weekly wage, making the increased cap retroactively applicable to all of the employer’s payments. Roberts candidly acknowledges that his position gives rise to such perverse incentives. See Tr. of Oral Arg. 58–59. We de­ cline to adopt a rule that would reward employees with windfalls for initiating unnecessary administrative pro­ ceedings, while simultaneously punishing employers who have complied fully with their statutory obligations.",analysis,Awarded Compensation,agree,Awarded Compensation,agree,"The Meaning of an ""Awarded Compensation""",2
+G6,9,1,2,A,"We first consider “whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997). The LHWCA does not define “awarded,” but in construing the Act, as with any statute, “ ‘we look first to its language, giving the words used their ordinary meaning.’ ” Ingalls Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Programs, 519 U. S. 248, 255 (1997) (quoting Moskal v. United States, 498 U. S. 103, 108 (1990)). At first blush, Roberts’ position is ap­ pealing. In ordinary usage, “award” most often means “give by judicial decree” or “assign after careful judgment.” Webster’s Third New International Dictionary 152 (2002); see also, e.g., Black’s Law Dictionary 157 (9th ed. 2009) (“grant by formal process or by judicial decree”).
+
+But “award” can also mean “grant,” or “confer or bestow upon.” Webster’s Third New International Dictionary, at 152; see also ibid. (1971 ed.) (same). The LHWCA “grants” benefits to disabled employees, and so can be said to “award” compensation by force of its entitlement-creating provisions. Indeed, this Court has often said that statutes “award” entitlements. See, e.g., Astrue v. Ratliff, 560 U. S. ___, ___ (2010) (slip op., at 4) (referring to “statutes that award attorney’s fees to a prevailing party”); Barber v. Thomas, 560 U. S. ___, ___ (2010) (appendix to majority opinion) (slip op., at 19) (statute “awards” good-time cred­ its to federal prisoners); New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 271 (1988) (Ohio statute “awards a tax credit”); Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 500 (1939) (California workers’ compensation statute “award[s] compensation for injuries to an employee”); see also, e.g., Connecticut v. Doehr, 501 U. S. 1, 28 (1991) (Rehnquist, C. J., concurring in part and concurring in judgment) (“Materialman’s and mechanic’s lien statutes award an interest in real property to workers”). Similarly, this Court has described an em­ ployee’s survivors as “having been ‘newly awarded’ death benefits” by virtue of the employee’s death, without any reference to a formal order. Director, Office of Workers’ Compensation Programs v. Rasmussen, 440 U. S. 29, 44, n. 16 (1979) (quoting §906(c)’s predecessor provision, 33 U. S. C. §906(d) (1976 ed.)).
+
+In short, the text of §906(c), in isolation, is indetermi­ nate.",analysis,The Meaning of “award”,strongly agree,Plain and Unambiguous Meaning,strongly disagree,"The Ambiguity of ""Award"" in §906(c)",1
+G6,9,1,2,B,"Statutory language, however, “cannot be construed in a vacuum. It is a fundamental canon of statutory construc­ tion that the words of a statute must be read in their context and with a view to their place in the overall statu­ tory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). In the context of the LHWCA’s comprehensive, reticulated regime for worker benefits—in which §906 plays a pivotal role—“awarded compensation” is much more sensibly interpreted to mean “statutorily entitled to compensation because of disability.”5
+
+Section 906 governs compensation in all LHWCA cases. As explained above, see supra, at 3, the LHWCA requires employers to pay benefits voluntarily, and in the vast majority of cases, that is just what occurs. Under Roberts’ interpretation of §906(c), no employee receiving voluntary payments has been “awarded compensation,” so none is subject to an identifiable maximum rate of compensation. That result is incompatible with the Act’s design. Section 906(b)(1) caps “[c]ompensation for disability or death (other than compensation for death required . . . to be paid in a lump sum)” at twice “the applicable national average weekly wage, as determined by the Secretary under para­ graph (3).” Section 906(b)(3), in turn, directs the Secretary to “determine” the national average weekly wage before each fiscal year begins on October 1 and provides that “[s]uch determination shall be the applicable national average weekly wage” for the coming fiscal year. And §906(c), in its turn, provides that “[d]eterminations under subsection (b)(3) . . . with respect to” a fiscal year “shall apply to . . . those newly awarded compensation during such” fiscal year. Through a series of cross-references, the three provisions work together to cap disability benefits.
+
+By its terms, and subject to one express exception, §906(b)(1) specifies that the cap applies globally, to all disability claims. But all three provisions interlock, so the cap functions as Congress intended only if §906(c) also applies globally, to all such cases. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) (“A court must . . . interpret the statute ‘as a symmetrical and coherent regulatory scheme’ ” (quoting Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995))). If Roberts’ interpretation were correct, §906(c) would have no application at all in the many cases in which no formal orders issue, because employers make voluntary payments or the parties reach informal settlements. We will not construe §906(c) in a manner that renders it “entirely superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews, 534 U. S. 19, 29 (2001).
+
+Recognizing this deficiency in his reading of §906(c), Roberts proposes that orders issue in every case, so that employers can lock in the caps in effect at the time their employees become disabled. This is a solution in search of a problem. Under settled LHWCA practice, orders are rare. Roberts’ interpretation would set needless adminis­ trative machinery in motion and would disrupt the con­ gressionally preferred system of voluntary compensation and informal dispute resolution. The incongruity of Rob­ erts’ proposal is highlighted by his inability to identify a vehicle for the entry of an order in an uncontested case. Section 919(c), on which Roberts relies, applies only if an employee has filed a claim. Likewise, 20 CFR §702.315(a) applies only in the case of a claim or an employer’s notice of controversion. See §702.301. We doubt that an employee will file a claim for the sole purpose of assisting his employer in securing a lower cap. And we will not read §906(c) to compel an employer to file a baseless notice of controversion. Cf. 33 U. S. C. §§928(a), (d) (providing for assessment of attorney’s fees and costs against employers who controvert unsuccessfully). Roberts suggests that employers could threaten to terminate benefits in order to induce their employees to file claims, and thus initiate the administrative process. Construing any workers’ compen­ sation regime to encourage gratuitous confrontation be­ tween employers and employees strikes us as unsound.
+
+Using the national average weekly wage for the fiscal year in which an employee becomes disabled coheres with the LHWCA’s administrative structure. Section 914(b) requires an employer to pay benefits within 14 days of notice of an employee’s disability. To do so, an employer must be able to calculate the cap. An employer must also notify the Department of Labor of voluntary payments by filing a form that indicates, inter alia, whether the “maxi­ mum rate is being paid.” Dept. of Labor, Form LS–206, Payment of Compensation Without Award (2011), online at http://www.dol.gov/owcp/dlhwc/ls-206.pdf. On receipt of this form, an OWCP claims examiner must verify the rate of compensation in light of the applicable cap. See Dept. of Labor, Longshore (DLHWC) Procedure Manual §2–201(3)(b)(3) (hereinafter Longshore Procedure Manual), online at http://www.dol.gov/owcp/dlhwc/lspm/lspm2­ 201.htm. It is difficult to see how an employer can apply or certify a national average weekly wage other than the one in effect at the time an employee becomes disabled. An employer is powerless to predict when an employee might file a claim, when a compensation order might issue, or what the national average weekly wage will be at that later time. Likewise for a claims examiner.6
+
+Moreover, applying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA’s purpose to compensate disability, defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury.” 33 U. S. C. §902(10) (emphasis added). Just as the LHWCA takes “the average weekly wage of the injured employee at the time of the injury” as the “basis upon which to compute compensation,” §910, it is logical to apply the national average weekly wage for the same point in time. Administrative practice has long treated the time of injury as the relevant date. See, e.g., Dept. of Labor, Pamphlet LS–560, Workers’ Compensation Under the Longshoremen’s Act (rev. Dec. 2003) (“Compensation payable under the Act may not exceed 200% of the nation­ al average weekly wage, applicable at the time of injury”), online at http://www.dol.gov/owcp/dlhwc/LS-560pam.htm; Dept. of Labor, Workers’ Compensation Under the Long­ shoremen’s Act, Pamphlet LS–560 (rev. Nov. 1979) (same); see also, e.g., Dept. of Labor, LHWCA Bulletin No. 11–01, p. 2 (2010) (national average weekly wage for particular fiscal year applies to “disability incurred during” that fiscal year).7
+
+Applying the national average weekly wage at the time of onset of disability avoids disparate treatment of similarly situated employees. Under Roberts’ reading, two employees who earn the same salary and suffer the same injury on the same day could be entitled to different rates of compensation based on the happenstance of their ob­ taining orders in different fiscal years. We can imagine no reason why Congress would have intended, by choosing the words “newly awarded compensation,” to differentiate between employees based on such an arbitrary criterion.
+
+Finally, using the national average weekly wage for the fiscal year in which disability commences discourages gamesmanship in the claims process. If the fiscal year in which an order issues were to determine the cap, the fact that the national average weekly wage typically rises every year with inflation, see n. 2, supra, would become unduly significant. Every employee affected by the cap would seek the entry of a compensation order in a later fiscal year. Even an employee who has been receiving compensation at the proper rate for years would be well advised to file a claim for greater benefits in order to obtain an order at a later time. Likewise, an employee might delay the adjudicatory process to defer the entry of an order. And even in an adjudicated case where an em­ ployer is found to have paid benefits at the proper rate, an ALJ would adopt the later fiscal year’s national average weekly wage, making the increased cap retroactively applicable to all of the employer’s payments. Roberts candidly acknowledges that his position gives rise to such perverse incentives. See Tr. of Oral Arg. 58–59. We de­ cline to adopt a rule that would reward employees with windfalls for initiating unnecessary administrative pro­ ceedings, while simultaneously punishing employers who have complied fully with their statutory obligations.",analysis,The LHWCA’s Statutory Scheme,agree,Statutory Interpretation,disagree,The LHWCA's Compensation Scheme,2
+G6,9,1,3,1,"Section 906 governs compensation in all LHWCA cases. As explained above, see supra, at 3, the LHWCA requires employers to pay benefits voluntarily, and in the vast majority of cases, that is just what occurs. Under Roberts’ interpretation of §906(c), no employee receiving voluntary payments has been “awarded compensation,” so none is subject to an identifiable maximum rate of compensation. That result is incompatible with the Act’s design. Section 906(b)(1) caps “[c]ompensation for disability or death (other than compensation for death required . . . to be paid in a lump sum)” at twice “the applicable national average weekly wage, as determined by the Secretary under para­ graph (3).” Section 906(b)(3), in turn, directs the Secretary to “determine” the national average weekly wage before each fiscal year begins on October 1 and provides that “[s]uch determination shall be the applicable national average weekly wage” for the coming fiscal year. And §906(c), in its turn, provides that “[d]eterminations under subsection (b)(3) . . . with respect to” a fiscal year “shall apply to . . . those newly awarded compensation during such” fiscal year. Through a series of cross-references, the three provisions work together to cap disability benefits.
+
+By its terms, and subject to one express exception, §906(b)(1) specifies that the cap applies globally, to all disability claims. But all three provisions interlock, so the cap functions as Congress intended only if §906(c) also applies globally, to all such cases. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) (“A court must . . . interpret the statute ‘as a symmetrical and coherent regulatory scheme’ ” (quoting Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995))). If Roberts’ interpretation were correct, §906(c) would have no application at all in the many cases in which no formal orders issue, because employers make voluntary payments or the parties reach informal settlements. We will not construe §906(c) in a manner that renders it “entirely superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews, 534 U. S. 19, 29 (2001).
+
+Recognizing this deficiency in his reading of §906(c), Roberts proposes that orders issue in every case, so that employers can lock in the caps in effect at the time their employees become disabled. This is a solution in search of a problem. Under settled LHWCA practice, orders are rare. Roberts’ interpretation would set needless adminis­ trative machinery in motion and would disrupt the con­ gressionally preferred system of voluntary compensation and informal dispute resolution. The incongruity of Rob­ erts’ proposal is highlighted by his inability to identify a vehicle for the entry of an order in an uncontested case. Section 919(c), on which Roberts relies, applies only if an employee has filed a claim. Likewise, 20 CFR §702.315(a) applies only in the case of a claim or an employer’s notice of controversion. See §702.301. We doubt that an employee will file a claim for the sole purpose of assisting his employer in securing a lower cap. And we will not read §906(c) to compel an employer to file a baseless notice of controversion. Cf. 33 U. S. C. §§928(a), (d) (providing for assessment of attorney’s fees and costs against employers who controvert unsuccessfully). Roberts suggests that employers could threaten to terminate benefits in order to induce their employees to file claims, and thus initiate the administrative process. Construing any workers’ compen­ sation regime to encourage gratuitous confrontation be­ tween employers and employees strikes us as unsound.",analysis,The Statutory Scheme,disagree,The LHWCA’s Compensation Cap,agree,The LHWCA's Compensation Proceeding,1
+G6,9,1,3,2,"Using the national average weekly wage for the fiscal year in which an employee becomes disabled coheres with the LHWCA’s administrative structure. Section 914(b) requires an employer to pay benefits within 14 days of notice of an employee’s disability. To do so, an employer must be able to calculate the cap. An employer must also notify the Department of Labor of voluntary payments by filing a form that indicates, inter alia, whether the “maxi­ mum rate is being paid.” Dept. of Labor, Form LS–206, Payment of Compensation Without Award (2011), online at http://www.dol.gov/owcp/dlhwc/ls-206.pdf. On receipt of this form, an OWCP claims examiner must verify the rate of compensation in light of the applicable cap. See Dept. of Labor, Longshore (DLHWC) Procedure Manual §2–201(3)(b)(3) (hereinafter Longshore Procedure Manual), online at http://www.dol.gov/owcp/dlhwc/lspm/lspm2­ 201.htm. It is difficult to see how an employer can apply or certify a national average weekly wage other than the one in effect at the time an employee becomes disabled. An employer is powerless to predict when an employee might file a claim, when a compensation order might issue, or what the national average weekly wage will be at that later time. Likewise for a claims examiner.6
+
+Moreover, applying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA’s purpose to compensate disability, defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury.” 33 U. S. C. §902(10) (emphasis added). Just as the LHWCA takes “the average weekly wage of the injured employee at the time of the injury” as the “basis upon which to compute compensation,” §910, it is logical to apply the national average weekly wage for the same point in time. Administrative practice has long treated the time of injury as the relevant date. See, e.g., Dept. of Labor, Pamphlet LS–560, Workers’ Compensation Under the Longshoremen’s Act (rev. Dec. 2003) (“Compensation payable under the Act may not exceed 200% of the nation­ al average weekly wage, applicable at the time of injury”), online at http://www.dol.gov/owcp/dlhwc/LS-560pam.htm; Dept. of Labor, Workers’ Compensation Under the Long­ shoremen’s Act, Pamphlet LS–560 (rev. Nov. 1979) (same); see also, e.g., Dept. of Labor, LHWCA Bulletin No. 11–01, p. 2 (2010) (national average weekly wage for particular fiscal year applies to “disability incurred during” that fiscal year).7
+
+Applying the national average weekly wage at the time of onset of disability avoids disparate treatment of similarly situated employees. Under Roberts’ reading, two employees who earn the same salary and suffer the same injury on the same day could be entitled to different rates of compensation based on the happenstance of their ob­ taining orders in different fiscal years. We can imagine no reason why Congress would have intended, by choosing the words “newly awarded compensation,” to differentiate between employees based on such an arbitrary criterion.",analysis,The LHWCA’s Administrative Structure,strongly disagree,The National Average Weekly Wage,strongly agree,The Use of the National Average Weekly Wage,2
+G6,9,1,3,3,"Finally, using the national average weekly wage for the fiscal year in which disability commences discourages gamesmanship in the claims process. If the fiscal year in which an order issues were to determine the cap, the fact that the national average weekly wage typically rises every year with inflation, see n. 2, supra, would become unduly significant. Every employee affected by the cap would seek the entry of a compensation order in a later fiscal year. Even an employee who has been receiving compensation at the proper rate for years would be well advised to file a claim for greater benefits in order to obtain an order at a later time. Likewise, an employee might delay the adjudicatory process to defer the entry of an order. And even in an adjudicated case where an em­ ployer is found to have paid benefits at the proper rate, an ALJ would adopt the later fiscal year’s national average weekly wage, making the increased cap retroactively applicable to all of the employer’s payments. Roberts candidly acknowledges that his position gives rise to such perverse incentives. See Tr. of Oral Arg. 58–59. We de­ cline to adopt a rule that would reward employees with windfalls for initiating unnecessary administrative pro­ ceedings, while simultaneously punishing employers who have complied fully with their statutory obligations.",analysis,National Average Weekly Wage,disagree,Fiscal Year in Which Disability Commences,strongly disagree,The National Average Weekly Wage Reference Date,3
+G6,9,1,1,III,"We find Roberts’ counterarguments unconvincing.
+
+First, Roberts observes that some provisions of the LHWCA clearly use “award” to mean “award in a formal order,” and contends that the same must be true of “awarded compensation” in §906(c). We agree that the Act sometimes uses “award” as Roberts urges. Section 914(a), for example, refers to the payment of compensation “to the person entitled thereto, without an award,” foreclosing the equation of “entitlement” and “award” that we adopt with respect to §906(c) today.8 But the presumption that “iden­ tical words used in different parts of the same act are intended to have the same meaning . . . readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 595 (2004) (internal quotation marks and citation omitted); see also, e.g., United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001). Here, we find the presumption overcome because several provisions of the Act would make no sense if “award” were read as Roberts proposes. Those provi­ sions confirm today’s holding because they too, in context, use “award” to denote a statutory entitlement to compen­ sation because of disability.
+
+For example, §908(c)(20) provides that “[p]roper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement.” Roberts argues that §908(c)(20) “necessarily contemplates administrative action to fix the amount of the liability and direct its payment.” Reply Brief for Petitioner 11. In Roberts’ view, no disfigured employee may receive benefits without invoking the administrative claims process. That argument, however, runs counter to §908’s preface, which directs that “[c]ompensation for disability shall be paid to the employee,” and to §914(a), which requires the payment of compensation “without an award.” It is also belied by employers’ practice of paying §908(c)(20) benefits volun­ tarily. See, e.g., Williams-McDowell v. Newport News Shipbuilding & Dry Dock Co., No. 99–0627 etc., 2000 WL 35928576, *1 (BRB, Mar. 15, 2000) (per curiam); Evans v. Bergeron Barges, Inc., No. 98–1641, 1999 WL 35135283, *1 (BRB, Sept. 3, 1999) (per curiam). In light of the LHWCA’s interest in prompt payment and settled prac­ tice, “awarded” in §908(c)(20) can only be better read, as in §906(c), to refer to a disfigured employee’s entitlement to benefits.
+
+Likewise, §908(d)(1) provides that if an employee who is receiving compensation for a scheduled disability9 dies before receiving the full amount of compensation to which the schedule entitles him, “the total amount of the award unpaid at the time of death shall be payable to or for the benefit of his survivors.” See also §908(d)(2). Roberts’ interpretation of “award” would introduce an odd gap: Only survivors of those employees who were receiving schedule benefits pursuant to orders—not survivors of employees who were receiving voluntary payments— would be entitled to the unpaid balances due their dece­ dents. There is no reason why Congress would have cho­ sen to distinguish between survivors in this manner. And the Benefits Review Board has quite sensibly interpreted §908(d) to mean that “an employee has a vested interest in benefits which accrue during his lifetime, and, after he dies, his estate is entitled to those benefits, regardless of when an award is made.” Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 27, 36 (1994) (per curiam).10
+
+Finally, §933(b) provides: “For the purpose of this sub­ section, the term ‘award’ with respect to a compensation order means a formal order issued by the deputy commis­ sioner, an administrative law judge, or Board.” Unless award may mean something other than “award in a com­ pensation order,” this specific definition would be unnec­ essary. Roberts contends that this provision, enacted in 1984, “was indeed ‘unnecessary’ ” in light of Pallas Shipping. Brief for Petitioner 29; see 461 U. S., at 534 (“The term ‘compensation order’ in the LHWCA refers specifi­ cally to an administrative award of compensation following proceedings with respect to the claim”). Roberts’ argu­ ment offends the canon against superfluity and neglects that §933(b) defines the term “award,” whereas Pallas Shipping defines the term “compensation order.” Moreo­ ver, Congress’ definition of “award,” which tracks Roberts’ preferred interpretation, was carefully limited to §933(b). Had Congress intended to adopt a universal definition of “award,” it could have done so in §902, the LHWCA’s glossary. Read in light of the “duty to give effect, if possi­ ble, to every clause and word of a statute,” Duncan v. Walker, 533 U. S. 167, 174 (2001) (internal quotation marks omitted), §933(b) debunks Roberts’ argument that the Act always uses “award” to mean “award in a formal order” and confirms that “award” has other meanings.
+
+Next, Roberts notes that this Court has refused to read the statutory phrase “person entitled to compensation” in §933(g) to mean “person awarded compensation.” See Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992) (“[A] person entitled to compensation need not be receiving compensation or have had an adjudication in his favor”). In Roberts’ view, the converse must also be true: “awarded compensation” in §906(c) cannot mean “entitled to compensation.” But Cowart’s reasoning does not work in reverse. Cowart did not construe §906(c) or the term “award,” but relied on the uniform meaning of the phrase “person entitled to compensation” in the LHWCA. See id., at 478–479. As just explained, the LHWCA contains no uniform meaning of the term “award.” Moreover, Cowart did not hold that the groups of “employees entitled to compensation” and “employees awarded compensation” were mutually exclusive. The former group includes the latter: The entry of a compensation order is a sufficient but not necessary condition for membership in the former. See id., at 477.
+
+Finally, Roberts contends that his interpretation fur­ thers the LHWCA’s purpose of providing employees with prompt compensation by encouraging employers to avoid delay and expedite administrative proceedings. But Rob­ erts’ remedy would also punish employers who voluntarily pay benefits at the proper rate from the time of their employees’ injuries. These employers would owe benefits under the higher cap applicable in any future fiscal year when their employees chose to file claims. And Roberts’ remedy would offer no relief at all to the many beneficiar­ ies entitled to less than the statutory maximum rate.
+
+The more measured deterrent to employer tardiness is interest that “accrues from the date a benefit came due, rather than from the date of the ALJ’s award.” Matulic v. Director, OWCP, 154 F. 3d 1052, 1059 (CA9 1998). The Director has long taken the position that “interest is a necessary and inherent component of ‘compensation’ because it ensures that the delay in payment of compensa­ tion does not diminish the amount of compensation to which the employee is entitled.” Sproull v. Director, OWCP, 86 F. 3d 895, 900 (CA9 1996); see also, e.g., Strachan Shipping Co. v. Wedemeyer, 452 F. 2d 1225, 1229 (CA5 1971). Moreover, “[t]imely controversion does not relieve the responsible party from paying interest on unpaid compensation.” Longshore Procedure Manual §8­ 201, online at http://www.dol.gov/owcp/dlhwc/lspm/lspm8­ 201.htm. Indeed, the ALJ awarded Roberts interest “on each unpaid installment of compensation from the date the compensation became due.” App. to Pet. for Cert. 108, Order ¶5.11",analysis,Roberts’ Counterarguments,strongly agree,“Award” in the Act,strongly disagree,Petitioner's Counterarguments,3
+G6,9,1,2,A,"First, Roberts observes that some provisions of the LHWCA clearly use “award” to mean “award in a formal order,” and contends that the same must be true of “awarded compensation” in §906(c). We agree that the Act sometimes uses “award” as Roberts urges. Section 914(a), for example, refers to the payment of compensation “to the person entitled thereto, without an award,” foreclosing the equation of “entitlement” and “award” that we adopt with respect to §906(c) today.8 But the presumption that “iden­ tical words used in different parts of the same act are intended to have the same meaning . . . readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 595 (2004) (internal quotation marks and citation omitted); see also, e.g., United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001). Here, we find the presumption overcome because several provisions of the Act would make no sense if “award” were read as Roberts proposes. Those provi­ sions confirm today’s holding because they too, in context, use “award” to denote a statutory entitlement to compen­ sation because of disability.
+
+For example, §908(c)(20) provides that “[p]roper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement.” Roberts argues that §908(c)(20) “necessarily contemplates administrative action to fix the amount of the liability and direct its payment.” Reply Brief for Petitioner 11. In Roberts’ view, no disfigured employee may receive benefits without invoking the administrative claims process. That argument, however, runs counter to §908’s preface, which directs that “[c]ompensation for disability shall be paid to the employee,” and to §914(a), which requires the payment of compensation “without an award.” It is also belied by employers’ practice of paying §908(c)(20) benefits volun­ tarily. See, e.g., Williams-McDowell v. Newport News Shipbuilding & Dry Dock Co., No. 99–0627 etc., 2000 WL 35928576, *1 (BRB, Mar. 15, 2000) (per curiam); Evans v. Bergeron Barges, Inc., No. 98–1641, 1999 WL 35135283, *1 (BRB, Sept. 3, 1999) (per curiam). In light of the LHWCA’s interest in prompt payment and settled prac­ tice, “awarded” in §908(c)(20) can only be better read, as in §906(c), to refer to a disfigured employee’s entitlement to benefits.
+
+Likewise, §908(d)(1) provides that if an employee who is receiving compensation for a scheduled disability9 dies before receiving the full amount of compensation to which the schedule entitles him, “the total amount of the award unpaid at the time of death shall be payable to or for the benefit of his survivors.” See also §908(d)(2). Roberts’ interpretation of “award” would introduce an odd gap: Only survivors of those employees who were receiving schedule benefits pursuant to orders—not survivors of employees who were receiving voluntary payments— would be entitled to the unpaid balances due their dece­ dents. There is no reason why Congress would have cho­ sen to distinguish between survivors in this manner. And the Benefits Review Board has quite sensibly interpreted §908(d) to mean that “an employee has a vested interest in benefits which accrue during his lifetime, and, after he dies, his estate is entitled to those benefits, regardless of when an award is made.” Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 27, 36 (1994) (per curiam).10
+
+Finally, §933(b) provides: “For the purpose of this sub­ section, the term ‘award’ with respect to a compensation order means a formal order issued by the deputy commis­ sioner, an administrative law judge, or Board.” Unless award may mean something other than “award in a com­ pensation order,” this specific definition would be unnec­ essary. Roberts contends that this provision, enacted in 1984, “was indeed ‘unnecessary’ ” in light of Pallas Shipping. Brief for Petitioner 29; see 461 U. S., at 534 (“The term ‘compensation order’ in the LHWCA refers specifi­ cally to an administrative award of compensation following proceedings with respect to the claim”). Roberts’ argu­ ment offends the canon against superfluity and neglects that §933(b) defines the term “award,” whereas Pallas Shipping defines the term “compensation order.” Moreo­ ver, Congress’ definition of “award,” which tracks Roberts’ preferred interpretation, was carefully limited to §933(b). Had Congress intended to adopt a universal definition of “award,” it could have done so in §902, the LHWCA’s glossary. Read in light of the “duty to give effect, if possi­ ble, to every clause and word of a statute,” Duncan v. Walker, 533 U. S. 167, 174 (2001) (internal quotation marks omitted), §933(b) debunks Roberts’ argument that the Act always uses “award” to mean “award in a formal order” and confirms that “award” has other meanings.",analysis,Use of “award”,strongly agree,“Award”,disagree,"The Polysemy of ""Award"" in the LHWCA",1
+G6,9,1,2,B,"Next, Roberts notes that this Court has refused to read the statutory phrase “person entitled to compensation” in §933(g) to mean “person awarded compensation.” See Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992) (“[A] person entitled to compensation need not be receiving compensation or have had an adjudication in his favor”). In Roberts’ view, the converse must also be true: “awarded compensation” in §906(c) cannot mean “entitled to compensation.” But Cowart’s reasoning does not work in reverse. Cowart did not construe §906(c) or the term “award,” but relied on the uniform meaning of the phrase “person entitled to compensation” in the LHWCA. See id., at 478–479. As just explained, the LHWCA contains no uniform meaning of the term “award.” Moreover, Cowart did not hold that the groups of “employees entitled to compensation” and “employees awarded compensation” were mutually exclusive. The former group includes the latter: The entry of a compensation order is a sufficient but not necessary condition for membership in the former. See id., at 477.",analysis,Person Entitled to Compensation,strongly agree,Awarded Compensation,strongly disagree,Cowart's on the Persons Entitled to Compensation,2
+G6,9,1,2,C,"Finally, Roberts contends that his interpretation fur­ thers the LHWCA’s purpose of providing employees with prompt compensation by encouraging employers to avoid delay and expedite administrative proceedings. But Rob­ erts’ remedy would also punish employers who voluntarily pay benefits at the proper rate from the time of their employees’ injuries. These employers would owe benefits under the higher cap applicable in any future fiscal year when their employees chose to file claims. And Roberts’ remedy would offer no relief at all to the many beneficiar­ ies entitled to less than the statutory maximum rate.
+
+The more measured deterrent to employer tardiness is interest that “accrues from the date a benefit came due, rather than from the date of the ALJ’s award.” Matulic v. Director, OWCP, 154 F. 3d 1052, 1059 (CA9 1998). The Director has long taken the position that “interest is a necessary and inherent component of ‘compensation’ because it ensures that the delay in payment of compensa­ tion does not diminish the amount of compensation to which the employee is entitled.” Sproull v. Director, OWCP, 86 F. 3d 895, 900 (CA9 1996); see also, e.g., Strachan Shipping Co. v. Wedemeyer, 452 F. 2d 1225, 1229 (CA5 1971). Moreover, “[t]imely controversion does not relieve the responsible party from paying interest on unpaid compensation.” Longshore Procedure Manual §8­ 201, online at http://www.dol.gov/owcp/dlhwc/lspm/lspm8­ 201.htm. Indeed, the ALJ awarded Roberts interest “on each unpaid installment of compensation from the date the compensation became due.” App. to Pet. for Cert. 108, Order ¶5.11",analysis,Employer Tardiness,agree,Deterrent to Employer Delayed Payment,strongly agree,The Current LHWCA Deterrent Against Employer Tardiness,3
+G6,9,1,1,*,"We hold that an employee is “newly awarded compensa­ tion” when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.12 The judgment of the Court of Appeals for the Ninth Circuit is affirmed.
+
+It is so ordered. SUPREME COURT OF THE UNITED STATES",conclusion,Newly awarded compensa­tion,strongly disagree,Newly Awarded Compensation,strongly disagree,Conclusion,4
+G6,11,1,1,I,"
+
+Respondent's original motion to vacate his conviction was based on the fact that a juror in respondent's case, one John Dana Smith, submitted during the trial an application for employment as a major felony investigator in the District Attorney's Office.[3] Smith had learned of the position from a friend who had contacts within the office and who had inquired on Smith's behalf without mentioning Smith's name or the fact that he was a juror in respondent's trial. When Smith's application was received by the office, his name was placed on a list of applicants but he was not then contacted and was not known by the office to be a juror in respondent's trial.
+
+During later inquiry about the status of Smith's application, the friend mentioned that Smith was a juror in respondent's case. The attorney to whom the friend disclosed this fact promptly informed his superior, and his superior in turn informed the Assistant District Attorney in charge of hiring investigators. The following day, more than one week before the end of respondent's trial, the assistant informed the two attorneys actually prosecuting respondent that one of the jurors had applied to the office for employment as an investigator.
+
+The two prosecuting attorneys conferred about the application but concluded that, in view of Smith's statements during voir dire,[4] there was no need to inform the trial court or defense counsel of the application. They did instruct attorneys in the office not to contact Smith until after the trial had ended, and took steps to insure that they would learn no information about Smith that had not been revealed during voir dire. When the jury retired to deliberate on November 20th, three alternate jurors were available to substitute for Smith, and neither the trial court nor the defense counsel knew of his application. The jury returned its verdict on November 21st.
+
+The District Attorney first learned of Smith's application on December 4th. Five days later, after an investigation to verify the information, he informed the trial court and defense counsel of the application and the fact that its existence was known to attorneys in his office at some time before the conclusion of the trial. Respondent's attorney then moved to set aside the verdict.
+
+At the hearing before the trial judge, Justice Harold Birns, the prosecuting attorneys explained their decision not to disclose the application and Smith explained that he had seen nothing improper in submitting the application during the trial. Justice Birns, ""[f]rom all the evidence adduced"" at the hearing, 87 Misc. 2d, at 621, 384 N. Y. S. 2d, at 912, found that ""Smith's letter was indeed an indiscretion"" but that it ""in no way reflected a premature conclusion as to the [respondent's] guilt, or prejudice against the [respondent], or an inability to consider the guilt or innocence of the [respondent] solely on the evidence."" Id., at 627, 384 N. Y. S. 2d, at 915. With respect to the conduct of the prosecuting attorneys, Justice Birns found ""no evidence"" suggesting ""a sinister or dishonest motive with respect to Mr. Smith's letter of application."" Id., at 618-619, 384 N. Y. S. 2d, at 910.
+
+In his application for federal habeas relief, respondent contended that he had been denied due process of law under the Fourteenth Amendment to the United States Constitution by Smith's conduct. The District Court found insufficient evidence to demonstrate that Smith was actually biased. 485 F. Supp., at 1371. Nonetheless, the court imputed bias to Smith because ""the average man in Smith's position would believe that the verdict of the jury would directly affect the evaluation of his job application."" Id., at 1371-1372. Accordingly, the court ordered respondent released unless the State granted him a new trial within 90 days.
+
+The United States Court of Appeals for the Second Circuit affirmed by a divided vote. The court noted that ""it is at best difficult and perhaps impossible to learn from a juror's own testimony after the verdict whether he was in fact `impartial,' "" but the court did not consider whether Smith was actually or impliedly biased. 632 F.2d, at 1022. Rather, the Court of Appeals affirmed respondent's release simply because ""the failure of the prosecutors to disclose their knowledge denied [respondent] due process."" Ibid. The court explained: ""To condone the withholding by the prosecutor of information casting substantial doubt as to the impartiality of a juror, such as the fact that he has applied to the prosecutor for employment, would not be fair to a defendant and would ill serve to maintain public confidence in the judicial process."" Id., at 1023.[5]",facts,Respondent's Motion to Vacate,disagree,Respondent's Motion to Vacate,disagree,Respondent's Federal Habeas Relief Claim,1
+G6,11,1,2,A,"Respondent's original motion to vacate his conviction was based on the fact that a juror in respondent's case, one John Dana Smith, submitted during the trial an application for employment as a major felony investigator in the District Attorney's Office.[3] Smith had learned of the position from a friend who had contacts within the office and who had inquired on Smith's behalf without mentioning Smith's name or the fact that he was a juror in respondent's trial. When Smith's application was received by the office, his name was placed on a list of applicants but he was not then contacted and was not known by the office to be a juror in respondent's trial.
+
+During later inquiry about the status of Smith's application, the friend mentioned that Smith was a juror in respondent's case. The attorney to whom the friend disclosed this fact promptly informed his superior, and his superior in turn informed the Assistant District Attorney in charge of hiring investigators. The following day, more than one week before the end of respondent's trial, the assistant informed the two attorneys actually prosecuting respondent that one of the jurors had applied to the office for employment as an investigator.
+
+The two prosecuting attorneys conferred about the application but concluded that, in view of Smith's statements during voir dire,[4] there was no need to inform the trial court or defense counsel of the application. They did instruct attorneys in the office not to contact Smith until after the trial had ended, and took steps to insure that they would learn no information about Smith that had not been revealed during voir dire. When the jury retired to deliberate on November 20th, three alternate jurors were available to substitute for Smith, and neither the trial court nor the defense counsel knew of his application. The jury returned its verdict on November 21st.
+
+The District Attorney first learned of Smith's application on December 4th. Five days later, after an investigation to verify the information, he informed the trial court and defense counsel of the application and the fact that its existence was known to attorneys in his office at some time before the conclusion of the trial. Respondent's attorney then moved to set aside the verdict.
+
+At the hearing before the trial judge, Justice Harold Birns, the prosecuting attorneys explained their decision not to disclose the application and Smith explained that he had seen nothing improper in submitting the application during the trial. Justice Birns, ""[f]rom all the evidence adduced"" at the hearing, 87 Misc. 2d, at 621, 384 N. Y. S. 2d, at 912, found that ""Smith's letter was indeed an indiscretion"" but that it ""in no way reflected a premature conclusion as to the [respondent's] guilt, or prejudice against the [respondent], or an inability to consider the guilt or innocence of the [respondent] solely on the evidence."" Id., at 627, 384 N. Y. S. 2d, at 915. With respect to the conduct of the prosecuting attorneys, Justice Birns found ""no evidence"" suggesting ""a sinister or dishonest motive with respect to Mr. Smith's letter of application."" Id., at 618-619, 384 N. Y. S. 2d, at 910.",facts,The Application for Employment as an Investigator,disagree,The Juror Application,agree,The Trial Proceeding and Juror's Conduct,1
+G6,11,1,2,B,"In his application for federal habeas relief, respondent contended that he had been denied due process of law under the Fourteenth Amendment to the United States Constitution by Smith's conduct. The District Court found insufficient evidence to demonstrate that Smith was actually biased. 485 F. Supp., at 1371. Nonetheless, the court imputed bias to Smith because ""the average man in Smith's position would believe that the verdict of the jury would directly affect the evaluation of his job application."" Id., at 1371-1372. Accordingly, the court ordered respondent released unless the State granted him a new trial within 90 days.
+
+The United States Court of Appeals for the Second Circuit affirmed by a divided vote. The court noted that ""it is at best difficult and perhaps impossible to learn from a juror's own testimony after the verdict whether he was in fact `impartial,' "" but the court did not consider whether Smith was actually or impliedly biased. 632 F.2d, at 1022. Rather, the Court of Appeals affirmed respondent's release simply because ""the failure of the prosecutors to disclose their knowledge denied [respondent] due process."" Ibid. The court explained: ""To condone the withholding by the prosecutor of information casting substantial doubt as to the impartiality of a juror, such as the fact that he has applied to the prosecutor for employment, would not be fair to a defendant and would ill serve to maintain public confidence in the judicial process."" Id., at 1023.[5]",facts,Federal Habeas Relief,strongly disagree,The District Court's Order of Release,agree,The Lower Courts' Order of Release,2
+G6,11,1,1,II,"In argument before this Court, respondent has relied primarily on reasoning adopted by the District Court.[6] He contends that a court cannot possibly ascertain the impartiality of a juror by relying solely upon the testimony of the juror in question. Given the human propensity for self-justification, respondent argues, the law must impute bias to jurors in Smith's position. We disagree.
+
+This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias. For example, in Remmer v. United States, 347 U.S. 227 (1954), a juror in a federal criminal trial was approached by someone offering money in exchange for a favorable verdict. An FBI agent was assigned to investigate the attempted bribe, and the agent's report was reviewed by the trial judge and the prosecutor without disclosure to defense counsel. When they learned of the incident after trial, the defense attorneys moved that the verdict be vacated, alleging that ""they would have moved for a mistrial and requested that the juror in question be replaced by an alternate juror"" had the incident been disclosed to them during trial. Id., at 229.
+
+This Court recognized the seriousness not only of the attempted bribe, which it characterized as ""presumptively prejudicial,"" but also of the undisclosed investigation, which was ""bound to impress the juror and [was] very apt to do so unduly."" Ibid. Despite this recognition, and a conviction that ""[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions,' ibid., the Court did not require a new trial like that ordered in this case. Rather, the Court instructed the trial judge to ""determine the circumstances, the impact thereof upon the juror, and whether or not [they were] prejudicial, in a hearing with all interested parties permitted to participate."" Id., at 230 (emphasis added). In other words, the Court ordered precisely the remedy which was accorded by Justice Birns in this case.
+
+Even before the decision in Remmer, this Court confronted allegations of implied juror bias in Dennis v. United States, 339 U.S. 162 (1950). Dennis was convicted of criminal contempt for failure to appear before the Committee on Un-American Activities of the House of Representatives. He argued that the jury which convicted him, composed primarily of employees of the United States Government, was inherently biased because such employees were subject to Executive Order No. 9835, 3 CFR 627 (1943-1948 Comp.), which provided for their discharge upon reasonable grounds for belief that they were disloyal to the Government. Dennis contended that such employees would not risk the charge of disloyalty or the termination of their employment which might result from a vote for acquittal. The Court rejected this claim of implied bias, noting that Dennis was ""free to show the existence of actual bias"" but had failed to do so. 339 U.S., at 167. The Court thus concluded: ""A holding of implied bias to disqualify jurors because of their relationship with the Government is no longer permissible. . . . Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury."" Id., at 171-172. See also Frazier v. United States, 335 U.S. 497 (1948); United States v. Wood, 299 U.S. 123 (1936).
+
+Our decision last Term in Chandler v. Florida, 449 U.S. 560 (1981), also treated a claim of implied juror bias. Appellants in Chandler were convicted of various theft crimes at a jury trial which was partially televised under a new Canon of Judicial Ethics promulgated by the Florida Supreme Court. They claimed that the unusual publicity and sensational courtroom atmosphere created by televising the proceedings would influence the jurors and preclude a fair trial. Consistent with our previous decisions, we held that ""the appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of his case _x0097_ be it printed or broadcast _x0097_ compromised the ability of the particular jury that heard the case to adjudicate fairly."" Id., at 575. Because the appellants did ""not [attempt] to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them,"" we refused to set aside their conviction. Id., at 581.
+
+These cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.[7]
+
+The District Court and the Court of Appeals disregarded this doctrine: they held that a post-trial hearing comporting with our decisions in Remmer and other cases prosecuted in the federal courts was constitutionally insufficient in a state court under the Due Process Clause of the Fourteenth Amendment. It seems to us to follow ""as the night the day"" that if in the federal system a post-trial hearing such as that conducted here is sufficient to decide allegations of juror partiality, the Due Process Clause of the Fourteenth Amendment cannot possibly require more of a state court system.[8]
+
+Of equal importance, this case is a federal habeas action in which Justice Birns' findings are presumptively correct under 28 U.S. C. § 2254(d). We held last Term that federal courts in such proceedings must not disturb the findings of state courts unless the federal habeas court articulates some basis for disarming such findings of the statutory presumption that they are correct and may be overcome only by convincing evidence. Sumner v. Mata, 449 U.S. 539, 551 (1981). Here neither the District Court nor the Court of Appeals took issue with the findings of Justice Birns.",analysis,Implied Juror Bias,strongly agree,The District Court's Remedy,disagree,The Absence of Evident Juror Bias,2
+G6,11,1,1,III,"As already noted, the Court of Appeals did not rely upon the District Court's imputation of bias. Indeed, it did not even reach the question of juror bias, holding instead that the prosecutors' failure to disclose Smith's application, without more, violated respondent's right to due process of law. Respondent contends that the Court of Appeals thereby correctly preserved ""the appearance of justice."" Brief for Respondent 7. This contention, too, runs contrary to our decided cases.
+
+Past decisions of this Court demonstrate that the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. In Brady v. Maryland, 373 U.S. 83 (1963), for example, the prosecutor failed to disclose an admission by a participant in the murder which corroborated the defendant's version of the crime. The Court held that a prosecutor's suppression of requested evidence ""violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."" Id., at 87. Applying this standard, the Court found the undisclosed admission to be relevant to punishment and thus ordered that the defendant be resentenced. Since the admission was not material to guilt, however, the Court concluded that the trial itself complied with the requirements of due process despite the prosecutor's wrongful suppression.[9] The Court thus recognized that the aim of due process ""is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused."" Ibid.
+
+This principle was reaffirmed in United States v. Agurs, 427 U.S. 97 (1976). There, we held that a prosecutor must disclose unrequested evidence which would create a reasonable doubt of guilt that did not otherwise exist. Consistent with Brady, we focused not upon the prosecutor's failure to disclose, but upon the effect of nondisclosure on the trial:
+
+""Nor do we believe the constitutional obligation [to disclose unrequested information] is measured by the moral culpability, or willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression of the evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor."" 427 U.S., at 110 (footnote and citation omitted).[10]
+In light of this principle, it is evident that the Court of Appeals erred when it concluded that prosecutorial misconduct alone requires a new trial. We do not condone the conduct of the prosecutors in this case. Nonetheless, as demonstrated in Part II of this opinion, Smith's conduct did not impair his ability to render an impartial verdict. The trial judge expressly so found. 87 Misc. 2d, at 627, 384 N. Y. S. 2d, at 915.
+
+Therefore, the prosecutors' failure to disclose Smith's job application, although requiring a post-trial hearing on juror bias, did not deprive respondent of the fair trial guaranteed by the Due Process Clause.",analysis,The Appearance of Justice,strongly disagree,The Effect of the Prosecutor's Suppression on Respondent's,agree,Prosecutorial Misconduct and the Court of Appeals' Conclusion of Deprivation of Due Process,3
+G6,11,1,1,IV,"A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution. As we said in Cupp v. Naughten, 414 U.S. 141, 146 (1973):
+
+""Before a federal court may overturn a conviction resulting from a state trial . . . it must be established not merely that the [State's action] is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.""
+Absent such a constitutional violation, it was error for the lower courts in this case to order a new trial. Even if the Court of Appeals believed, as the respondent contends, that prosecutorial misbehavior would ""reign unchecked"" unless a new trial was ordered, it had no authority to act as it did. Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension. Chandler v. Florida, 449 U. S., at 570, 582-583; Cupp v. Naughten, supra, at 146. No such wrongs occurred here. Accordingly, the judgment of the Court of Appeals is
+
+Reversed.",analysis,The Court of Appeals' Authority to Order a New Trial,strongly agree,The Court of Appeals's Authority to Order a New Trial,strongly agree,The Court of Appeals' Lack of Authority to Order a New Trial,4
+G6,13,1,1,I,"On October 11, 1979, in the vicinity of East St. Louis, Ill., three young women and a man, Randy Newcomb, were riding in an automobile when a turquoise Cadillac forced them off the road. The occupants of the Cadillac, later identified as Napoleon Stewart, Gregory Williams, Gable Gibson, Kevin Anderson, and Kelvin Hasting, respondents here, forcibly removed the women from the car in which they were riding with Newcomb; in Newcomb's presence, Stewart and Gibson immediately raped one of them and forced her to perform acts of sodomy. Newcomb was left behind while the three women were then taken in the Cadillac to a vacant garage in St. Louis, Mo.; there they were raped and forced to perform deviant sexual acts. Two of the women were then taken to Stewart's home where Stewart and Williams took turns raping and sodomizing them. The third victim was taken in a separate car to another garage where the other respondents repeatedly raped her and compelled her to perform acts of sodomy.
+
+About 6 a. m., the three women were released and they immediately contacted the St. Louis police; they furnished descriptions of the five men, the turquoise Cadillac, and the locations of the sexual attacks. From these descriptions, the police immediately identified one of the places to which the women were taken _x0097_ the home of respondent Napoleon Stewart. With the consent of Stewart's mother, police entered the home, arrested Stewart, and found various items of the victims' clothing and personal effects. The turquoise Cadillac was located, seized, and found to be registered to Williams. On the basis of the information gathered, the police arrested Williams, Gibson, Anderson, and Hasting, all of whom were later identified by the victims during police lineups.
+
+Respondents were charged with kidnaping in violation of 18 U.S. C. § 1201(a)(1), transporting a woman across state lines for immoral purposes in violation of the Mann Act, 18 U. S. C. § 2421, and conspiracy to commit the foregoing offenses in violation of 18 U.S. C. § 371. They were tried before a jury. The defense relied on a theory of consent and _x0097_ inconsistently _x0097_ on the possibility that the victims' identification of the respondents was mistaken. None of the respondents testified.
+
+At the close of the case, and during the summation of the prosecutor, the following interchange took place:
+
+""[PROSECUTOR]: . . . Let's look at the evidence the defendant[s] put on here for you so that we can put that in perspective. I'm going to tell you what the defendant[s] did not do. Defendants on cross-examination and _x0097_
+""[DEFENSE COUNSEL]: I'll object to that, Your Honor. You're going to instruct to the contrary on that and the defendants don't have to put on any evidence.
+""[PROSECUTOR]: That's correct, Your Honor.
+""THE COURT: That's right, they don't. They don't have to.
+""[PROSECUTOR]: But if they do put on a case, the Government can comment on it. The defendants at no time ever challenged any of the rapes, whether or not that occurred, any of the sodomies. They didn't challenge the kidnapping, the fact that the girls were in East St. Louis and they were taken across to St. Louis. They never challenged the transportation of the victims from East St. Louis, Illinois to St. Louis, Missouri, and they never challenged the location or whereabouts of the defendants at all the relevant times. They want you to focus your attention on all of the events that were before all of the crucial events of that evening. They want to pull your focus away from the beginning of the incident in East St. Louis after they were bumped, and then the proceeding events. They want you to focus to the events prior to that. And you can use your common sense and still see what that tells you. . . ."" Tr. 873-874.
+A motion for a mistrial was denied. The jury returned a verdict of guilty as to each respondent on all counts.
+
+On appeal, various errors were alleged, including a claim that the prosecutor violated respondents' Fifth Amendment rights under Griffin v. California, 380 U.S. 609 (1965).[1] In a terse opinion, the Court of Appeals reversed the convictions and remanded for retrial, 660 F.2d 301 (CA7 1980), citing its decision in United States v. Buege, 578 F.2d 187, 188, cert. denied, 439 U.S. 871 (1978), for the proposition that Griffin error occurs even without a direct statement on the failure of a defendant to take the stand when the ""prosecutor refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony."" The Court of Appeals declined to rely on the harmless-error doctrine, however, stating that application of that doctrine ""would impermissibly compromise the clear constitutional violation of the defendants' Fifth Amendment rights."" 660 F.2d, at 303. Respondents' remaining claims were disposed of in an unpublished order that simply stated that the judgment of the District Court was reversed and the case remanded for a new trial.[2]
+
+The Government petitioned for rehearing, claiming that the prosecutor's remark was equivocal, nonprejudicial, and that the court failed to apply Chapman v. California, 386 U.S. 18 (1967), a case that the Court of Appeals had, in fact, failed to cite.[3] The petition for rehearing was denied. We granted certiorari, 456 U.S. 971 (1982). We reverse.",facts,The Facts and the Trial,strongly agree,"The St. Louis, Ill., Sexual Attacks",strongly agree,The Attacks and the Trial,1
+G6,13,1,1,II,"The opinion of the Court of Appeals does not make entirely clear its basis for reversing the convictions in this gruesome case. Its cursory treatment of the harmless-error question and its focus on the failure generally of prosecutors within its jurisdiction to heed the court's prior admonitions about commenting on a defendant's failure to rebut the prosecution's case suggest that, notwithstanding the harmless nature of the error, the court acted in this case to discipline the prosecutor _x0097_ and warn other prosecutors _x0097_ for what it perceived to be continuing violations of Griffin and § 3481. The court pointedly emphasized its own decision in United States v. Rodriguez, 627 F.2d 110 (1980), where it characterized the problem of prosecutorial comments on a defendant's silence as one which ""continues to arise with disturbing frequency throughout this circuit despite the admonition of trial judges and this court,"" id., at 112.
+
+In Rodriguez, the court described its efforts to cure the problem by ordering circulation to all United States Attorneys of an unpublished order calling attention to the subject. In addition, the Rodriguez court discussed, without explicitly adopting, the rule announced by the First Circuit in United States v. Flannery, 451 F.2d 880, 882 (1971), that any prosecutorial reference to a defendant's failure to testify is per se grounds for reversal unless the judge immediately instructs the jury that the defendant had a constitutional right not to testify and advises the jury that the prosecutor's conduct was improper. Obviously the Court of Appeals is more familiar than we are with what appellate records show concerning prosecutorial indifference to the court's admonitions; the question we address is whether reversal of these convictions was an appropriate response. In view of this history of tension between what the Court of Appeals perceives as the requirements of Griffin and § 3481 and that court's view of the prosecutors' conduct, we proceed on the assumption that, without so stating, the court was exercising its supervisory powers to discipline the prosecutors of its jurisdiction. The question presented is whether, on this record, in a purported exercise of supervisory powers, a reviewing court may ignore the harmless-error analysis of Chapman. We hold that the harmless-error rule of Chapman, which we discuss in Part II-B, infra, may not be avoided by an assertion of supervisory power, simply to justify a reversal of these criminal convictions.
+
+
+""[G]uided by considerations of justice,"" McNabb v. United States, 318 U.S. 332, 341 (1943), and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights, McNabb, supra, at 340; Rea v. United States, 350 U.S. 214, 217 (1956); to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, McNabb, supra, at 345; Elkins v. United States, 364 U.S. 206, 222 (1960); and finally, as a remedy designed to deter illegal conduct, United States v. Payner, 447 U.S. 727, 735-736, n. 8 (1980).
+
+The goals that are implicated by supervisory powers are not, however, significant in the context of this case if, as the Court of Appeals plainly implied, the errors alleged are harmless. Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error. Further, in this context, the integrity of the process carries less weight, for it is the essence of the harmless-error doctrine that a judgment may stand only when there is no ""reasonable possibility that the [practice] complained of might have contributed to the conviction."" Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). Finally, deterrence is an inappropriate basis for reversal where, as here, the prosecutor's remark is at most an attenuated violation of Griffin[4] and where means more narrowly tailored to deter objectionable prosecutorial conduct are available.[5]
+
+To the extent that the values protected by supervisory authority are at issue here, these powers may not be exercised in a vacuum. Rather, reversals of convictions under the court's supervisory power must be approached ""with some caution,"" Payner, 447 U. S., at 734, and with a view toward balancing the interests involved, id., at 735-736, and n. 8; Elkins, supra, at 216; United States v. Caceres, 440 U.S. 741, 755 (1979); cf. Nardone v. United States, 308 U.S. 338, 340 (1939). As we shall see below, the Court of Appeals failed in this case to give appropriate _x0097_ if, indeed, any _x0097_ weight to these relevant interests. It did not consider the trauma the victims of these particularly heinous crimes would experience in a new trial, forcing them to relive harrowing experiences now long past, or the practical problems of retrying these sensitive issues more than four years after the events. See Morris v. Slappy, ante, at 14-15. The conclusion is inescapable that the Court of Appeals focused exclusively on its concern that the prosecutors within its jurisdiction were indifferent to the frequent admonitions of the court. The court appears to have decided to deter future similar comments by the drastic step of reversal of these convictions. But the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching.
+
+Since the Court of Appeals focused its attention on Griffin rather than Chapman, an appropriate starting point is to recall the sequence of these two cases. Griffin was decided first. In that case, a California prosecutor, in accordance with a provision of the California Constitution, commented to the jury on a defendant's failure to provide evidence on matters that only he could have been expected to deny or explain. In reliance on Wilson v. United States, 149 U.S. 60 (1893), the Griffin Court interpreted the Fifth Amendment guarantee against self-incrimination to mean that comment on the failure to testify was an unconstitutional burden on the basic right. Accordingly, the Court held that the constitutional provision permitting prosecutorial comment on the failure of the accused to testify violated the Fifth Amendment.
+
+Soon after Griffin, however, this Court decided Chapman v. California, which involved prosecutorial comment on the defendant's failure to testify in a trial that had been conducted in California before Griffin was decided. The question was whether a Griffin error was per se error requiring automatic reversal or whether the conviction could be affirmed if the reviewing court concluded that, on the whole record, the error was harmless beyond a reasonable doubt. In Chapman this Court affirmatively rejected a per se rule.
+
+After examining the harmless-error rules of the 50 States along with the federal analog, 28 U.S. C. § 2111, the Chapman Court stated:
+
+""All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction."" 386 U.S., at 22 (emphasis added).
+In holding that the harmless-error rule governs even constitutional violations under some circumstances,[6] the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. Brown v. United States, 411 U.S. 223, 231-232 (1973), citing Bruton v. United States, 391 U.S. 123, 135 (1968); cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). Chapman reflected the concern, later noted by Chief Justice Roger Traynor of the Supreme Court of California, that when courts fashion rules whose violations mandate automatic reversals, they ""retrea[t] from their responsibility, becoming instead `impregnable citadels of technicality.' "" R. Traynor, The Riddle of Harmless Error 14 (1970) (quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A. B. A. J. 217, 222 (1925)).
+
+Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e. g., Brown, supra, at 230-232; Harrington v. California, 395 U.S. 250 (1969); Milton v. Wainwright, 407 U.S. 371 (1972). The goal, as Chief Justice Traynor has noted, is ""to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error."" Traynor, supra, at 81.
+
+Here, the Court of Appeals, while making passing reference to the harmless-error doctrine, did not apply it. Its analysis failed to strike the balance between disciplining the prosecutor on the one hand, and the interest in the prompt administration of justice and the interests of the victims on the other.[7]",analysis,Reversal of the Convictions,disagree,The Court of Appeals' Opinion,strongly agree,The Court of Appeals' Opinion,2
+G6,13,1,2,A.Supervisory Power,"""[G]uided by considerations of justice,"" McNabb v. United States, 318 U.S. 332, 341 (1943), and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights, McNabb, supra, at 340; Rea v. United States, 350 U.S. 214, 217 (1956); to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, McNabb, supra, at 345; Elkins v. United States, 364 U.S. 206, 222 (1960); and finally, as a remedy designed to deter illegal conduct, United States v. Payner, 447 U.S. 727, 735-736, n. 8 (1980).
+
+The goals that are implicated by supervisory powers are not, however, significant in the context of this case if, as the Court of Appeals plainly implied, the errors alleged are harmless. Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error. Further, in this context, the integrity of the process carries less weight, for it is the essence of the harmless-error doctrine that a judgment may stand only when there is no ""reasonable possibility that the [practice] complained of might have contributed to the conviction."" Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). Finally, deterrence is an inappropriate basis for reversal where, as here, the prosecutor's remark is at most an attenuated violation of Griffin[4] and where means more narrowly tailored to deter objectionable prosecutorial conduct are available.[5]
+
+To the extent that the values protected by supervisory authority are at issue here, these powers may not be exercised in a vacuum. Rather, reversals of convictions under the court's supervisory power must be approached ""with some caution,"" Payner, 447 U. S., at 734, and with a view toward balancing the interests involved, id., at 735-736, and n. 8; Elkins, supra, at 216; United States v. Caceres, 440 U.S. 741, 755 (1979); cf. Nardone v. United States, 308 U.S. 338, 340 (1939). As we shall see below, the Court of Appeals failed in this case to give appropriate _x0097_ if, indeed, any _x0097_ weight to these relevant interests. It did not consider the trauma the victims of these particularly heinous crimes would experience in a new trial, forcing them to relive harrowing experiences now long past, or the practical problems of retrying these sensitive issues more than four years after the events. See Morris v. Slappy, ante, at 14-15. The conclusion is inescapable that the Court of Appeals focused exclusively on its concern that the prosecutors within its jurisdiction were indifferent to the frequent admonitions of the court. The court appears to have decided to deter future similar comments by the drastic step of reversal of these convictions. But the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching.",analysis,The Court's Supervisory Power,strongly agree,The Court's Supervisory Powers,strongly agree,The Court of Appeals' Supervisory Powers,1
+G6,13,1,2,"B.Harmless Error
+","Since the Court of Appeals focused its attention on Griffin rather than Chapman, an appropriate starting point is to recall the sequence of these two cases. Griffin was decided first. In that case, a California prosecutor, in accordance with a provision of the California Constitution, commented to the jury on a defendant's failure to provide evidence on matters that only he could have been expected to deny or explain. In reliance on Wilson v. United States, 149 U.S. 60 (1893), the Griffin Court interpreted the Fifth Amendment guarantee against self-incrimination to mean that comment on the failure to testify was an unconstitutional burden on the basic right. Accordingly, the Court held that the constitutional provision permitting prosecutorial comment on the failure of the accused to testify violated the Fifth Amendment.
+
+Soon after Griffin, however, this Court decided Chapman v. California, which involved prosecutorial comment on the defendant's failure to testify in a trial that had been conducted in California before Griffin was decided. The question was whether a Griffin error was per se error requiring automatic reversal or whether the conviction could be affirmed if the reviewing court concluded that, on the whole record, the error was harmless beyond a reasonable doubt. In Chapman this Court affirmatively rejected a per se rule.
+
+After examining the harmless-error rules of the 50 States along with the federal analog, 28 U.S. C. § 2111, the Chapman Court stated:
+
+""All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction."" 386 U.S., at 22 (emphasis added).
+In holding that the harmless-error rule governs even constitutional violations under some circumstances,[6] the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. Brown v. United States, 411 U.S. 223, 231-232 (1973), citing Bruton v. United States, 391 U.S. 123, 135 (1968); cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). Chapman reflected the concern, later noted by Chief Justice Roger Traynor of the Supreme Court of California, that when courts fashion rules whose violations mandate automatic reversals, they ""retrea[t] from their responsibility, becoming instead `impregnable citadels of technicality.' "" R. Traynor, The Riddle of Harmless Error 14 (1970) (quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A. B. A. J. 217, 222 (1925)).
+
+Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e. g., Brown, supra, at 230-232; Harrington v. California, 395 U.S. 250 (1969); Milton v. Wainwright, 407 U.S. 371 (1972). The goal, as Chief Justice Traynor has noted, is ""to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error."" Traynor, supra, at 81.
+
+Here, the Court of Appeals, while making passing reference to the harmless-error doctrine, did not apply it. Its analysis failed to strike the balance between disciplining the prosecutor on the one hand, and the interest in the prompt administration of justice and the interests of the victims on the other.[7]",analysis,Chapman v. California,strongly disagree,The Sequence of the Cases,strongly disagree,The Court of Appeals' Neglect of the Harmless Error Doctrine,2
+G6,13,1,1,III,"We turn, then, to the question whether, on the whole record before us, the error identified by the Court of Appeals was harmless beyond a reasonable doubt. Although we are not required to review records to evaluate a harmless-error claim, and do so sparingly, we plainly have the authority to do so.[8] See Harrington, supra, where the Court granted certiorari to consider the issue whether a Bruton error was harmless and to that end undertook its ""own reading of the record,"" 395 U.S., at 254. See also Chapman, 386 U. S., at 24-26; Milton v. Wainwright, supra, at 377; Parker v. Randolph, 442 U.S. 62, 80-81 (1979) (opinion of BLACKMUN, J.). Cf. Brown, supra, at 231. In making this assessment, we are aided by the Court of Appeals' own explicit statement that
+
+""[d]espite the magnitude of the crimes committed and the clear evidence of guilt, an application of the doctrine of harmless error would impermissibly compromise the clear constitutional violation of the defendants' Fifth Amendment rights."" 660 F.2d, at 303. (Emphasis added.)
+The question a reviewing court must ask is this: absent the prosecutor's allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? Harrington, supra, at 254. A reviewing court must begin with the reality that the jurors sat in the same room day after day with the defendants and their lawyers; much testimony had been heard from the three women who described in detail the repeated wanton acts of the defendants during three hours in two States, thus negating any doubt as to identification. Immediately on their release the victims described the defendants to the police and promptly identified them in lineups. Neutral witnesses corroborated critical aspects of the victims' testimony. Randy Newcomb, a prosecution witness, testified that he witnessed the rape of one of the women shortly after the car in which he was riding was stopped; the garage owner where the second episode occurred observed two women with four men, one of whom answered to respondent Anderson's description. The automobile, which was central to the case, was a singular color and was registered to respondent Williams. Property of two of the victims was found in respondent Stewart's possession hours after the crimes; Williams' fingerprints were found on the car in which the victims had been riding. In short, a more compelling case of guilt is difficult to imagine.
+
+Paradoxically, respondents relied for their defense on a claim of mistaken identity, yet they tendered no evidence placing any of them at other places at the relevant times. The evidence presented by them was testimony showing (a) that some of respondents' hairstyles immediately before and after the incident differed from the victims' descriptions of their assailants' appearances, (b) that two of the victims had been unable to pick one of the respondents, Anderson, out of a lineup, (c) that it was so dark at the time of the attacks and during the car trips, that Newcomb did not have an unobstructed view of the rape he described, and (d) that Stewart's mother testified that the girls she saw with her son did not look ""scared."" Finally, the defense intimated that the victims crossed state lines voluntarily by raising the possibility that the women entered respondents' car willingly _x0097_ a point hardly consistent with the idea that the respondents did not commit the crimes charged. That these defense efforts presented patently and totally inconsistent theories could hardly have escaped the attention of the jurors.
+
+In the face of this overwhelming evidence of guilt and the inconsistency of the scanty evidence tendered by the defendants, it is little wonder that the Court of Appeals referred to ""the crimes committed"" and acknowledged the ""clear evidence of guilt."" Of course, none of these hard realities would ever constitute justification for prosecutorial misconduct, but here, accepting the utterance of the prosecutor as improper, criticism of him could well be directed more accurately at his competence and judgment in jeopardizing an unanswered _x0097_ and unanswerable _x0097_ case. On the whole record, we are satisfied beyond a reasonable doubt that the error relied upon was harmless.
+
+The judgment of the Court of Appeals, ordering a new trial based on the prosecutor's argument, is reversed. Because other contentions were advanced by respondents that were not treated in the court's opinion, we remand to allow the Court of Appeals to consider such other claims if respondents elect to press them.
+
+Reversed and remanded.",analysis,Harmless beyond a reasonable doubt,agree,The Harmless-Error Claim,strongly agree,The Harmless Prosecutorial Misconduct,3
+G6,15,1,1,I,"
+
+Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores through out the country: Discount Stores, Supercenters, Neighbor hood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 40 and 53 separate departments and 80 to 500 staff posi tions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people.
+
+Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may in crease the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employ ees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay with in preestablished ranges.
+
+Promotions work in a similar fashion. Wal-Mart per mits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant man ager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied.
+
+The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three cur rent or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e–1 et seq.1
+
+Betty Dukes began working at a Pittsburg, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service man ager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infrac tions. Dukes also claims two male greeters in the Pitts burg store are paid more than she is.
+
+Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a.
+
+The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In 2001, she was fired for failure to comply with Wal-Mart’s timekeeping policy.
+
+These plaintiffs, respondents here, do not allege that Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U. S. C. §2000e–2(k). And, respondents say, because WalMart is aware of this effect, its refusal to cabin its manag ers’ authority amounts to disparate treatment, see §2000e–2(a). Their complaint seeks injunctive and de claratory relief, punitive damages, and backpay. It does not ask for compensatory damages.
+
+Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby mak ing every woman at the company the victim of one com mon discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action.
+
+
+Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certifi cation must demonstrate, first, that:
+
+“(1) the class is so numerous that joinder of all members is impracticable,
+
+“(2) there are questions of law or fact common to the class,
+
+“(3) the claims or defenses of the representative par ties are typical of the claims or defenses of the class, and
+
+“(4) the representative parties will fairly and ade
+
+quately protect the interests of the class” (paragraph
+
+breaks added).
+
+Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2
+
+Invoking these provisions, respondents moved the Dis trict Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and man agement track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “ques tions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social framework analysis” of Wal-Mart’s “culture” and person nel practices, and concluded that the company was “vul nerable” to gender discrimination. 603 F. 3d 571, 601 (CA9 2010) (en banc).
+
+Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s require ments of commonality, typicality, and adequate represen tation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunc tive and declaratory relief, and second because the back pay claims could not be manageably tried as a class with out depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certi fied their proposed class.3
+
+A divided en banc Court of Appeals substantially af firmed the District Court’s certification order. 603 F. 3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id., at 612 (emphasis deleted). It also agreed with the District Court that the named plain tiffs’ claims were sufficiently typical of the class as a whole to satisfy Rule 23(a)(3), and that they could serve as ade quate class representatives, see Rule 23(a)(4). Id., at 614– 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims. Id., at 616 (internal quotation marks omitted).4
+
+Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in Hilao v. Estate of Marcos, 103 F. 3d 767, 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F. 3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be em ployed in this case.” Id., at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ibid., n. 56 (emphasis deleted).
+
+We granted certiorari. 562 U. S. ___ (2010).",facts, Wal-Mart and its,strongly disagree,The Class Certification Claim,agree,,1
+G6,15,1,2,A,"Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores through out the country: Discount Stores, Supercenters, Neighbor hood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 40 and 53 separate departments and 80 to 500 staff posi tions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people.
+
+Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may in crease the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employ ees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay with in preestablished ranges.
+
+Promotions work in a similar fashion. Wal-Mart per mits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant man ager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied.",facts,Wal-Mart,strongly agree,Wal-Mart,strongly agree,How Wal-Mart Operates,1
+G6,15,1,2,B,"The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three cur rent or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e–1 et seq.1
+
+Betty Dukes began working at a Pittsburg, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service man ager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infrac tions. Dukes also claims two male greeters in the Pitts burg store are paid more than she is.
+
+Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a.
+
+The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In 2001, she was fired for failure to comply with Wal-Mart’s timekeeping policy.
+
+These plaintiffs, respondents here, do not allege that Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U. S. C. §2000e–2(k). And, respondents say, because WalMart is aware of this effect, its refusal to cabin its manag ers’ authority amounts to disparate treatment, see §2000e–2(a). Their complaint seeks injunctive and de claratory relief, punitive damages, and backpay. It does not ask for compensatory damages.
+
+Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby mak ing every woman at the company the victim of one com mon discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action.
+",facts,The Named Plaintiffs,disagree,Plaintiffs’ Claims,strongly agree,Plaintiffs and their Claims,2
+G6,15,1,2,C,"Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certifi cation must demonstrate, first, that:
+
+“(1) the class is so numerous that joinder of all members is impracticable,
+
+“(2) there are questions of law or fact common to the class,
+
+“(3) the claims or defenses of the representative par ties are typical of the claims or defenses of the class, and
+
+“(4) the representative parties will fairly and ade
+
+quately protect the interests of the class” (paragraph
+
+breaks added).
+
+Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2
+
+Invoking these provisions, respondents moved the Dis trict Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and man agement track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “ques tions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social framework analysis” of Wal-Mart’s “culture” and person nel practices, and concluded that the company was “vul nerable” to gender discrimination. 603 F. 3d 571, 601 (CA9 2010) (en banc).
+
+Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s require ments of commonality, typicality, and adequate represen tation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunc tive and declaratory relief, and second because the back pay claims could not be manageably tried as a class with out depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certi fied their proposed class.3",facts,The Dis trict Court’s Decision,agree,The Class Certification Motion,agree,The Distric Court's Certification of the Class,3
+G6,15,1,2,D,"A divided en banc Court of Appeals substantially af firmed the District Court’s certification order. 603 F. 3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id., at 612 (emphasis deleted). It also agreed with the District Court that the named plain tiffs’ claims were sufficiently typical of the class as a whole to satisfy Rule 23(a)(3), and that they could serve as ade quate class representatives, see Rule 23(a)(4). Id., at 614– 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims. Id., at 616 (internal quotation marks omitted).4
+
+Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in Hilao v. Estate of Marcos, 103 F. 3d 767, 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F. 3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be em ployed in this case.” Id., at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ibid., n. 56 (emphasis deleted).
+
+We granted certiorari. 562 U. S. ___ (2010).",facts,The District Court’s Certification Order,strongly disagree,The en banc majority,strongly disagree,The Court of Appeals' Certification of the Class,4
+G6,15,1,1,II,"The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979). In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 216 (1974)). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plain tiff ’s claims.’ ” General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 156 (1982) (quoting General Tele phone Co. of Northwest v. EEOC, 446 U. S. 318, 330 (1980)).
+
+The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our manag ers have discretion over pay? Is that an unlawful em ployment practice? What remedies should we get? Recit ing these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to dem onstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same pro vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for ex ample, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the valid ity of each one of the claims in one stroke. “What matters to class certification . . . is not the rais
+
+ing of common ‘questions’—even in droves—but,
+
+rather the capacity of a classwide proceeding to gen erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed
+
+class are what have the potential to impede the gen
+
+eration of common answers.” Nagareda, supra, at 132.
+
+Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively dem onstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently nu merous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U. S., at 160, and that certification is proper only if “the trial court is satis fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161; see id., at 160 (“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considera tions that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Falcon, supra, at 160 (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978); some internal quotation marks omitted).6 Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F. 3d 672, 676–677 (CA7 2001) (Easterbrook, J.).
+
+In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employ ment decision,” Cooper v. Federal Reserve Bank of Rich mond, 467 U. S. 867, 876 (1984). Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
+
+This Court’s opinion in Falcon describes how the com monality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class compris ing all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U. S., at 152. We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an in dividual’s claim that he has been denied a promotion [or higher pay] 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 claim will share common questions of
+
+law or fact and that the individual’s claim will be typi
+
+cal of the class claims.” Id., at 157–158.
+
+Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ ment and incumbent employees, a class action on behalf of every applicant or employee who might have been preju diced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id., at 159, n. 15. Second, “[s]ignificant proof that an employer oper ated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro motion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes respon dents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evalu ating employees under a common standard.
+
+The second manner of bridging the gap requires “signifi cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recog nized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respon dents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaning ful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calcu late whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certifica tion stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a gen eral policy of discrimination.”
+
+The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of dis criminatory conduct,” Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 990 (1988).
+
+To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U. S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.
+
+Respondents have not identified a common mode of exer cising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analy sis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
+
+The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin con ducted his analysis region-by-region, comparing the num ber of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities . . . can be explained only by gender discrimination.” 603 F. 3d, at 604 (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Ibid.
+
+Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff ’s experience of discrimination was insuffi cient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U. S., at 158. A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” 603 F. 3d, at 637. A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni form, store-by-store disparity upon which the plaintiffs’ theory of commonality depends.
+
+There is another, more fundamental, respect in which respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level su pervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is chal lenged.” Watson, 487 U. S., at 994; accord, Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 656 (1989) (approv ing that statement), superseded by statute on other grounds, 42 U. S. C. §2000e–2(k). That is all the more necessary when a class of plaintiffs is sought to be certi fied. Other than the bare existence of delegated discre tion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.
+
+Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In Teamsters v. United States, 431 U. S. 324 (1977), in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial discrimination from particular individuals. See id., at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, id., at 337, and the class itself consisted of around 334 persons, United States v. T.I.M.E.-D. C., Inc., 517 F. 2d 299, 308 (CA5 1975), overruled on other grounds, Teamsters, supra. The 40 anecdotes thus repre sented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class members. 517 F. 2d, at 315, and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of WalMart’s 3,400 stores. 603 F. 3d, at 634 (Ikuta, J., dissent ing). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Id., at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “oper ate[s] under a general policy of discrimination,” Falcon, supra, at 159, n. 15, which is what respondents must show to certify a companywide class.9
+
+The dissent misunderstands the nature of the foregoing analysis. It criticizes our focus on the dissimilarities be tween the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality require ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10
+
+In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a ka leidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d,
+
+at 652 (dissenting opinion).",analysis,The Class Action Standard,strongly agree,Class Certification,agree,Class Certification Requirements,2
+G6,15,1,2,A,"The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our manag ers have discretion over pay? Is that an unlawful em ployment practice? What remedies should we get? Recit ing these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to dem onstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same pro vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for ex ample, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the valid ity of each one of the claims in one stroke. “What matters to class certification . . . is not the rais
+
+ing of common ‘questions’—even in droves—but,
+
+rather the capacity of a classwide proceeding to gen erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed
+
+class are what have the potential to impede the gen
+
+eration of common answers.” Nagareda, supra, at 132.
+
+Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively dem onstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently nu merous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U. S., at 160, and that certification is proper only if “the trial court is satis fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161; see id., at 160 (“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considera tions that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Falcon, supra, at 160 (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978); some internal quotation marks omitted).6 Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F. 3d 672, 676–677 (CA7 2001) (Easterbrook, J.).
+
+In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employ ment decision,” Cooper v. Federal Reserve Bank of Rich mond, 467 U. S. 867, 876 (1984). Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.",analysis,Commonality of the Claims,strongly agree,Commonality,agree,Commonality of the Claims,1
+G6,15,1,2,B,"This Court’s opinion in Falcon describes how the com monality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class compris ing all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U. S., at 152. We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an in dividual’s claim that he has been denied a promotion [or higher pay] 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 claim will share common questions of
+
+law or fact and that the individual’s claim will be typi
+
+cal of the class claims.” Id., at 157–158.
+
+Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ ment and incumbent employees, a class action on behalf of every applicant or employee who might have been preju diced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id., at 159, n. 15. Second, “[s]ignificant proof that an employer oper ated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro motion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes respon dents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evalu ating employees under a common standard.
+
+The second manner of bridging the gap requires “signifi cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recog nized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respon dents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaning ful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calcu late whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certifica tion stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a gen eral policy of discrimination.”",analysis,Falcon,strongly disagree,Falcon,strongly disagree,The Lack of Commonality of the Gender-Based Discrimination Claim,2
+G6,15,1,2,C,"The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of dis criminatory conduct,” Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 990 (1988).
+
+To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U. S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.
+
+Respondents have not identified a common mode of exer cising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analy sis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
+
+The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin con ducted his analysis region-by-region, comparing the num ber of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities . . . can be explained only by gender discrimination.” 603 F. 3d, at 604 (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Ibid.
+
+Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff ’s experience of discrimination was insuffi cient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U. S., at 158. A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” 603 F. 3d, at 637. A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni form, store-by-store disparity upon which the plaintiffs’ theory of commonality depends.
+
+There is another, more fundamental, respect in which respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level su pervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is chal lenged.” Watson, 487 U. S., at 994; accord, Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 656 (1989) (approv ing that statement), superseded by statute on other grounds, 42 U. S. C. §2000e–2(k). That is all the more necessary when a class of plaintiffs is sought to be certi fied. Other than the bare existence of delegated discre tion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.
+
+Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In Teamsters v. United States, 431 U. S. 324 (1977), in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial discrimination from particular individuals. See id., at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, id., at 337, and the class itself consisted of around 334 persons, United States v. T.I.M.E.-D. C., Inc., 517 F. 2d 299, 308 (CA5 1975), overruled on other grounds, Teamsters, supra. The 40 anecdotes thus repre sented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class members. 517 F. 2d, at 315, and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of WalMart’s 3,400 stores. 603 F. 3d, at 634 (Ikuta, J., dissent ing). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Id., at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “oper ate[s] under a general policy of discrimination,” Falcon, supra, at 159, n. 15, which is what respondents must show to certify a companywide class.9
+
+The dissent misunderstands the nature of the foregoing analysis. It criticizes our focus on the dissimilarities be tween the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality require ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10
+
+In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a ka leidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d,
+
+at 652 (dissenting opinion).",analysis,Wal-Mart Policies,disagree,Corporate Policy,agree,The Lack of Evidence of a Discriminating Corporate Policy at Wal-Mart,3
+G6,15,1,1,III,"We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, 511 U. S. 117, 121 (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.
+
+
+Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certifica tion when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certi fication when each class member would be entitled to an individualized award of monetary damages.
+
+That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that pre dated its codification, Amchem Products, Inc. v. Windsor, 521 U. S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U. S. 815, 841–845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, class based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U. S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., 311 F. 2d 107, 109 (CA4 1962) (per curiam); Frasier v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC 1955) (three-judge court), aff’d, 350 U. S. 979 (1956).
+
+Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impos sible or unworkable, as in a (b)(1) class,11 or that the relief sought must perforce affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U. S., at 614 (inter nal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id., at 615 (quoting Advisory Committee’s Notes, 28 U. S. C. App., p. 697 (1994 ed.)). It allows class certifica tion in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B).
+
+Given that structure, we think it clear that individ ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Pre dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and optout rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an addi tional reason not to read Rule 23(b)(2) to include the monetary claims here.
+
+Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and de claratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudica tion nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protec tions whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction.
+
+Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “pre dominate.” But it also created the possibility (if the pre dominance test were correct) that individual class mem bers’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally es topped from independently seeking compensatory dam ages based on that same denial. That possibility under scores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have.
+
+The predominance test would also require the District Court to reevaluate the roster of class members continu ally. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed by Wal-Mart lack standing to seek injunctive or declara tory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the valid ity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declara tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plain tiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certi fied under Rule 23(b)(2) at all.
+
+Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunc tive relief and the payment of “backpay,” see §2000e– 5(g)(2)(A)).
+
+In Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “inciden tal to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consis tent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this stan dard, and in any event they cannot.
+
+Contrary to the Ninth Circuit’s view, Wal-Mart is enti tled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed reme dial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimina tion, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A).
+
+We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings . . . to determine the scope of individual relief.” Teamsters, 431 U. S., at 361. At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the indi vidual applicant was denied an employment opportunity for lawful reasons.” Id., at 362.
+
+The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F. 3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b); see Ortiz, 527 U. S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) class.",analysis,Class Certification of Monetary Claims,agree, Certification of Backpay Claims,agree,Class Certification of Monetary Claims under Fed. Rule 23(b)(2),3
+G6,15,1,2,A,"Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certifica tion when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certi fication when each class member would be entitled to an individualized award of monetary damages.
+
+That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that pre dated its codification, Amchem Products, Inc. v. Windsor, 521 U. S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U. S. 815, 841–845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, class based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U. S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., 311 F. 2d 107, 109 (CA4 1962) (per curiam); Frasier v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC 1955) (three-judge court), aff’d, 350 U. S. 979 (1956).
+
+Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impos sible or unworkable, as in a (b)(1) class,11 or that the relief sought must perforce affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U. S., at 614 (inter nal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id., at 615 (quoting Advisory Committee’s Notes, 28 U. S. C. App., p. 697 (1994 ed.)). It allows class certifica tion in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B).
+
+Given that structure, we think it clear that individ ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Pre dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and optout rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an addi tional reason not to read Rule 23(b)(2) to include the monetary claims here.",analysis,Individualized Relief,disagree,The (b)(2) class,agree,The Rule 23(b)(2) and (b)(3) Classes,1
+G6,15,1,2,B,"Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and de claratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudica tion nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protec tions whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction.
+
+Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “pre dominate.” But it also created the possibility (if the pre dominance test were correct) that individual class mem bers’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally es topped from independently seeking compensatory dam ages based on that same denial. That possibility under scores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have.
+
+The predominance test would also require the District Court to reevaluate the roster of class members continu ally. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed by Wal-Mart lack standing to seek injunctive or declara tory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the valid ity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declara tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plain tiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certi fied under Rule 23(b)(2) at all.
+
+Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunc tive relief and the payment of “backpay,” see §2000e– 5(g)(2)(A)).",analysis,Predominance of the Claims,agree,“Predominance” of Backpay Claims,strongly agree,Predominance of Monetary Relief Claims,2
+G6,15,1,2,C,"In Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “inciden tal to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consis tent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this stan dard, and in any event they cannot.
+
+Contrary to the Ninth Circuit’s view, Wal-Mart is enti tled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed reme dial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimina tion, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A).
+
+We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings . . . to determine the scope of individual relief.” Teamsters, 431 U. S., at 361. At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the indi vidual applicant was denied an employment opportunity for lawful reasons.” Id., at 362.
+
+The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F. 3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b); see Ortiz, 527 U. S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) class.",analysis, Individualized Determination of Eligibility,agree,“Incidental” Relief,disagree,Wal-Mart Entitlement to an Individualized Determination of Eligiblity for Relief of Each Class Member,3
+G6,15,1,1,*,"The judgment of the Court of Appeals is
+Reversed. ",conclusion,The Court of Appeals is Reversed.,strongly agree,"The Court of Appeals's Decision is Reversed.
+",strongly agree,Reversal of the Court of Appeals' Decision,4
+G6,17,1,1,I,"On March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a ""Complaint for Search Warrant"" to a judge of an Illinois Circuit Court. The complaint recited that the agent had spoken with an informant known to the police to be reliable and:
+
+""3. The informant related . . . that over the weekend of 28 and 29 February he was in the [Aurora Tap Tavern, located in the city of Aurora, Ill.] and observed fifteen to twenty-five tin-foil packets on the person of the bartender `Greg' and behind the bar. He also has been in the tavern on at least ten other occasions and has observed tin-foil packets on `Greg' and in a drawer behind the bar. The informant has used heroin in the past and knows that tin-foil packets are a common method of packaging heroin.
+""4. The informant advised . . . that over the weekend of 28 and 29 February he had a conversation with `Greg' and was advised that `Greg' would have heroin for sale on Monday, March 1, 1976. This conversation took place in the tavern described.""
+On the strength of this complaint, the judge issued a warrant authorizing the search of ""the following person or place: . . . [T]he Aurora Tap Tavern. . . . Also the person of `Greg', the bartender, a male white with blondish hair appx. 25 years."" The warrant authorized the police to search for ""evidence of the offense of possession of a controlled substance,"" to wit, ""[h]eroin, contraband, other controlled substances, money, instrumentalities and narcotics, paraphernalia used in the manufacture, processing and distribution of controlled substances.""
+
+In the late afternoon of that day, seven or eight officers proceeded to the tavern. Upon entering it, the officers announced their purpose and advised all those present that they were going to conduct a ""cursory search for weapons."" One of the officers then proceeded to pat down each of the 9 to 13 customers present in the tavern, while the remaining officers engaged in an extensive search of the premises.
+
+The police officer who frisked the patrons found the appellant, Ventura Ybarra, in front of the bar standing by a pinball machine. In his first patdown of Ybarra, the officer felt what he described as ""a cigarette pack with objects in it."" He did not remove this pack from Ybarra's pocket. Instead, he moved on and proceeded to pat down other customers. After completing this process the officer returned to Ybarra and frisked him once again. This second search of Ybarra took place approximately 2 to 10 minutes after the first. The officer relocated and retrieved the cigarette pack from Ybarra's pants pocket. Inside the pack he found six tinfoil packets containing a brown powdery substance which later turned out to be heroin.
+
+Ybarra was subsequently indicted by an Illinois grand jury for the unlawful possession of a controlled substance. He filed a pretrial motion to suppress all the contraband that had been seized from his person at the Aurora Tap Tavern. At the hearing on this motion the State sought to justify the search by reference to the Illinois statute in question. The trial court denied the motion to suppress, finding that the search had been conducted under the authority of subsection (b) of the statute, to ""prevent the disposal or concealment of [the] things particularly described in the warrant."" The case proceeded to trial before the court sitting without a jury, and Ybarra was found guilty of the possession of heroin.
+
+On appeal, the Illinois Appellate Court held that the Illinois statute was not unconstitutional ""in its application to the facts"" of this case. 58 Ill. App. 3d 57, 64, 373 N. E. 2d 1013, 1017. The court acknowledged that, had the warrant directed that a ""large retail or commercial establishment"" be searched, the statute could not constitutionally have been read to ""authorize a `blanket search' of persons or patrons found"" therein. Id., at 62, 373 N. E. 2d, at 1016. The court interpreted the statute as authorizing the search of persons found on premises described in a warrant only if there is ""some showing of a connection with those premises, that the police officer reasonably suspected an attack, or that the person searched would destroy or conceal items described in the warrant."" Id., at 61, 373 N. E. 2d, at 1016. Accordingly, the State Appellate Court found that the search of Ybarra had been constitutional because it had been ""conducted in a one-room bar where it [was] obvious from the complaint . . . that heroin was being sold or dispensed,"" id., at 62, 373 N. E. 2d, at 1016, because ""the six packets of heroin . . . could easily [have been] concealed by the defendant and thus thwart the purpose of the warrant,"" id., at 61, 373 N. E. 2d, at 1016, and because Ybarra was not an ""innocent strange[r] having no connection with the premises,"" ibid. The court, therefore, affirmed Ybarra's conviction, and the Illinois Supreme Court denied his petition for leave to appeal. There followed an appeal to this Court, and we noted probable jurisdiction. 440 U. S. 790.",facts,The Search of the Tavern,agree,The Search Warrant,agree,The Search of Petitioner inside the Tavern,1
+G6,17,1,1,II,"There is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the Aurora Tap Tavern, aside from ""Greg,"" would be violating the law.[2] The search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs. It did not state that the informant had ever seen a patron of the tavern purchase drugs from ""Greg"" or from any other person. Nowhere, in fact, did the complaint even mention the patrons of the Aurora Tap Tavern.
+
+Not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.
+
+It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed.[3] But, a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U. S. 40, 62-63. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seizure another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the ""legitimate expectations of privacy"" of persons, not places. See Rakas v. Illinois, 439 U. S. 128, 138-143, 148-149; Katz v. United States, 389 U. S. 347, 351-352.
+
+Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by ""Greg."" Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search ""Greg,"" it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern's customers.[4]
+
+Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first patdown search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U. S. 1. If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the patdown yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance.
+
+We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.[5]Adams v. Williams, 407 U. S. 143, 146; Terry v. Ohio, supra, at 21-24, 27. When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. At the suppression hearing, the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits could be expected on almost any tavern patron in Illinois in early March. In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.
+
+The Terry case created an exception to the requirement of probable cause, an exception whose ""narrow scope"" this Court ""has been careful to maintain.""[6] Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. See, e. g., Adams v. Williams, supra (at night, in high-crime district, lone police officer approached person believed by officer to possess gun and narcotics). Nothing in Terry can be understood to allow a generalized ""cursory search for weapons"" or, indeed, any search whatever for anything but weapons. The ""narrow scope"" of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.
+
+What has been said largely disposes of the State's second and alternative argument in this case. Emphasizing the important governmental interest ""in effectively controlling traffic in dangerous, hard drugs"" and the ease with which the evidence of narcotics possession may be concealed or moved around from person to person, the State contends that the Terry ""reasonable belief or suspicion"" standard should be made applicable to aid the evidence-gathering function of the search warrant. More precisely, we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on ""compact"" premises subject to a search warrant, at least where the police have a ""reasonable belief"" that such persons ""are connected with"" drug trafficking and ""may be concealing or carrying away the contraband.""
+
+Over 30 years ago, the Court rejected a similar argument in United States v. Di Re, 332 U. S. 581, 583-587. In that case, a federal investigator had been told by an informant that a transaction in counterfeit gasoline ration coupons was going to occur at a particular place. The investigator went to that location at the appointed time and saw the car of one of the suspected parties to the illegal transaction. The investigator went over to the car and observed a man in the driver's seat, another man (Di Re) in the passenger's seat, and the informant in the back. The informant told the investigator that the person in the driver's seat had given him counterfeit coupons. Thereupon, all three men were arrested and searched. Among the arguments unsuccessfully advanced by the Government to support the constitutionality of the search of Di Re was the contention that the investigator could lawfully have searched the car, since he had reasonable cause to believe that it contained contraband, and correspondingly could have searched any occupant of the car because the contraband sought was of the sort ""which could easily be concealed on the person.""[7] Not deciding whether or not under the Fourth Amendment the car could have been searched, the Court held that it was ""not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.""[8]
+
+The Di Re case does not, of course, completely control the case at hand. There the Government investigator was proceeding without a search warrant, and here the police possessed a warrant authorizing the search of the Aurora Tap Tavern. Moreover, in Di Re the Government conceded that its officers could not search all the persons in a house being searched pursuant to a search warrant.[9] The State makes no such concession in this case. Yet the governing principle in both cases is basically the same, and we follow that principle today. The ""long-prevailing"" constitutional standard of probable cause embodies ""`the best compromise that has been found for accommodating [the] often opposing interests' in `safeguard[ing] citizens from rash and unreasonable interferences with privacy and in `seek[ing] to give fair leeway for enforcing the law in the community's protection.'""[10]
+
+For these reasons, we conclude that the searches of Ybarra and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments.[11] Accordingly, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further proceedings not inconsistent with this opinion.
+
+It is so ordered.",analysis,Probable Cause to Search the Aurora Tap Tavern,agree,"Probable Cause to Search the Aurora Tap Tavern
+",agree,The Lack of Probable Cause to Search the Petitioner,2
+G8,0,1,1,I,"In 1986, Congress granted its consent under the Com­ pact Clause, U. S. Const., Art. I, §10, cl. 3, to seven inter­ state compacts providing for the creation of regional facili­ ties to dispose of low-level radioactive waste. Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, 99 Stat. 1859. One of those compacts was the South­ east Interstate Low-Level Radioactive Waste Management Compact (Compact), entered into by Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia. Id., at 1871–1880. That Com­ pact established an “instrument and framework for a cooperative effort” to develop new facilities for the long­ term disposal of low-level radioactive waste generated within the region. Art. 1, id., at 1872. The Compact was to be administered by a Southeast Interstate Low-Level Radioactive Waste Management Commission (Commis­ sion), composed of two voting members from each party State. Art. 4(A), id., at 1874.
+
+A pre-existing facility in Barnwell, South Carolina was to serve as the initial facility for regional generators to dispose of their low-level radioactive waste. Art. 2(10), id., at 1873. That facility was scheduled to close as the re­ gional-disposal facility for the Compact by the end of 1992, ibid., and so the Compact required the Commission to develop “procedures and criteria for identifying . . . a host [S]tate for the development of a second regional disposal facility,” and to “seek to ensure that such facility is li­ censed and ready to operate as soon as required but in no event later than 1991,” Art. 4(E)(6), id., at 1875. The Compact authorized the Commission to “designate” a party State as a host State for the facility. Art. 4(E)(7), ibid.
+
+In September 1986, the Commission designated North Carolina as the host for the second facility. North Caro­ lina therefore became obligated to “take appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority.” Art. 5(C), id., at 1877. In 1987, North Carolina’s General Assembly created the North Carolina Low-Level Radioac­ tive Waste Management Authority (Authority) to fulfill the State’s obligation. N. C. Gen. Stat. §104G (1987), 1987 N. C. Sess. Laws ch. 850.
+
+Although “[t]he Commission is not responsible for any costs associated with,” among other things, “the creation of any facility,” Art. 4(K)(1), 99 Stat. 1876, North Carolina asked the Commission for financial assistance with build­ ing and licensing costs. The Commission responded by adopting a resolution, which declared it was both “appro­ priate and necessary” for the Commission “to provide financial assistance” to North Carolina. App. 63. To that end, the Commission created a “Host States Assistance Fund” to help North Carolina with the “financial costs and burdens” of “preliminary planning, the administrative preparation, and other pre-operational” activities. Id., at 64.
+
+The estimate in 1989 was that it would cost approxi­ mately $21 million and take two years to obtain a license for North Carolina’s regional-disposal facility. That proved to be wildly optimistic. By 1990, the cost estimate had ballooned to $45.8 million, and the estimated date for obtaining a license now extended far into 1993. At the beginning of 1994 there still was no license, and the esti­ mated cost had grown to $87.1 million. By end of 1994 the estimate was $112.5 million, and issuance of a license was not anticipated until 1997. And by December 1996 the estimated cost had increased by another $27 million and the projected date to receive a license had become August 2000.
+
+North Carolina’s own appropriations—approximately $27 million from Fiscal Year 1988 through Fiscal Year (FY) 1995—did not cover the costs of the licensing phase. But during the same time period, the Commission pro­ vided North Carolina with approximately $67 million. The funds came from surcharges and access fees collected for that purpose from generators disposing of low-level radioactive waste at the pre-existing Barnwell facility. Id., at 71–74, 145.
+
+In July 1995, however, South Carolina withdrew from the Compact, thereby depriving the Commission of contin­ ued revenues from the Barnwell facility. In 1996, the Commission accordingly informed North Carolina that it would no longer be able to provide financial support for licensing activities. The Governor of North Carolina responded that the State was not prepared to assume a greater portion of the project’s costs, and would not be able to proceed without continued Commission funding. Shortly thereafter the Commission adopted a resolution declaring that it was willing and able to provide additional funds, but calling on North Carolina to work with it to develop long-term funding sources for the facility. From FY 1996 through FY 1998, the Commission provided North Carolina approximately an additional $12.27 mil­ lion in financial assistance. North Carolina, for its part, continued to provide its own funds toward licensing activi­ ties—another $6 million during the same time period.
+
+In August 1997, the Commission notified North Caro­ lina that absent a plan for funding the remaining steps of the licensing phase, it would not disburse additional funds to North Carolina after November 30, 1997. North Caro­ lina responded that it would not be able to continue with­ out additional guarantees of external funding. On Decem­ ber 1, 1997, the parties having failed to agree upon a long­ term financing plan, the Commission ceased financial assistance to North Carolina. By then it had provided almost $80 million.
+
+On December 19, 1997, North Carolina informed the Commission it would commence an orderly shutdown of its licensing project, and since that date has taken no further steps toward obtaining a license for the facility. But it did continue to fund the Authority for several more years, in the hope that the project would resume upon the restora­ tion of external financial assistance. North Carolina maintained the proposed facility site, preserved the work it had completed to date, and retained the Authority’s books and records. It also participated in discussions with the Commission, generators of low-level radioactive waste, and other stakeholders regarding options to resolve the financing shortfall. From FY 1988 through FY 2000, North Carolina had expended almost $34 million toward obtaining a license.
+
+In June 1999, after attempts to resolve the funding impasse had failed, Florida and Tennessee filed with the Commission a complaint for sanctions against North Carolina. It alleged that North Carolina had failed to fulfill its obligations under the Compact, and requested (among other things) return of the almost $80 million paid to North Carolina by the Commission, plus interest, as well as damages and attorney’s fees. The next month, North Carolina withdrew from the Compact by enacting a law repealing its status as a party State, see 1999 N. C. Sess. Laws ch. 357, as required by Article 7(G) of the Compact.
+
+More than four months later, in December 1999, the Commission held a sanctions hearing. North Carolina did not participate. After the hearing, the Commission con­ cluded that North Carolina had failed to fulfill its obliga­ tions under the Compact. It adopted a resolution demand­ ing that North Carolina repay approximately $80 million, plus interest, to the Commission; pay an additional $10 million penalty to compensate the Commission for the loss of future revenue (surcharges and access fees) it would have received had a facility been completed in North Carolina; and pay the Commission’s attorney’s fees. North Carolina did not comply.
+
+In July 2000, seeking to enforce its sanctions resolution, the Commission moved for leave to file a bill of complaint under our original jurisdiction. Southeast Interstate LowLevel Radioactive Waste Management Commission v. North Carolina, No. 131, Orig. North Carolina opposed the motion on the grounds that the Commission could not invoke this Court’s original jurisdiction, and we invited the Solicitor General to express the views of the United States. 531 U. S. 942 (2000). The Solicitor General filed a brief urging denial of the Commission’s motion on the grounds that the Commission’s bill of complaint did not fall within our exclusive original jurisdiction over “contro­ versies between two or more States.” §1251(a). We denied the Commission’s motion. 533 U. S. 926 (2001).
+
+In June 2002, the States of Alabama, Florida, Tennes­ see, and Virginia, joined by the Commission (collectively Plaintiffs), moved for leave to file a bill of complaint against North Carolina. North Carolina opposed the motion, and we again sought the views of the Solicitor General. 537 U. S. 806 (2002). The United States urged that we grant Plaintiffs’ motion, which we did. 539 U. S. 925 (2003). The bill of complaint contains five counts: violation of the party States’ rights under the Compact (Count I); breach of contract (Count II); unjust enrichment (Count III), promissory estoppel (Count IV); and money had and received (Count V). Plaintiffs’ prayer for relief requests a declaration that North Carolina is subject to sanctions and that the Commission’s sanctions resolution is valid and enforceable, as well as the award of damages, costs, and other relief.
+
+We assigned the case to a Special Master, 540 U. S. 1014 (2003), who has conducted proceedings and now has filed two reports. The Master’s Preliminary Report ad­ dressed three motions filed by the parties. He recom­ mended denying without prejudice North Carolina’s mo­ tion to dismiss the Commission’s claims against North Carolina on the grounds of sovereign immunity. Prelimi­ nary Report 4–14. He recommended denying Plaintiffs’ motion for summary judgment on Count I, which sought enforcement of the Commission’s sanctions resolution. Id., at 14–33. He recommended granting North Carolina’s cross-motion to dismiss Count I and other portions of the bill of complaint that sought enforcement of the sanctions resolution. Id., at 33–34. And he recommended denying North Carolina’s motion to dismiss the claims in Counts II–V. Id., at 34–43.
+
+After the Special Master issued his Preliminary Report, the parties engaged in partial discovery and subsequently filed cross-motions for summary judgment. The Special Master’s Second Report recommended denying Plaintiffs’ motion for summary judgment on Count II, Second Report 8–35, and granting North Carolina’s motion for summary judgment on Count II, id., at 35–40. Finally, he recom­ mended denying North Carolina’s motion for summary judgment on Plaintiffs’ remaining claims in Counts III–V. Id., at 41–45.",facts,The Com­pact,strongly agree,The Compact and the Provision of a Second Facility,disagree,The Southeast Interstate Compact,1
+G8,0,1,1,II,"Plaintiffs present a total of seven exceptions to the
+Special Master’s two reports. We address them in turn.
+
+
+
+Their first exception challenges the Special Master’s conclusion that the Commission lacked authority to im­ pose monetary sanctions upon North Carolina. The terms of the Compact determine that question.
+
+Article 4(E) of the Compact sets forth the Commission’s “duties and powers.” Among its powers are the authority “[t]o revoke the membership of a party [S]tate that will­ fully creates barriers to the siting of a needed regional facility,” Art. 4(E)(7), 99 Stat. 1875, and the authority “[t]o revoke the membership of a party [S]tate in accordance with Article 7(f),” Art. 4(E)(11), ibid. Conspicuously ab­ sent from Article 4, however, is any mention of the author­ ity to impose monetary sanctions. Plaintiffs contend that authority may be found elsewhere—in the first paragraph of Article 7(F), which provides in relevant part:
+
+“Any party [S]tate which fails to comply with the provisions of this compact or to fulfill the obligations incurred by becoming a party [S]tate to this compact may be subject to sanctions by the Commission, in­ cluding suspension of its rights under this compact and revocation of its status as a party [S]tate.” Id., at 1879. The sanctions expressly identified in Article 7(F)— “suspension” of rights and “revocation” of party-state status—flow directly from the Commission’s power in Articles 4(E)(7) and (11) to revoke a party State’s member­ ship. That can fairly be understood to include the lesser power to suspend a party State’s rights. There is no simi­ lar grounding in Article 4(E) of authority to impose mone­ tary sanctions, and the absence is significant.
+
+According to Plaintiffs, however, the word “sanctions” in Article 7(F) naturally “includ[es]” monetary sanctions. Since the Compact contains no definition of “sanctions,” we give the word its ordinary meaning. A “sanction” (in the sense the word is used here) is “[t]he detriment loss of reward, or other coercive intervention, annexed to a viola­ tion of a law as a means of enforcing the law.” Webster’s New International Dictionary 2211 (2d ed. 1957) (herein­ after Webster’s Second); see Black’s Law Dictionary 1458 (9th ed. 2009) (“A penalty or coercive measure that results from failure to comply with a law, rule, or order”). A monetary penalty is assuredly one kind of “sanction.” See generally Department of Energy v. Ohio, 503 U. S. 607, 621 (1992). But there are many others, ranging from the withholding of benefits, or the imposition of a nonmone­ tary obligation, to capital punishment. The Compact surely does not authorize the Commission to impose all of them.
+
+Ultimately, context dictates precisely which “sanctions” are authorized under Article 7(F), and nothing in the Compact suggests that these include monetary measures. The only two “sanctions” specifically identified as being included within Article 7(F) are “suspension” of a State’s rights under the Compact and “revocation” of its status as a party State. These are arguably merely examples, and may not exhaust the universe of sanctions the Commission can impose. But they do establish “illustrative applica­ tion[s] of the general principle,” Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U. S. 95, 100 (1941), which underlies the kinds of sanctions the Commission can impose. It is significant that both these specifically authorized sanctions are prospective and nonmonetary in nature.
+
+Moreover, Article 3 of the Compact provides: “The rights granted to the party [S]tates by this compact are addi­ tional to the rights enjoyed by sovereign states, and noth­ ing in this compact shall be construed to infringe upon, limit, or abridge those rights.” 99 Stat. 1873. Construing Article 7(F) to authorize monetary sanctions would violate this provision, since the primeval sovereign right is im­ munity from levies against the government fisc. See, e.g., Alden v. Maine, 527 U. S. 706, 750–751 (1999).
+
+Finally, a comparison of the Compact’s terms with those of “[o]ther interstate compacts, approved by Congress contemporaneously,” Texas v. New Mexico, 462 U. S. 554, 565 (1983), confirms that Article 7(F) does not authorize monetary sanctions. At the same time Congress consented to this Compact, it consented to three other interstate compacts that expressly authorize their commissions to impose monetary sanctions against the parties to the compacts. See Northeast Interstate Low-Level Radioac­ tive Waste Management Compact, Art. IV(i)(14), 99 Stat. 1915 (hereinafter Northeast Compact); Central Midwest Interstate Low-Level Radioactive Waste Compact, Art. VIII(f), 99 Stat. 1891 (hereinafter Central Midwest Com­ pact); Central Interstate Low-Level Radioactive Waste Compact, Art. VII(e), 99 Stat. 1870 (hereinafter Central Compact). The Compact “clearly lacks the features of these other compacts, and we are not free to rewrite it” to empower the Commission to impose monetary sanctions. Texas v. New Mexico, 462 U. S., at 565.
+
+Because the Compact does not authorize the Commis­ sion to impose monetary sanctions, Plaintiffs’ second exception—that North Carolina could not avoid monetary sanctions by withdrawing from the Compact—is moot. The third exception also pertains to the Commission’s sanctions resolution: that North Carolina forfeited its right to object to a monetary penalty by failing to partici­ pate at the sanctions hearing. Plaintiffs have failed to argue this exception. They have merely noted that North Carolina refused to participate at the sanctions hearing, and have cited no law in support of the proposition that this was a forfeit. We deem the exception abandoned. It was wisely abandoned, because it is meritless. North Carolina opposed the sanctions resolution and denied that the Commission had jurisdiction to impose sanctions against it.
+
+Plaintiffs next take exception to the Special Master’s recommendation that no binding effect or even deference be accorded to the Commission’s conclusion that North Carolina violated Article 5(C) of the Compact. We are bound by the Commission’s conclusion of breach only if there is “an explicit provision or other clear indicatio[n]” in the Compact making the Commission the “sole arbiter of disputes” regarding a party State’s compliance with the Compact. Id., at 569–570. Plaintiffs assert there is such a provision, the second sentence of Article 7(C), which states: “The Commission is the judge of the qualifications of the party [S]tates and of its members and of their com­ pliance with the conditions and requirements of this com­ pact and the laws of the party [S]tates relating to the enactment of this compact.” 99 Stat. 1879.
+
+Plaintiffs greatly overread this provision. The limited nature of the authority to “judge” that it confers upon the Commission is clear from its context. The first sentence of Article 7(C) states that an eligible State “shall be de­ clared” a party State “upon enactment of this compact into law by the [S]tate and upon [the] payment of” a $25,000 fee, as “required by Article 4(H)(1).” Ibid. The second sentence makes the Commission the “judge” of four mat­ ters, all of which concern status as a party State or Com mission member. First, the Commission is the judge of the “qualifications” of a State to become a party State (the qualifications set forth in Article 7(A) for the initial party States and in Article 7(B) for States that subsequently petition to join). Second, the Commission is the judge of the qualifications of the members of the Commission, which are specified in Article 4(A). Third, the Commission is the judge of a party State’s compliance with the “condi­ tions” and “requirements” of the Compact. The former term is an obvious reference to Article 7(B): “The Commis­ sion may establish such conditions as it deems necessary and appropriate to be met by a [S]tate wishing . . . to become a party [S]tate to this [C]ompact.” Id., at 1878. The accompanying term “requirements” also refers to Article 7’s prescriptions for prospective party States, such as paying the “fees required” under Article 7(C), id., at 1879, and obtaining, as Article 7(B) requires, a two-thirds vote of the Commission in favor of admission. Finally, the Commission is the judge of the “laws of the party [S]tates relating to the enactment of this compact.” Art. 7(C), ibid. Again, that concerns status as a party State, which re­ quires that the State “enac[t] . . . this compact into law,” ibid. The Commission is the “judge” of only these specific matters.
+
+This is not to say the Commission lacks authority to interpret the Compact or to say whether a party State has violated its terms. That is of course implicit in its power to sanction under Article 7(F). But because “the express terms of the [Southeast] Compact do not constitute the Commission as the sole arbiter” regarding North Caro­ lina’s compliance with its obligations under the Compact, Texas v. New Mexico, 462 U. S., at 569, we are not bound to follow the Commission’s findings.
+
+Plaintiffs argue that we nonetheless owe deference to the Commission’s conclusion. But unless the text of an interstate compact directs otherwise, we do not review the actions of a compact commission “on the deferential model of judicial review of administrative action by a federal agency.” Id., at 566–567. The terms of this Compact do not establish that “this suit may be maintained only as one for judicial review of the Commission’s” determination of breach. Id., at 567. Accordingly, we do not apply ad­ ministrative-law standards of review, but exercise our independent judgment as to both fact and law in executing our role as the “exclusive” arbiter of controversies between the States, §1251(a).
+
+Plaintiffs’ next two exceptions are to the Special Mas­ ter’s recommendations to deny their motion for summary judgment on their breach-of-contract claims, and to grant North Carolina’s motion for summary judgment on those claims. In resolving motions for summary judgment in cases within our original jurisdiction, we are not techni­ cally bound by the Federal Rules of Civil Procedure, but we use Rule 56 as a guide. This Court’s Rule 17.2; Ne braska v. Wyoming, 507 U. S. 584, 590 (1993). Hence, summary judgment is appropriate where there “is no genuine issue as to any material fact” and the moving party is “entitled to a judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986).
+
+Plaintiffs claim North Carolina breached the Compact in December 1997, when (as it admits) it ceased all efforts toward obtaining a license. At that point, in their view, North Carolina was no longer “tak[ing] appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority,” Art. 5(C), 99 Stat. 1877. North Carolina says that once the Commission ceased providing financial assistance on December 1, and once it became clear there was insuffi­ cient funding to complete the licensing phase, there were no more “appropriate” steps to take. The Special Master concluded that the phrase “appropriate steps” in Article 5(C) was ambiguous, and that the parties’ course of per­ formance established that North Carolina was not re­ quired to take steps toward obtaining a license once it was made to bear the remaining financial burden of the licens­ ing phase. Second Report 10–24, 35–36. Plaintiffs take exception to that conclusion.
+
+Article 5(C) does not require North Carolina to take any and all steps to license a regional-disposal facility; only those that are “appropriate.” Plaintiffs contend that this requires North Carolina to take the steps set forth in the regulations of the Nuclear Regulatory Commission govern­ ing the filing and disposition of applications for licenses to operate radioactive waste disposal facilities, 10 CFR pt. 61 (1997). Those regulations set forth some, but certainly not all, of the “steps” the State would have to take to obtain a license. But Article 5(C) does not incorporate the regula­ tions by reference, much less describe them as the appro priate steps.
+
+We could accept Plaintiffs’ contention if “appropriate” meant “necessary” (the steps set forth in the regulation are assuredly necessary to obtaining a license). But it does not. Whether a particular step is “appropriate”— “[s]pecially suitable; fit; proper,” Webster’s Second 133— could depend upon many factors other than its mere in­ dispensability to obtaining a license. It would not be appropriate, for example, to take a step whose cost greatly exceeded whatever benefits the license would confer, or if it was highly uncertain the license would ever issue.
+
+In determining whether, in terminating its efforts to obtain a license, North Carolina failed to take what the parties considered “appropriate” steps, the parties’ course of performance under the Compact is highly significant. See, e.g., New Jersey v. New York, 523 U. S. 767, 830–831 (1998) (SCALIA, J., dissenting); Restatement (Second) of Contracts §§202(4), 203 (1979) (hereinafter Restatement). That firmly establishes that North Carolina was not ex­ pected to go it alone—to proceed with the very expensive licensing process without any external financial assis­ tance. The history of the Compact consists entirely of shared financial burdens. From the beginning, North Carolina made clear that it required financial assistance to do the extensive work required for obtaining a license. The Commission promptly declared it was “appropriate and necessary” to assist North Carolina with the costs. App. 63. It provided the vast majority of funding for li­ censing-related activities—$80 million, compared to North Carolina’s $34 million. The Commission repeatedly noted the necessity (and propriety) of providing financial assis­ tance to North Carolina, and reiterated its dedication to sharing the substantial financial burdens of the licensing phase. See, e.g., id., at 63, 71, 145. There is nothing to support the proposition that the other States had an obli­ gation under the Compact to share the licensing costs through the Commission; but we doubt that they did so out of love for the Tarheel State. They did it, we think, because that was their understanding of how the Compact was supposed to work. One must take the Commission at its word, that it was “appropriate” to share the cost— which suggests that it would not have been appropriate to make North Carolina proceed on its own.
+
+Nor was North Carolina required after December 19, 1997, to continue to expend its own funds at the same level it had previously (which Plaintiffs concede had satis­ fied North Carolina’s obligation to take “appropriate steps”). Once the Commission refused to provide any further financial assistance, North Carolina would have had to assume an unlimited financial commitment to cover all remaining licensing costs. Even if it maintained its prior rate of appropriations going forward, it would not have come close to covering the at least $34 million needed for the last steps of the licensing phase. And since the income from the South Carolina facility had been termi­ nated, there was no apparent prospect of funding for the construction phase (expected to cost at least $75 million). In connection with its August 1997 refusal to provide further assistance, the Commission itself had said, “[I]t will be imprudent to continue to deplete Commission resources for this purpose if a source of funds is not estab­ lished soon for the ultimate completion of the project.” Id., at 306, 307; Joint Supp. Fact Brief App. 36, 37. And in March 1998, the Commission “strongly” reiterated that “it would be imprudent to spend additional funds for licens­ ing activities if funds will not be available to complete the project.” Id., at 59. What was imprudent for the Commis­ sion would surely have been imprudent (and hence inap­ propriate) for North Carolina as well. The State would have wasted millions of its taxpayers’ dollars on what seemed to be a futile effort.
+
+JUSTICE BREYER would uphold Plaintiffs’ challenge on this point. He believes that the Compact obligated North Carolina to fund and complete the licensing and construc­ tion of a nuclear waste facility. Post, at 2, 4–6 (opinion concurring in part and dissenting in part). In fact, how­ ever, North Carolina was not even contractually required to “secur[e] a license,” post, at 2, but only to take “appro­ priate steps” to obtain one, Art. 5(C), 99 Stat. 1877. And nothing in the terms of the Compact required North Caro­ lina either to provide “adequate funding” for or to “beg[i]n construction” on a regional facility, post, at 2. Other con­ temporaneously enacted interstate compacts expressly provide that the host State is “responsible for the timely development” of a regional facility, Central Midwest Com­ pact, Art. VI(f), 99 Stat. 1887; Midwest Compact, Art. VI(e), id., at 1898, or “shall . . . [c]ause a regional facility to be developed on a timely basis,” Rocky Mountain Low-Level Radioactive Waste Compact, Art. III(d)(i), id., at 1903–1904. But the compact here before us has no such provision, and the contrast is telling.1 Texas v. New Mex ico, 462 U. S., at 565. Moreover, the Commission’s state­ ments described in the preceding paragraph, that it would be imprudent to commit additional resources “ ‘if a source of funds is not established soon for the ultimate comple­ tion of the project,’ ” or “ ‘if funds will not be available to complete the project,’ ” surely suggest that North Carolina is not committed to the funding by contract.
+
+JUSTICE BREYER asserts, post, at 4–5, that the rotating­ host requirement in the Compact, see Art. 5(A), 99 Stat. 1873, necessarily implies that North Carolina is solely responsible for the licensing and construction costs of its facility. But all that requirement entails is that a party State “shall not be designated” as a host State for a second time before “each [other] party [S]tate” has taken a turn. Ibid. It can perfectly well envision that the States will take turns in bearing the lead responsibility for getting the facility licensed, supervising its construction, and operating the facility on its soil. In fact, that is just what its text suggests, since it describes the responsibility that is to be rotated as the host State’s “obligation . . . to have a regional facility operated within its borders.” Ibid. Not to construct it, or pay for its construction, but to “have [it] operated within its borders.” As noted above, other con­ temporaneously enacted compacts do spell out the obliga­ tion of the host State to construct the facility. Still others at least provide that the host State will recoup its costs through disposal fees—which arguably suggests that the host State is to bear the costs. See, e.g., Central Compact, Art. III(d), 99 Stat. 1865; Northeast Compact, Art. III(c)(2), id., at 1913. The compact before us here does not even contain that arguable suggestion.
+
+What it comes down to, then, is JUSTICE BREYER’s intui­ tion that the whole point of the Compact was that each designated host State would bear the up-front costs of licensing and construction, but would eventually recoup those costs through its regional monopoly on the disposal of low-level radioactive waste. Post, at 5–6. He can cite no provision in the Compact which reflects such an under­ standing, and the behavior of the parties contradicts it.2 It would, moreover, have been a foolish understanding, since the regional monopoly to recoup construction costs would not be a monopoly if South Carolina withdrew and contin­ ued to operate its facility—which is exactly what hap­ pened in 1995.3 Even leaving aside the principle, dis­ cussed infra, at 21, that implied obligations are not to be read into interstate compacts, JUSTICE BREYER’s intuition fails to reflect the reality of what was implied.
+
+
+Plaintiffs take exception to the Special Master’s rejec­ tion of their alternative argument that North Carolina repudiated the Compact when it announced it would not take further steps toward obtaining a license. They argue that North Carolina’s announcement that it was shutting down the project constituted a refusal to tender any fur­ ther performance under the contract.
+
+Plaintiffs’ repudiation theory fails for the same reasons their breach theory fails. A repudiation occurs when an obligor either informs an obligee “that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach,” Restatement §250(a), or performs “a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach,” id., §250(b). Neither event occurred here. North Carolina never informed the Commission (or any party State) that it would not fulfill its Article 5(C) obliga­ tion to take appropriate steps toward obtaining a license. Rather, it refused to take further steps that were not appropriate. Nor did North Carolina take an affirmative act that rendered it unable to perform. To the contrary, it continued to fund the Authority for almost two years; it maintained the records of the Authority; and it preserved the work completed to date while waiting for alternative funding sources that would enable resumption of the project. Plaintiffs further argue that a repudiation was effected by North Carolina’s refusal to take further steps toward licensing “except on conditions which go beyond” the terms of the Compact, Restatement §250, Comment b (internal quotation marks omitted)—i.e., the provision of external-financial assistance. But, as we have discussed, external-financial assistance was contemplated by the Compact.",analysis,The Special Master’s Reports,strongly agree,Plaintiffs’ Exceptions,strongly agree,Plaintiffs’ Exceptions to the Special Master,2
+G8,0,1,2,A,"Their first exception challenges the Special Master’s conclusion that the Commission lacked authority to im­ pose monetary sanctions upon North Carolina. The terms of the Compact determine that question.
+
+Article 4(E) of the Compact sets forth the Commission’s “duties and powers.” Among its powers are the authority “[t]o revoke the membership of a party [S]tate that will­ fully creates barriers to the siting of a needed regional facility,” Art. 4(E)(7), 99 Stat. 1875, and the authority “[t]o revoke the membership of a party [S]tate in accordance with Article 7(f),” Art. 4(E)(11), ibid. Conspicuously ab­ sent from Article 4, however, is any mention of the author­ ity to impose monetary sanctions. Plaintiffs contend that authority may be found elsewhere—in the first paragraph of Article 7(F), which provides in relevant part:
+
+“Any party [S]tate which fails to comply with the provisions of this compact or to fulfill the obligations incurred by becoming a party [S]tate to this compact may be subject to sanctions by the Commission, in­ cluding suspension of its rights under this compact and revocation of its status as a party [S]tate.” Id., at 1879. The sanctions expressly identified in Article 7(F)— “suspension” of rights and “revocation” of party-state status—flow directly from the Commission’s power in Articles 4(E)(7) and (11) to revoke a party State’s member­ ship. That can fairly be understood to include the lesser power to suspend a party State’s rights. There is no simi­ lar grounding in Article 4(E) of authority to impose mone­ tary sanctions, and the absence is significant.
+
+According to Plaintiffs, however, the word “sanctions” in Article 7(F) naturally “includ[es]” monetary sanctions. Since the Compact contains no definition of “sanctions,” we give the word its ordinary meaning. A “sanction” (in the sense the word is used here) is “[t]he detriment loss of reward, or other coercive intervention, annexed to a viola­ tion of a law as a means of enforcing the law.” Webster’s New International Dictionary 2211 (2d ed. 1957) (herein­ after Webster’s Second); see Black’s Law Dictionary 1458 (9th ed. 2009) (“A penalty or coercive measure that results from failure to comply with a law, rule, or order”). A monetary penalty is assuredly one kind of “sanction.” See generally Department of Energy v. Ohio, 503 U. S. 607, 621 (1992). But there are many others, ranging from the withholding of benefits, or the imposition of a nonmone­ tary obligation, to capital punishment. The Compact surely does not authorize the Commission to impose all of them.
+
+Ultimately, context dictates precisely which “sanctions” are authorized under Article 7(F), and nothing in the Compact suggests that these include monetary measures. The only two “sanctions” specifically identified as being included within Article 7(F) are “suspension” of a State’s rights under the Compact and “revocation” of its status as a party State. These are arguably merely examples, and may not exhaust the universe of sanctions the Commission can impose. But they do establish “illustrative applica­ tion[s] of the general principle,” Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U. S. 95, 100 (1941), which underlies the kinds of sanctions the Commission can impose. It is significant that both these specifically authorized sanctions are prospective and nonmonetary in nature.
+
+Moreover, Article 3 of the Compact provides: “The rights granted to the party [S]tates by this compact are addi­ tional to the rights enjoyed by sovereign states, and noth­ ing in this compact shall be construed to infringe upon, limit, or abridge those rights.” 99 Stat. 1873. Construing Article 7(F) to authorize monetary sanctions would violate this provision, since the primeval sovereign right is im­ munity from levies against the government fisc. See, e.g., Alden v. Maine, 527 U. S. 706, 750–751 (1999).
+
+Finally, a comparison of the Compact’s terms with those of “[o]ther interstate compacts, approved by Congress contemporaneously,” Texas v. New Mexico, 462 U. S. 554, 565 (1983), confirms that Article 7(F) does not authorize monetary sanctions. At the same time Congress consented to this Compact, it consented to three other interstate compacts that expressly authorize their commissions to impose monetary sanctions against the parties to the compacts. See Northeast Interstate Low-Level Radioac­ tive Waste Management Compact, Art. IV(i)(14), 99 Stat. 1915 (hereinafter Northeast Compact); Central Midwest Interstate Low-Level Radioactive Waste Compact, Art. VIII(f), 99 Stat. 1891 (hereinafter Central Midwest Com­ pact); Central Interstate Low-Level Radioactive Waste Compact, Art. VII(e), 99 Stat. 1870 (hereinafter Central Compact). The Compact “clearly lacks the features of these other compacts, and we are not free to rewrite it” to empower the Commission to impose monetary sanctions. Texas v. New Mexico, 462 U. S., at 565.",analysis,Authority to Impose Monetary Sanctions,strongly agree,Authority to Impose Sanctions,agree,Commission Authority to Impose Monetary Sanctions,1
+G8,0,1,2,B,"Because the Compact does not authorize the Commis­ sion to impose monetary sanctions, Plaintiffs’ second exception—that North Carolina could not avoid monetary sanctions by withdrawing from the Compact—is moot. The third exception also pertains to the Commission’s sanctions resolution: that North Carolina forfeited its right to object to a monetary penalty by failing to partici­ pate at the sanctions hearing. Plaintiffs have failed to argue this exception. They have merely noted that North Carolina refused to participate at the sanctions hearing, and have cited no law in support of the proposition that this was a forfeit. We deem the exception abandoned. It was wisely abandoned, because it is meritless. North Carolina opposed the sanctions resolution and denied that the Commission had jurisdiction to impose sanctions against it.",analysis,Necessity of Avoiding Monetary Sanctions,disagree,Exception to the Sanctions Resolution,strongly agree,Exception to the Sanctions Resolution,2
+G8,0,1,2,C,"Plaintiffs next take exception to the Special Master’s recommendation that no binding effect or even deference be accorded to the Commission’s conclusion that North Carolina violated Article 5(C) of the Compact. We are bound by the Commission’s conclusion of breach only if there is “an explicit provision or other clear indicatio[n]” in the Compact making the Commission the “sole arbiter of disputes” regarding a party State’s compliance with the Compact. Id., at 569–570. Plaintiffs assert there is such a provision, the second sentence of Article 7(C), which states: “The Commission is the judge of the qualifications of the party [S]tates and of its members and of their com­ pliance with the conditions and requirements of this com­ pact and the laws of the party [S]tates relating to the enactment of this compact.” 99 Stat. 1879.
+
+Plaintiffs greatly overread this provision. The limited nature of the authority to “judge” that it confers upon the Commission is clear from its context. The first sentence of Article 7(C) states that an eligible State “shall be de­ clared” a party State “upon enactment of this compact into law by the [S]tate and upon [the] payment of” a $25,000 fee, as “required by Article 4(H)(1).” Ibid. The second sentence makes the Commission the “judge” of four mat­ ters, all of which concern status as a party State or Com mission member. First, the Commission is the judge of the “qualifications” of a State to become a party State (the qualifications set forth in Article 7(A) for the initial party States and in Article 7(B) for States that subsequently petition to join). Second, the Commission is the judge of the qualifications of the members of the Commission, which are specified in Article 4(A). Third, the Commission is the judge of a party State’s compliance with the “condi­ tions” and “requirements” of the Compact. The former term is an obvious reference to Article 7(B): “The Commis­ sion may establish such conditions as it deems necessary and appropriate to be met by a [S]tate wishing . . . to become a party [S]tate to this [C]ompact.” Id., at 1878. The accompanying term “requirements” also refers to Article 7’s prescriptions for prospective party States, such as paying the “fees required” under Article 7(C), id., at 1879, and obtaining, as Article 7(B) requires, a two-thirds vote of the Commission in favor of admission. Finally, the Commission is the judge of the “laws of the party [S]tates relating to the enactment of this compact.” Art. 7(C), ibid. Again, that concerns status as a party State, which re­ quires that the State “enac[t] . . . this compact into law,” ibid. The Commission is the “judge” of only these specific matters.
+
+This is not to say the Commission lacks authority to interpret the Compact or to say whether a party State has violated its terms. That is of course implicit in its power to sanction under Article 7(F). But because “the express terms of the [Southeast] Compact do not constitute the Commission as the sole arbiter” regarding North Caro­ lina’s compliance with its obligations under the Compact, Texas v. New Mexico, 462 U. S., at 569, we are not bound to follow the Commission’s findings.
+
+Plaintiffs argue that we nonetheless owe deference to the Commission’s conclusion. But unless the text of an interstate compact directs otherwise, we do not review the actions of a compact commission “on the deferential model of judicial review of administrative action by a federal agency.” Id., at 566–567. The terms of this Compact do not establish that “this suit may be maintained only as one for judicial review of the Commission’s” determination of breach. Id., at 567. Accordingly, we do not apply ad­ ministrative-law standards of review, but exercise our independent judgment as to both fact and law in executing our role as the “exclusive” arbiter of controversies between the States, §1251(a).",analysis,Scope of the Commission’s Authority,strongly agree,The Commission’s Authority to “Judge”,strongly agree,Scope of the Commission’s Authority,3
+G8,0,1,2,D,"Plaintiffs’ next two exceptions are to the Special Mas­ ter’s recommendations to deny their motion for summary judgment on their breach-of-contract claims, and to grant North Carolina’s motion for summary judgment on those claims. In resolving motions for summary judgment in cases within our original jurisdiction, we are not techni­ cally bound by the Federal Rules of Civil Procedure, but we use Rule 56 as a guide. This Court’s Rule 17.2; Ne braska v. Wyoming, 507 U. S. 584, 590 (1993). Hence, summary judgment is appropriate where there “is no genuine issue as to any material fact” and the moving party is “entitled to a judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986).
+
+Plaintiffs claim North Carolina breached the Compact in December 1997, when (as it admits) it ceased all efforts toward obtaining a license. At that point, in their view, North Carolina was no longer “tak[ing] appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority,” Art. 5(C), 99 Stat. 1877. North Carolina says that once the Commission ceased providing financial assistance on December 1, and once it became clear there was insuffi­ cient funding to complete the licensing phase, there were no more “appropriate” steps to take. The Special Master concluded that the phrase “appropriate steps” in Article 5(C) was ambiguous, and that the parties’ course of per­ formance established that North Carolina was not re­ quired to take steps toward obtaining a license once it was made to bear the remaining financial burden of the licens­ ing phase. Second Report 10–24, 35–36. Plaintiffs take exception to that conclusion.
+
+Article 5(C) does not require North Carolina to take any and all steps to license a regional-disposal facility; only those that are “appropriate.” Plaintiffs contend that this requires North Carolina to take the steps set forth in the regulations of the Nuclear Regulatory Commission govern­ ing the filing and disposition of applications for licenses to operate radioactive waste disposal facilities, 10 CFR pt. 61 (1997). Those regulations set forth some, but certainly not all, of the “steps” the State would have to take to obtain a license. But Article 5(C) does not incorporate the regula­ tions by reference, much less describe them as the appro priate steps.
+
+We could accept Plaintiffs’ contention if “appropriate” meant “necessary” (the steps set forth in the regulation are assuredly necessary to obtaining a license). But it does not. Whether a particular step is “appropriate”— “[s]pecially suitable; fit; proper,” Webster’s Second 133— could depend upon many factors other than its mere in­ dispensability to obtaining a license. It would not be appropriate, for example, to take a step whose cost greatly exceeded whatever benefits the license would confer, or if it was highly uncertain the license would ever issue.
+
+In determining whether, in terminating its efforts to obtain a license, North Carolina failed to take what the parties considered “appropriate” steps, the parties’ course of performance under the Compact is highly significant. See, e.g., New Jersey v. New York, 523 U. S. 767, 830–831 (1998) (SCALIA, J., dissenting); Restatement (Second) of Contracts §§202(4), 203 (1979) (hereinafter Restatement). That firmly establishes that North Carolina was not ex­ pected to go it alone—to proceed with the very expensive licensing process without any external financial assis­ tance. The history of the Compact consists entirely of shared financial burdens. From the beginning, North Carolina made clear that it required financial assistance to do the extensive work required for obtaining a license. The Commission promptly declared it was “appropriate and necessary” to assist North Carolina with the costs. App. 63. It provided the vast majority of funding for li­ censing-related activities—$80 million, compared to North Carolina’s $34 million. The Commission repeatedly noted the necessity (and propriety) of providing financial assis­ tance to North Carolina, and reiterated its dedication to sharing the substantial financial burdens of the licensing phase. See, e.g., id., at 63, 71, 145. There is nothing to support the proposition that the other States had an obli­ gation under the Compact to share the licensing costs through the Commission; but we doubt that they did so out of love for the Tarheel State. They did it, we think, because that was their understanding of how the Compact was supposed to work. One must take the Commission at its word, that it was “appropriate” to share the cost— which suggests that it would not have been appropriate to make North Carolina proceed on its own.
+
+Nor was North Carolina required after December 19, 1997, to continue to expend its own funds at the same level it had previously (which Plaintiffs concede had satis­ fied North Carolina’s obligation to take “appropriate steps”). Once the Commission refused to provide any further financial assistance, North Carolina would have had to assume an unlimited financial commitment to cover all remaining licensing costs. Even if it maintained its prior rate of appropriations going forward, it would not have come close to covering the at least $34 million needed for the last steps of the licensing phase. And since the income from the South Carolina facility had been termi­ nated, there was no apparent prospect of funding for the construction phase (expected to cost at least $75 million). In connection with its August 1997 refusal to provide further assistance, the Commission itself had said, “[I]t will be imprudent to continue to deplete Commission resources for this purpose if a source of funds is not estab­ lished soon for the ultimate completion of the project.” Id., at 306, 307; Joint Supp. Fact Brief App. 36, 37. And in March 1998, the Commission “strongly” reiterated that “it would be imprudent to spend additional funds for licens­ ing activities if funds will not be available to complete the project.” Id., at 59. What was imprudent for the Commis­ sion would surely have been imprudent (and hence inap­ propriate) for North Carolina as well. The State would have wasted millions of its taxpayers’ dollars on what seemed to be a futile effort.
+
+JUSTICE BREYER would uphold Plaintiffs’ challenge on this point. He believes that the Compact obligated North Carolina to fund and complete the licensing and construc­ tion of a nuclear waste facility. Post, at 2, 4–6 (opinion concurring in part and dissenting in part). In fact, how­ ever, North Carolina was not even contractually required to “secur[e] a license,” post, at 2, but only to take “appro­ priate steps” to obtain one, Art. 5(C), 99 Stat. 1877. And nothing in the terms of the Compact required North Caro­ lina either to provide “adequate funding” for or to “beg[i]n construction” on a regional facility, post, at 2. Other con­ temporaneously enacted interstate compacts expressly provide that the host State is “responsible for the timely development” of a regional facility, Central Midwest Com­ pact, Art. VI(f), 99 Stat. 1887; Midwest Compact, Art. VI(e), id., at 1898, or “shall . . . [c]ause a regional facility to be developed on a timely basis,” Rocky Mountain Low-Level Radioactive Waste Compact, Art. III(d)(i), id., at 1903–1904. But the compact here before us has no such provision, and the contrast is telling.1 Texas v. New Mex ico, 462 U. S., at 565. Moreover, the Commission’s state­ ments described in the preceding paragraph, that it would be imprudent to commit additional resources “ ‘if a source of funds is not established soon for the ultimate comple­ tion of the project,’ ” or “ ‘if funds will not be available to complete the project,’ ” surely suggest that North Carolina is not committed to the funding by contract.
+
+JUSTICE BREYER asserts, post, at 4–5, that the rotating­ host requirement in the Compact, see Art. 5(A), 99 Stat. 1873, necessarily implies that North Carolina is solely responsible for the licensing and construction costs of its facility. But all that requirement entails is that a party State “shall not be designated” as a host State for a second time before “each [other] party [S]tate” has taken a turn. Ibid. It can perfectly well envision that the States will take turns in bearing the lead responsibility for getting the facility licensed, supervising its construction, and operating the facility on its soil. In fact, that is just what its text suggests, since it describes the responsibility that is to be rotated as the host State’s “obligation . . . to have a regional facility operated within its borders.” Ibid. Not to construct it, or pay for its construction, but to “have [it] operated within its borders.” As noted above, other con­ temporaneously enacted compacts do spell out the obliga­ tion of the host State to construct the facility. Still others at least provide that the host State will recoup its costs through disposal fees—which arguably suggests that the host State is to bear the costs. See, e.g., Central Compact, Art. III(d), 99 Stat. 1865; Northeast Compact, Art. III(c)(2), id., at 1913. The compact before us here does not even contain that arguable suggestion.
+
+What it comes down to, then, is JUSTICE BREYER’s intui­ tion that the whole point of the Compact was that each designated host State would bear the up-front costs of licensing and construction, but would eventually recoup those costs through its regional monopoly on the disposal of low-level radioactive waste. Post, at 5–6. He can cite no provision in the Compact which reflects such an under­ standing, and the behavior of the parties contradicts it.2 It would, moreover, have been a foolish understanding, since the regional monopoly to recoup construction costs would not be a monopoly if South Carolina withdrew and contin­ ued to operate its facility—which is exactly what hap­ pened in 1995.3 Even leaving aside the principle, dis­ cussed infra, at 21, that implied obligations are not to be read into interstate compacts, JUSTICE BREYER’s intuition fails to reflect the reality of what was implied.
+
+
+Plaintiffs take exception to the Special Master’s rejec­ tion of their alternative argument that North Carolina repudiated the Compact when it announced it would not take further steps toward obtaining a license. They argue that North Carolina’s announcement that it was shutting down the project constituted a refusal to tender any fur­ ther performance under the contract.
+
+Plaintiffs’ repudiation theory fails for the same reasons their breach theory fails. A repudiation occurs when an obligor either informs an obligee “that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach,” Restatement §250(a), or performs “a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach,” id., §250(b). Neither event occurred here. North Carolina never informed the Commission (or any party State) that it would not fulfill its Article 5(C) obliga­ tion to take appropriate steps toward obtaining a license. Rather, it refused to take further steps that were not appropriate. Nor did North Carolina take an affirmative act that rendered it unable to perform. To the contrary, it continued to fund the Authority for almost two years; it maintained the records of the Authority; and it preserved the work completed to date while waiting for alternative funding sources that would enable resumption of the project. Plaintiffs further argue that a repudiation was effected by North Carolina’s refusal to take further steps toward licensing “except on conditions which go beyond” the terms of the Compact, Restatement §250, Comment b (internal quotation marks omitted)—i.e., the provision of external-financial assistance. But, as we have discussed, external-financial assistance was contemplated by the Compact.",analysis,The Special Mas­ ter’s Recommendations,agree,Breach-of-Contract Claims,strongly agree,Breach-of-Contract Claims,4
+G8,0,1,3,1,"Plaintiffs claim North Carolina breached the Compact in December 1997, when (as it admits) it ceased all efforts toward obtaining a license. At that point, in their view, North Carolina was no longer “tak[ing] appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority,” Art. 5(C), 99 Stat. 1877. North Carolina says that once the Commission ceased providing financial assistance on December 1, and once it became clear there was insuffi­ cient funding to complete the licensing phase, there were no more “appropriate” steps to take. The Special Master concluded that the phrase “appropriate steps” in Article 5(C) was ambiguous, and that the parties’ course of per­ formance established that North Carolina was not re­ quired to take steps toward obtaining a license once it was made to bear the remaining financial burden of the licens­ ing phase. Second Report 10–24, 35–36. Plaintiffs take exception to that conclusion.
+
+Article 5(C) does not require North Carolina to take any and all steps to license a regional-disposal facility; only those that are “appropriate.” Plaintiffs contend that this requires North Carolina to take the steps set forth in the regulations of the Nuclear Regulatory Commission govern­ ing the filing and disposition of applications for licenses to operate radioactive waste disposal facilities, 10 CFR pt. 61 (1997). Those regulations set forth some, but certainly not all, of the “steps” the State would have to take to obtain a license. But Article 5(C) does not incorporate the regula­ tions by reference, much less describe them as the appro priate steps.
+
+We could accept Plaintiffs’ contention if “appropriate” meant “necessary” (the steps set forth in the regulation are assuredly necessary to obtaining a license). But it does not. Whether a particular step is “appropriate”— “[s]pecially suitable; fit; proper,” Webster’s Second 133— could depend upon many factors other than its mere in­ dispensability to obtaining a license. It would not be appropriate, for example, to take a step whose cost greatly exceeded whatever benefits the license would confer, or if it was highly uncertain the license would ever issue.
+
+In determining whether, in terminating its efforts to obtain a license, North Carolina failed to take what the parties considered “appropriate” steps, the parties’ course of performance under the Compact is highly significant. See, e.g., New Jersey v. New York, 523 U. S. 767, 830–831 (1998) (SCALIA, J., dissenting); Restatement (Second) of Contracts §§202(4), 203 (1979) (hereinafter Restatement). That firmly establishes that North Carolina was not ex­ pected to go it alone—to proceed with the very expensive licensing process without any external financial assis­ tance. The history of the Compact consists entirely of shared financial burdens. From the beginning, North Carolina made clear that it required financial assistance to do the extensive work required for obtaining a license. The Commission promptly declared it was “appropriate and necessary” to assist North Carolina with the costs. App. 63. It provided the vast majority of funding for li­ censing-related activities—$80 million, compared to North Carolina’s $34 million. The Commission repeatedly noted the necessity (and propriety) of providing financial assis­ tance to North Carolina, and reiterated its dedication to sharing the substantial financial burdens of the licensing phase. See, e.g., id., at 63, 71, 145. There is nothing to support the proposition that the other States had an obli­ gation under the Compact to share the licensing costs through the Commission; but we doubt that they did so out of love for the Tarheel State. They did it, we think, because that was their understanding of how the Compact was supposed to work. One must take the Commission at its word, that it was “appropriate” to share the cost— which suggests that it would not have been appropriate to make North Carolina proceed on its own.
+
+Nor was North Carolina required after December 19, 1997, to continue to expend its own funds at the same level it had previously (which Plaintiffs concede had satis­ fied North Carolina’s obligation to take “appropriate steps”). Once the Commission refused to provide any further financial assistance, North Carolina would have had to assume an unlimited financial commitment to cover all remaining licensing costs. Even if it maintained its prior rate of appropriations going forward, it would not have come close to covering the at least $34 million needed for the last steps of the licensing phase. And since the income from the South Carolina facility had been termi­ nated, there was no apparent prospect of funding for the construction phase (expected to cost at least $75 million). In connection with its August 1997 refusal to provide further assistance, the Commission itself had said, “[I]t will be imprudent to continue to deplete Commission resources for this purpose if a source of funds is not estab­ lished soon for the ultimate completion of the project.” Id., at 306, 307; Joint Supp. Fact Brief App. 36, 37. And in March 1998, the Commission “strongly” reiterated that “it would be imprudent to spend additional funds for licens­ ing activities if funds will not be available to complete the project.” Id., at 59. What was imprudent for the Commis­ sion would surely have been imprudent (and hence inap­ propriate) for North Carolina as well. The State would have wasted millions of its taxpayers’ dollars on what seemed to be a futile effort.
+
+JUSTICE BREYER would uphold Plaintiffs’ challenge on this point. He believes that the Compact obligated North Carolina to fund and complete the licensing and construc­ tion of a nuclear waste facility. Post, at 2, 4–6 (opinion concurring in part and dissenting in part). In fact, how­ ever, North Carolina was not even contractually required to “secur[e] a license,” post, at 2, but only to take “appro­ priate steps” to obtain one, Art. 5(C), 99 Stat. 1877. And nothing in the terms of the Compact required North Caro­ lina either to provide “adequate funding” for or to “beg[i]n construction” on a regional facility, post, at 2. Other con­ temporaneously enacted interstate compacts expressly provide that the host State is “responsible for the timely development” of a regional facility, Central Midwest Com­ pact, Art. VI(f), 99 Stat. 1887; Midwest Compact, Art. VI(e), id., at 1898, or “shall . . . [c]ause a regional facility to be developed on a timely basis,” Rocky Mountain Low-Level Radioactive Waste Compact, Art. III(d)(i), id., at 1903–1904. But the compact here before us has no such provision, and the contrast is telling.1 Texas v. New Mex ico, 462 U. S., at 565. Moreover, the Commission’s state­ ments described in the preceding paragraph, that it would be imprudent to commit additional resources “ ‘if a source of funds is not established soon for the ultimate comple­ tion of the project,’ ” or “ ‘if funds will not be available to complete the project,’ ” surely suggest that North Carolina is not committed to the funding by contract.
+
+JUSTICE BREYER asserts, post, at 4–5, that the rotating­ host requirement in the Compact, see Art. 5(A), 99 Stat. 1873, necessarily implies that North Carolina is solely responsible for the licensing and construction costs of its facility. But all that requirement entails is that a party State “shall not be designated” as a host State for a second time before “each [other] party [S]tate” has taken a turn. Ibid. It can perfectly well envision that the States will take turns in bearing the lead responsibility for getting the facility licensed, supervising its construction, and operating the facility on its soil. In fact, that is just what its text suggests, since it describes the responsibility that is to be rotated as the host State’s “obligation . . . to have a regional facility operated within its borders.” Ibid. Not to construct it, or pay for its construction, but to “have [it] operated within its borders.” As noted above, other con­ temporaneously enacted compacts do spell out the obliga­ tion of the host State to construct the facility. Still others at least provide that the host State will recoup its costs through disposal fees—which arguably suggests that the host State is to bear the costs. See, e.g., Central Compact, Art. III(d), 99 Stat. 1865; Northeast Compact, Art. III(c)(2), id., at 1913. The compact before us here does not even contain that arguable suggestion.
+
+What it comes down to, then, is JUSTICE BREYER’s intui­ tion that the whole point of the Compact was that each designated host State would bear the up-front costs of licensing and construction, but would eventually recoup those costs through its regional monopoly on the disposal of low-level radioactive waste. Post, at 5–6. He can cite no provision in the Compact which reflects such an under­ standing, and the behavior of the parties contradicts it.2 It would, moreover, have been a foolish understanding, since the regional monopoly to recoup construction costs would not be a monopoly if South Carolina withdrew and contin­ ued to operate its facility—which is exactly what hap­ pened in 1995.3 Even leaving aside the principle, dis­ cussed infra, at 21, that implied obligations are not to be read into interstate compacts, JUSTICE BREYER’s intuition fails to reflect the reality of what was implied.
+",analysis,Termination of Efforts to Obtain a License,strongly agree,The “Appropriate Steps” Claim,strongly agree,North Carolina's Termination of Efforts to Obtain a License,1
+G8,0,1,3,2,"Plaintiffs take exception to the Special Master’s rejec­ tion of their alternative argument that North Carolina repudiated the Compact when it announced it would not take further steps toward obtaining a license. They argue that North Carolina’s announcement that it was shutting down the project constituted a refusal to tender any fur­ ther performance under the contract.
+
+Plaintiffs’ repudiation theory fails for the same reasons their breach theory fails. A repudiation occurs when an obligor either informs an obligee “that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach,” Restatement §250(a), or performs “a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach,” id., §250(b). Neither event occurred here. North Carolina never informed the Commission (or any party State) that it would not fulfill its Article 5(C) obliga­ tion to take appropriate steps toward obtaining a license. Rather, it refused to take further steps that were not appropriate. Nor did North Carolina take an affirmative act that rendered it unable to perform. To the contrary, it continued to fund the Authority for almost two years; it maintained the records of the Authority; and it preserved the work completed to date while waiting for alternative funding sources that would enable resumption of the project. Plaintiffs further argue that a repudiation was effected by North Carolina’s refusal to take further steps toward licensing “except on conditions which go beyond” the terms of the Compact, Restatement §250, Comment b (internal quotation marks omitted)—i.e., the provision of external-financial assistance. But, as we have discussed, external-financial assistance was contemplated by the Compact.",analysis,Rejec­tion of the Compact,strongly agree,North Carolina’s Refusal to Take Further Steps,strongly agree,North Carolina’s Refusal to Take Further Steps,2
+G8,0,1,2,E,"Plaintiffs’ final exception is to the Special Master’s recommendation to deny their motion for summary judg­ ment, and to grant North Carolina’s cross-motion for summary judgment, on their claim that North Carolina violated the implied duty of good faith and fair dealing when it withdrew from the Compact in July 1999. Plain­ tiffs concede that North Carolina could withdraw from the Compact, but contend it could not do so in “bad faith.” And, they assert, its withdrawal after accepting $80 mil­ lion from the Commission, and with monetary sanctions pending against it, was the epitome of bad faith.
+
+We have never held that an interstate compact approved by Congress includes an implied duty of good faith and fair dealing. Of course “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” Restatement §205. But an interstate compact is not just a contract; it is a federal statute enacted by Congress. If courts were authorized to add a fairness requirement to the implementation of federal statutes, judges would be potent lawmakers in­ deed. We do not—we cannot—add provisions to a federal statute. See, e.g., Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254 (1992). And in that regard a statute which is a valid interstate compact is no different. Texas v. New Mexico, 462 U. S., at 564, 565. We are especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise were we to rewrite an agreement among sovereign States, to which the political branches consented. As we have said before, we will not “ ‘order relief inconsistent with [the] express terms’ ” of a compact, “no matter what the equities of the circumstances might otherwise invite.” New Jersey v. New York, 523 U. S., at 811 (quoting Texas v. New Mexico, supra, at 564).
+
+The Compact imposes no limitation on North Carolina’s exercise of its statutory right to withdraw. Under Article 7(G), which governed North Carolina’s withdrawal,4 “any party [S]tate may withdraw from the compact by enacting a law repealing the compact.” 99 Stat. 1879. There is no restriction upon a party State’s enactment of such a law, and nothing in the Compact suggests the parties under­ stood there were ��certain purposes for which the expressly conferred power . . . could not be employed.” Tymshare, Inc. v. Covell, 727 F. 2d 1145, 1153 (CADC 1984) (opinion for the court by Scalia, J.). Moreover, Article 3 ensures that no such restrictions may be implied, since it provides that the Compact shall not be “construed to infringe upon, limit or abridge” the sovereign rights of a party State.
+
+A comparison of the Compact with other, contemporane­ ously enacted, compacts confirms there is no such limita­ tion on North Carolina’s right to withdraw. See Texas v. New Mexico, supra, at 565. In contrast to the Compact, several other compacts concerning the creation of regional facilities for the disposal of low-level radioactive waste contain express good-faith limitations upon a State’s exercise of its rights. See, e.g., Central Compact, Art. III(f), 99 Stat. 1865; Central Midwest Compact, Art. V(a), id., at 1886; Midwest Interstate Low-Level Radioactive Waste Management Compact, Art. V(a), id., at 1897.",analysis,Implied Duty of Good Faith and Fair Dealing,strongly agree,The Implied Duty of Good Faith and Fair Dealing,strongly agree,North Carolina's Lack of Good Faith in Withdrawal,0
+G8,0,1,1,III,"North Carolina submits two exceptions—one to the Special Master’s Second Report and one to his Preliminary Report.
+
+
+
+North Carolina takes exception to the recommendation of the Second Report to deny without prejudice its motion for summary judgment on the merits of Plaintiffs’ equita­ ble claims in Counts III–V. North Carolina’s motion was based on the ground that, as a matter of law, its obliga­ tions are governed entirely by the Compact. The Special Master recommended denying the motion without preju­ dice, because the claims in Counts III–V “requir[e] further briefing and argument, and possibly further discovery.” Second Report 41. A threshold question for all claims in those Counts, for example, is whether they “belong to the Commission, the Plaintiff States, or both.” Ibid. Perhaps the States can bring them in their capacity as parens patriae, but as the Special Master noted “the parties have not adequately briefed this issue, and its resolution in this case is unclear.” Id., at 42–43.
+
+We think it was reasonable for the Special Master to defer ruling. We granted the Special Master discretion to “direct subsequent proceedings” and “to submit such re­ ports as he may deem appropriate.” 540 U. S., at 1014. He could have deferred filing any report until full factual discovery had been completed and all of the legal issues, many of which are novel and challenging, had been fully briefed, considered, and decided. Instead, he concluded that our immediate resolution of Counts I and II would facilitate the efficient disposition of the case; and in agree­ ing to hear exceptions to his Preliminary Report and Second Report we implicitly agreed. His deferral of ruling on the merits of Counts III–V is part and parcel of the same case management, and we find no reason to upset it.
+
+
+
+North Carolina takes exception to the Special Master’s recommendation in his Preliminary Report to deny with­ out prejudice its motion to dismiss the Commission’s claims on the ground that they are barred by the Eleventh Amendment to the Constitution and by structural princi­ ples of state sovereign immunity. The Special Master assumed for the sake of argument that a State possesses sovereign immunity against a claim brought by an entity, like the Commission, created by an interstate compact,5 Preliminary Report 5. But he recommended denying North Carolina’s motion to dismiss “at this point in the proceedings.” Ibid.
+
+The Special Master relied upon our decision in Arizona v. California, 460 U. S. 605 (1983), which held that the Eleventh Amendment did not bar the participation of several Indian Tribes in an original action concerning the allocation of rights to the waters of the Colorado River. The United States had already intervened, in its capacity as trustee for several Indian Tribes; but the Tribes moved to intervene as well, and the States opposed. We granted the Tribes’ motion, stating that the States do not enjoy sovereign immunity against the United States, and “[t]he Tribes do not seek to bring new claims or issues against the States, but only ask leave to participate in an adjudi­ cation of their vital water rights that was commenced by the United States.” Id., at 614. Thus, “our judicial power over the controversy is not enlarged by granting leave to intervene, and the States’ sovereign immunity protected by the Eleventh Amendment is not compromised.” Ibid. Relying on this holding, the Special Master held that sovereign immunity does not bar the Commission’s suit, so long as the Commission asserts the same claims and seeks the same relief as the other plaintiffs. Whether that is so, he said, “cannot be resolved without further factual and legal development[s],” Preliminary Report 6, and so North Carolina is free to renew its motion at a later point, id., at 13��14. See Second Report 45–48.
+
+Assuming (as the Special Master did) that the Commis­ sion’s claims against North Carolina implicate sovereign immunity, we agree with his disposition. North Carolina contends that making application of the Constitution’s waiver of sovereign immunity turn upon whether a nonsovereign party seeks to expand the relief sought is ——————
+
+an entity’s suit against a State is barred by sovereign immunity.
+
+inconsistent with our decisions construing state sovereign immunity as a “personal privilege.” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675 (1999) (internal quotation marks omitted); see also Alden, 527 U. S., at 758. But nothing in those cases suggests that Arizona v. California has been implic­ itly overruled.6 See Shalala v. Illinois Council on Long Term Care, Inc., 529 U. S. 1, 18 (2000). Neither of them arose under our original jurisdiction, and neither cited Arizona v. California or discussed—at all—the sovereign immunity issue that case addressed. That sovereign immunity is a personal privilege of the States says noth­ ing about whether that privilege “is not compromised,” Arizona v. California, supra, at 614, by an additional, nonsovereign plaintiff’s bringing an entirely overlapping claim for relief that burdens the State with no additional defense or liability.7
+
+North Carolina contends that Arizona v. California cannot apply to the Commission’s claims, because the Commission does not—indeed, cannot—assert the same claims or seek the same relief as the plaintiff States. We disagree. In the bill of complaint, the States and the Commission assert the same claims and request the same relief. Bill of Complaint ¶¶62–86 and Prayer for Relief. Their claim for restitution of $80 million cannot, given the other allegations of the complaint, be thought to be $80 million payable to each of the four plaintiff States and the Commission.
+
+North Carolina argues, however, that summary judg­ ment in its favor is appropriate because it is clear that the Commission, and not the plaintiff States, provided $80 million to North Carolina—wherefore, as a matter of law, only the Commission can claim entitlement to $80 million, either as a measure of damages for breach of the Compact under Counts I and II of the bill of complaint, see Re­ statement §370, Comment a, and §373, or under the un­ just enrichment, promissory estoppel, and money-had-and­ received theories of recovery in Counts III, IV, and V, see, e.g., Restatement of Restitution §1, Comment a (1936). And, it contends, a stand-alone suit by the Commission is barred by sovereign immunity.
+
+With regard to Counts I and II, at least, we disagree. The Commission’s claims under those Compact-related Counts are wholly derivative of the States’ claims. See Arizona v. California, supra, at 614. The Commission is “a legal entity separate and distinct from” the States that are parties to the Compact. Art. 4(M)(1), 99 Stat. 1877. Since it is not a party it has neither a contractual right to performance by the party States nor enforceable statutory rights under Article 5 of the Compact, see Bennett v. Spear, 520 U. S. 154, 162–163 (1997). The Compact does, however, authorize the Commission to “act or appear on behalf of any party [S]tate or [S]tates . . . as an intervenor or party in interest before . . . any court of law,” Art. 4(E)(10), 99 Stat. 1875, and it is obviously in this capacity that the Commission seeks to vindicate the plaintiff States’ statutory and contractual rights in Counts I and II. Its Count I and Count II claims therefore rise or fall with the claims of the States. While the Commission may not bring them in a stand-alone action under this Court’s original jurisdiction, see §1251(a), it may assert them in this Court alongside the plaintiff States, see Arizona v. California, 460 U. S., at 614. The summary judgment disallowing the underlying claims on their merits renders the sovereign immunity question with regard to any relief the Commission alone might have on those claims moot.
+
+Counts III–V, which do not rely upon the Compact, stand on a different footing. As to them, while the Com­ mission again seemingly makes the same claims and seeks the same relief as the States, it is conceivable that as a matter of law the Commission’s claims are not identical. The Commission can claim restitution as the party that paid the money to North Carolina; the other plaintiffs cannot claim it on that basis. Whether this means that the claims are not identical for Arizona v. California pur­ poses, and that the Commission’s Counts III–V claims must be dismissed on sovereign immunity grounds, is a question that the Special Master declined to resolve until the merits issues were further clarified. We have ap­ proved his deferral of those issues, and we likewise ap­ prove his deferral of the related sovereign immunity issue.
+",analysis,Exceptions to the Special Master’s Report and Preliminary Report,strongly agree,Exceptions to the Special Master’s Second Report,strongly agree,Respondent's Exceptions to the Special Master's Report,3
+G8,0,1,2,A,"North Carolina takes exception to the recommendation of the Second Report to deny without prejudice its motion for summary judgment on the merits of Plaintiffs’ equita­ ble claims in Counts III–V. North Carolina’s motion was based on the ground that, as a matter of law, its obliga­ tions are governed entirely by the Compact. The Special Master recommended denying the motion without preju­ dice, because the claims in Counts III–V “requir[e] further briefing and argument, and possibly further discovery.” Second Report 41. A threshold question for all claims in those Counts, for example, is whether they “belong to the Commission, the Plaintiff States, or both.” Ibid. Perhaps the States can bring them in their capacity as parens patriae, but as the Special Master noted “the parties have not adequately briefed this issue, and its resolution in this case is unclear.” Id., at 42–43.
+
+We think it was reasonable for the Special Master to defer ruling. We granted the Special Master discretion to “direct subsequent proceedings” and “to submit such re­ ports as he may deem appropriate.” 540 U. S., at 1014. He could have deferred filing any report until full factual discovery had been completed and all of the legal issues, many of which are novel and challenging, had been fully briefed, considered, and decided. Instead, he concluded that our immediate resolution of Counts I and II would facilitate the efficient disposition of the case; and in agree­ ing to hear exceptions to his Preliminary Report and Second Report we implicitly agreed. His deferral of ruling on the merits of Counts III–V is part and parcel of the same case management, and we find no reason to upset it.
+
+",analysis,Summary Judgment on Equita­ble Claims,disagree,Counts III–V,disagree,Special Master's Deferral of Ruling,1
+G8,0,1,2,B,"North Carolina takes exception to the Special Master’s recommendation in his Preliminary Report to deny with­ out prejudice its motion to dismiss the Commission’s claims on the ground that they are barred by the Eleventh Amendment to the Constitution and by structural princi­ ples of state sovereign immunity. The Special Master assumed for the sake of argument that a State possesses sovereign immunity against a claim brought by an entity, like the Commission, created by an interstate compact,5 Preliminary Report 5. But he recommended denying North Carolina’s motion to dismiss “at this point in the proceedings.” Ibid.
+
+The Special Master relied upon our decision in Arizona v. California, 460 U. S. 605 (1983), which held that the Eleventh Amendment did not bar the participation of several Indian Tribes in an original action concerning the allocation of rights to the waters of the Colorado River. The United States had already intervened, in its capacity as trustee for several Indian Tribes; but the Tribes moved to intervene as well, and the States opposed. We granted the Tribes’ motion, stating that the States do not enjoy sovereign immunity against the United States, and “[t]he Tribes do not seek to bring new claims or issues against the States, but only ask leave to participate in an adjudi­ cation of their vital water rights that was commenced by the United States.” Id., at 614. Thus, “our judicial power over the controversy is not enlarged by granting leave to intervene, and the States’ sovereign immunity protected by the Eleventh Amendment is not compromised.” Ibid. Relying on this holding, the Special Master held that sovereign immunity does not bar the Commission’s suit, so long as the Commission asserts the same claims and seeks the same relief as the other plaintiffs. Whether that is so, he said, “cannot be resolved without further factual and legal development[s],” Preliminary Report 6, and so North Carolina is free to renew its motion at a later point, id., at 13–14. See Second Report 45–48.
+
+Assuming (as the Special Master did) that the Commis­ sion’s claims against North Carolina implicate sovereign immunity, we agree with his disposition. North Carolina contends that making application of the Constitution’s waiver of sovereign immunity turn upon whether a nonsovereign party seeks to expand the relief sought is ——————
+
+an entity’s suit against a State is barred by sovereign immunity.
+
+inconsistent with our decisions construing state sovereign immunity as a “personal privilege.” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675 (1999) (internal quotation marks omitted); see also Alden, 527 U. S., at 758. But nothing in those cases suggests that Arizona v. California has been implic­ itly overruled.6 See Shalala v. Illinois Council on Long Term Care, Inc., 529 U. S. 1, 18 (2000). Neither of them arose under our original jurisdiction, and neither cited Arizona v. California or discussed—at all—the sovereign immunity issue that case addressed. That sovereign immunity is a personal privilege of the States says noth­ ing about whether that privilege “is not compromised,” Arizona v. California, supra, at 614, by an additional, nonsovereign plaintiff’s bringing an entirely overlapping claim for relief that burdens the State with no additional defense or liability.7
+
+North Carolina contends that Arizona v. California cannot apply to the Commission’s claims, because the Commission does not—indeed, cannot—assert the same claims or seek the same relief as the plaintiff States. We disagree. In the bill of complaint, the States and the Commission assert the same claims and request the same relief. Bill of Complaint ¶¶62–86 and Prayer for Relief. Their claim for restitution of $80 million cannot, given the other allegations of the complaint, be thought to be $80 million payable to each of the four plaintiff States and the Commission.
+
+North Carolina argues, however, that summary judg­ ment in its favor is appropriate because it is clear that the Commission, and not the plaintiff States, provided $80 million to North Carolina—wherefore, as a matter of law, only the Commission can claim entitlement to $80 million, either as a measure of damages for breach of the Compact under Counts I and II of the bill of complaint, see Re­ statement §370, Comment a, and §373, or under the un­ just enrichment, promissory estoppel, and money-had-and­ received theories of recovery in Counts III, IV, and V, see, e.g., Restatement of Restitution §1, Comment a (1936). And, it contends, a stand-alone suit by the Commission is barred by sovereign immunity.
+
+With regard to Counts I and II, at least, we disagree. The Commission’s claims under those Compact-related Counts are wholly derivative of the States’ claims. See Arizona v. California, supra, at 614. The Commission is “a legal entity separate and distinct from” the States that are parties to the Compact. Art. 4(M)(1), 99 Stat. 1877. Since it is not a party it has neither a contractual right to performance by the party States nor enforceable statutory rights under Article 5 of the Compact, see Bennett v. Spear, 520 U. S. 154, 162–163 (1997). The Compact does, however, authorize the Commission to “act or appear on behalf of any party [S]tate or [S]tates . . . as an intervenor or party in interest before . . . any court of law,” Art. 4(E)(10), 99 Stat. 1875, and it is obviously in this capacity that the Commission seeks to vindicate the plaintiff States’ statutory and contractual rights in Counts I and II. Its Count I and Count II claims therefore rise or fall with the claims of the States. While the Commission may not bring them in a stand-alone action under this Court’s original jurisdiction, see §1251(a), it may assert them in this Court alongside the plaintiff States, see Arizona v. California, 460 U. S., at 614. The summary judgment disallowing the underlying claims on their merits renders the sovereign immunity question with regard to any relief the Commission alone might have on those claims moot.
+
+Counts III–V, which do not rely upon the Compact, stand on a different footing. As to them, while the Com­ mission again seemingly makes the same claims and seeks the same relief as the States, it is conceivable that as a matter of law the Commission’s claims are not identical. The Commission can claim restitution as the party that paid the money to North Carolina; the other plaintiffs cannot claim it on that basis. Whether this means that the claims are not identical for Arizona v. California pur­ poses, and that the Commission’s Counts III–V claims must be dismissed on sovereign immunity grounds, is a question that the Special Master declined to resolve until the merits issues were further clarified. We have ap­ proved his deferral of those issues, and we likewise ap­ prove his deferral of the related sovereign immunity issue.
+",analysis,The Special Master’s Recommendation,disagree,The Special Master’s Recommendation,disagree,States' Sovereign Immunity Against Commission,2
+G8,0,1,1,*,"We overrule the exceptions of Plaintiffs and North Carolina to the Special Master’s Reports, and we adopt the recommendations of the Special Master. We grant North Carolina’s motion to dismiss Count I. We grant North Carolina’s motion for summary judgment on Count II. We deny Plaintiffs’ motions for judgment on Counts I and II. And we deny without prejudice North Carolina’s motion to dismiss the Commission’s claims on the grounds of sover­ eign immunity and its motion for summary judgment on Counts III–V.
+
+It is so ordered.",conclusion,Special Master’s Reports,disagree,The Order,strongly agree,Conclusion Order,4
+G8,8,1,1,I,"
+
+Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” §703(a), 78 Stat. 255, 42 U.S. C. §2000e–2(a). The statute entrusts the enforcement of that prohibition to the EEOC. See §2000e–5(a); EEOC v. Shell Oil Co., 466 U.S. 54, 61–62 (1984). The EEOC’s responsibilities “are triggered by the filing of a specific sworn charge of discrimination,” University of Pa. v. EEOC, 493 U.S. 182, 190 (1990), which can be filed either by the person alleging discrimination or by the EEOC itself, see §2000e–5(b). When it receives a charge, the EEOC must first notify the employer, ibid., and must then investigate “to determine whether there is reasonable cause to believe that the charge is true,” University of Pa., 493 U.S., at 190 (internal quotation marks omitted).
+
+This case is about one of the tools the EEOC has at its disposal in conducting its investigation: a subpoena. In order “[t]o enable the [EEOC] to make informed decisions at each stage of the enforcement process,” Title VII “confers a broad right of access to relevant evidence.” Id., at 191. It provides that the EEOC “shall . . . have access to, for the purposes of examination, . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by” Title VII and “is relevant to the charge under investigation.” 42 U.S. C. §2000e–8(a). And the statute enables the EEOC to obtain that evidence by “authoriz[ing] [it] to issue a subpoena and to seek an order enforcing [the subpoena].” University of Pa., 493 U.S., at 191; see §2000e–9.1 Under that authority, the EEOC may issue “subp[o]enas requiring the attendance and testimony of witnesses or the production of any evidence.” 29 U.S. C. §161(1). An employer may petition the EEOC to revoke the subpoena, see ibid., but if the EEOC rejects the petition and the employer still “refuse[s] to obey [the] subp[o]ena,” the EEOC may ask a district court to issue an order enforcing it, see §161(2).
+
+A district court’s role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward one. See University of Pa., 493 U.S., at 191; Shell Oil, 466 U.S., at 72, n. 26. A district court is not to use an enforcement proceeding as an opportunity to test the strength of the underlying complaint. Ibid. Rather, a district court should “ ‘satisfy itself that the charge is valid and that the material requested is “relevant” to the charge.’ ” University of Pa., 493 U.S., at 191. It should do so cognizant of the “generou[s]” construction that courts have given the term “relevant.” Shell Oil, 466 U.S., at 68–69 (“virtually any material that might cast light on the allegations against the employer”). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is “too indefinite,” has been issued for an “illegitimate purpose,” or is unduly burdensome. Id., at 72, n. 26. See United States v. Morton Salt Co., 338 U.S. 632, 652–653 (1950) (“The gist of the protection is in the requirement . . . that the disclosure sought shall not be unreasonable” (internal quotation marks omitted)).
+
+This case arises out of a Title VII suit filed by a woman named Damiana Ochoa. Ochoa worked for eight years as a “cigarette selector” for petitioner McLane Co., a supplychain services company. According to McLane, the job is a demanding one: Cigarette selectors work in distribution centers, where they are required to lift, pack, and move large bins containing products. McLane requires employees taking physically demanding jobs—both new employees and employees returning from medical leave—to take a physical evaluation. According to McLane, the evaluation “tests . . . range of motion, resistance, and speed” and “is designed, administered, and validated by a third party.” Brief for Petitioner 6. In 2007, Ochoa took three months of maternity leave. When she attempted to return to work, McLane asked her to take the evaluation. Ochoa attempted to pass the evaluation three times, but failed. McLane fired her.
+
+Ochoa filed a charge of discrimination, alleging (among other things) that she had been fired on the basis of her gender. The EEOC began an investigation, and—at its request—McLane provided it with basic information about the evaluation, as well as a list of anonymous employees that McLane had asked to take the evaluation. McLane’s list included each employee’s gender, role at the company, and evaluation score, as well as the reason each employee had been asked to take the evaluation. But the company refused to provide what the parties call “pedigree information”: the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the evaluation. Upon learning that McLane used the evaluation nationwide, the EEOC expanded the scope of its investigation, both geographically (to focus on McLane’s nationwide operations) and substantively (to investigate whether McLane had discriminated against its employees on the basis of age). It issued subpoenas requesting pedigree information as it related to its new investigation. But McLane refused to provide the pedigree information, and so the EEOC filed two actions in Federal District Court—one arising out of Ochoa’s charge and one arising out of a separate agediscrimination charge the EEOC itself had filed—seeking enforcement of its subpoenas.
+
+The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought the pedigree information. See EEOC v. McLane Co., 2012 WL 1132758, *5 (D Ariz., Apr. 4, 2012) (age discrimination charge); Civ. No. 12–2469 (D Ariz., Nov. 19, 2012), App. to Pet. for Cert. 28–30 (Title VII charge).2 In the District Court’s view, the pedigree information was not “relevant” to the charges because “ ‘an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of . . . discrimination.’ ” App. to Pet. for Cert. 29 (quoting 2012 WL 1132758, at *5; some internal quotation marks omitted).
+
+The Ninth Circuit reversed. See 804 F.3d 1051 (2015). Consistent with Circuit precedent, the panel reviewed the District Court’s decision to quash the subpoena de novo, and concluded that the District Court had erred in finding the pedigree information irrelevant. Id., at 1057. But the panel questioned in a footnote why de novo review applied, observing that its sister Circuits “appear[ed] to review issues related to enforcement of administrative subpoenas for abuse of discretion.” Id., at 1056, n. 3; see infra, at 7 (reviewing Court of Appeals authority).
+
+This Court granted certiorari to resolve the disagreement between the Courts of Appeals over the appropriate standard of review for the decision whether to enforce an EEOC subpoena. 579 U. S. ___ (2016). Because the United States agrees with McLane that such a decision should be reviewed for abuse of discretion, Stephen B. Kinnard was appointed as amicus curiae to defend the judgment below. 580 U. S. ___ (2016). He has ably discharged his duties.
+",facts,The EEOC’s Role,agree,Ochoa,disagree,Ochoa's EEOC Claim and EEOC Proceedings,1
+G8,8,1,2,A,"Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” §703(a), 78 Stat. 255, 42 U.S. C. §2000e–2(a). The statute entrusts the enforcement of that prohibition to the EEOC. See §2000e–5(a); EEOC v. Shell Oil Co., 466 U.S. 54, 61–62 (1984). The EEOC’s responsibilities “are triggered by the filing of a specific sworn charge of discrimination,” University of Pa. v. EEOC, 493 U.S. 182, 190 (1990), which can be filed either by the person alleging discrimination or by the EEOC itself, see §2000e–5(b). When it receives a charge, the EEOC must first notify the employer, ibid., and must then investigate “to determine whether there is reasonable cause to believe that the charge is true,” University of Pa., 493 U.S., at 190 (internal quotation marks omitted).
+
+This case is about one of the tools the EEOC has at its disposal in conducting its investigation: a subpoena. In order “[t]o enable the [EEOC] to make informed decisions at each stage of the enforcement process,” Title VII “confers a broad right of access to relevant evidence.” Id., at 191. It provides that the EEOC “shall . . . have access to, for the purposes of examination, . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by” Title VII and “is relevant to the charge under investigation.” 42 U.S. C. §2000e–8(a). And the statute enables the EEOC to obtain that evidence by “authoriz[ing] [it] to issue a subpoena and to seek an order enforcing [the subpoena].” University of Pa., 493 U.S., at 191; see §2000e–9.1 Under that authority, the EEOC may issue “subp[o]enas requiring the attendance and testimony of witnesses or the production of any evidence.” 29 U.S. C. §161(1). An employer may petition the EEOC to revoke the subpoena, see ibid., but if the EEOC rejects the petition and the employer still “refuse[s] to obey [the] subp[o]ena,” the EEOC may ask a district court to issue an order enforcing it, see §161(2).
+
+A district court’s role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward one. See University of Pa., 493 U.S., at 191; Shell Oil, 466 U.S., at 72, n. 26. A district court is not to use an enforcement proceeding as an opportunity to test the strength of the underlying complaint. Ibid. Rather, a district court should “ ‘satisfy itself that the charge is valid and that the material requested is “relevant” to the charge.’ ” University of Pa., 493 U.S., at 191. It should do so cognizant of the “generou[s]” construction that courts have given the term “relevant.” Shell Oil, 466 U.S., at 68–69 (“virtually any material that might cast light on the allegations against the employer”). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is “too indefinite,” has been issued for an “illegitimate purpose,” or is unduly burdensome. Id., at 72, n. 26. See United States v. Morton Salt Co., 338 U.S. 632, 652–653 (1950) (“The gist of the protection is in the requirement . . . that the disclosure sought shall not be unreasonable” (internal quotation marks omitted)).",analysis,The EEOC’s Investigation,strongly agree,The EEOC’s Subpoena Power,strongly agree,The EEOC's Investigating Powers,1
+G8,8,1,2,B,"This case arises out of a Title VII suit filed by a woman named Damiana Ochoa. Ochoa worked for eight years as a “cigarette selector” for petitioner McLane Co., a supplychain services company. According to McLane, the job is a demanding one: Cigarette selectors work in distribution centers, where they are required to lift, pack, and move large bins containing products. McLane requires employees taking physically demanding jobs—both new employees and employees returning from medical leave—to take a physical evaluation. According to McLane, the evaluation “tests . . . range of motion, resistance, and speed” and “is designed, administered, and validated by a third party.” Brief for Petitioner 6. In 2007, Ochoa took three months of maternity leave. When she attempted to return to work, McLane asked her to take the evaluation. Ochoa attempted to pass the evaluation three times, but failed. McLane fired her.
+
+Ochoa filed a charge of discrimination, alleging (among other things) that she had been fired on the basis of her gender. The EEOC began an investigation, and—at its request—McLane provided it with basic information about the evaluation, as well as a list of anonymous employees that McLane had asked to take the evaluation. McLane’s list included each employee’s gender, role at the company, and evaluation score, as well as the reason each employee had been asked to take the evaluation. But the company refused to provide what the parties call “pedigree information”: the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the evaluation. Upon learning that McLane used the evaluation nationwide, the EEOC expanded the scope of its investigation, both geographically (to focus on McLane’s nationwide operations) and substantively (to investigate whether McLane had discriminated against its employees on the basis of age). It issued subpoenas requesting pedigree information as it related to its new investigation. But McLane refused to provide the pedigree information, and so the EEOC filed two actions in Federal District Court—one arising out of Ochoa’s charge and one arising out of a separate agediscrimination charge the EEOC itself had filed—seeking enforcement of its subpoenas.
+
+The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought the pedigree information. See EEOC v. McLane Co., 2012 WL 1132758, *5 (D Ariz., Apr. 4, 2012) (age discrimination charge); Civ. No. 12–2469 (D Ariz., Nov. 19, 2012), App. to Pet. for Cert. 28–30 (Title VII charge).2 In the District Court’s view, the pedigree information was not “relevant” to the charges because “ ‘an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of . . . discrimination.’ ” App. to Pet. for Cert. 29 (quoting 2012 WL 1132758, at *5; some internal quotation marks omitted).
+
+The Ninth Circuit reversed. See 804 F.3d 1051 (2015). Consistent with Circuit precedent, the panel reviewed the District Court’s decision to quash the subpoena de novo, and concluded that the District Court had erred in finding the pedigree information irrelevant. Id., at 1057. But the panel questioned in a footnote why de novo review applied, observing that its sister Circuits “appear[ed] to review issues related to enforcement of administrative subpoenas for abuse of discretion.” Id., at 1056, n. 3; see infra, at 7 (reviewing Court of Appeals authority).
+
+This Court granted certiorari to resolve the disagreement between the Courts of Appeals over the appropriate standard of review for the decision whether to enforce an EEOC subpoena. 579 U. S. ___ (2016). Because the United States agrees with McLane that such a decision should be reviewed for abuse of discretion, Stephen B. Kinnard was appointed as amicus curiae to defend the judgment below. 580 U. S. ___ (2016). He has ably discharged his duties.
+",facts,The Ochoa Complaint,strongly agree,Ochoa,agree,The Ochoa Complaint,2
+G8,8,1,1,II,"
+
+When considering whether a district court’s decision should be subject to searching or deferential appellate review—at least absent “explicit statutory command”—we traditionally look to two factors. Pierce v. Underwood, 487 U.S. 552, 558 (1988). First, we ask whether the “history of appellate practice” yields an answer. Ibid. Second, at least where “neither a clear statutory prescription nor a historical tradition exists,” we ask whether, “ ‘as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’ ” Id., at 558, 559–560 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)). Both factors point toward abuse-ofdiscretion review here.
+
+First, the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion. That practice predates even Title VII itself. As noted, Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Relations Board (NLRB). See n. 1, supra. During the three decades between the enactment of the NLRA and the incorporation of the NLRA’s subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that a district court’s decision whether to enforce an NLRB subpoena should be reviewed for abuse of discretion. See NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419–420 (CA2 1968); NLRB v. Friedman, 352 F.2d 545, 547 (CA3 1965); NLRB v. Northern Trust Co., 148 F.2d 24, 29 (CA7 1945); Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 453–454 (CA6 1941). By the time Congress amended Title VII to authorize EEOC subpoenas in 1972, it did so against this uniform backdrop of deferential appellate review.
+
+Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court’s decision as to whether to enforce an EEOC subpoena. Almost every Court of Appeals reviews such a decision for abuse of discretion. See, e.g., EEOC v. Kronos Inc., 620 F.3d 287, 295–296 (CA3 2010); EEOC v. Randstad, 685 F.3d 433, 442 (CA4 2012); EEOC v. Roadway Express, Inc., 261 F.3d 634, 638 (CA6 2001); EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (CA7 2002); EEOC v. Technocrest Systems, Inc., 448 F.3d 1035, 1038 (CA8 2006); EEOC v. Dillon Companies, Inc., 310 F.3d 1271, 1274 (CA10 2002); EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 760 (CA11 2014) (per curiam). As Judge Watford—writing for the panel below—recognized, the Ninth Circuit alone applies a more searching form of review. See 804 F.3d, at 1056, n. 3 (“Why we review questions of relevance and undue burden de novo is unclear”); see also EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445–446 (CA9 1988) (holding that de novo review applies). To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise. But the “long history of appellate practice” here, Pierce, 487 U.S., at 558, carries significant persuasive weight.
+
+Second, basic principles of institutional capacity counsel in favor of deferential review. The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on “a neat set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232 (1983), but instead on the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization,” Pierce, 487 U.S., at 561–562 (internal quotation marks omitted). In the mine run of cases, the district court’s decision whether to enforce a subpoena will turn either on whether the evidence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district judge’s expertise. The decision whether evidence sought is relevant requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation—an analysis “variable in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). Similarly, the decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. These inquiries are “generally not amenable to broad per se rules,” Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008); rather, they are the kind of “fact-intensive, close calls” better suited to resolution by the district court than the court of appeals, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990) (internal quotation marks omitted).3
+
+Other functional considerations also show that abuse-ofdiscretion review is appropriate here. For one, district courts have considerable experience in other contexts making decisions similar—though not identical—to those they must make in this one. See Buford v. United States, 532 U.S. 59, 66 (2001) (“[T]he comparatively greater expertise” of the district court may counsel in favor of deferential review). District courts decide, for instance, whether evidence is relevant at trial, Fed. Rule Evid. 401; whether pretrial criminal subpoenas are unreasonable in scope, Fed. Rule Crim. Proc. 16(c)(2); and more. These decisions are not the same as the decisions a district court must make in enforcing an administrative subpoena. But they are similar enough to give the district court the “institutional advantag[e],” Buford, 532 U.S., at 64, that comes with greater experience. For another, as we noted in Cooter & Gell, deferential review “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” 496 U.S., at 404—a particularly important consideration in a “satellite” proceeding like this one, ibid., designed only to facilitate the EEOC’s investigation.
+
+
+Amicus’ arguments to the contrary have aided our consideration of this case. But they do not persuade us that de novo review is appropriate.
+
+Amicus’ central argument is that the decision whether a subpoena should be enforced does not require the exercise of discretion on the part of the district court, and so it should not be reviewed for abuse of discretion. On amicus’ view, the district court’s primary role is to test the legal sufficiency of the subpoena, not to weigh whether it should be enforced as a substantive matter. Cf. Shell Oil, 466 U.S., at 72, n. 26 (rejecting the argument that the district court should assess the validity of the underlying claim in a proceeding to enforce a subpoena). Even accepting amicus’ view of the district court’s task, however, this understanding of abuse-of-discretion review is too narrow. As commentators have observed, abuse-of-discretion review is employed not only where a decisionmaker has “a wide range of choice as to what he decides, free from the constraints which characteristically attach whenever legal rules enter the decision[making] process”; it is also employed where the trial judge’s decision is given “an unusual amount of insulation from appellate revision” for functional reasons. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971); see also 22 C. Wright & K. Graham, Federal Practice and Procedure §5166.1 (2d ed. 2012). And as we have explained, it is in large part due to functional concerns that we conclude the district court’s decision should be reviewed for abuse of discretion. Even if the district court’s decision can be characterized in the way that amicus suggests, that characterization would not be inconsistent with abuse-of-discretion review.
+
+Nor are we persuaded by amicus’ remaining arguments. Amicus argues that affording deferential review to a district court’s decision would clash with Court of Appeals decisions instructing district courts to defer themselves to the EEOC’s determination that evidence is relevant to the charge at issue. See Director, Office of Thrift Supervision, v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (CADC 1997) (district courts should defer to agency appraisals of relevance unless they are “obviously wrong”); EEOC v. Lockheed Martin Corp., Aero & Naval Systems, 116 F.3d 110, 113 (CA4 1997) (same). In amicus’ view, it is “analytically impossible” for the court of appeals to defer to the district court if the district court must itself defer to the agency. Tr. of Oral Arg. 29. We think the better reading of those cases is that they rest on the established rule that the term “relevant” be understood “generously” to permit the EEOC “access to virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U.S., at 68–69. A district court deciding whether evidence is “relevant” under Title VII need not defer to the EEOC’s decision on that score; it must simply answer the question cognizant of the agency’s broad authority to seek and obtain evidence. Because the statute does not set up any scheme of double deference, amicus’ arguments as to the infirmities of such a scheme are misplaced.
+
+Nor do we agree that, as amicus suggests, the constitutional underpinnings of the Shell Oil standard require a different result. To be sure, we have described a subpoena as a “ ‘constructive’ search,” Oklahoma Press, 327 U.S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be “too indefinite,” Morton Salt, 338 U.S., at 652. But not every decision that touches on the Fourth Amendment is subject to searching review. Subpoenas in a wide variety of other contexts also implicate the privacy interests protected by the Fourth Amendment, but courts routinely review the enforcement of such subpoenas for abuse of discretion. See, e.g., United States v. Nixon, 418 U.S. 683, 702 (1974) (pretrial subpoenas duces tecum); In re Grand Jury Subpoena, 696 F.3d 428, 432 (CA5 2012) (grand jury subpoenas); In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (CA10 2010) (same). And this Court has emphasized that courts should pay “great deference” to a magistrate judge’s determination of probable cause, Gates, 462 U.S., at 236 (internal quotation marks omitted)—a decision more akin to a district court’s preenforcement review of a subpoena than the warrantless searches and seizures we considered in Ornelas v. United States, 517 U.S. 690 (1996), on which amicus places great weight. The constitutional pedigree of Shell Oil does not change our view of the correct standard of review.
+",analysis,Abuse-of-Discretion Review,strongly agree,Deferential Review,agree,Abuse-of-Discretion Review of EEOC's Subpoena,2
+G8,8,1,2,A,"When considering whether a district court’s decision should be subject to searching or deferential appellate review—at least absent “explicit statutory command”—we traditionally look to two factors. Pierce v. Underwood, 487 U.S. 552, 558 (1988). First, we ask whether the “history of appellate practice” yields an answer. Ibid. Second, at least where “neither a clear statutory prescription nor a historical tradition exists,” we ask whether, “ ‘as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’ ” Id., at 558, 559–560 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)). Both factors point toward abuse-ofdiscretion review here.
+
+First, the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion. That practice predates even Title VII itself. As noted, Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Relations Board (NLRB). See n. 1, supra. During the three decades between the enactment of the NLRA and the incorporation of the NLRA’s subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that a district court’s decision whether to enforce an NLRB subpoena should be reviewed for abuse of discretion. See NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419–420 (CA2 1968); NLRB v. Friedman, 352 F.2d 545, 547 (CA3 1965); NLRB v. Northern Trust Co., 148 F.2d 24, 29 (CA7 1945); Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 453–454 (CA6 1941). By the time Congress amended Title VII to authorize EEOC subpoenas in 1972, it did so against this uniform backdrop of deferential appellate review.
+
+Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court’s decision as to whether to enforce an EEOC subpoena. Almost every Court of Appeals reviews such a decision for abuse of discretion. See, e.g., EEOC v. Kronos Inc., 620 F.3d 287, 295–296 (CA3 2010); EEOC v. Randstad, 685 F.3d 433, 442 (CA4 2012); EEOC v. Roadway Express, Inc., 261 F.3d 634, 638 (CA6 2001); EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (CA7 2002); EEOC v. Technocrest Systems, Inc., 448 F.3d 1035, 1038 (CA8 2006); EEOC v. Dillon Companies, Inc., 310 F.3d 1271, 1274 (CA10 2002); EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 760 (CA11 2014) (per curiam). As Judge Watford—writing for the panel below—recognized, the Ninth Circuit alone applies a more searching form of review. See 804 F.3d, at 1056, n. 3 (“Why we review questions of relevance and undue burden de novo is unclear”); see also EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445–446 (CA9 1988) (holding that de novo review applies). To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise. But the “long history of appellate practice” here, Pierce, 487 U.S., at 558, carries significant persuasive weight.
+
+Second, basic principles of institutional capacity counsel in favor of deferential review. The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on “a neat set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232 (1983), but instead on the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization,” Pierce, 487 U.S., at 561–562 (internal quotation marks omitted). In the mine run of cases, the district court’s decision whether to enforce a subpoena will turn either on whether the evidence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district judge’s expertise. The decision whether evidence sought is relevant requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation—an analysis “variable in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). Similarly, the decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. These inquiries are “generally not amenable to broad per se rules,” Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008); rather, they are the kind of “fact-intensive, close calls” better suited to resolution by the district court than the court of appeals, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990) (internal quotation marks omitted).3
+
+Other functional considerations also show that abuse-ofdiscretion review is appropriate here. For one, district courts have considerable experience in other contexts making decisions similar—though not identical—to those they must make in this one. See Buford v. United States, 532 U.S. 59, 66 (2001) (“[T]he comparatively greater expertise” of the district court may counsel in favor of deferential review). District courts decide, for instance, whether evidence is relevant at trial, Fed. Rule Evid. 401; whether pretrial criminal subpoenas are unreasonable in scope, Fed. Rule Crim. Proc. 16(c)(2); and more. These decisions are not the same as the decisions a district court must make in enforcing an administrative subpoena. But they are similar enough to give the district court the “institutional advantag[e],” Buford, 532 U.S., at 64, that comes with greater experience. For another, as we noted in Cooter & Gell, deferential review “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” 496 U.S., at 404—a particularly important consideration in a “satellite” proceeding like this one, ibid., designed only to facilitate the EEOC’s investigation.
+",analysis,Appellate Review of EEOC Subpoenas,strongly agree,Searching or Deferential Review,agree,Courts of Appeals' Deferential Review of EEOC Subpoenas,1
+G8,8,1,2,B,"Amicus’ arguments to the contrary have aided our consideration of this case. But they do not persuade us that de novo review is appropriate.
+
+Amicus’ central argument is that the decision whether a subpoena should be enforced does not require the exercise of discretion on the part of the district court, and so it should not be reviewed for abuse of discretion. On amicus’ view, the district court’s primary role is to test the legal sufficiency of the subpoena, not to weigh whether it should be enforced as a substantive matter. Cf. Shell Oil, 466 U.S., at 72, n. 26 (rejecting the argument that the district court should assess the validity of the underlying claim in a proceeding to enforce a subpoena). Even accepting amicus’ view of the district court’s task, however, this understanding of abuse-of-discretion review is too narrow. As commentators have observed, abuse-of-discretion review is employed not only where a decisionmaker has “a wide range of choice as to what he decides, free from the constraints which characteristically attach whenever legal rules enter the decision[making] process”; it is also employed where the trial judge’s decision is given “an unusual amount of insulation from appellate revision” for functional reasons. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971); see also 22 C. Wright & K. Graham, Federal Practice and Procedure §5166.1 (2d ed. 2012). And as we have explained, it is in large part due to functional concerns that we conclude the district court’s decision should be reviewed for abuse of discretion. Even if the district court’s decision can be characterized in the way that amicus suggests, that characterization would not be inconsistent with abuse-of-discretion review.
+
+Nor are we persuaded by amicus’ remaining arguments. Amicus argues that affording deferential review to a district court’s decision would clash with Court of Appeals decisions instructing district courts to defer themselves to the EEOC’s determination that evidence is relevant to the charge at issue. See Director, Office of Thrift Supervision, v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (CADC 1997) (district courts should defer to agency appraisals of relevance unless they are “obviously wrong”); EEOC v. Lockheed Martin Corp., Aero & Naval Systems, 116 F.3d 110, 113 (CA4 1997) (same). In amicus’ view, it is “analytically impossible” for the court of appeals to defer to the district court if the district court must itself defer to the agency. Tr. of Oral Arg. 29. We think the better reading of those cases is that they rest on the established rule that the term “relevant” be understood “generously” to permit the EEOC “access to virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U.S., at 68–69. A district court deciding whether evidence is “relevant” under Title VII need not defer to the EEOC’s decision on that score; it must simply answer the question cognizant of the agency’s broad authority to seek and obtain evidence. Because the statute does not set up any scheme of double deference, amicus’ arguments as to the infirmities of such a scheme are misplaced.
+
+Nor do we agree that, as amicus suggests, the constitutional underpinnings of the Shell Oil standard require a different result. To be sure, we have described a subpoena as a “ ‘constructive’ search,” Oklahoma Press, 327 U.S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be “too indefinite,” Morton Salt, 338 U.S., at 652. But not every decision that touches on the Fourth Amendment is subject to searching review. Subpoenas in a wide variety of other contexts also implicate the privacy interests protected by the Fourth Amendment, but courts routinely review the enforcement of such subpoenas for abuse of discretion. See, e.g., United States v. Nixon, 418 U.S. 683, 702 (1974) (pretrial subpoenas duces tecum); In re Grand Jury Subpoena, 696 F.3d 428, 432 (CA5 2012) (grand jury subpoenas); In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (CA10 2010) (same). And this Court has emphasized that courts should pay “great deference” to a magistrate judge’s determination of probable cause, Gates, 462 U.S., at 236 (internal quotation marks omitted)—a decision more akin to a district court’s preenforcement review of a subpoena than the warrantless searches and seizures we considered in Ornelas v. United States, 517 U.S. 690 (1996), on which amicus places great weight. The constitutional pedigree of Shell Oil does not change our view of the correct standard of review.
+",analysis,Review of the District Court’s Decision,agree,Deferential Review,disagree,Amicus' Arguments in Favor of De novo Review,2
+G8,8,1,1,III,"For these reasons, a district court’s decision to enforce an EEOC subpoena should be reviewed for abuse of discretion, not de novo.
+
+The United States also argues that the judgment below can be affirmed because it is clear that the District Court abused its discretion. But “we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005), and the Court of Appeals has not had the chance to review the District Court’s decision under the appropriate standard. That task is for the Court of Appeals in the first instance. As part of its analysis, the Court of Appeals may also consider, as and to the extent it deems appropriate, any arguments made by McLane regarding the burdens imposed by the subpoena.
+
+The judgment of the Court of Appeals is hereby vacated, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.",conclusion,Review of the District Court’s Order,agree,The District Court’s Decision,disagree,Conclusion on the Review of the District Court’s Order,3
+G8,10,1,1,I,"The Mescalero Apache Tribe (Tribe) resides on a reservation located within Otero County in south central New Mexico. The reservation, which represents only a small portion of the aboriginal Mescalero domain, was created by a succession of Executive Orders promulgated in the 1870's and 1880's.[1] The present reservation comprises more than 460,000 acres, of which the Tribe owns all but 193.85 acres.[2] Approximately 2,000 members of the Tribe reside on the reservation, along with 179 non-Indians, including resident federal employees of the Bureau of Indian Affairs and the Indian Health Service.
+
+The Tribe is organized under the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S. C. § 461 et seq. (1976 ed. and Supp. V), which authorizes any tribe residing on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior (Secretary). The Tribe's Constitution, which was approved by the Secretary on January 12, 1965, requires the Tribal Council
+
+""[t]o protect and preserve the property, wildlife and natural resources of the tribe, and to regulate the conduct of trade and the use and disposition of tribal property upon the reservation, providing that any ordinance directly affecting non-members of the tribe shall be subject to review by the Secretary of [the] Interior."" App. 53a.
+The Constitution further provides that the Council shall
+
+""adopt and approve plans of operation to govern the conduct of any business or industry that will further the economic well-being of the members of the tribe, and to undertake any activity of any nature whatsoever, not inconsistent with Federal law or with this constitution, designed for the social or economic improvement of the Mescalero Apache people, . . . subject to review by the Secretary of the Interior."" Ibid.
+Anticipating a decline in the sale of lumber which has been the largest income-producing activity within the reservation, the Tribe has recently committed substantial time and resources to the development of other sources of income. The Tribe has constructed a resort complex financed principally by federal funds,[3] and has undertaken a substantial development of the reservation's hunting and fishing resources. These efforts provide employment opportunities for members of the Tribe, and the sale of hunting and fishing licenses and related services generates income which is used to maintain the tribal government and provide services to Tribe members.[4]
+
+Development of the reservation's fish and wildlife resources has involved a sustained, cooperative effort by the Tribe and the Federal Government. Indeed, the reservation's fishing resources are wholly attributable to these recent efforts. Using federal funds, the Tribe has established eight artificial lakes which, together with the reservation's streams, are stocked by the Bureau of Sport Fisheries and Wildlife of the United States Fish and Wildlife Service, Department of the Interior, which operates a federal hatchery located on the reservation. None of the waters are stocked by the State.[5] The United States has also contributed substantially to the creation of the reservation's game resources. Prior to 1966 there were only 13 elk in the vicinity of the reservation. In 1966 and 1967 the National Park Service donated a herd of 162 elk which was released on the reservation. Through its management and range development[6] the Tribe has dramatically increased the elk population, which by 1977 numbered approximately 1,200. New Mexico has not contributed significantly to the development of the elk herd or the other game on the reservation, which includes antelope, bear, and deer.[7]
+
+The Tribe and the Federal Government jointly conduct a comprehensive fish and game management program. Pursuant to its Constitution and to an agreement with the Bureau of Sport Fisheries and Wildlife,[8] the Tribal Council adopts hunting and fishing ordinances each year. The tribal ordinances, which establish bag limits and seasons and provide for licensing of hunting and fishing, are subject to approval by the Secretary under the Tribal Constitution and have been so approved. The Tribal Council adopts the game ordinances on the basis of recommendations submitted by a Bureau of Indian Affairs' range conservationist who is assisted by full-time conservation officers employed by the Tribe. The recommendations are made in light of the conservation needs of the reservation, which are determined on the basis of annual game counts and surveys. Through the Bureau of Sport Fisheries and Wildlife, the Secretary also determines the stocking of the reservation's waters based upon periodic surveys of the reservation.
+
+Numerous conflicts exist between state and tribal hunting regulations.[9] For instance, tribal seasons and bag limits for both hunting and fishing often do not coincide with those imposed by the State. The Tribe permits a hunter to kill both a buck and a doe; the State permits only buck to be killed. Unlike the State, the Tribe permits a person to purchase an elk license in two consecutive years. Moreover, since 1977, the Tribe's ordinances have specified that state hunting and fishing licenses are not required for Indians or non-Indians who hunt or fish on the reservation.[10] The New Mexico Department of Game and Fish has enforced the State's regulations by arresting non-Indian hunters for illegal possession of game killed on the reservation in accordance with tribal ordinances but not in accordance with state hunting regulations.
+
+In 1977 the Tribe filed suit against the State and the Director of its Game and Fish Department in the United States District Court for the District of New Mexico, seeking to prevent the State from regulating on-reservation hunting or fishing by members or nonmembers. On August 2, 1978, the District Court ruled in favor of the Tribe and granted declaratory and injunctive relief against the enforcement of the State's hunting and fishing laws against any person for hunting and fishing activities conducted on the reservation. The United States Court of Appeals for the Tenth Circuit affirmed. 630 F.2d 724 (1980). Following New Mexico's petition for a writ of certiorari, this Court vacated the Tenth Circuit's judgment, 450 U.S. 1036 (1981), and remanded the case for reconsideration in light of Montana v. United States, 450 U.S. 544 (1981). On remand, the Court of Appeals adhered to its earlier decision. 677 F.2d 55 (1982). We granted certiorari, 459 U.S. 1014 (1982), and we now affirm.",facts,The Mescalero Apache Tribe,strongly agree,The Mescalero Apache Tribe,strongly agree,The Mescalero Apache Tribe and its Reservation,1
+G8,10,1,1,II,"New Mexico concedes that on the reservation the Tribe exercises exclusive jurisdiction over hunting and fishing by members of the Tribe and may also regulate the hunting and fishing by nonmembers.[11] New Mexico contends, however, that it may exercise concurrent jurisdiction over nonmembers and that therefore its regulations governing hunting and fishing throughout the State should also apply to hunting and fishing by nonmembers on the reservation. Although New Mexico does not claim that it can require the Tribe to permit nonmembers to hunt and fish on the reservation, it claims that, once the Tribe chooses to permit hunting and fishing by nonmembers, such hunting and fishing is subject to any state-imposed conditions. Under this view the State would be free to impose conditions more restrictive than the Tribe's own regulations, including an outright prohibition. The question in this case is whether the State may so restrict the Tribe's exercise of its authority.
+
+Our decision in Montana v. United States, supra, does not resolve this question. Unlike this case, Montana concerned lands located within the reservation but not owned by the Tribe or its members. We held that the Crow Tribe could not as a general matter regulate hunting and fishing on those lands. 450 U.S., at 557-567.[12] But as to ""land belonging to the Tribe or held by the United States in trust for the Tribe,"" we ""readily agree[d]"" that a Tribe may ""prohibit nonmembers from hunting or fishing . . . [or] condition their entry by charging a fee or establish bag and creel limits."" Id., at 557. We had no occasion to decide whether a Tribe may only exercise this authority in a manner permitted by a State.
+
+On numerous occasions this Court has considered the question whether a State may assert authority over a reservation. The decision in Worcester v. Georgia, 6 Pet. 515, 560 (1832), reflected the view that Indian tribes were wholly distinct nations within whose boundaries ""the laws of [a State] can have no force."" We long ago departed from the ""conceptual clarity of Mr. Chief Justice Marshall's view in Worcester,"" Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973), and have acknowledged certain limitations on tribal sovereignty. For instance, we have held that Indian tribes have been implicitly divested of their sovereignty in certain respects by virtue of their dependent status,[13] that under certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation,[14] and that in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members.[15]
+
+Nevertheless, in demarcating the respective spheres of state and tribal authority over Indian reservations, we have continued to stress that Indian tribes are unique aggregations possessing "" `attributes of sovereignty over both their members and their territory,' "" White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980), quoting United States v. Mazurie, 419 U.S. 544, 557 (1975). Because of their sovereign status, tribes and their reservation lands are insulated in some respects by a ""historic immunity from state and local control,"" Mescalero Apache Tribe v. Jones, supra, at 152, and tribes retain any aspect of their historical sovereignty not ""inconsistent with the overriding interests of the National Government."" Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 153 (1980).
+
+The sovereignty retained by tribes includes ""the power of regulating their internal and social relations,"" United States v. Kagama, 118 U.S. 375, 381-382 (1886), cited in United States v. Wheeler, 435 U.S. 313, 322 (1978). A tribe's power to prescribe the conduct of tribal members has never been doubted, and our cases establish that "" `absent governing Acts of Congress,' "" a State may not act in a manner that "" `infringe[s] on the right of reservation Indians to make their own laws and be ruled by them.' "" McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 171-172 (1973), quoting Williams v. Lee, 358 U.S. 217, 219-220 (1959). See also Fisher v. District Court, 424 U.S. 382, 388-389 (1976) (per curiam).
+
+A tribe's power to exclude nonmembers entirely or to condition their presence on the reservation is equally well established. See, e. g., Montana v. United States, 450 U.S. 544 (1981); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). Whether a State may also assert its authority over the on-reservation activities of nonmembers raises ""[m]ore difficult questions,"" Bracker, supra, at 144. While under some circumstances a State may exercise concurrent jurisdiction over non-Indians acting on tribal reservations, see, e. g., Washington v. Confederated Tribes, supra; Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976), such authority may be asserted only if not pre-empted by the operation of federal law. See, e. g., Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982); Bracker, supra; Central Machinery Co. v. Arizona Tax Comm'n, 448 U.S. 160 (1980); Williams v. Lee, supra; Warren Trading Post v. Arizona Tax Comm'n, 380 U.S. 685 (1965); Fisher v. District Court, supra; Kennerly v. District Court of Montana, 400 U.S. 423 (1971).
+
+In Bracker we reviewed our prior decisions concerning tribal and state authority over Indian reservations and extracted certain principles governing the determination whether federal law pre-empts the assertion of state authority over nonmembers on a reservation. We stated that that determination does not depend ""on mechanical or absolute conceptions of state or tribal sovereignty, but call[s] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake."" 448 U.S., at 145.
+
+We also emphasized the special sense in which the doctrine of pre-emption is applied in this context. See id., at 143-144; Ramah Navajo School Bd., supra, at 838. Although a State will certainly be without jurisdiction if its authority is pre-empted under familiar principles of pre-emption, we cautioned that our prior cases did not limit pre-emption of state laws affecting Indian tribes to only those circumstances. ""The unique historical origins of tribal sovereignty"" and the federal commitment to tribal self-sufficiency and self-determination make it ""treacherous to import . . . notions of pre-emption that are properly applied to . . . other [contexts]."" Bracker, supra, at 143. See also Ramah Navajo School Bd., supra, at 838. By resting pre-emption analysis principally on a consideration of the nature of the competing interests at stake, our cases have rejected a narrow focus on congressional intent to pre-empt state law as the sole touchstone. They have also rejected the proposition that pre-emption requires "" `an express congressional statement to that effect.' "" Bracker, supra, at 144 (footnote omitted). State jurisdiction is pre-empted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority. Bracker, supra, at 145. See also Ramah Navajo School Bd., supra, at 845, quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941).[16]
+
+Certain broad considerations guide our assessment of the federal and tribal interests. The traditional notions of Indian sovereignty provide a crucial ""backdrop,"" Bracker, supra, at 143, citing McClanahan, supra, at 172, against which any assertion of state authority must be assessed. Moreover, both the tribes and the Federal Government are firmly committed to the goal of promoting tribal self-government, a goal embodied in numerous federal statutes.[17] We have stressed that Congress' objective of furthering tribal self-government encompasses far more than encouraging tribal management of disputes between members, but includes Congress' overriding goal of encouraging ""tribal self-sufficiency and economic development."" Bracker, 448 U. S., at 143 (footnote omitted). In part as a necessary implication of this broad federal commitment, we have held that tribes have the power to manage the use of their territory and resources by both members and nonmembers,[18]Merrion, supra, at 137; Bracker, supra, at 151; Montana v. United States, supra; 18 U.S. C. § 1162(b); 25 U.S. C. §§ 1321(b), 1322(b), to undertake and regulate economic activity within the reservation, Merrion, 455 U. S., at 137, and to defray the cost of governmental services by levying taxes. Ibid. Thus, when a tribe undertakes an enterprise under the authority of federal law, an assertion of state authority must be viewed against any interference with the successful accomplishment of the federal purpose. See generally Bracker, supra, at 143 (footnote omitted); Ramah Navajo School Bd., 458 U. S., at 845, quoting Hines v. Davidowitz, supra, at 67 (state authority precluded when it "" `stands as an obstacle to the accomplishment of the full purposes and objectives of Congress' "").
+
+Our prior decisions also guide our assessment of the state interest asserted to justify state jurisdiction over a reservation. The exercise of state authority which imposes additional burdens on a tribal enterprise must ordinarily be justified by functions or services performed by the State in connection with the on-reservation activity. Ramah Navajo School Bd., supra, at 843, and n. 7; Bracker, supra, at 148-149; Central Machinery Co. v. Arizona Tax Comm'n, 448 U. S., at 174 (POWELL, J., dissenting). Thus a State seeking to impose a tax on a transaction between a tribe and nonmembers must point to more than its general interest in raising revenues. See, e. g., Warren Trading Post Co. v. Arizona, 380 U.S. 685 (1965); Bracker, supra; Ramah Navajo School Bd., supra. See also Confederated Tribes, 447 U. S., at 157 (""governmental interest in raising revenues is. . . strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services""); Moe, 425 U. S., at 481-483 (State may require tribal shops to collect state cigarette tax from nonmember purchasers). A State's regulatory interest will be particularly substantial if the State can point to off-reservation effects that necessitate state intervention. Cf. Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (1977).",analysis,The Tribe's Exercise of Jurisdiction,strongly agree,The Tribe's Authority,strongly agree,The Tribe's Exercise of Jurisdiction and State Preemption,2
+G8,10,1,1,III,"With these principles in mind, we turn to New Mexico's claim that it may superimpose its own hunting and fishing regulations on the Mescalero Apache Tribe's regulatory scheme.
+
+It is beyond doubt that the Mescalero Apache Tribe lawfully exercises substantial control over the lands and resources of its reservation, including its wildlife. As noted supra, at 330, and as conceded by New Mexico,[19] the sovereignty retained by the Tribe under the Treaty of 1852 includes its right to regulate the use of its resources by members as well as nonmembers. In Montana v. United States, we specifically recognized that tribes in general retain this authority.
+
+Moreover, this aspect of tribal sovereignty has been expressly confirmed by numerous federal statutes.[20] Pub. L. 280 specifically confirms the power of tribes to regulate on-reservation hunting and fishing. 67 Stat. 588, 18 U.S. C. § 1162(b); see also 25 U.S. C. § 1321(b).[21] This authority is afforded the protection of the federal criminal law by 18 U.S. C. § 1165, which makes it a violation of federal law to enter Indian land to hunt, trap, or fish without the consent of the tribe. See Montana v. United States, 450 U. S., at 562, n. 11. The 1981 Amendments to the Lacey Act, 16 U.S. C. § 3371 et seq. (1976 ed., Supp. V), further accord tribal hunting and fishing regulations the force of federal law by making it a federal offense ""to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife . . . taken or possessed in violation of any . . . Indian tribal law."" § 3372(a)(1).[22]
+
+Several considerations strongly support the Court of Appeals' conclusion that the Tribe's authority to regulate hunting and fishing pre-empts state jurisdiction. It is important to emphasize that concurrent jurisdiction would effectively nullify the Tribe's authority to control hunting and fishing on the reservation. Concurrent jurisdiction would empower New Mexico wholly to supplant tribal regulations. The State would be able to dictate the terms on which nonmembers are permitted to utilize the reservation's resources. The Tribe would thus exercise its authority over the reservation only at the sufferance of the State. The tribal authority to regulate hunting and fishing by nonmembers, which has been repeatedly confirmed by federal treaties and laws and which we explicitly recognized in Montana v. United States, supra, would have a rather hollow ring if tribal authority amounted to no more than this.
+
+Furthermore, the exercise of concurrent state jurisdiction in this case would completely ""disturb and disarrange,"" Warren Trading Post Co. v. Arizona Tax Comm'n, supra, at 691, the comprehensive scheme of federal and tribal management established pursuant to federal law. As described supra, at 326, federal law requires the Secretary to review each of the Tribe's hunting and fishing ordinances. Those ordinances are based on the recommendations made by a federal range conservationist employed by the Bureau of Indian Affairs. Moreover, the Bureau of Sport Fisheries and Wildlife stocks the reservation's waters based on its own determinations concerning the availability of fish, biological requirements, and the fishing pressure created by on-reservation fishing. App. 71a.[23]
+
+Concurrent state jurisdiction would supplant this regulatory scheme with an inconsistent dual system: members would be governed by tribal ordinances, while nonmembers would be regulated by general state hunting and fishing laws. This could severely hinder the ability of the Tribe to conduct a sound management program. Tribal ordinances reflect the specific needs of the reservation by establishing the optimal level of hunting and fishing that should occur, not simply a maximum level that should not be exceeded. State laws in contrast are based on considerations not necessarily relevant to, and possibly hostile to, the needs of the reservation. For instance, the ordinance permitting a hunter to kill a buck and a doe was designed to curb excessive growth of the deer population on the reservation. Id., at 153a-154a. Enforcement of the state regulation permitting only buck to be killed would frustrate that objective. Similarly, by determining the tribal hunting seasons, bag limits, and permit availability, the Tribe regulates the duration and intensity of hunting. These determinations take into account numerous factors, including the game capacity of the terrain, the range utilization of the game animals, and the availability of tribal personnel to monitor the hunts. Permitting the State to enforce different restrictions simply because they have been determined to be appropriate for the State as a whole would impose on the Tribe the possibly insurmountable task of ensuring that the patchwork application of state and tribal regulations remains consistent with sound management of the reservation's resources.
+
+Federal law commits to the Secretary and the Tribal Council the responsibility to manage the reservation's resources. It is most unlikely that Congress would have authorized, and the Secretary would have established, financed, and participated in, tribal management if it were thought that New Mexico was free to nullify the entire arrangement.[24] Requiring tribal ordinances to yield whenever state law is more restrictive would seriously ""undermine the Secretary's [and the Tribe's] ability to make the wide range of determinations committed to [their] authority."" Bracker, 448 U. S., at 149. See Fisher v. District Court, 424 U. S., at 390; United States v. Mazurie, 419 U.S. 544 (1975).[25]
+
+The assertion of concurrent jurisdiction by New Mexico not only would threaten to disrupt the federal and tribal regulatory scheme, but also would threaten Congress' overriding objective of encouraging tribal self-government and economic development. The Tribe has engaged in a concerted and sustained undertaking to develop and manage the reservation's wildlife and land resources specifically for the benefit of its members. The project generates funds for essential tribal services and provides employment for members who reside on the reservation. This case is thus far removed from those situations, such as on-reservation sales outlets which market to nonmembers goods not manufactured by the tribe or its members, in which the tribal contribution to an enterprise is de minimis. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S., at 154-159.[26] The tribal enterprise in this case clearly involves ""value generated on the reservation by activities involving the Trib[e]."" Id., at 156-157. The disruptive effect that would result from the assertion of concurrent jurisdiction by New Mexico would plainly "" `stan[d] as an obstacle to the accomplishment of the full purposes and objectives of Congress,' "" Ramah Navajo School Bd., 458 U. S., at 845, quoting Hines v. Davidowitz, 312 U. S., at 67.
+
+The State has failed to ""identify any regulatory function or service . . . that would justify"" the assertion of concurrent regulatory authority. Bracker, supra, at 148. The hunting and fishing permitted by the Tribe occur entirely on the reservation. The fish and wildlife resources are either native to the reservation or were created by the joint efforts of the Tribe and the Federal Government. New Mexico does not contribute in any significant respect to the maintenance of these resources, and can point to no other ""governmental functions it provides,"" Ramah Navajo School Bd., supra, at 843, in connection with hunting and fishing on the reservation by nonmembers that would justify the assertion of its authority.
+
+The State also cannot point to any off-reservation effects that warrant state intervention. Some species of game never leave tribal lands, and the State points to no specific interest concerning those that occasionally do. Unlike Puyallup Tribe v. Washington Game Dept., this is not a case in which a treaty expressly subjects a tribe's hunting and fishing rights to the common rights of nonmembers and in which a State's interest in conserving a scarce, common supply justifies state intervention. 433 U.S., at 174, 175-177. The State concedes that the Tribe's management has ""not had an adverse impact on fish and wildlife outside the Reservation."" App. to Brief in Opposition 35a.[27]
+
+We recognize that New Mexico may be deprived of the sale of state licenses to nonmembers who hunt and fish on the reservation, as well as some federal matching funds calculated in part on the basis of the number of state licenses sold.[28] However, any financial interest the State might have in this case is simply insufficient to justify the assertion of concurrent jurisdiction. The loss of revenues to the State is likely to be insubstantial given the small numbers of persons who purchase tribal hunting licenses.[29] Moreover, unlike Confederated Tribes, supra, and Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976), the activity involved here concerns value generated on the reservation by the Tribe. Finally, as already noted supra, at 342, the State has pointed to no services it has performed in connection with hunting and fishing by nonmembers which justify imposing a tax in the form of a hunting and fishing license, Ramah Navajo School Bd., supra, at 843; Central Machinery Co. v. Arizona Tax Comm'n, 448 U. S., at 174 (POWELL, J., dissenting), and its general desire to obtain revenues is simply inadequate to justify the assertion of concurrent jurisdiction in this case. See Bracker, 448 U. S., at 150; Ramah Navajo School Bd., supra, at 845.[30]",analysis,The Mescalero Apache Tribe's Authority to Regulate Hunting and Fishing,disagree,New Mexico's Superposition of State Regulations,strongly agree,New Mexico's Claim of Regulatory Preemption,3
+G8,10,1,2,A,"It is beyond doubt that the Mescalero Apache Tribe lawfully exercises substantial control over the lands and resources of its reservation, including its wildlife. As noted supra, at 330, and as conceded by New Mexico,[19] the sovereignty retained by the Tribe under the Treaty of 1852 includes its right to regulate the use of its resources by members as well as nonmembers. In Montana v. United States, we specifically recognized that tribes in general retain this authority.
+
+Moreover, this aspect of tribal sovereignty has been expressly confirmed by numerous federal statutes.[20] Pub. L. 280 specifically confirms the power of tribes to regulate on-reservation hunting and fishing. 67 Stat. 588, 18 U.S. C. § 1162(b); see also 25 U.S. C. § 1321(b).[21] This authority is afforded the protection of the federal criminal law by 18 U.S. C. § 1165, which makes it a violation of federal law to enter Indian land to hunt, trap, or fish without the consent of the tribe. See Montana v. United States, 450 U. S., at 562, n. 11. The 1981 Amendments to the Lacey Act, 16 U.S. C. § 3371 et seq. (1976 ed., Supp. V), further accord tribal hunting and fishing regulations the force of federal law by making it a federal offense ""to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife . . . taken or possessed in violation of any . . . Indian tribal law."" § 3372(a)(1).[22]",analysis,Tribal Sovereignty,agree,The Mescalero Apache Tribe,disagree,Tribal Sovereignty on Reservation's Wildlife,1
+G8,10,1,2,B,"Several considerations strongly support the Court of Appeals' conclusion that the Tribe's authority to regulate hunting and fishing pre-empts state jurisdiction. It is important to emphasize that concurrent jurisdiction would effectively nullify the Tribe's authority to control hunting and fishing on the reservation. Concurrent jurisdiction would empower New Mexico wholly to supplant tribal regulations. The State would be able to dictate the terms on which nonmembers are permitted to utilize the reservation's resources. The Tribe would thus exercise its authority over the reservation only at the sufferance of the State. The tribal authority to regulate hunting and fishing by nonmembers, which has been repeatedly confirmed by federal treaties and laws and which we explicitly recognized in Montana v. United States, supra, would have a rather hollow ring if tribal authority amounted to no more than this.
+
+Furthermore, the exercise of concurrent state jurisdiction in this case would completely ""disturb and disarrange,"" Warren Trading Post Co. v. Arizona Tax Comm'n, supra, at 691, the comprehensive scheme of federal and tribal management established pursuant to federal law. As described supra, at 326, federal law requires the Secretary to review each of the Tribe's hunting and fishing ordinances. Those ordinances are based on the recommendations made by a federal range conservationist employed by the Bureau of Indian Affairs. Moreover, the Bureau of Sport Fisheries and Wildlife stocks the reservation's waters based on its own determinations concerning the availability of fish, biological requirements, and the fishing pressure created by on-reservation fishing. App. 71a.[23]
+
+Concurrent state jurisdiction would supplant this regulatory scheme with an inconsistent dual system: members would be governed by tribal ordinances, while nonmembers would be regulated by general state hunting and fishing laws. This could severely hinder the ability of the Tribe to conduct a sound management program. Tribal ordinances reflect the specific needs of the reservation by establishing the optimal level of hunting and fishing that should occur, not simply a maximum level that should not be exceeded. State laws in contrast are based on considerations not necessarily relevant to, and possibly hostile to, the needs of the reservation. For instance, the ordinance permitting a hunter to kill a buck and a doe was designed to curb excessive growth of the deer population on the reservation. Id., at 153a-154a. Enforcement of the state regulation permitting only buck to be killed would frustrate that objective. Similarly, by determining the tribal hunting seasons, bag limits, and permit availability, the Tribe regulates the duration and intensity of hunting. These determinations take into account numerous factors, including the game capacity of the terrain, the range utilization of the game animals, and the availability of tribal personnel to monitor the hunts. Permitting the State to enforce different restrictions simply because they have been determined to be appropriate for the State as a whole would impose on the Tribe the possibly insurmountable task of ensuring that the patchwork application of state and tribal regulations remains consistent with sound management of the reservation's resources.
+
+Federal law commits to the Secretary and the Tribal Council the responsibility to manage the reservation's resources. It is most unlikely that Congress would have authorized, and the Secretary would have established, financed, and participated in, tribal management if it were thought that New Mexico was free to nullify the entire arrangement.[24] Requiring tribal ordinances to yield whenever state law is more restrictive would seriously ""undermine the Secretary's [and the Tribe's] ability to make the wide range of determinations committed to [their] authority."" Bracker, 448 U. S., at 149. See Fisher v. District Court, 424 U. S., at 390; United States v. Mazurie, 419 U.S. 544 (1975).[25]
+
+The assertion of concurrent jurisdiction by New Mexico not only would threaten to disrupt the federal and tribal regulatory scheme, but also would threaten Congress' overriding objective of encouraging tribal self-government and economic development. The Tribe has engaged in a concerted and sustained undertaking to develop and manage the reservation's wildlife and land resources specifically for the benefit of its members. The project generates funds for essential tribal services and provides employment for members who reside on the reservation. This case is thus far removed from those situations, such as on-reservation sales outlets which market to nonmembers goods not manufactured by the tribe or its members, in which the tribal contribution to an enterprise is de minimis. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S., at 154-159.[26] The tribal enterprise in this case clearly involves ""value generated on the reservation by activities involving the Trib[e]."" Id., at 156-157. The disruptive effect that would result from the assertion of concurrent jurisdiction by New Mexico would plainly "" `stan[d] as an obstacle to the accomplishment of the full purposes and objectives of Congress,' "" Ramah Navajo School Bd., 458 U. S., at 845, quoting Hines v. Davidowitz, 312 U. S., at 67.",analysis,Concurrent State Jurisdiction,agree,Tribal Authority to Regulate Hunting and Fishing,disagree,New Mexico's Assertion of Concurrent Jurisdiction,2
+G8,10,1,2,C,"The State has failed to ""identify any regulatory function or service . . . that would justify"" the assertion of concurrent regulatory authority. Bracker, supra, at 148. The hunting and fishing permitted by the Tribe occur entirely on the reservation. The fish and wildlife resources are either native to the reservation or were created by the joint efforts of the Tribe and the Federal Government. New Mexico does not contribute in any significant respect to the maintenance of these resources, and can point to no other ""governmental functions it provides,"" Ramah Navajo School Bd., supra, at 843, in connection with hunting and fishing on the reservation by nonmembers that would justify the assertion of its authority.
+
+The State also cannot point to any off-reservation effects that warrant state intervention. Some species of game never leave tribal lands, and the State points to no specific interest concerning those that occasionally do. Unlike Puyallup Tribe v. Washington Game Dept., this is not a case in which a treaty expressly subjects a tribe's hunting and fishing rights to the common rights of nonmembers and in which a State's interest in conserving a scarce, common supply justifies state intervention. 433 U.S., at 174, 175-177. The State concedes that the Tribe's management has ""not had an adverse impact on fish and wildlife outside the Reservation."" App. to Brief in Opposition 35a.[27]
+
+We recognize that New Mexico may be deprived of the sale of state licenses to nonmembers who hunt and fish on the reservation, as well as some federal matching funds calculated in part on the basis of the number of state licenses sold.[28] However, any financial interest the State might have in this case is simply insufficient to justify the assertion of concurrent jurisdiction. The loss of revenues to the State is likely to be insubstantial given the small numbers of persons who purchase tribal hunting licenses.[29] Moreover, unlike Confederated Tribes, supra, and Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976), the activity involved here concerns value generated on the reservation by the Tribe. Finally, as already noted supra, at 342, the State has pointed to no services it has performed in connection with hunting and fishing by nonmembers which justify imposing a tax in the form of a hunting and fishing license, Ramah Navajo School Bd., supra, at 843; Central Machinery Co. v. Arizona Tax Comm'n, 448 U. S., at 174 (POWELL, J., dissenting), and its general desire to obtain revenues is simply inadequate to justify the assertion of concurrent jurisdiction in this case. See Bracker, 448 U. S., at 150; Ramah Navajo School Bd., supra, at 845.[30]",analysis,The State failed to identify any regulatory function or service,agree,The State's Failure to Identify Any Function or Service,agree,New Mexico's Lack of Justification for Concurrent Jurisdiction,3
+G8,10,1,1,IV,"In this case the governing body of an Indian Tribe, working closely with the Federal Government and under the authority of federal law, has exercised its lawful authority to develop and manage the reservation's resources for the benefit of its members. The exercise of concurrent jurisdiction by the State would effectively nullify the Tribe's unquestioned authority to regulate the use of its resources by members and nonmembers, interfere with the comprehensive tribal regulatory scheme, and threaten Congress' firm commitment to the encouragement of tribal self-sufficiency and economic development. Given the strong interests favoring exclusive tribal jurisdiction and the absence of state interests which justify the assertion of concurrent authority, we conclude that the application of the State's hunting and fishing laws to the reservation is pre-empted.
+
+Accordingly, the judgment of the Court of Appeals is
+
+Affirmed.",conclusion,Concurrent Jurisdiction,disagree,Application of Hunting and Fishing Laws to the Reservation,disagree,Conclusion and Dismissal of New Mexico's Claim,4
+G8,12,1,1,I,"Respondent Jack L. Thomas is a former employee of TruTech, Inc. In 1987, Thomas filed an ERISA class action in federal court against Tru-Tech and petitioner D. Grant Peacock, an officer and shareholder of Tru-Tech, for benefits due under the corporation's pension benefits plan. Thomas alleged primarily that Tru-Tech and Peacock breached their fiduciary duties to the class in administering the plan. The District Court found that Tru-Tech had breached its fiduciary duties, but ruled that Peacock was not a fiduciary. On November 28, 1988, the District Court entered judgment in the amount of $187,628.93 against Tru-Tech only. Thomas v. Tru-Tech, Inc., No. 87-2243-3 (D. S. C.). On April 3, 1990, the Court of Appeals for the Fourth Circuit affirmed. Judgt. order reported at 900 F. 2d 256. Thomas did not execute the judgment while the case was on appeal and, during that time, Peacock settled many of Tru-Tech's accounts with favored creditors, including himself.
+
+After the Court of Appeals affirmed the judgment, Thomas unsuccessfully attempted to collect the judgment from Tru-Tech. Thomas then sued Peacock in federal court, claiming that Peacock had entered into a civil conspiracy to siphon assets from Tru-Tech to prevent satisfaction of the ERISA judgment.[1] Thomas also claimed that Peacock fraudulently conveyed Tru-Tech's assets in violation of South Carolina and Pennsylvania law. Thomas later amended his complaint to assert a claim for ""Piercing the Corporate Veil Under ERISA and Applicable Federal Law."" App. 49. The District Court ultimately agreed to pierce the corporate veil and entered judgment against Peacock in the amount of $187,628.93_x0097_the precise amount of the judgment against Tru-Tech_x0097_plus interest and fees, notwithstanding the fact that Peacock's alleged fraudulent transfers totaled no more than $80,000. The Court of Appeals affirmed, holding that the District Court properly exercised ancillary jurisdiction over Thomas' suit. 39 F. 3d 493 (CA4 1994). We granted certiorari to determine whether the District Court had subject-matter jurisdiction and to resolve a conflict among the Courts of Appeals.[2] 514 U. S. 1126 (1995). We now reverse.",facts,Thomas v. Peacock,agree,"Thomas v. Tru-Tech, Inc.",agree,"Thomas Lawsuits agains Tru-Tech, Inc. and Peacock",1
+G8,12,1,1,II,"Thomas relies on the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq. , as the source of federal jurisdiction for this suit. The District Court did not expressly rule on subject-matter jurisdiction, but found that Thomas had properly stated a claim under ERISA for piercing the corporate veil. We disagree. We are not aware of, and Thomas does not point to, any provision of ERISA that provides for imposing liability for an extant ERISA judgment against a third party. See Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 833 (1988) (""ERISA does not provide an enforcement mechanism for collecting judgments . . ."").
+
+We reject Thomas' suggestion, not made in the District Court, that this subsequent suit arose under § 502(a)(3) of ERISA, which authorizes civil actions for ""appropriate equitable relief"" to redress violations of ERISA or the terms of an ERISA plan. 29 U. S. C. § 1132(a)(3). Thomas' complaint in this lawsuit alleged no violation of ERISA or of the plan. The wrongdoing alleged in the complaint occurred in 1989 and 1990, some four to five years after Tru-Tech's ERISA plan was terminated, and Thomas did not_x0097_indeed, could not_x0097_allege that Peacock was a fiduciary to the terminated plan.[3] Thomas further concedes that Peacock's alleged wrongdoing ""did not occur with respect to the administration or operation of the plan."" Brief for Respondent 11. Under the circumstances, we think Thomas failed to allege a claim under § 502(a)(3) for equitable relief. Section 502(a)(3) ""does not, after all, authorize `appropriate equitable relief' at large, but only `appropriate equitable relief' for the purpose of `redress[ing any] violations or . . . enforc[ing] any provisions' of ERISA or an ERISA plan."" Mertens v. Hewitt Associates, 508 U. S. 248, 253 (1993) (emphasis and modifications in original).
+
+Moreover, Thomas' veil-piercing claim does not state a cause of action under ERISA and cannot independently support federal jurisdiction. Even if ERISA permits a plaintiff to pierce the corporate veil to reach a defendant not otherwise subject to suit under ERISA, Thomas could invoke the jurisdiction of the federal courts only by independently alleging a violation of an ERISA provision or term of the plan.[4] Piercing the corporate veil is not itself an independent ERISA cause of action, ""but rather is a means of imposing liability on an underlying cause of action."" 1 C. Keating & G. O'Gradney, Fletcher Cyclopedia of Law of Private Corporations § 41, p. 603 (perm. ed. 1990). Because Thomas alleged no ""underlying"" violation of any provision of ERISA or an ERISA plan, neither ERISA's jurisdictional provision, 29 U. S. C. § 1132(e)(1), nor 28 U. S. C. § 1331 supplied the District Court with subject-matter jurisdiction over this suit.",analysis,Federal Jurisdiction Under ERISA,agree,ERISA Claims,agree,District Courts' Jurisdiction over Thomas' Claims,2
+G8,12,1,1,III,"Thomas also contends that this lawsuit is ancillary to the original ERISA suit.[5] We have recognized that a federal court may exercise ancillary jurisdiction ""(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees."" Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379-380 (1994) (citations omitted). Thomas has not carried his burden of demonstrating that this suit falls within either category. See id., at 377 (burden rests on party asserting jurisdiction).
+
+""[A]ncillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court."" Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 376 (1978). Ancillary jurisdiction may extend to claims having a factual and logical dependence on ""the primary lawsuit,"" ibid., but that primary lawsuit must contain an independent basis for federal jurisdiction. The court must have jurisdiction over a case or controversy before it may assert jurisdiction over ancillary claims. See Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966). In a subsequent lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction. See Kokkonen, supra, at 380-381; H. C. Cook Co. v. Beecher, 217 U. S. 497, 498-499 (1910). Consequently, claims alleged to be factually interdependent with and, hence, ancillary to claims brought in an earlier federal lawsuit will not support federal jurisdiction over a subsequent lawsuit. The basis of the doctrine of ancillary jurisdiction is the practical need ""to protect legal rights or effectively to resolve an entire, logically entwined lawsuit."" Kroger, 437 U. S., at 377. But once judgment was entered in the original ERISA suit, the ability to resolve simultaneously factually intertwined issues vanished. As in Kroger, ""neither the convenience of litigants nor considerations of judicial economy"" can justify the extension of ancillary jurisdiction over Thomas' claims in this subsequent proceeding. Ibid.
+
+In any event, there is insufficient factual dependence between the claims raised in Thomas' first and second suits to justify the extension of ancillary jurisdiction. Thomas' factual allegations in this suit are independent from those asserted in the ERISA suit, which involved Peacock's and Tru-Tech's status as plan fiduciaries and their alleged wrongdoing in the administration of the plan. The facts relevant to this complaint are limited to allegations that Peacock shielded Tru-Tech's assets from the ERISA judgment long after Tru-Tech's plan had been terminated. The claims in these cases have littleor no factual or logical interdependence, and, under these circumstances, no greater efficiencies would be created by the exercise of federal jurisdiction over them. See Kokkonen, supra, at 380.
+
+The focus of Thomas' argument is that his suit to extend liability for payment of the ERISA judgment from Tru-Tech to Peacock fell under the District Court's ancillary enforcement jurisdiction. We have reserved the use of ancillary jurisdiction in subsequent proceedings for the exercise of a federal court's inherent power to enforce its judgments. Without jurisdiction to enforce a judgment entered by a federal court, ""the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution."" Riggs v. Johnson County, 6 Wall. 166, 187 (1868). In defining that power, we have approved the exercise of ancillary jurisdiction over a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgments_x0097_ including attachment, mandamus, garnishment, and the prejudgment avoidance of fraudulent conveyances. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S., at 834, n. 10 (garnishment); Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 690_x0097_ 692 (1950) (prejudgment attachment of property); Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329, 332-333 (1887) (prejudgment voidance of fraudulent transfers); Labette County Comm'rs v. United States ex rel. Moulton, 112 U. S. 217, 221-225 (1884) (mandamus to compel public officials in their official capacity to levy tax to enforce judgment against township); Krippendorf v. Hyde, 110 U. S. 276, 282-285 (1884) (prejudgment dispute over attached property); Riggs, supra, at 187-188 (mandamus to compel public officials in their official capacity to levy tax to enforce judgment against county).[6]
+
+Our recognition of these supplementary proceedings has not, however, extended beyond attempts to execute, or to guarantee eventual executability of, a federal judgment. We have never authorized the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not already liable for that judgment. Indeed, we rejected an attempt to do so in H. C. Cook Co. v. Beecher, 217 U. S. 497 (1910). In Beecher, the plaintiff obtained a judgment in federal court against a corporation that had infringed its patent. When the plaintiff could not collect on the judgment, it sued the individual directors of the defendant corporation, alleging that, during the pendency of the original suit, they had authorized continuing sales of the infringing product and knowingly permitted the corporation to become insolvent. We agreed with the Circuit Court's characterization of the suit as ""an attempt to make the defendants answerable for the judgment already obtained"" and affirmed the court's decision that the suit was not ""ancillary to the judgment in the former suit."" Id., at 498-499. Beecher governs this case and persuades us that Thomas' attempt to make Peacock answerable for the ERISA judgment is not ancillary to that judgment.
+
+Labette County Comm'rs and Riggs are not to the contrary. In those cases, we permitted a judgment creditor to mandamus county officials to force them to levy a tax for payment of an existing judgment. Labette County Comm'rs, supra, at 221-225; Riggs, supra, at 187-188. The order in each case merely required compliance with the existing judgment by the persons with authority to comply. We did not authorize the shifting of liability for payment of the judgment from the judgment debtor to the county officials, as Thomas attempts to do here.
+
+In determining the reach of the federal courts' ancillary jurisdiction, we have cautioned against the exercise of jurisdiction over proceedings that are ""`entirely new and original,' "" Krippendorf v. Hyde, supra, at 285 (quoting Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633 (1865)), or where ""the relief [sought is] of a different kind or on a different principle"" than that of the prior decree. Dugas v. American Surety Co., 300 U. S. 414, 428 (1937). These principles suggest that ancillary jurisdiction could not properly be exercised in this case. This action is founded not only upon different facts than the ERISA suit, but also upon entirely new theories of liability. In this suit, Thomas alleged civil conspiracy and fraudulent transfer of Tru-Tech's assets, but, as we have noted, no substantive ERISA violation. The alleged wrongdoing in this case occurred after the ERISA judgment was entered, and Thomas' claims_x0097_civil conspiracy, fraudulent conveyance, and ""veil piercing""_x0097_all involved new theories of liability not asserted in the ERISA suit. Other than the existence of the ERISA judgment itself, this suit has little connection to the ERISA case. This is a new action based on theories of relief that did not exist, and could not have existed, at the time the court entered judgment in the ERISA case.
+
+Ancillary enforcement jurisdiction is, at its core, a creature of necessity. See Kokkonen, 511 U. S., at 380; Riggs, 6 Wall., at 187. When a party has obtained a valid federal judgment, only extraordinary circumstances, if any, can justify ancillary jurisdiction over a subsequent suit like this. To protect and aid the collection of a federal judgment, the Federal Rules of Civil Procedure provide fast and effective mechanisms for execution.[7] In the event a stay is entered pending appeal, the Rules require the district court to ensure that the judgment creditor's position is secured, ordinarily by a supersedeas bond.[8] The Rules cannot guarantee payment of every federal judgment. But as long as they protect a judgment creditor's ability to execute on a judgment, the district court's authority is adequately preserved, and ancillary jurisdiction is not justified over a new lawsuit to impose liability for a judgment on a third party. Contrary to Thomas' suggestion otherwise, we think these procedural safeguards are sufficient to prevent wholesale fraud upon the district courts of the United States.",analysis,Ancillary Jurisdiction,strongly agree,Ancillary Jurisdiction,strongly agree,The Doctrine of Ancillary Jurisdiction,3
+G8,12,1,2,A,"""[A]ncillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court."" Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 376 (1978). Ancillary jurisdiction may extend to claims having a factual and logical dependence on ""the primary lawsuit,"" ibid., but that primary lawsuit must contain an independent basis for federal jurisdiction. The court must have jurisdiction over a case or controversy before it may assert jurisdiction over ancillary claims. See Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966). In a subsequent lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction. See Kokkonen, supra, at 380-381; H. C. Cook Co. v. Beecher, 217 U. S. 497, 498-499 (1910). Consequently, claims alleged to be factually interdependent with and, hence, ancillary to claims brought in an earlier federal lawsuit will not support federal jurisdiction over a subsequent lawsuit. The basis of the doctrine of ancillary jurisdiction is the practical need ""to protect legal rights or effectively to resolve an entire, logically entwined lawsuit."" Kroger, 437 U. S., at 377. But once judgment was entered in the original ERISA suit, the ability to resolve simultaneously factually intertwined issues vanished. As in Kroger, ""neither the convenience of litigants nor considerations of judicial economy"" can justify the extension of ancillary jurisdiction over Thomas' claims in this subsequent proceeding. Ibid.
+
+In any event, there is insufficient factual dependence between the claims raised in Thomas' first and second suits to justify the extension of ancillary jurisdiction. Thomas' factual allegations in this suit are independent from those asserted in the ERISA suit, which involved Peacock's and Tru-Tech's status as plan fiduciaries and their alleged wrongdoing in the administration of the plan. The facts relevant to this complaint are limited to allegations that Peacock shielded Tru-Tech's assets from the ERISA judgment long after Tru-Tech's plan had been terminated. The claims in these cases have littleor no factual or logical interdependence, and, under these circumstances, no greater efficiencies would be created by the exercise of federal jurisdiction over them. See Kokkonen, supra, at 380.",analysis,The Doctrine of Ancillary Jurisdiction,agree,Ancillary Jurisdiction Over Thomas' Claims,strongly agree,Ancillary Jurisdiction Over Thomas' Claims,1
+G8,12,1,2,B,"The focus of Thomas' argument is that his suit to extend liability for payment of the ERISA judgment from Tru-Tech to Peacock fell under the District Court's ancillary enforcement jurisdiction. We have reserved the use of ancillary jurisdiction in subsequent proceedings for the exercise of a federal court's inherent power to enforce its judgments. Without jurisdiction to enforce a judgment entered by a federal court, ""the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution."" Riggs v. Johnson County, 6 Wall. 166, 187 (1868). In defining that power, we have approved the exercise of ancillary jurisdiction over a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgments_x0097_ including attachment, mandamus, garnishment, and the prejudgment avoidance of fraudulent conveyances. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S., at 834, n. 10 (garnishment); Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 690_x0097_ 692 (1950) (prejudgment attachment of property); Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329, 332-333 (1887) (prejudgment voidance of fraudulent transfers); Labette County Comm'rs v. United States ex rel. Moulton, 112 U. S. 217, 221-225 (1884) (mandamus to compel public officials in their official capacity to levy tax to enforce judgment against township); Krippendorf v. Hyde, 110 U. S. 276, 282-285 (1884) (prejudgment dispute over attached property); Riggs, supra, at 187-188 (mandamus to compel public officials in their official capacity to levy tax to enforce judgment against county).[6]
+
+Our recognition of these supplementary proceedings has not, however, extended beyond attempts to execute, or to guarantee eventual executability of, a federal judgment. We have never authorized the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not already liable for that judgment. Indeed, we rejected an attempt to do so in H. C. Cook Co. v. Beecher, 217 U. S. 497 (1910). In Beecher, the plaintiff obtained a judgment in federal court against a corporation that had infringed its patent. When the plaintiff could not collect on the judgment, it sued the individual directors of the defendant corporation, alleging that, during the pendency of the original suit, they had authorized continuing sales of the infringing product and knowingly permitted the corporation to become insolvent. We agreed with the Circuit Court's characterization of the suit as ""an attempt to make the defendants answerable for the judgment already obtained"" and affirmed the court's decision that the suit was not ""ancillary to the judgment in the former suit."" Id., at 498-499. Beecher governs this case and persuades us that Thomas' attempt to make Peacock answerable for the ERISA judgment is not ancillary to that judgment.
+
+Labette County Comm'rs and Riggs are not to the contrary. In those cases, we permitted a judgment creditor to mandamus county officials to force them to levy a tax for payment of an existing judgment. Labette County Comm'rs, supra, at 221-225; Riggs, supra, at 187-188. The order in each case merely required compliance with the existing judgment by the persons with authority to comply. We did not authorize the shifting of liability for payment of the judgment from the judgment debtor to the county officials, as Thomas attempts to do here.
+
+In determining the reach of the federal courts' ancillary jurisdiction, we have cautioned against the exercise of jurisdiction over proceedings that are ""`entirely new and original,' "" Krippendorf v. Hyde, supra, at 285 (quoting Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633 (1865)), or where ""the relief [sought is] of a different kind or on a different principle"" than that of the prior decree. Dugas v. American Surety Co., 300 U. S. 414, 428 (1937). These principles suggest that ancillary jurisdiction could not properly be exercised in this case. This action is founded not only upon different facts than the ERISA suit, but also upon entirely new theories of liability. In this suit, Thomas alleged civil conspiracy and fraudulent transfer of Tru-Tech's assets, but, as we have noted, no substantive ERISA violation. The alleged wrongdoing in this case occurred after the ERISA judgment was entered, and Thomas' claims_x0097_civil conspiracy, fraudulent conveyance, and ""veil piercing""_x0097_all involved new theories of liability not asserted in the ERISA suit. Other than the existence of the ERISA judgment itself, this suit has little connection to the ERISA case. This is a new action based on theories of relief that did not exist, and could not have existed, at the time the court entered judgment in the ERISA case.
+
+Ancillary enforcement jurisdiction is, at its core, a creature of necessity. See Kokkonen, 511 U. S., at 380; Riggs, 6 Wall., at 187. When a party has obtained a valid federal judgment, only extraordinary circumstances, if any, can justify ancillary jurisdiction over a subsequent suit like this. To protect and aid the collection of a federal judgment, the Federal Rules of Civil Procedure provide fast and effective mechanisms for execution.[7] In the event a stay is entered pending appeal, the Rules require the district court to ensure that the judgment creditor's position is secured, ordinarily by a supersedeas bond.[8] The Rules cannot guarantee payment of every federal judgment. But as long as they protect a judgment creditor's ability to execute on a judgment, the district court's authority is adequately preserved, and ancillary jurisdiction is not justified over a new lawsuit to impose liability for a judgment on a third party. Contrary to Thomas' suggestion otherwise, we think these procedural safeguards are sufficient to prevent wholesale fraud upon the district courts of the United States.",analysis,Ancillary Enforcement Jurisdiction,strongly agree,Ancillary Enforcement Jurisdiction,strongly agree,Ancillary Enforcement Jurisdiction,2
+G8,12,1,1,IV,"For these reasons, we hold that the District Court lacked jurisdiction over Thomas' subsequent suit. Accordingly, the judgment of the Court of Appeals is
+
+Reversed.",conclusion,The District Court lacked jurisdiction over Thomas' subsequent suit.,strongly agree,The District Court's Jurisdiction,agree,Reversal of the District Court's Decision due to Lack of Jurisdiction,4
+G8,14,1,1,I,"Sprint, a national telecommunications service provider, has long paid intercarrier access fees to the Iowa commu­ nications company Windstream (formerly Iowa Telecom) for certain long distance calls placed by Sprint customers to Windstream’s in-state customers. In 2009, however, Sprint decided to withhold payment for a subset of those calls, classified as Voice over Internet Protocol (VoIP), after concluding that the Telecommunications Act of 1996 preempted intrastate regulation of VoIP traffic.1 In re­ sponse, Windstream threatened to block all calls to and from Sprint customers.
+
+Sprint filed a complaint against Windstream with the IUB asking the Board to enjoin Windstream from discon­ tinuing service to Sprint. In Sprint’s view, Iowa law enti­ tled it to withhold payment while it contested the access charges and prohibited Windstream from carrying out its disconnection threat. In answer to Sprint’s complaint, Windstream retracted its threat to discontinue serving Sprint, and Sprint moved, successfully, to withdraw its complaint. Because the conflict between Sprint and Wind­ stream over VoIP calls was “likely to recur,” however, the IUB decided to continue the proceedings to resolve the underlying legal question, i.e., whether VoIP calls are subject to intrastate regulation. Order in Sprint Commu­ nications Co. v. Iowa Telecommunications Servs., Inc., No. FCU–2010–0001 (IUB, Feb. 1, 2010), p. 6 (IUB Order). The question retained by the IUB, Sprint argued, was governed by federal law, and was not within the IUB’s adjudicative jurisdiction. The IUB disagreed, ruling that the intrastate fees applied to VoIP calls.2
+
+Seeking to overturn the Board’s ruling, Sprint com­ menced two lawsuits. First, Sprint sued the members of the IUB (respondents here)3 in their official capacities in the United States District Court for the Southern District of Iowa. In its federal-court complaint, Sprint sought a declaration that the Telecommunications Act of 1996 preempted the IUB’s decision; as relief, Sprint requested an injunction against enforcement of the IUB’s order. Second, Sprint petitioned for review of the IUB’s order in Iowa state court. The state petition reiterated the preemption argument Sprint made in its federal-court complaint; in addition, Sprint asserted state law and procedural due process claims. Because Eighth Circuit precedent effectively required a plaintiff to exhaust state remedies before proceeding to federal court, see Alleghany Corp. v. McCartney, 896 F. 2d 1138 (1990), Sprint urges that it filed the state suit as a protective measure. Failing to do so, Sprint explains, risked losing the opportunity to obtain any review, federal or state, should the federal court decide to abstain after the expiration of the Iowa statute of limitations. See Brief for Petitioner 7–8.4
+
+As Sprint anticipated, the IUB filed a motion asking the Federal District Court to abstain in light of the state suit, citing Younger v. Harris, 401 U. S. 37 (1971). The District Court granted the IUB’s motion and dismissed the suit. The IUB’s decision, and the pending state-court review of it, the District Court said, composed one “uninterruptible process” implicating important state interests. On that ground, the court ruled, Younger abstention was in order. Sprint Communications Co. v. Berntsen, No. 4:11–cv– 00183–JAJ (SD Iowa, Aug. 1, 2011), App. to Pet. for Cert. 24a.
+
+For the most part, the Eighth Circuit agreed with the District Court’s judgment. The Court of Appeals rejected the argument, accepted by several of its sister courts, that Younger abstention is appropriate only when the parallel state proceedings are “coercive,” rather than “remedial,” in nature. 690 F. 3d 864, 868 (2012); cf. Guillemard-Ginorio v. Contreras-Gómez, 585 F. 3d 508, 522 (CA1 2009) (“[P]roceedings must be coercive, and in most cases, state­ initiated, in order to warrant abstention.”). Instead, the Eighth Circuit read this Court’s precedent to require Younger abstention whenever “an ongoing state judicial proceeding . . . implicates important state interests, and . . . the state proceedings provide adequate opportunity to raise [federal] challenges.” 690 F. 3d, at 867 (citing Mid­ dlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423, 432 (1982)). Those criteria were satisfied here, the appeals court held, because the ongoing state­ court review of the IUB’s decision concerned Iowa’s “im­ portant state interest in regulating and enforcing its intrastate utility rates.” 690 F. 3d, at 868. Recognizing the “possibility that the parties [might] return to federal court,” however, the Court of Appeals vacated the judg­ ment dismissing Sprint’s complaint. In lieu of dismissal, the Eighth Circuit remanded the case, instructing the District Court to enter a stay during the pendency of the state-court action. Id., at 869.
+
+We granted certiorari to decide whether, consistent with our delineation of cases encompassed by the Younger doctrine, abstention was appropriate here. 569 U. S. ___ (2013).5",facts,Sprint’s Lawsuit,strongly agree,The VoIP Calls,strongly agree,Sprint’s Lawsuit,1
+G8,14,1,1,II,"
+
+Neither party has questioned the District Court’s juris­ diction to decide whether federal law preempted the IUB’s decision, and rightly so. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635 (2002), we reviewed a similar federal-court challenge to a state administrative adjudication. In that case, as here, the party seeking federal-court review of a state agency’s decision urged that the Telecommunications Act of 1996 preempted the state action. We had “no doubt that federal courts ha[d federal question] jurisdiction under [28 U. S. C.] §1331 to enter­ tain such a suit,” id., at 642, and nothing in the Telecom­ munications Act detracted from that conclusion, see id., at 643.
+
+Federal courts, it was early and famously said, have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Jurisdiction existing, this Court has cautioned, a federal court’s “obligation” to hear and decide a case is “virtually unflagging.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). Parallel state-court proceedings do not detract from that obligation. See ibid.
+
+In Younger, we recognized a “far-from-novel” exception to this general rule. New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 364 (1989) (NOPSI). The plaintiff in Younger sought federal-court adjudication of the constitutionality of the California Criminal Syndicalism Act. Requesting an injunction against the Act’s enforcement, the federal-court plaintiff was at the time the defendant in a pending state criminal prosecution under the Act. In those circumstances, we said, the federal court should decline to enjoin the prose­ cution, absent bad faith, harassment, or a patently invalid state statute. See 401 U. S., at 53–54. Abstention was in order, we explained, under “the basic doctrine of equity jurisprudence that courts of equity should not act . . . to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irrepa­ rably injury if denied equitable relief.” Id., at 43–44. “[R]estraining equity jurisdiction within narrow limits,” the Court observed, would “prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions.” Id., at 44. We explained as well that this doctrine was “reinforced” by the notion of “ ‘comity,’ that is, a proper respect for state functions.” Ibid.
+
+We have since applied Younger to bar federal relief in certain civil actions. Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), is the pathmarking decision. There, Ohio officials brought a civil action in state court to abate the showing of obscene movies in Pursue’s theater. Because the State was a party and the proceeding was “in aid of and closely related to [the State’s] criminal statutes,” the Court held Younger abstention appropriate. Id., at 604.
+
+More recently, in NOPSI, 491 U. S., at 368, the Court had occasion to review and restate our Younger jurispru­ dence. NOPSI addressed and rejected an argument that a federal court should refuse to exercise jurisdiction to review a state council’s ratemaking decision. “[O]nly ex­ ceptional circumstances,” we reaffirmed, “justify a fed­ eral court’s refusal to decide a case in deference to the States.” Ibid. Those “exceptional circumstances” exist, the Court determined after surveying prior decisions, in three types of proceedings. First, Younger precluded federal intrusion into ongoing state criminal prosecutions. See ibid. Second, certain “civil enforcement proceedings” warranted abstention. Ibid. (citing, e.g., Huffman, 420 U. S., at 604). Finally, federal courts refrained from inter­ fering with pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” 491 U. S., at 368 (citing Juidice v. Vail, 430 U. S. 327, 336, n. 12 (1977), and Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 13 (1987)). We have not applied Younger outside these three “excep­ tional” categories, and today hold, in accord with NOPSI, that they define Younger’s scope.
+
+The IUB does not assert that the Iowa state court’s review of the Board decision, considered alone, implicates Younger. Rather, the initial administrative proceeding justifies staying any action in federal court, the IUB con­ tends, until the state review process has concluded. The same argument was advanced in NOPSI. 491 U. S., at 368. We will assume without deciding, as the Court did in NOPSI, that an administrative adjudication and the subsequent state court’s review of it count as a “unitary process” for Younger purposes. Id., at 369. The question remains, however, whether the initial IUB proceeding is of the “sort . . . entitled to Younger treatment.” Ibid.
+
+The IUB proceeding, we conclude, does not fall within any of the three exceptional categories described in NOPSI and therefore does not trigger Younger abstention. The first and third categories plainly do not accommodate the IUB’s proceeding. That proceeding was civil, not criminal in character, and it did not touch on a state court’s ability to perform its judicial function. Cf. Juidice, 430 U. S., at 336, n. 12 (civil contempt order); Pennzoil, 481 U. S., at 13 (requirement for posting bond pending appeal).
+
+Nor does the IUB’s order rank as an act of civil enforce­ ment of the kind to which Younger has been extended. Our decisions applying Younger to instances of civil en­ forcement have generally concerned state proceedings “akin to a criminal prosecution” in “important respects.” Huffman, 420 U. S., at 604. See also Middlesex, 457 U. S., at 432 (Younger abstention appropriate where “noncrimi­ nal proceedings bear a close relationship to proceedings criminal in nature”). Such enforcement actions are char­ acteristically initiated to sanction the federal plaintiff, i.e., the party challenging the state action, for some wrongful act. See, e.g., Middlesex, 457 U. S., at 433–434 (state­ initiated disciplinary proceedings against lawyer for viola­ tion of state ethics rules). In cases of this genre, a state actor is routinely a party to the state proceeding and often initiates the action. See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S. 619 (1986) (state­ initiated administrative proceedings to enforce state civil rights laws); Moore v. Sims, 442 U. S. 415, 419–420 (1979) (state-initiated proceeding to gain custody of children allegedly abused by their parents); Trainor v. Hernandez, 431 U. S. 434, 444 (1977) (civil proceeding “brought by the State in its sovereign capacity” to recover welfare pay­ ments defendants had allegedly obtained by fraud); Huff­ man, 420 U. S., at 598 (state-initiated proceeding to enforce obscenity laws). Investigations are commonly involved, often culminating in the filing of a formal com­ plaint or charges. See, e.g., Dayton, 477 U. S., at 624 (noting preliminary investigation and complaint); Middle­ sex, 457 U. S., at 433 (same).
+
+The IUB proceeding does not resemble the state en­ forcement actions this Court has found appropriate for Younger abstention. It is not “akin to a criminal prosecu­ tion.” Huffman, 420 U. S., at 604. Nor was it initiated by “the State in its sovereign capacity.” Trainor, 431 U. S., at 444. A private corporation, Sprint, initiated the action. No state authority conducted an investigation into Sprint’s activities, and no state actor lodged a formal complaint against Sprint.
+
+In its brief, the IUB emphasizes Sprint’s decision to withdraw the complaint that commenced proceedings before the Board. At that point, the IUB argues, Sprint was no longer a willing participant, and the proceedings became, essentially, a civil enforcement action. See Brief for Respondents 31.6 The IUB’s adjudicative authority, however, was invoked to settle a civil dispute between two private parties, not to sanction Sprint for commission of a wrongful act. Although Sprint withdrew its complaint, administrative efficiency, not misconduct by Sprint, prompted the IUB to answer the underlying federal ques­ tion. By determining the intercarrier compensation re­ gime applicable to VoIP calls, the IUB sought to avoid renewed litigation of the parties’ dispute. Because the underlying legal question remained unsettled, the Board observed, the controversy was “likely to recur.” IUB Order 6. Nothing here suggests that the IUB proceeding was “more akin to a criminal prosecution than are most civil cases.” Huffman, 420 U. S., at 604.
+
+In holding that abstention was the proper course, the Eighth Circuit relied heavily on this Court’s decision in Middlesex. Younger abstention was warranted, the Court of Appeals read Middlesex to say, whenever three condi­ tions are met: There is (1) “an ongoing state judicial proceeding, which (2) implicates important state interests, and (3) . . . provide[s] an adequate opportunity to raise [federal] challenges.” 690 F. 3d, at 867 (citing Middlesex, 457 U. S., at 432). Before this Court, the IUB has en­ dorsed the Eighth Circuit’s approach. Brief for Respond­ ents 13.
+
+The Court of Appeals and the IUB attribute to this Court’s decision in Middlesex extraordinary breadth. We invoked Younger in Middlesex to bar a federal court from entertaining a lawyer’s challenge to a New Jersey state ethics committee’s pending investigation of the lawyer. Unlike the IUB proceeding here, the state ethics commit­ tee’s hearing in Middlesex was indeed “akin to a criminal proceeding.” As we noted, an investigation and formal complaint preceded the hearing, an agency of the State’s Supreme Court initiated the hearing, and the purpose of the hearing was to determine whether the lawyer should be disciplined for his failure to meet the State’s standards of professional conduct. 457 U. S., at 433–435. See also id., at 438 (Brennan, J., concurring in judgment) (noting the “quasi-criminal nature of bar disciplinary proceed­ ings”). The three Middlesex conditions recited above were not dispositive; they were, instead, additional factors appropriately considered by the federal court before invok­ ing Younger.
+
+Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings, at least where a party could identify a plausibly important state interest. See Tr. of Oral Arg. 35–36. That result is irreconcilable with our dominant instruction that, even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the “exception, not the rule.” Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 236 (1984) (quoting Colorado River, 424 U. S., at 813). In short, to guide other federal courts, we today clarify and affirm that Younger extends to the three “exceptional circumstances” identified in NOPSI, but no further.",analysis,Federal Juris­ diction,disagree,The IUB’s Proceeding,strongly agree,The IUB’s Proceeding and District Court Abstention,2
+G8,14,1,2,A,"Neither party has questioned the District Court’s juris­ diction to decide whether federal law preempted the IUB’s decision, and rightly so. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635 (2002), we reviewed a similar federal-court challenge to a state administrative adjudication. In that case, as here, the party seeking federal-court review of a state agency’s decision urged that the Telecommunications Act of 1996 preempted the state action. We had “no doubt that federal courts ha[d federal question] jurisdiction under [28 U. S. C.] §1331 to enter­ tain such a suit,” id., at 642, and nothing in the Telecom­ munications Act detracted from that conclusion, see id., at 643.
+
+Federal courts, it was early and famously said, have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Jurisdiction existing, this Court has cautioned, a federal court’s “obligation” to hear and decide a case is “virtually unflagging.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). Parallel state-court proceedings do not detract from that obligation. See ibid.
+
+In Younger, we recognized a “far-from-novel” exception to this general rule. New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 364 (1989) (NOPSI). The plaintiff in Younger sought federal-court adjudication of the constitutionality of the California Criminal Syndicalism Act. Requesting an injunction against the Act’s enforcement, the federal-court plaintiff was at the time the defendant in a pending state criminal prosecution under the Act. In those circumstances, we said, the federal court should decline to enjoin the prose­ cution, absent bad faith, harassment, or a patently invalid state statute. See 401 U. S., at 53–54. Abstention was in order, we explained, under “the basic doctrine of equity jurisprudence that courts of equity should not act . . . to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irrepa­ rably injury if denied equitable relief.” Id., at 43–44. “[R]estraining equity jurisdiction within narrow limits,” the Court observed, would “prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions.” Id., at 44. We explained as well that this doctrine was “reinforced” by the notion of “ ‘comity,’ that is, a proper respect for state functions.” Ibid.
+
+We have since applied Younger to bar federal relief in certain civil actions. Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), is the pathmarking decision. There, Ohio officials brought a civil action in state court to abate the showing of obscene movies in Pursue’s theater. Because the State was a party and the proceeding was “in aid of and closely related to [the State’s] criminal statutes,” the Court held Younger abstention appropriate. Id., at 604.
+
+More recently, in NOPSI, 491 U. S., at 368, the Court had occasion to review and restate our Younger jurispru­ dence. NOPSI addressed and rejected an argument that a federal court should refuse to exercise jurisdiction to review a state council’s ratemaking decision. “[O]nly ex­ ceptional circumstances,” we reaffirmed, “justify a fed­ eral court’s refusal to decide a case in deference to the States.” Ibid. Those “exceptional circumstances” exist, the Court determined after surveying prior decisions, in three types of proceedings. First, Younger precluded federal intrusion into ongoing state criminal prosecutions. See ibid. Second, certain “civil enforcement proceedings” warranted abstention. Ibid. (citing, e.g., Huffman, 420 U. S., at 604). Finally, federal courts refrained from inter­ fering with pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” 491 U. S., at 368 (citing Juidice v. Vail, 430 U. S. 327, 336, n. 12 (1977), and Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 13 (1987)). We have not applied Younger outside these three “excep­ tional” categories, and today hold, in accord with NOPSI, that they define Younger’s scope.",analysis,Federal Jurisprudence,agree,Federal-Court Challenges,agree,Abstention of Judgment of Federal Courts,1
+G8,14,1,2,B,"The IUB does not assert that the Iowa state court’s review of the Board decision, considered alone, implicates Younger. Rather, the initial administrative proceeding justifies staying any action in federal court, the IUB con­ tends, until the state review process has concluded. The same argument was advanced in NOPSI. 491 U. S., at 368. We will assume without deciding, as the Court did in NOPSI, that an administrative adjudication and the subsequent state court’s review of it count as a “unitary process” for Younger purposes. Id., at 369. The question remains, however, whether the initial IUB proceeding is of the “sort . . . entitled to Younger treatment.” Ibid.
+
+The IUB proceeding, we conclude, does not fall within any of the three exceptional categories described in NOPSI and therefore does not trigger Younger abstention. The first and third categories plainly do not accommodate the IUB’s proceeding. That proceeding was civil, not criminal in character, and it did not touch on a state court’s ability to perform its judicial function. Cf. Juidice, 430 U. S., at 336, n. 12 (civil contempt order); Pennzoil, 481 U. S., at 13 (requirement for posting bond pending appeal).
+
+Nor does the IUB’s order rank as an act of civil enforce­ ment of the kind to which Younger has been extended. Our decisions applying Younger to instances of civil en­ forcement have generally concerned state proceedings “akin to a criminal prosecution” in “important respects.” Huffman, 420 U. S., at 604. See also Middlesex, 457 U. S., at 432 (Younger abstention appropriate where “noncrimi­ nal proceedings bear a close relationship to proceedings criminal in nature”). Such enforcement actions are char­ acteristically initiated to sanction the federal plaintiff, i.e., the party challenging the state action, for some wrongful act. See, e.g., Middlesex, 457 U. S., at 433–434 (state­ initiated disciplinary proceedings against lawyer for viola­ tion of state ethics rules). In cases of this genre, a state actor is routinely a party to the state proceeding and often initiates the action. See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S. 619 (1986) (state­ initiated administrative proceedings to enforce state civil rights laws); Moore v. Sims, 442 U. S. 415, 419–420 (1979) (state-initiated proceeding to gain custody of children allegedly abused by their parents); Trainor v. Hernandez, 431 U. S. 434, 444 (1977) (civil proceeding “brought by the State in its sovereign capacity” to recover welfare pay­ ments defendants had allegedly obtained by fraud); Huff­ man, 420 U. S., at 598 (state-initiated proceeding to enforce obscenity laws). Investigations are commonly involved, often culminating in the filing of a formal com­ plaint or charges. See, e.g., Dayton, 477 U. S., at 624 (noting preliminary investigation and complaint); Middle­ sex, 457 U. S., at 433 (same).
+
+The IUB proceeding does not resemble the state en­ forcement actions this Court has found appropriate for Younger abstention. It is not “akin to a criminal prosecu­ tion.” Huffman, 420 U. S., at 604. Nor was it initiated by “the State in its sovereign capacity.” Trainor, 431 U. S., at 444. A private corporation, Sprint, initiated the action. No state authority conducted an investigation into Sprint’s activities, and no state actor lodged a formal complaint against Sprint.
+
+In its brief, the IUB emphasizes Sprint’s decision to withdraw the complaint that commenced proceedings before the Board. At that point, the IUB argues, Sprint was no longer a willing participant, and the proceedings became, essentially, a civil enforcement action. See Brief for Respondents 31.6 The IUB’s adjudicative authority, however, was invoked to settle a civil dispute between two private parties, not to sanction Sprint for commission of a wrongful act. Although Sprint withdrew its complaint, administrative efficiency, not misconduct by Sprint, prompted the IUB to answer the underlying federal ques­ tion. By determining the intercarrier compensation re­ gime applicable to VoIP calls, the IUB sought to avoid renewed litigation of the parties’ dispute. Because the underlying legal question remained unsettled, the Board observed, the controversy was “likely to recur.” IUB Order 6. Nothing here suggests that the IUB proceeding was “more akin to a criminal prosecution than are most civil cases.” Huffman, 420 U. S., at 604.
+
+In holding that abstention was the proper course, the Eighth Circuit relied heavily on this Court’s decision in Middlesex. Younger abstention was warranted, the Court of Appeals read Middlesex to say, whenever three condi­ tions are met: There is (1) “an ongoing state judicial proceeding, which (2) implicates important state interests, and (3) . . . provide[s] an adequate opportunity to raise [federal] challenges.” 690 F. 3d, at 867 (citing Middlesex, 457 U. S., at 432). Before this Court, the IUB has en­ dorsed the Eighth Circuit’s approach. Brief for Respond­ ents 13.
+
+The Court of Appeals and the IUB attribute to this Court’s decision in Middlesex extraordinary breadth. We invoked Younger in Middlesex to bar a federal court from entertaining a lawyer’s challenge to a New Jersey state ethics committee’s pending investigation of the lawyer. Unlike the IUB proceeding here, the state ethics commit­ tee’s hearing in Middlesex was indeed “akin to a criminal proceeding.” As we noted, an investigation and formal complaint preceded the hearing, an agency of the State’s Supreme Court initiated the hearing, and the purpose of the hearing was to determine whether the lawyer should be disciplined for his failure to meet the State’s standards of professional conduct. 457 U. S., at 433–435. See also id., at 438 (Brennan, J., concurring in judgment) (noting the “quasi-criminal nature of bar disciplinary proceed­ ings”). The three Middlesex conditions recited above were not dispositive; they were, instead, additional factors appropriately considered by the federal court before invok­ ing Younger.
+
+Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings, at least where a party could identify a plausibly important state interest. See Tr. of Oral Arg. 35–36. That result is irreconcilable with our dominant instruction that, even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the “exception, not the rule.” Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 236 (1984) (quoting Colorado River, 424 U. S., at 813). In short, to guide other federal courts, we today clarify and affirm that Younger extends to the three “exceptional circumstances” identified in NOPSI, but no further.",analysis,The Initial IUB Proceeding,agree,Younger,agree,Application of Younger Abstention to the IUB Proceeding,2
+G8,14,1,1,*,"For the reasons stated, the judgment of the United
+States Court of Appeals for the Eighth Circuit is
+
+Reversed.",conclusion,appeal of the united states court of appeals,disagree,The Eighth Circuit Judgment,disagree,Reversal of the Eight Circuit's Judgment,3
+G8,16,1,1,I,"Respondents are Canadian citizens and residents who maintained bank accounts with the Northwestern Commercial Bank in Bellingham, Washington. In attempting to ascertain their Canadian income tax liability for 1980, 1981, and 1982, the Canadian Department of National Revenue (Revenue Canada) asked the Internal Revenue Service (IRS) in January 1984 to secure and provide pertinent bank records. Revenue Canada made its requests pursuant to Articles XIX and XXI of the 1942 Convention.[1] The IRS Director of Foreign Operations _x0097_ the ""competent authority"" under Article XIX _x0097_ concluded that Revenue Canada's requests fell within the scope of the Convention and that it would be appropriate for the United States to honor them. App. 27-28. Specifically, he found that ""the requested information is not within the possession of the Internal Revenue Service or the Canadian tax authorities; that the requested information may be relevant to a determination of the correct tax liability of [respondents] under Canadian law; and that the same type of information can be obtained by tax authorities under Canadian law."" Id., at 28. Thus, on April 2, 1984, the IRS served on Northwestern Commercial Bank administrative summonses for the requested information.
+
+At respondents' behest, the bank refused to comply. In accordance with 26 U.S. C. § 7609(b)(2), respondents petitioned the United States District Court for the Western District of Washington to quash the summonses. Only one of their claims is before us. Respondents contended that because the IRS may not issue a summons to further its investigation of a United States taxpayer when a Justice Department referral is in effect, 26 U.S. C. § 7602(c), and because Revenue Canada's investigation of each of them was, in the words of the IRS Director of Foreign Operations, ""a criminal investigation, preliminary stage,"" App. 28, United States law proscribed the use of a summons to obtain information for Canadian authorities regarding respondents' American bank accounts. The Magistrate who held a consolidated hearing on respondents' claims rejected this argument. Without addressing their contention that the IRS may not issue a summons pursuant to a request by Revenue Canada once a Canadian tax investigation has reached a stage equivalent to a Justice Department referral for criminal prosecution, the Magistrate found that, even if respondents' legal claims were assumed to have merit, they had failed to carry their burden of showing that the Canadian authorities' investigation had advanced that far. App. to Pet. for Cert. 31a. Upon considering the Magistrate's report and respondents' objections to it, the District Court ordered the bank to comply with the summonses. Id., at 25a-26a, 34a-35a.
+
+After the Court of Appeals for the Ninth Circuit stayed the enforcement orders pending appeal, a divided panel of the court reversed. 813 F.2d 243 (1987). The Ninth Circuit held that a summons issued pursuant to a request under the 1942 Convention, like one issued as part of a domestic tax investigation, will be enforced only if it was issued in good faith. The Court of Appeals further stated that the elements of good faith we described in United States v. Powell, supra, at 57-58, are not exhaustive; rather, in light of our subsequent decision in United States v. LaSalle National Bank, 437 U.S. 298 (1978), and Congress' enactment of what is now 26 U.S. C. § 7602(c), good faith in domestic tax investigations also requires that the IRS not have referred the case to the Justice Department for possible criminal prosecution. Finally, and most significantly for purposes of this litigation, the Ninth Circuit ruled that the IRS acts in good faith in complying with a request for information under the 1942 Convention only when Canadian authorities act in good faith in seeking IRS assistance, and that the good faith of Canadian authorities should be judged by the same standard applicable to the IRS when it conducts a domestic investigation. Hence, the Court of Appeals concluded, before the IRS may honor a request for information it must determine that Revenue Canada's investigation has not reached a stage analogous to a Justice Department referral by the IRS. In addition, the Court of Appeals said, ""in order to establish its prima facie case by affidavit, the IRS must make an affirmative statement"" that Canadian authorities are acting in good faith and that their investigation has not yet reached that stage; the burden of proof on this point rests initially with the IRS rather than the taxpayer attempting to quash a summons, the court held, because the IRS ""can consult with Canada's competent authority and can be expected to have greater familiarity with Canadian administrative procedures."" 813 F.2d, at 250. The Court of Appeals reversed the District Court's decision because the affidavits submitted by the IRS failed to state that Revenue Canada's investigation of respondents had not yet reached a point analogous to an IRS referral to the Justice Department.
+
+We granted certiorari, 485 U.S. 1033 (1988), to resolve a conflict between the Ninth Circuit's decision in this case and the Second Circuit's holding in United States v. Manufacturers & Traders Trust Co., 703 F.2d 47 (1983). We now reverse.
+",facts,Respondents' Claims,agree,The IRS's Request for Bank Records,agree,The IRS' Request for Respondent's Canadian Bank Records ,1
+G8,16,1,1,II,"
+
+In United States v. Powell, supra, we rejected the claim that the IRS must show probable cause to obtain enforcement of an administrative summons issued in connection with a domestic tax investigation. See id., at 52-57. We held instead that the IRS need only demonstrate good faith in issuing the summons, which we defined as follows:
+
+""[The IRS Commissioner] must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed _x0097_ in particular, that the `Secretary or his delegate,' after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect."" Id., at 57-58.
+Once the IRS has made such a showing, we stated, it is entitled to an enforcement order unless the taxpayer can show that the IRS is attempting to abuse the court's process. ""Such an abuse would take place,"" we said, ""if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation."" Id., at 58. See also United States v. Bisceglia, 420 U.S. 141, 146 (1975). The taxpayer carries the burden of proving an abuse of the court's process. 379 U.S., at 58.
+
+Leaving aside the question whether the 1942 Convention, in conjunction with 26 U.S. C. § 7602(c), narrows the class of legitimate purposes for which the IRS may issue an administrative summons, the affidavits the IRS submitted in respondents' cases plainly satisfied the requirements of good faith we set forth in Powell and have repeatedly reaffirmed. See, e. g., Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 321 (1985); United States v. Arthur Young & Co., 465 U.S. 805, 813, n. 10 (1984). The IRS Director of Foreign Operations stated under oath that the information sought was not within the possession of American or Canadian tax authorities, that it might be relevant to the computation of respondents' Canadian tax liabilities, and that the same type of information could be obtained by Canadian authorities under Canadian law. App. 28. He further noted that the ""[e]xchanged information may only be disclosed as required in the normal administrative or judicial process operative in the administration of the tax system of the requesting country,"" and that improper use of exchanged information would be protested. Ibid. In addition, the IRS issued its summonses in conformity with applicable statutes and duly informed respondents of their issuance. In their petitions to quash, respondents nowhere alleged that the IRS was trying to use the District Court's process for some improper purpose, such as harassment or the acquisition of bargaining power in connection with some collateral dispute. See id., at 18-20. Nor does it appear that they later sought to prove abuse of process. Unless 26 U.S. C. § 7602(c) or the 1942 Convention imposes more stringent requirements on the enforcement of the administrative summonses issued in this case, the IRS was entitled to enforcement orders under the rule laid down in Powell.
+
+Section 7602(c) does impose an additional constraint on the issuance of summonses to further domestic tax investigations.[2] By its terms, however, it does not apply to the summonses challenged by respondents, for it speaks only to investigations into possible violations of United States revenue laws. Section 7602(c) forbids the issuance of a summons ""if a Justice Department referral is in effect"" with respect to a person about whom information is sought by means of the summons. At the time of the District Court's decision, no Justice Department referral was in effect with regard to respondents; indeed, the IRS agent seeking the bank records to fulfill Revenue Canada's request said in her affidavit that no domestic tax investigation of any kind was pending. See App. 30. Section 7602(c) therefore does not itself appear to bar enforcement of the summonses at issue here.[3]
+
+The legislative history of § 7602(c) supports this conclusion. Prior to its enactment, we held in United States v. LaSalle National Bank, 437 U.S. 298 (1978), that the IRS may not issue a summons once it has recommended prosecution to the Justice Department, nor may it circumvent this requirement by delaying such a recommendation in order to gather additional information. We based our holding in large part on our finding that ""[n]othing in § 7602 or its legislative history suggests that Congress intended the summons authority to broaden the Justice Department's right of criminal litigation discovery or to infringe on the role of the grand jury as a principal tool of criminal accusation."" Id., at 312 (citations omitted). When Congress codified the essence of our holding in § 7602(c), it apparently shared our concern about permitting the IRS to encroach upon the rights of potential criminal defendants. The Report of the Senate Finance Committee noted that ""the provision is in no way intended to broaden the Justice Department's right of criminal discovery or to infringe on the role of the grand jury as a principal tool of criminal prosecution."" S. Rep. No. 97-494, Vol. 1, p. 286 (1982).
+
+This explanation for the restriction embodied in § 7602(c) suggests that Congress did not intend to make the enforcement of a treaty summons contingent upon the foreign tax investigation's not having reached a stage analogous to a Justice Department referral. None of the civil-law countries with whom the United States has tax treaties providing for exchanges of information employ grand juries, and Canada has ceased to use them.[4] Moreover, criminal discovery procedures differ considerably among countries with whom we have such treaties.[5] The concerns that prompted Congress to pass § 7602(c) are therefore not present when the IRS issues summonses at the request of most foreign governments conducting investigations into possible violations of their own tax laws. If Congress had intended § 7602(c) to impose a restriction on the issuance of summonses pursuant to treaty requests parallel to the restriction it expressly imposes on summonses issued by the IRS in connection with domestic tax investigations, it would presumably have offered some reason for extending the sweep of the section beyond its plain language. In addition, Congress would likely have discussed the appropriateness of extending the protections afforded by United States law to citizens of other countries who are not subject to criminal prosecution here, and would doubtless have considered the problems posed by the application of § 7602(c) to requests by treaty partners, in particular the difficulty of determining when a foreign investigation has progressed to a point analogous to a Justice Department referral.[6] Respondents have not directed us, however, to anything in the legislative history of § 7602(c) suggesting that Congress intended it to apply to summonses issued pursuant to treaty requests, or to any reference to the problems its application would have occasioned. We therefore see no reason to think that § 7602(c) means more than it says.
+
+
+The only conceivable foundation for the Ninth Circuit's rule that an IRS summons issued at the request of Canadian authorities may not be enforced unless the IRS provides assurance that the Canadian investigation has not proceeded to a stage analogous to a Justice Department referral is therefore the language of the 1942 Convention itself. Article XIX obliges the competent authority for the United States to furnish, upon request, relevant information that it is ""in a position to obtain under its revenue laws."" Article XXI repeats this clause almost verbatim, permitting the IRS Commissioner to supply Canadian authorities with relevant information he ""is entitled to obtain under the revenue laws of the United States of America."" Respondents contend that because the IRS would not be able, under American law, to issue an administrative summons to gather information for use by the Government once a Justice Department referral was in effect, the IRS is not in a position to obtain such information once Canadian authorities have reached a corresponding stage in their investigation.
+
+
+
+We are not persuaded by this argument. ""The clear import of treaty language controls unless `application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.' "" Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982), quoting Maximov v. United States, 373 U.S. 49, 54 (1963). Articles XIX and XXI both refer to information that the IRS may obtain under American law. American law, however, does not contain the restriction respondents claim to find there. Section 7602(c) only limits the issuance of summonses when a Justice Department referral is in effect; it says nothing about decisions by foreign tax officials to investigate possible violations of their countries' tax laws with a view to criminal prosecution outside the United States. The elements of good faith we outlined in United States v. Powell, 379 U.S. 48 (1964), do not contain such a restriction. Nor does our reasoning in United States v. LaSalle National Bank, 437 U.S. 298 (1978), favor the result respondents urge, because the provision of information to Canadian authorities could not curtail the rights of potential criminal defendants in this country by undermining American discovery rules or diminishing the role of the grand jury. And respondents have not suggested that some other segment of American law, such as the law of privilege, prevents the IRS from issuing an administrative summons pursuant to a treaty request once a treaty partner has embarked on a tax investigation leading to a foreign criminal prosecution. Articles XIX and XXI of the 1942 Convention on their face therefore lend no support to respondents' position.
+
+
+Nontextual sources that often assist us in ""giving effect to the intent of the Treaty parties,"" Sumitomo, supra, at 185, such as a treaty's ratification history and its subsequent operation, further fail to sustain respondents' claim. The Senate Committee on Foreign Relations did not hold hearings on the Convention prior to its ratification in 1942, and the Committee Report did not even mention the provisions for exchange of information. See S. Exec. Rep. No. 3, 77th Cong., 2d Sess. (1942), 1 Legislative History of United States Tax Conventions (Committee Print compiled by the Staff of the Joint Committee on Internal Revenue Taxation) 455 (1962) (Leg. Hist.). The sole reference to these provisions during the brief floor debate in the Senate contained no hint that the 1942 Convention was intended to incorporate domestic restrictions on the issuance of summonses by the IRS in connection with American tax investigations, such as the limitation later codified in § 7602(c).[7] The President's message accompanying transmittal of the proposed treaty to the Senate, see S. Exec. Doc. B, 77th Cong., 2d Sess. (1942), reprinted in Leg. Hist. 445, and the President's Proclamation at the time the Convention was signed, see Leg. Hist. 475, 56 Stat. 1399, similarly contain no language supporting respondents' argument. Indeed, given that a treaty should generally be ""construe[d] . . . liberally to give effect to the purpose which animates it"" and that ""[e]ven where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred,"" Bacardi Corp. of America v. Domenech, 311 U.S. 150, 163 (1940) (citations omitted), the evident purpose behind Articles XIX and XXI _x0097_ the reduction of tax evasion by allowing signatories to demand information from each other _x0097_ counsels against interpreting those provisions to limit inquiry in the manner respondents desire. In any event, nothing in the history of the Convention's ratification buttresses respondents' claim.[8]
+
+Nor do other aids to interpretation strengthen their case. The practice of treaty signatories counts as evidence of the treaty's proper interpretation, since their conduct generally evinces their understanding of the agreement they signed. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984); Factor v. Laubenheimer, 290 U.S. 276, 294-295 (1933). The Government's regular compliance with requests for information by Canadian authorities without inquiring whether they intend to use the information for criminal prosecution therefore weighs in favor of its reading of Articles XIX and XXI. Similarly, ""[a]lthough not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight."" Sumitomo, 457 U. S., at 184-185. See also Kolovrat v. Oregon, 366 U.S. 187, 194 (1961). The IRS' construction of the 1942 Convention repudiates rather than confirms the interpretation respondents ask us to adopt. Finally, the result urged by respondents would contravene Congress' main reason for laying down an easily administrable test in § 7602(c): ""[S]ummons enforcement proceedings should be summary in nature and discovery should be limited."" S. Rep. No. 97-494, Vol. 1, p. 285 (1982). If respondents had their way, disputes would inevitably arise over whether a Canadian tax investigation had progressed to a point analogous to a Justice Department referral when Revenue Canada made its request for information, thereby ""spawn[ing] protracted litigation without any meaningful results for the taxpayer."" Ibid. It seems unlikely that Congress would have welcomed this result when it ratified the 1942 Convention, or that Congress intended it when it approved the bill containing what is presently § 7602(c).
+",analysis,The Applicability of Section 7602(c),disagree,The IRS's Duty to Show Probable Cause,disagree,The Issuance of Summons by the IRS to Non-U.S. Citizens,2
+G8,16,1,2,A,"In United States v. Powell, supra, we rejected the claim that the IRS must show probable cause to obtain enforcement of an administrative summons issued in connection with a domestic tax investigation. See id., at 52-57. We held instead that the IRS need only demonstrate good faith in issuing the summons, which we defined as follows:
+
+""[The IRS Commissioner] must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed _x0097_ in particular, that the `Secretary or his delegate,' after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect."" Id., at 57-58.
+Once the IRS has made such a showing, we stated, it is entitled to an enforcement order unless the taxpayer can show that the IRS is attempting to abuse the court's process. ""Such an abuse would take place,"" we said, ""if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation."" Id., at 58. See also United States v. Bisceglia, 420 U.S. 141, 146 (1975). The taxpayer carries the burden of proving an abuse of the court's process. 379 U.S., at 58.
+
+Leaving aside the question whether the 1942 Convention, in conjunction with 26 U.S. C. § 7602(c), narrows the class of legitimate purposes for which the IRS may issue an administrative summons, the affidavits the IRS submitted in respondents' cases plainly satisfied the requirements of good faith we set forth in Powell and have repeatedly reaffirmed. See, e. g., Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 321 (1985); United States v. Arthur Young & Co., 465 U.S. 805, 813, n. 10 (1984). The IRS Director of Foreign Operations stated under oath that the information sought was not within the possession of American or Canadian tax authorities, that it might be relevant to the computation of respondents' Canadian tax liabilities, and that the same type of information could be obtained by Canadian authorities under Canadian law. App. 28. He further noted that the ""[e]xchanged information may only be disclosed as required in the normal administrative or judicial process operative in the administration of the tax system of the requesting country,"" and that improper use of exchanged information would be protested. Ibid. In addition, the IRS issued its summonses in conformity with applicable statutes and duly informed respondents of their issuance. In their petitions to quash, respondents nowhere alleged that the IRS was trying to use the District Court's process for some improper purpose, such as harassment or the acquisition of bargaining power in connection with some collateral dispute. See id., at 18-20. Nor does it appear that they later sought to prove abuse of process. Unless 26 U.S. C. § 7602(c) or the 1942 Convention imposes more stringent requirements on the enforcement of the administrative summonses issued in this case, the IRS was entitled to enforcement orders under the rule laid down in Powell.",analysis,Good Faith in Issuance of the Administrative Summons,strongly agree,The Powell Claim,disagree,The IRS' Obligation of Good Faith in Issuance of the Administrative Summons,1
+G8,16,1,2,B,"Section 7602(c) does impose an additional constraint on the issuance of summonses to further domestic tax investigations.[2] By its terms, however, it does not apply to the summonses challenged by respondents, for it speaks only to investigations into possible violations of United States revenue laws. Section 7602(c) forbids the issuance of a summons ""if a Justice Department referral is in effect"" with respect to a person about whom information is sought by means of the summons. At the time of the District Court's decision, no Justice Department referral was in effect with regard to respondents; indeed, the IRS agent seeking the bank records to fulfill Revenue Canada's request said in her affidavit that no domestic tax investigation of any kind was pending. See App. 30. Section 7602(c) therefore does not itself appear to bar enforcement of the summonses at issue here.[3]
+
+The legislative history of § 7602(c) supports this conclusion. Prior to its enactment, we held in United States v. LaSalle National Bank, 437 U.S. 298 (1978), that the IRS may not issue a summons once it has recommended prosecution to the Justice Department, nor may it circumvent this requirement by delaying such a recommendation in order to gather additional information. We based our holding in large part on our finding that ""[n]othing in § 7602 or its legislative history suggests that Congress intended the summons authority to broaden the Justice Department's right of criminal litigation discovery or to infringe on the role of the grand jury as a principal tool of criminal accusation."" Id., at 312 (citations omitted). When Congress codified the essence of our holding in § 7602(c), it apparently shared our concern about permitting the IRS to encroach upon the rights of potential criminal defendants. The Report of the Senate Finance Committee noted that ""the provision is in no way intended to broaden the Justice Department's right of criminal discovery or to infringe on the role of the grand jury as a principal tool of criminal prosecution."" S. Rep. No. 97-494, Vol. 1, p. 286 (1982).
+
+This explanation for the restriction embodied in § 7602(c) suggests that Congress did not intend to make the enforcement of a treaty summons contingent upon the foreign tax investigation's not having reached a stage analogous to a Justice Department referral. None of the civil-law countries with whom the United States has tax treaties providing for exchanges of information employ grand juries, and Canada has ceased to use them.[4] Moreover, criminal discovery procedures differ considerably among countries with whom we have such treaties.[5] The concerns that prompted Congress to pass § 7602(c) are therefore not present when the IRS issues summonses at the request of most foreign governments conducting investigations into possible violations of their own tax laws. If Congress had intended § 7602(c) to impose a restriction on the issuance of summonses pursuant to treaty requests parallel to the restriction it expressly imposes on summonses issued by the IRS in connection with domestic tax investigations, it would presumably have offered some reason for extending the sweep of the section beyond its plain language. In addition, Congress would likely have discussed the appropriateness of extending the protections afforded by United States law to citizens of other countries who are not subject to criminal prosecution here, and would doubtless have considered the problems posed by the application of § 7602(c) to requests by treaty partners, in particular the difficulty of determining when a foreign investigation has progressed to a point analogous to a Justice Department referral.[6] Respondents have not directed us, however, to anything in the legislative history of § 7602(c) suggesting that Congress intended it to apply to summonses issued pursuant to treaty requests, or to any reference to the problems its application would have occasioned. We therefore see no reason to think that § 7602(c) means more than it says.
+",analysis,The Applicability of Section 7602(c),strongly agree,The issuance of summonses,agree,§7602(c) Applicability to Treaty Requests,2
+G8,16,1,2,C,"The only conceivable foundation for the Ninth Circuit's rule that an IRS summons issued at the request of Canadian authorities may not be enforced unless the IRS provides assurance that the Canadian investigation has not proceeded to a stage analogous to a Justice Department referral is therefore the language of the 1942 Convention itself. Article XIX obliges the competent authority for the United States to furnish, upon request, relevant information that it is ""in a position to obtain under its revenue laws."" Article XXI repeats this clause almost verbatim, permitting the IRS Commissioner to supply Canadian authorities with relevant information he ""is entitled to obtain under the revenue laws of the United States of America."" Respondents contend that because the IRS would not be able, under American law, to issue an administrative summons to gather information for use by the Government once a Justice Department referral was in effect, the IRS is not in a position to obtain such information once Canadian authorities have reached a corresponding stage in their investigation.
+
+
+
+We are not persuaded by this argument. ""The clear import of treaty language controls unless `application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.' "" Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982), quoting Maximov v. United States, 373 U.S. 49, 54 (1963). Articles XIX and XXI both refer to information that the IRS may obtain under American law. American law, however, does not contain the restriction respondents claim to find there. Section 7602(c) only limits the issuance of summonses when a Justice Department referral is in effect; it says nothing about decisions by foreign tax officials to investigate possible violations of their countries' tax laws with a view to criminal prosecution outside the United States. The elements of good faith we outlined in United States v. Powell, 379 U.S. 48 (1964), do not contain such a restriction. Nor does our reasoning in United States v. LaSalle National Bank, 437 U.S. 298 (1978), favor the result respondents urge, because the provision of information to Canadian authorities could not curtail the rights of potential criminal defendants in this country by undermining American discovery rules or diminishing the role of the grand jury. And respondents have not suggested that some other segment of American law, such as the law of privilege, prevents the IRS from issuing an administrative summons pursuant to a treaty request once a treaty partner has embarked on a tax investigation leading to a foreign criminal prosecution. Articles XIX and XXI of the 1942 Convention on their face therefore lend no support to respondents' position.
+
+
+Nontextual sources that often assist us in ""giving effect to the intent of the Treaty parties,"" Sumitomo, supra, at 185, such as a treaty's ratification history and its subsequent operation, further fail to sustain respondents' claim. The Senate Committee on Foreign Relations did not hold hearings on the Convention prior to its ratification in 1942, and the Committee Report did not even mention the provisions for exchange of information. See S. Exec. Rep. No. 3, 77th Cong., 2d Sess. (1942), 1 Legislative History of United States Tax Conventions (Committee Print compiled by the Staff of the Joint Committee on Internal Revenue Taxation) 455 (1962) (Leg. Hist.). The sole reference to these provisions during the brief floor debate in the Senate contained no hint that the 1942 Convention was intended to incorporate domestic restrictions on the issuance of summonses by the IRS in connection with American tax investigations, such as the limitation later codified in § 7602(c).[7] The President's message accompanying transmittal of the proposed treaty to the Senate, see S. Exec. Doc. B, 77th Cong., 2d Sess. (1942), reprinted in Leg. Hist. 445, and the President's Proclamation at the time the Convention was signed, see Leg. Hist. 475, 56 Stat. 1399, similarly contain no language supporting respondents' argument. Indeed, given that a treaty should generally be ""construe[d] . . . liberally to give effect to the purpose which animates it"" and that ""[e]ven where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred,"" Bacardi Corp. of America v. Domenech, 311 U.S. 150, 163 (1940) (citations omitted), the evident purpose behind Articles XIX and XXI _x0097_ the reduction of tax evasion by allowing signatories to demand information from each other _x0097_ counsels against interpreting those provisions to limit inquiry in the manner respondents desire. In any event, nothing in the history of the Convention's ratification buttresses respondents' claim.[8]
+
+Nor do other aids to interpretation strengthen their case. The practice of treaty signatories counts as evidence of the treaty's proper interpretation, since their conduct generally evinces their understanding of the agreement they signed. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984); Factor v. Laubenheimer, 290 U.S. 276, 294-295 (1933). The Government's regular compliance with requests for information by Canadian authorities without inquiring whether they intend to use the information for criminal prosecution therefore weighs in favor of its reading of Articles XIX and XXI. Similarly, ""[a]lthough not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight."" Sumitomo, 457 U. S., at 184-185. See also Kolovrat v. Oregon, 366 U.S. 187, 194 (1961). The IRS' construction of the 1942 Convention repudiates rather than confirms the interpretation respondents ask us to adopt. Finally, the result urged by respondents would contravene Congress' main reason for laying down an easily administrable test in § 7602(c): ""[S]ummons enforcement proceedings should be summary in nature and discovery should be limited."" S. Rep. No. 97-494, Vol. 1, p. 285 (1982). If respondents had their way, disputes would inevitably arise over whether a Canadian tax investigation had progressed to a point analogous to a Justice Department referral when Revenue Canada made its request for information, thereby ""spawn[ing] protracted litigation without any meaningful results for the taxpayer."" Ibid. It seems unlikely that Congress would have welcomed this result when it ratified the 1942 Convention, or that Congress intended it when it approved the bill containing what is presently § 7602(c).
+",analysis,The Language of the 1942 Convention,disagree,The IRS's Authority to Equip the IRS with Information,agree,Respondents' Claim of IRS' Inability to Issue Administrative Summons,3
+G8,16,1,3,(1),"We are not persuaded by this argument. ""The clear import of treaty language controls unless `application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.' "" Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982), quoting Maximov v. United States, 373 U.S. 49, 54 (1963). Articles XIX and XXI both refer to information that the IRS may obtain under American law. American law, however, does not contain the restriction respondents claim to find there. Section 7602(c) only limits the issuance of summonses when a Justice Department referral is in effect; it says nothing about decisions by foreign tax officials to investigate possible violations of their countries' tax laws with a view to criminal prosecution outside the United States. The elements of good faith we outlined in United States v. Powell, 379 U.S. 48 (1964), do not contain such a restriction. Nor does our reasoning in United States v. LaSalle National Bank, 437 U.S. 298 (1978), favor the result respondents urge, because the provision of information to Canadian authorities could not curtail the rights of potential criminal defendants in this country by undermining American discovery rules or diminishing the role of the grand jury. And respondents have not suggested that some other segment of American law, such as the law of privilege, prevents the IRS from issuing an administrative summons pursuant to a treaty request once a treaty partner has embarked on a tax investigation leading to a foreign criminal prosecution. Articles XIX and XXI of the 1942 Convention on their face therefore lend no support to respondents' position.
+",analysis,Application of Article XIX and XXI of the 1942 Convention,strongly agree,The Import of Treaty Language,disagree,The IRS' Authority to Issue Request under Article XIX and XXI of the Convention,1
+G8,16,1,3,(2),"Nontextual sources that often assist us in ""giving effect to the intent of the Treaty parties,"" Sumitomo, supra, at 185, such as a treaty's ratification history and its subsequent operation, further fail to sustain respondents' claim. The Senate Committee on Foreign Relations did not hold hearings on the Convention prior to its ratification in 1942, and the Committee Report did not even mention the provisions for exchange of information. See S. Exec. Rep. No. 3, 77th Cong., 2d Sess. (1942), 1 Legislative History of United States Tax Conventions (Committee Print compiled by the Staff of the Joint Committee on Internal Revenue Taxation) 455 (1962) (Leg. Hist.). The sole reference to these provisions during the brief floor debate in the Senate contained no hint that the 1942 Convention was intended to incorporate domestic restrictions on the issuance of summonses by the IRS in connection with American tax investigations, such as the limitation later codified in § 7602(c).[7] The President's message accompanying transmittal of the proposed treaty to the Senate, see S. Exec. Doc. B, 77th Cong., 2d Sess. (1942), reprinted in Leg. Hist. 445, and the President's Proclamation at the time the Convention was signed, see Leg. Hist. 475, 56 Stat. 1399, similarly contain no language supporting respondents' argument. Indeed, given that a treaty should generally be ""construe[d] . . . liberally to give effect to the purpose which animates it"" and that ""[e]ven where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred,"" Bacardi Corp. of America v. Domenech, 311 U.S. 150, 163 (1940) (citations omitted), the evident purpose behind Articles XIX and XXI _x0097_ the reduction of tax evasion by allowing signatories to demand information from each other _x0097_ counsels against interpreting those provisions to limit inquiry in the manner respondents desire. In any event, nothing in the history of the Convention's ratification buttresses respondents' claim.[8]",analysis,The ratification history and operation of the treaty,agree,The 1942 Convention,disagree,Historical Purpose of the 1942 Convention,2
+G8,16,1,3,(3),"Nor do other aids to interpretation strengthen their case. The practice of treaty signatories counts as evidence of the treaty's proper interpretation, since their conduct generally evinces their understanding of the agreement they signed. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984); Factor v. Laubenheimer, 290 U.S. 276, 294-295 (1933). The Government's regular compliance with requests for information by Canadian authorities without inquiring whether they intend to use the information for criminal prosecution therefore weighs in favor of its reading of Articles XIX and XXI. Similarly, ""[a]lthough not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight."" Sumitomo, 457 U. S., at 184-185. See also Kolovrat v. Oregon, 366 U.S. 187, 194 (1961). The IRS' construction of the 1942 Convention repudiates rather than confirms the interpretation respondents ask us to adopt. Finally, the result urged by respondents would contravene Congress' main reason for laying down an easily administrable test in § 7602(c): ""[S]ummons enforcement proceedings should be summary in nature and discovery should be limited."" S. Rep. No. 97-494, Vol. 1, p. 285 (1982). If respondents had their way, disputes would inevitably arise over whether a Canadian tax investigation had progressed to a point analogous to a Justice Department referral when Revenue Canada made its request for information, thereby ""spawn[ing] protracted litigation without any meaningful results for the taxpayer."" Ibid. It seems unlikely that Congress would have welcomed this result when it ratified the 1942 Convention, or that Congress intended it when it approved the bill containing what is presently § 7602(c).
+",analysis, Other aids to interpretation,disagree,Other Aids to Interpretation,disagree,Congressional Intent of §7602(c),3
+G8,16,1,1,III,"We conclude that the IRS need not attest that a Canadian tax investigation has not yet reached a stage analogous to a Justice Department referral by the IRS in order to obtain enforcement of a summons issued pursuant to a request by Canadian authorities under the 1942 Convention. So long as the IRS itself acts in good faith, as that term was explicated in United States v. Powell, 379 U. S., at 57-58, and complies with applicable statutes, it is entitled to enforcement of its summons. 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.
+
+",conclusion,Relevant Statutory Provisions,disagree,The IRS's Right to Enforcement,disagree,Conclusion and Remand,3
+G8,17,1,1,I,"Prior opinions of this Court have discussed the development and historical background of the First Amendment in detail. See Everson v. Board of Education, 330 U.S. 1 (1947); Engel v. Vitale, 370 U.S. 421 (1962). It would therefore serve no useful purpose to review in detail the background of the Establishment and Free Exercise Clauses of the First Amendment or to restate what the Court's opinions have reflected over the years.
+
+It is sufficient to note that for the men who wrote the Religion Clauses of the First Amendment the ""establishment"" of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity. In England, and in some Colonies at the time of the separation in 1776, the Church of England was sponsored and supported by the Crown as a state, or established, church; in other countries ""establishment"" meant sponsorship by the sovereign of the Lutheran or Catholic Church. See Engel v. Vitale, 370 U. S., at 428 n. 10. See generally C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment (1964). The exclusivity of established churches in the 17th and 18th centuries, of course, was often carried to prohibition of other forms of worship. See Everson v. Board of Education, 330 U. S., at 9-11; L. Pfeffer, Church, State and Freedom 71 et seq. (1967).
+
+The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated; but the purpose was to state an objective, not to write a statute. In attempting to articulate the scope of the two Religion Clauses, the Court's opinions reflect the limitations inherent in formulating general principles on a case-by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterance on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.
+
+The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. For example, in Zorach v. Clauson, 343 U.S. 306 (1952), MR. JUSTICE DOUGLAS, writing for the Court, noted:
+
+""The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State."" Id., at 312.
+""We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma."" Id., at 313.
+MR. JUSTICE HARLAN expressed something of this in his dissent in Sherbert v. Verner, 374 U.S. 398 (1963), saying that the constitutional neutrality imposed on us
+""is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation."" Id., at 422.
+The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.
+
+Each value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so. Adherence to the policy of neutrality that derives from an accommodation of the Establishment and Free Exercise Clauses has prevented the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious practice.
+
+Adherents of particular faiths and individual churches frequently take strong positions on public issues including, as this case reveals in the several briefs amici, vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right. No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts_x0097_one that seeks to mark boundaries to avoid excessive entanglement.
+
+The hazards of placing too much weight on a few words or phrases of the Court is abundantly illustrated within the pages of the Court's opinion in Everson. MR. JUSTICE BLACK, writing for the Court's majority, said the First Amendment
+
+""means at least this: Neither a state nor the Federal Government can . . . pass laws which aid one religion, aid all religions, or prefer one religion over another."" 330 U.S., at 15.
+Yet he had no difficulty in holding that:
+
+""Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets . . . ."" Id., at 17. (Emphasis added.)
+The Court did not regard such ""aid"" to schools teaching a particular religious faith as any more a violation of the Establishment Clause than providing ""state-paid policemen, detailed to protect children . . . [at the schools] from the very real hazards of traffic . . . ."" Ibid.
+
+Mr. Justice Jackson, in perplexed dissent in Everson, noted that
+""the undertones of the opinion, advocating complete and uncompromising separation . . . seem utterly discordant with its conclusion . . . ."" Id., at 19.
+Perhaps so. One can sympathize with Mr. Justice Jackson's logical analysis but agree with the Court's eminently sensible and realistic application of the language of the Establishment Clause. In Everson the Court declined to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history. Surely, bus transportation and police protection to pupils who receive religious instruction ""aid"" that particular religion to maintain schools that plainly tend to assure future adherents to a particular faith by having control of their total education at an early age. No religious body that maintains schools would deny this as an affirmative if not dominant policy of church schools. But if as in Everson buses can be provided to carry and policemen to protect church school pupils, we fail to see how a broader range of police and fire protection given equally to all churches, along with nonprofit hospitals, art galleries, and libraries receiving the same tax exemption, is different for purposes of the Religion Clauses.
+
+Similarly, making textbooks available to pupils in parochial schools in common with public schools was surely an ""aid"" to the sponsoring churches because it relieved those churches of an enormous aggregate cost for those books. Supplying of costly teaching materials was not seen either as manifesting a legislative purpose to aid or as having a primary effect of aid contravening the First Amendment. Board of Education v. Allen, 392 U.S. 236 (1968). In so holding the Court was heeding both its own prior decisions and our religious tradition. MR. JUSTICE DOUGLAS, in Zorach v. Clauson, supra, after recalling that we ""are a religious people whose institutions presuppose a Supreme Being,"" went on to say:
+
+""We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary.. . . When the state encourages religious instruction . . . it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs."" 343 U.S., at 313-314. (Emphasis added.)
+With all the risks inherent in programs that bring about administrative relationships between public education bodies and church-sponsored schools, we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a ""tight rope"" and one we have successfully traversed.
+",analysis,The Establishment and Free Exercise Clauses,strongly agree,Background of the Establishment and Free Exercise Clauses of the First Amendment,strongly agree,The Establishment and Free Exercise Clauses,1
+G8,17,1,1,II,"The legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility. New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ""moral or mental improvement,"" should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes. It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. Qualification for tax exemption is not perpetual or immutable; some tax-exempt groups lose that status when their activities take them outside the classification and new entities can come into being and qualify for exemption.
+
+Governments have not always been tolerant of religious activity, and hostility toward religion has taken many shapes and forms_x0097_economic, political, and sometimes harshly oppressive. Grants of exemption historically reflect the concern of authors of constitutions and statutes as to the latent dangers inherent in the imposition of property taxes; exemption constitutes a reasonable and balanced attempt to guard against those dangers. The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause. To equate the two would be to deny a national heritage with roots in the Revolution itself. See Sherbert v. Verner, 374 U.S. 398, 423 (1963) (HARLAN, J., dissenting); Braunfeld v. Brown, 366 U.S. 599, 608 (1961). See generally Kauper, The Constitutionality of Tax Exemptions for Religious Activities in The Wall Between Church and State 95 (D. Oaks ed. 1963). We cannot read New York's statute as attempting to establish religion; it is simply sparing the exercise of religion from the burden of property taxation levied on private profit institutions.
+
+We find it unnecessary to justify the tax exemption on the social welfare services or ""good works"" that some churches perform for parishioners and others_x0097_family counselling, aid to the elderly and the infirm, and to children. Churches vary substantially in the scope of such services; programs expand or contract according to resources and heed. As public-sponsored programs enlarge, private aid from the church sector may diminish. The extent of social services may vary, depending on whether the church serves an urban or rural, a rich or poor constituency. To give emphasis to so variable an aspect of the work of religious bodies would introduce an element of governmental evaluation and standards as to the worth of particular social welfare programs, thus producing a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize. Hence, the use of a social welfare yardstick as a significant element to qualify for tax exemption could conceivably give rise to confrontations that could escalate to constitutional dimensions.
+
+Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result_x0097_the effect_x0097_is not an excessive government entanglement with religion. The test is inescapably one of degree. Either course, taxation of churches or exemption, occasions some degree of involvement with religion. Elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.
+
+Granting tax exemptions to churches necessarily operates to afford an indirect economic benefit and also gives rise to some, but yet a lesser, involvement than taxing them. In analyzing either alternative the questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement. Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards, but that is not this case. The hazards of churches supporting government are hardly less in their potential than the hazards of government supporting churches;[3] each relationship carries some involvement rather than the desired insulation and separation. We cannot ignore the instances in history when church support of government led to the kind of involvement we seek to avoid.
+
+The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees ""on the public payroll."" There is no genuine nexus between tax exemption and establishment of religion. As Mr. Justice Holmes commented in a related context ""a page of history is worth a volume of logic."" New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). The exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.
+
+Separation in this context cannot mean absence of all contact; the complexities of modern life inevitably produce some contact and the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a State's boundaries, along with many other exempt organizations. The appellant has not established even an arguable quantitative correlation between the payment of an ad valorem property tax and the receipt of these municipal benefits.
+
+All of the 50 States provide for tax exemption of places of worship, most of them doing so by constitutional guarantees. For so long as federal income taxes have had any potential impact on churches_x0097_over 75 years_x0097_ religious organizations have been expressly exempt from the tax.[4] Such treatment is an ""aid"" to churches no more and no less in principle than the real estate tax exemption granted by States. Few concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.
+
+It is significant that Congress, from its earliest days, has viewed the Religion Clauses of the Constitution as authorizing statutory real estate tax exemption to religious bodies. In 1802 the 7th Congress enacted a taxing statute for the County of Alexandria, adopting the 1800 Virginia statutory pattern which provided tax exemptions for churches. 2 Stat. 194.[5] As early as 1813 the 12th Congress refunded import duties paid by religious societies on the importation of religious articles.[6] During this period the City Council of Washington, D. C., acting under congressional authority, Act of Incorporation, § 7, 2 Stat. 197 (May 3, 1802), enacted a series of real and personal property assessments that uniformly exempted church property.[7] In 1870 the Congress specifically exempted all churches in the District of Columbia and appurtenant grounds and property ""from any and all taxes or assessments, national, municipal, or county."" Act of June 17, 1870, 16 Stat. 153.[8]
+
+It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice of according the exemption to churches, openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside. Nearly 50 years ago Mr. Justice Holmes stated:
+
+""If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. . . ."" Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).
+Nothing in this national attitude toward religious tolerance and two centuries of uninterrupted freedom from taxation has given the remotest sign of leading to an established church or religion and on the contrary it has operated affirmatively to help guarantee the free exercise of all forms of religious belief. Thus, it is hardly useful to suggest that tax exemption is but the ""foot in the door"" or the ""nose of the camel in the tent"" leading to an established church. If tax exemption can be seen as this first step toward ""establishment"" of religion, as MR. JUSTICE DOUGLAS fears, the second step has been long in coming. Any move that realistically ""establishes"" a church or tends to do so can be dealt with ""while this Court sits.""
+
+Mr. Justice Cardozo commented in The Nature of the Judicial Process 51 (1921) on the ""tendency of a principle to expand itself to the limit of its logic""; such expansion must always be contained by the historical frame of reference of the principle's purpose and there is no lack of vigilance on this score by those who fear religious entanglement in government.
+
+The argument that making ""fine distinctions"" between what is and what is not absolute under the Constitution is to render us a government of men, not laws, gives too little weight to the fact that it is an essential part of adjudication to draw distinctions, including fine ones, in the process of interpreting the Constitution. We must frequently decide, for example, what are ""reasonable"" searches and seizures under the Fourth Amendment. Determining what acts of government tend to establish or interfere with religion falls well within what courts have long been called upon to do in sensitive areas.
+
+It is interesting to note that while the precise question we now decide has not been directly before the Court previously, the broad question was discussed by the Court in relation to real estate taxes assessed nearly a century ago on land owned by and adjacent to a church in Washington, D. C.[9] At that time Congress granted real estate tax exemptions to buildings devoted to art, to institutions of public charity, libraries, cemeteries, and ""church buildings, and grounds actually occupied by such buildings."" In denying tax exemption as to land owned by but not used for the church, but rather to produce income, the Court concluded:
+
+""In the exercise of this [taxing] power, Congress, like any State legislature unrestricted by constitutional provisions, may at its discretion wholly exempt certain classes of property from taxation, or may tax them at a lower rate than other property."" Gibbons v. District of Columbia, 116 U.S. 404, 408 (1886).
+It appears that at least up to 1885 this Court, reflecting more than a century of our history and uninterrupted practice, accepted without discussion the proposition that federal or state grants of tax exemption to churches were not a violation of the Religion Clauses of the First Amendment. As to the New York statute, we now confirm that view.
+
+Affirmed.",analysis,The Purpose of the Tax Exemption,strongly agree,The Purpose of the Property Tax Exemption,strongly agree,The Purpose of the Religious Property Tax Exemption,2
+G16,0,1,1,I,"Michael Reese, the respondent, appealed his state-court kidnaping and attempted sodomy convictions and sentences through Oregon's state court system. He then brought collateral relief proceedings in the state courts (where he was represented by appointed counsel). After the lower courts denied him collateral relief, Reese filed a petition for discretionary review in the Oregon Supreme Court.
+
+The petition made several different legal claims. In relevant part, the petition asserted that Reese had received ""ineffective assistance of both trial court and appellate court counsel."" App. 47. The petition added that ""his imprisonment is in violation of [Oregon state law]."" Id., at 48. It said that his trial counsel's conduct violated several provisions of the Federal Constitution. Ibid. But it did not say that his separate appellate ""ineffective assistance"" claim violated federal law. The Oregon Supreme Court denied review.
+
+Reese ultimately sought a federal writ of habeas corpus, raising, among other claims, a federal constitutional claim that his appellate counsel did not effectively represent him during one of his direct state-court appeals. The Federal District Court held that Reese had not ""fairly presented"" his federal ""ineffective assistance of appellate counsel"" claim to the higher state courts because his brief in the state appeals court had not indicated that he was complaining about a violation of federal law.
+
+A divided panel of the Ninth Circuit reversed the District Court. 282 F. 3d 1184 (2002). Although the majority apparently believed that Reese's petition itself did not alert the Oregon Supreme Court to the federal nature of the appellate ""ineffective assistance"" claim, it did not find that fact determinative. Id., at 1193-1194. Rather, it found that Reese had satisfied the ""fair presentation"" requirement because the justices of the Oregon Supreme Court had had ""the opportunity to read . . . the lower [Oregon] court decision claimed to be in error before deciding whether to grant discretionary review."" Id., at 1194 (emphasis added). Had they read the opinion of the lower state trial court, the majority added, the justices would have, or should have, realized that Reese's claim rested upon federal law. Ibid.
+
+We granted certiorari to determine whether the Ninth Circuit has correctly interpreted the ""fair presentation"" requirement.",facts,Michael Reese,disagree,Michael Reese,disagree,Petitioner's Denied Federal Writ of Habeas Corpus,1
+G16,0,1,1,II,"We begin by assuming that Reese's petition by itself did not properly alert the Oregon Supreme Court to the federal nature of Reese's claim. On that assumption, Reese failed to meet the ""fair presentation"" standard, and the Ninth Circuit was wrong to hold the contrary.
+
+We recognize that the justices of the Oregon Supreme Court did have an ""opportunity"" to read the lower court opinions in Reese's case. That opportunity means that the judges could have read them. But to say that a petitioner ""fairly presents"" a federal claim when an appellate judge can discover that claim only by reading lower court opinions in the case is to say that those judges must read the lower court opinions _x0097_ for otherwise they would forfeit the State's opportunity to decide that federal claim in the first instance. In our view, federal habeas corpus law does not impose such a requirement.
+
+For one thing, the requirement would force state appellate judges to alter their ordinary review practices. Appellate judges, of course, will often read lower court opinions, but they do not necessarily do so in every case. Sometimes an appellate court can decide a legal question on the basis of the briefs alone. That is particularly so where the question at issue is whether to exercise a discretionary power of review, i. e., whether to review the merits of a lower court decision. In such instances, the nature of the issue may matter more than does the legal validity of the lower court decision. And the nature of the issue alone may lead the court to decide not to hear the case. Indeed, the Oregon Supreme Court is a court with a discretionary power of review. And Oregon Rule of Appellate Procedure 9.05(7) (2003) instructs litigants seeking discretionary review to identify clearly in the petition itself the legal questions presented, why those questions have special importance, a short statement of relevant facts, and the reasons for reversal, ""including appropriate authorities.""
+
+For another thing, the opinion-reading requirement would impose a serious burden upon judges of state appellate courts, particularly those with discretionary review powers. Those courts have heavy workloads, which would be significantly increased if their judges had to read through lower court opinions or briefs in every instance. See National Center for State Courts, State Court Caseload Statistics 2002, pp. 106-110 (Table 2) (for example, in 2001, Oregon appellate courts received a total of 5,341 appeals, including 908 petitions for discretionary review to its Supreme Court; California appellate courts received 32,273, including 8,860 discretionary Supreme Court petitions; Louisiana appellate courts received 13,117, including 3,230 discretionary Supreme Court petitions; Illinois appellate courts received 12,411, including 2,325 discretionary Supreme Court petitions).
+
+Finally, we do not find such a requirement necessary to avoid imposing unreasonable procedural burdens upon state prisoners who may eventually seek habeas corpus. A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ""federal.""
+
+For these reasons, we believe that the requirement imposed by the Ninth Circuit would unjustifiably undercut the considerations of federal-state comity that the exhaustion requirement seeks to promote. We consequently hold that ordinarily a state prisoner does not ""fairly present"" a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.",analysis,Application of the Fair Presentation Standard,strongly agree,The Oregon Supreme Court's Requirement of a Fair Presentation,strongly agree,"""Fair Presentation"" Requirements",2
+G16,0,1,1,III,"Reese argues in the alternative that it is wrong to assume that his petition by itself failed to alert the Oregon Supreme Court to the federal nature of his ""ineffective assistance of appellate counsel"" claim. We do not agree.
+
+Reese must concede that his petition does not explicitly say that the words ""ineffective assistance of appellate counsel"" refer to a federal claim. The petition refers to provisions of the Federal Constitution in respect to other claims but not in respect to this one. The petition provides no citation of any case that might have alerted the court to the alleged federal nature of the claim. And the petition does not even contain a factual description supporting the claim. Cf. Gray v. Netherland, 518 U. S. 152, 163 (1996); Duncan, 513 U. S., at 366.
+
+Reese asserts that the petition nonetheless ""fairly presents"" a federal ""ineffective assistance of appellate counsel"" claim for two reasons. First, he says that the word ""ineffective"" is a term of art in Oregon that refers only to federal-law claims and not to similar state-law claims, which, he adds, in Oregon are solely referred to as ""inadequate assistance"" claims. And thus the Oregon Supreme Court should have known, from his use of the word ""ineffective,"" that his claim was federal.
+
+Reese, however, has not demonstrated that Oregon law uses the words ""ineffective assistance"" in the manner he suggests, that is, as referring only to a federal-law claim. See, e. g., Lichau v. Baldwin, 166 Ore. App. 411, 415, 417, 999 P. 2d 1207, 1210, 1211 (2000) (using ""ineffective assistance"" to refer to violations of the Oregon Constitution), rev'd in part, 333 Ore. 350, 39 P. 3d 851 (2002). Indeed, Reese's own petition uses both phrases _x0097_ ""ineffective assistance"" and ""inadequate assistance"" _x0097_ at different points to refer to what is apparently a single claim.
+
+Second, Reese says that in Oregon the standards for adjudicating state and federal ""inadequate/ineffective appellate assistance"" claims are identical. He adds that, where that identity exists, a petitioner need not indicate a claim's federal nature, because, by raising a state-law claim, he would necessarily ""fairly present"" the corresponding federal claim.
+
+However, the Ninth Circuit did not address this argument, and our reading of the briefs filed in the Ninth Circuit leads us to conclude that Reese did not there seek consideration of the argument in that court. Indeed, the argument first made its appearance in this Court in Reese's brief on the merits. Under this Court's Rule 15.2, ""a nonjurisdictional argument not raised in a respondent's brief in opposition to a petition for a writ of certiorari may be deemed waived."" Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996) (internal quotation marks omitted). This argument falls squarely within the rule. The complex nature of Reese's claim and its broad implications suggest that its consideration by the lower courts would help in its resolution. Hence, without expressing any view on the merits of the issue, we exercise our Rule 15.2 discretion and deem the argument waived in this Court. See, e. g., Roberts v. Galen of Va., Inc., 525 U. S. 249, 253-254 (1999) (per curiam); South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999); cf. Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).
+
+For these reasons, the judgment of the Ninth Circuit is
+
+Reversed.",analysis,The Petition Failed to Alert the Oregon Supreme Court of Reese's Federal Claim,strongly agree,Federal Nature of the Claim,agree,Petitioner's Failure to Alert the State Court of the Federal Nature of the Claim,3
+G16,1,1,1,I,"In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department received information indicating that respondent Greenwood might be engaged in narcotics trafficking. Stracner learned that a criminal suspect had informed a federal drug enforcement agent in February 1984 that a truck filled with illegal drugs was en route to the Laguna Beach address at which Greenwood resided. In addition, a neighbor complained of heavy vehicular traffic late at night in front of Greenwood's single-family home. The neighbor reported that the vehicles remained at Greenwood's house for only a few minutes.
+
+Stracner sought to investigate this information by conducting a surveillance of Greenwood's home. She observed several vehicles make brief stops at the house during the late-night and early morning hours, and she followed a truck from the house to a residence that had previously been under investigation as a narcotics-trafficking location.
+
+On April 6, 1984, Stracner asked the neighborhood's regular trash collector to pick up the plastic garbage bags that Greenwood had left on the curb in front of his house and to turn the bags over to her without mixing their contents with garbage from other houses. The trash collector cleaned his truck bin of other refuse, collected the garbage bags from the street in front of Greenwood's house, and turned the bags over to Stracner. The officer searched through the rubbish and found items indicative of narcotics use. She recited the information that she had gleaned from the trash search in an affidavit in support of a warrant to search Greenwood's home.
+
+Police officers encountered both respondents at the house later that day when they arrived to execute the warrant. The police discovered quantities of cocaine and hashish during their search of the house. Respondents were arrested on felony narcotics charges. They subsequently posted bail.
+
+The police continued to receive reports of many late-night visitors to the Greenwood house. On May 4, Investigator Robert Rahaeuser obtained Greenwood's garbage from the regular trash collector in the same manner as had Stracner. The garbage again contained evidence of narcotics use.
+
+Rahaeuser secured another search warrant for Greenwood's home based on the information from the second trash search. The police found more narcotics and evidence of narcotics trafficking when they executed the warrant. Greenwood was again arrested.
+
+The Superior Court dismissed the charges against respondents on the authority of People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262 (1971), which held that warrantless trash searches violate the Fourth Amendment and the California Constitution. The court found that the police would not have had probable cause to search the Greenwood home without the evidence obtained from the trash searches.
+
+The Court of Appeal affirmed. 182 Cal. App. 3d 729, 227 Cal. Rptr. 539 (1986). The court noted at the outset that the fruits of warrantless trash searches could no longer be suppressed if Krivda were based only on the California Constitution, because since 1982 the State has barred the suppression of evidence seized in violation of California law but not federal law. See Cal. Const., Art. I, § 28(d); In re Lance W., 37 Cal. 3d 873, 694 P.2d 744 (1985). But Krivda, a decision binding on the Court of Appeal, also held that the fruits of warrantless trash searches were to be excluded under federal law. Hence, the Superior Court was correct in dismissing the charges against respondents. 182 Cal. App. 3d, at 735, 227 Cal. Rptr, at 542.[1]
+
+The California Supreme Court denied the State's petition for review of the Court of Appeal's decision. We granted certiorari, 483 U.S. 1019, and now reverse.",facts,People v. Krivda,strongly disagree,The Greenwood Home Search,strongly agree,Petitioner's Home Search,1
+G16,1,1,1,II,"The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. O'Connor v. Ortega, 480 U.S. 709, 715 (1987); California v. Ciraolo, 476 U.S. 207, 211 (1986); Oliver v. United States, 466 U.S. 170, 177 (1984); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Respondents do not disagree with this standard.
+
+They assert, however, that they had, and exhibited, an expectation of privacy with respect to the trash that was searched by the police: The trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone.
+
+It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.
+
+Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals,[2] children, scavengers,[3] snoops,[4] and other members of the public. See Krivda, supra, at 367, 486 P.2d, at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage ""in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,"" United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
+
+Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Hence, ""[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."" Katz v. United States, supra, at 351. We held in Smith v. Maryland, 442 U.S. 735 (1979), for example, that the police did not violate the Fourth Amendment by causing a pen register to be installed at the telephone company's offices to record the telephone numbers dialed by a criminal suspect. An individual has no legitimate expectation of privacy in the numbers dialed on his telephone, we reasoned, because he voluntarily conveys those numbers to the telephone company when he uses the telephone. Again, we observed that ""a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."" Id., at 743-744.
+
+Similarly, we held in California v. Ciraolo, supra, that the police were not required by the Fourth Amendment to obtain a warrant before conducting surveillance of the respondent's fenced backyard from a private plane flying at an altitude of 1,000 feet. We concluded that the respondent's expectation that his yard was protected from such surveillance was unreasonable because ""[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed."" Id., at 213-214.
+
+Our conclusion that society would not accept as reasonable respondents' claim to an expectation of privacy in trash left for collection in an area accessible to the public is reinforced by the unanimous rejection of similar claims by the Federal Courts of Appeals. See United States v. Dela Espriella, 781 F.2d 1432, 1437 (CA9 1986); United States v. O'Bryant, 775 F.2d 1528, 1533-1534 (CA11 1985); United States v. Michaels, 726 F.2d 1307, 1312-1313 (CA8), cert. denied, 469 U.S. 820 (1984); United States v. Kramer, 711 F.2d 789, 791-794 (CA7), cert. denied, 464 U.S. 962 (1983); United States v. Terry, 702 F.2d 299, 308-309 (CA2), cert. denied sub nom. Williams v. United States, 461 U.S. 931 (1983); United States v. Reicherter, supra, at 399; United States v. Vahalik, 606 F.2d 99, 100-101 (CA5 1979) (per curiam), cert. denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025 (CA4 1978), cert. denied, 440 U.S. 959 (1979); Magda v. Benson, 536 F.2d 111, 112-113 (CA6 1976) (per curiam); United States v. Mustone, 469 F.2d 970, 972-974 (CA1 1972). In United States v. Thornton, 241 U. S. App. D. C. 46, 56, and n. 11, 746 F.2d 39, 49, and n. 11 (1984), the court observed that ""the overwhelming weight of authority rejects the proposition that a reasonable expectation of privacy exists with respect to trash discarded outside the home and the curtilege [sic] thereof."" In addition, of those state appellate courts that have considered the issue, the vast majority have held that the police may conduct warrantless searches and seizures of garbage discarded in public areas. See Commonwealth v. Chappee, 397 Mass. 508, 512-513, 492 N.E.2d 719, 721-722 (1986); Cooks v. State, 699 P.2d 653, 656 (Okla. Crim.), cert. denied, 474 U.S. 935 (1985); State v. Stevens, 123 Wis. 2d 303, 314-317, 367 N.W.2d 788, 794-797, cert. denied, 474 U.S. 852 (1985); State v. Ronngren, 361 N.W.2d 224, 228-230 (N. D. 1985); State v. Brown, 20 Ohio App. 3d 36, 37-38, 484 N.E.2d 215, 217-218 (1984); State v. Oquist, 327 N.W.2d 587 (Minn. 1982); People v. Whotte, 113 Mich. App. 12, 317 N.W.2d 266 (1982); Commonwealth v. Minton, 288 Pa. Super. 381, 391, 432 A.2d 212, 217 (1981); State v. Schultz, 388 So. 2d 1326 (Fla. App. 1980); People v. Huddleston, 38 Ill. App. 3d 277, 347 N.E.2d 76 (1976); Willis v. State, 518 S.W.2d 247, 249 (Tex. Crim. App. 1975); Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086 (1973); State v. Fassler, 108 Ariz. 586, 592-593, 503 P.2d 807, 813-814 (1972); Croker v. State, 477 P.2d 122, 125-126 (Wyo. 1970); State v. Purvis, 249 Ore. 404, 411, 438 P.2d 1002, 1005 (1968). But see State v. Tanaka, 67 Haw. 658, 701 P.2d 1274 (1985); People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262 (1971).[5]",analysis,Objectively Reasonable Expectations of Privacy,strongly agree,The Greenwood House,disagree,Reasonable Expectation of Privacy as to Petitioner's Garbage,2
+G16,1,1,1,III,"We reject respondent Greenwood's alternative argument for affirmance: that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law. He urges that the state-law right of Californians to privacy in their garbage, announced by the California Supreme Court in Krivda, supra, survived the subsequent state constitutional amendment eliminating the suppression remedy as a means of enforcing that right. See In re Lance W., 37 Cal. 3d, at 886-887, 694 P.2d, at 752-753. Hence, he argues that the Fourth Amendment should itself vindicate that right.
+
+Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution. We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs. We have emphasized instead that the Fourth Amendment analysis must turn on such factors as ""our societal understanding that certain areas deserve the most scrupulous protection from government invasion."" Oliver v. United States, 466 U. S., at 178 (emphasis added). See also Rakas v. Illinois, 439 U.S. 128, 143-144, n. 12 (1978). We have already concluded that society as a whole possesses no such understanding with regard to garbage left for collection at the side of a public street. Respondent's argument is no less than a suggestion that concepts of privacy under the laws of each State are to determine the reach of the Fourth Amendment. We do not accept this submission.",analysis,Privacy in Garbage,agree,Greenwood's Request for Affirmance,disagree,Reasonable Expectation of Privacy due to State Law Prohibition,3
+G16,1,1,1,IV,"Greenwood finally urges as an additional ground for affirmance that the California constitutional amendment eliminating the exclusionary rule for evidence seized in violation of state but not federal law violates the Due Process Clause of the Fourteenth Amendment. In his view, having recognized a state-law right to be free from warrantless searches of garbage, California may not under the Due Process Clause deprive its citizens of what he describes as ""the only effective deterrent"" to violations of this right. Greenwood concedes that no direct support for his position can be found in the decisions of this Court. He relies instead on cases holding that individuals are entitled to certain procedural protections before they can be deprived of a liberty or property interest created by state law. See Hewitt v. Helms, 459 U.S. 460 (1983); Vitek v. Jones, 445 U.S. 480 (1980).
+
+We see no merit in Greenwood's position. California could amend its Constitution to negate the holding in Krivda that state law forbids warrantless searches of trash. We are convinced that the State may likewise eliminate the exclusionary rule as a remedy for violations of that right. At the federal level, we have not required that evidence obtained in violation of the Fourth Amendment be suppressed in all circumstances. See, e. g., United States v. Leon, 468 U.S. 897 (1984); United States v. Janis, 428 U.S. 433 (1976); United States v. Calandra, 414 U.S. 338 (1974). Rather, our decisions concerning the scope of the Fourth Amendment exclusionary rule have balanced the benefits of deterring police misconduct against the costs of excluding reliable evidence of criminal activity. See Leon, 468 U. S., at 908-913. We have declined to apply the exclusionary rule indiscriminately ""when law enforcement officers have acted in objective good faith or their transgressions have been minor,"" because ""the magnitude of the benefit conferred on . . . guilty defendants [in such circumstances] offends basic concepts of the criminal justice system."" Id., at 908 (citing Stone v. Powell, 428 U.S. 465, 490 (1976)).
+
+The States are not foreclosed by the Due Process Clause from using a similar balancing approach to delineate the scope of their own exclusionary rules. Hence, the people of California could permissibly conclude that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law.",analysis,Reduction of Exclusionary Rule,disagree,Due Process Clause,strongly agree,The Alleged Deprivation of Due Process by Californian Law,4
+G16,1,1,1,V,"The judgment of the California Court of Appeal is therefore reversed, and this case is remanded for further proceedings not inconsistent with this opinion.
+
+It is so ordered.
+
+",conclusion,order remanding for further proceedings,agree,remand for further proceedings,agree,Reversal of the Decision and Remand,5
+G16,2,1,1,I,"Richard and Judith Smolin were divorced in California in 1978. Sole custody of their two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable visitation rights for Richard. Until November 1979, all the parties remained in San Bernardino County, California, and Richard apparently paid his child support and exercised his visitation rights without serious incident. In August 1979, however, Judith married James Pope, and in November, Mr. Pope's work required that the family relocate to Oregon. When the Popes moved without informing Richard, the battle over the custody of the minor children began in earnest.
+
+It is unnecessary to recite in detail all that ensued. Richard alleged, and the California courts later found, that the Popes deliberately attempted to defeat Richard's visitation rights and to preclude him from forming a meaningful relationship with his children in the course of their succeeding relocations from Oregon to Texas to Louisiana. On February 13, 1981, the Popes obtained a decree from a Texas court granting full faith and credit to the original California order awarding sole custody to Judith. Richard was served but did not appear in the Texas proceeding. Before the Texas decree was issued, however, Richard sought and obtained in California Superior Court modification of the underlying California decree, awarding joint custody to Richard and Judith. Though properly served, the Popes did not appear in these California proceedings; and, though served with the modification order, the Popes neither complied with its terms, nor notified the Texas court of its existence. On January 9, 1981, Richard instituted an action in California Superior Court to find Judith in contempt and to again modify the custody decree to give him sole custody. In February 1981, sole custody was granted to Richard by the California court, subject to reasonable visitation rights for Judith.
+
+This order also was ignored by the Popes, apparently acting on the advice of counsel that the California courts no longer had jurisdiction over the matter. Richard did not in fact obtain physical custody for over two years. When he finally located the Popes in Louisiana, they began an adoption proceeding, later described by the California courts as ""verging on the fraudulent,"" to sever Richard's legal tie to Jennifer and Jamie. App. 51. After securing a California warrant to obtain custody of the children on February 27, 1984, Richard and his father, Gerard Smolin, resorted to self-help. On March 9, 1984, they picked up Jennifer and Jamie as they were waiting for their school bus in Slidell, Louisiana, and brought them back to California. On April 11, 1984, the Popes submitted to the jurisdiction of the California Superior Court and instituted an action to modify the 1981 order granting Richard sole custody. 41 Cal. 3d 758, 764, n. 4, 716 P.2d 991, 994, n. 4 (1986). Those proceedings are apparently still pending before the California courts.
+
+Meanwhile, the Popes raised the stakes by instituting a criminal action against Richard and Gerard Smolin in Louisiana. On April 30, 1984, after the Popes instituted modification proceedings in California, Judith Pope swore out an affidavit charging Richard and Gerard Smolin with kidnaping Jennifer and Jamie from her custody and asserting that they had acted ""without authority to remove children from [her] custody."" App. B to Pet. for Cert. 6. On the basis of this affidavit, the Assistant District Attorney for the 22d Judicial District of Louisiana, William Alford, Jr., filed an information charging Richard and Gerard Smolin each with two counts of violating La. Rev. Stat. Ann. § 14:45 (West 1986), the Louisiana kidnaping statute. On June 14, 1984, the Governor of Louisiana formally notified the Governor of California that Richard and Gerard Smolin were charged with ""simple kidnaping"" in Louisiana and demanded that they be delivered up for trial. 41 Cal. 3d, at 763, 716 P. 2d, at 993-994.
+
+In early August 1984, the Smolins petitioned in the California Superior Court for a writ of habeas corpus to block the anticipated extradition warrants. On August 17, 1984, the anticipated warrants issued and on August 24, 1984, the Superior Court orally granted a writ of habeas corpus after taking judicial notice of the various custody orders that had been issued. The court concluded ""that the findings in the family law case adequately demonstrate that, in fact, the process initiated by Mrs. Pope in Louisiana and her declarations and affidavits were totally insufficient to establish any basis for rights of either herself personally or for the State . . . of Louisiana."" App. C to Pet. for Cert. 5. California then sought a writ of mandate in the California Court of Appeal on the ground that the Superior Court had abused its discretion in blocking extradition. The Court of Appeal reluctantly issued the writ:
+
+""Although we abhor Judy's apparent willingness to take advantage of our federal system to further this custody battle, and are sympathetic to [the Smolins'] position, we must conclude that their arguments are irrelevant to the only issue a court in the asylum state may properly address: are the documents on their face in order."" App. B to Pet. for Cert. 16.
+A divided California Supreme Court reversed. The majority interpreted the Superior Court's finding to be that the Smolins were not substantially charged with a crime. It found that the California custody decrees were properly considered by the Superior Court, and that its conclusion that the Smolins were not substantially charged was correct. Under the full faith and credit provisions of the federal Parental Kidnaping Prevention Act of 1980, 28 U.S. C. § 1738A, the majority determined that those decrees conclusively established that Richard Smolin was the lawful custodian of the children at the time that they were taken from Louisiana to California.[*] Finally, the court found that, under Louisiana law, the lawful custodian cannot be guilty of kidnaping children in his custody. State v. Elliott, 171 La. 306, 311, 131 So. 28, 30 (1930). We granted certiorari, 479 U.S. 982 (1986), to consider whether the Extradition Clause, Art. IV, § 2, cl. 2, and the Extradition Act, 18 U.S. C. § 3182, prevent the California Supreme Court from refusing to permit extradition on these grounds.",facts,The Smolin Matter,strongly agree,The Smolin Matter,strongly agree,The Smolin Case,1
+G16,2,1,1,II,"The Federal Constitution places certain limits on the sovereign powers of the States, limits that are an essential part of the Framers' conception of national identity and Union. One such limit is found in Art. IV, § 2, cl. 2, the Extradition Clause:
+
+""A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.""
+The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State's criminal justice system. As this Court noted in its first opportunity to construe the Extradition Clause:
+
+""[T]he statesmen who framed the Constitution were fully sensible, that from the complex character of the Government, it must fail unless the States mutually supported each other and the General Government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offense as soon as another opportunity offered."" Kentucky v. Dennison, 24 How. 66, 100 (1861).
+The Extradition Clause, however, does not specifically establish a procedure by which interstate extradition is to take place, and, accordingly, has never been considered to be self-executing. See, e. g., Hyatt v. People ex rel. Corkran, 188 U.S. 691, 708-709 (1903); Kentucky v. Dennison, supra, at 104. Early in our history, the lack of an established procedure led to a bitter dispute between the States of Virginia and Pennsylvania. J. Scott, Law of Interstate Rendition 5-7 (1917). In 1791, Pennsylvania demanded the extradition of three men charged with kidnaping a free black man and selling him into slavery. Virginia refused to comply with Pennsylvania's demand. The controversy was finally submitted to President Washington who, relying upon the advice of Attorney General Randolph, 9 National State Papers of the United States 1789-1817, pt. II, pp. 144-145 (E. Carzo ed. 1985), personally appeared before the Congress to obtain the enactment of a law to regulate the extradition process. Congress responded by enacting the Extradition Act of 1793, which provides in its current form:
+
+""Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear."" 18 U.S. C. § 3182.
+This Court has held the Extradition Act of 1793 to be a proper exercise of Congress' powers under the Extradition Clause and Art. IV, § 1, to ""prescribe the manner in which acts, records and proceedings shall be proved, and the effect thereof."" Kentucky v. Dennison, supra, at 105; Prigg v. Pennsylvania, 16 Pet. 539, 618-622 (1842). By the express terms of federal law, therefore, the asylum State is bound to deliver up to the demanding State's agent a fugitive against whom a properly certified indictment or affidavit charging a crime is lodged.
+
+The language, history, and subsequent construction of the Extradition Act make clear that Congress intended extradition to be a summary procedure. As we have repeatedly held, extradition proceedings are ""to be kept within narrow bounds""; they are ""emphatically"" not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party. Biddinger v. Commissioner of Police, 245 U.S. 128, 135 (1917); see also, e. g., Michigan v. Doran, 439 U.S. 282, 288 (1978); Drew v. Thaw, 235 U.S. 432, 440 (1914); Pierce v. Creecy, 210 U.S. 387, 405 (1908); In re Strauss, 197 U.S. 324, 332-333 (1905). Those inquiries are left to the professorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State's criminal law _x0097_ subject, of course, to the limitations imposed by the Constitution and laws of the United States. Biddinger v. Commissioner of Police, supra, at 135; Drew v. Thaw, supra, at 440. The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met. As the Court held in Michigan v. Doran, supra, the Act leaves only four issues open for consideration before the fugitive is delivered up:
+
+""(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive."" 439 U.S., at 289.
+The parties argue at length about the propriety of the California courts taking judicial notice of their prior child custody decrees in this extradition proceeding. But even if taking judicial notice of the decrees is otherwise proper, the question remains whether the decrees noticed were relevant to one of these four inquiries. The Smolins do not dispute that the extradition documents are in order, that they are the persons named in the documents and that they meet the technical definition of a ""fugitive."" Their sole contention is that, in light of the earlier California custody decrees and the federal Parental Kidnaping Prevention Act of 1980, 28 U.S. C. § 1738A, they have not been properly charged with a violation of Louisiana's kidnaping statute, La. Rev. Stat. Ann. § 14:45 (West 1986).
+
+Section 14:45A(4) prohibits the
+
+""intentional taking, enticing or decoying away and removing from the state, by any parent, of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.""
+A properly certified Louisiana information charges the Smolins with violating this statute by kidnaping Jennifer and Jamie Smolin. The information is based on the sworn affidavit of Judith Pope which asserts:
+
+"" `On March 9, 1984, at approximately 7:20 a. m., Richard Smolin and Gerard Smolin, kidnapped Jennifer Smolin, aged 10, and James C. Smolin, aged 9, from the affiant's custody while said children were at a bus stop in St. Tammany Parish, Louisiana.
+""The affiant has custody of the said children by virtue of a Texas court order dated February 5, 1981, a copy of said order attached hereto and made part hereof. The information regarding the actual kidnapping was told to the affiant by witnesses Mason Galatas and Cheryl Galatas of 2028 Mallard Street, Slidell, Louisiana, and Jimmie Huessler of 2015 Dridle Street, Slidell, Louisiana. Richard Smolin and Gerard Smolin were without authority to remove children from affiant's custody.' "" App. B to Pet. for Cert. 5-6.
+The information is in proper form, and the Smolins do not dispute that the affidavit, and documents incorporated by reference therein, set forth facts that clearly satisfy each element of the crime of kidnaping as it is defined in La. Rev. Stat. Ann. § 14:45A(4) (West 1986). If we accept as true every fact alleged, the Smolins are properly charged with kidnaping under Louisiana law. In our view, this ends the inquiry into the issue whether or not a crime is charged for purposes of the Extradition Act.
+
+The Smolins argue, however, that more than a formal charge is required, citing the following language from Roberts v. Reilly, 116 U.S. 80, 95 (1885):
+
+""It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand. . . .
+""[This] is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus.""
+The Smolins claim that this language in Roberts spawned a widespread practice of permitting the fugitive, upon a petition for writ of habeas corpus in the asylum State's courts, to show that the demanding State's charging instrument is so insufficient that it cannot withstand some generalized version of a motion to dismiss or common-law demurrer. Tr. of Oral Arg. 29-36. The cases the Smolins principally rely upon as support for this asserted practice are People ex rel. Lewis v. Commissioner of Correction of City of New York, 100 Misc. 2d 48, 417 N. Y. S. 2d 377 (1979), aff'd, 75 A.D. 2d 526, 426 N. Y. S. 2d 969 (1980), and Application of Varona, 38 Wash. 2d 833, 232 P.2d 923 (1951). See Brief for Respondent 15-17. In Lewis, however, the New York trial court actually granted extradition despite its apparent misgivings about the substantiality of the criminal charge. Lewis, supra, at 56, 417 N. Y. S. 2d, at 382. And, in Varona, the Washington Supreme Court relied on the fact that the indictment, on its face, did not charge a crime under California law. Application of Varona, supra, at 833-834, 232 P.2d, at 923-924. Neither case, in our view, supports the broad proposition that the asylum State's courts may entertain motions to dismiss or demurrers to the indictment or information from the demanding State.
+
+To the contrary, our cases make clear that no such inquiry is permitted. For example, in Pierce v. Creecy, decided after Roberts, supra, this Court refused to grant relief from extradition over multiple objections to the sufficiency of the indictment. The Pierce Court concluded that it was enough that ""the indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing, as it is defined in the Texas Penal Code . . . ."" 210 U.S., at 404. It reasoned:
+
+""If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States and fruitful of miscarriages of justice. The duty ought not be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance."" Id., at 405.
+Similarly, in Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), the appellant argued that he had a seemingly valid statute of limitations defense based on the fact that more than three years, the limitations period, had elapsed since the date of the crime recited in the indictment and that he had been publicly and openly resident in the demanding State for that entire period. The Court found that the question of limitations was properly considered only in the demanding State's courts. Id., at 135; see also Drew v. Thaw, 235 U. S., at 439-440 (whether the escape of a person committed to a mental institution is a crime ""is a question as to the law of New York which the New York courts must decide"").
+
+This proceeding is neither the time nor place for the Smolins' arguments that Judith Pope's affidavit is fraudulent and that the California custody decrees establish Richard as the lawful custodian under the full faith and credit provision of the federal Parental Kidnaping Prevention Act of 1980. There is nothing in the record to suggest that the Smolins are not entirely correct in all of this: that California had exclusive modification jurisdiction over the custody of Jennifer and Jamie; that, under the California decrees, Richard Smolin had lawful custody of the children when he brought them to California; and, that, accordingly, the Smolins did not violate La. Rev. Stat. Ann. § 14:45A(4) (West 1986) as is charged. Of course, the Parental Kidnaping Prevention Act of 1980 creates a uniform federal rule governing custody determinations, a rule to which the courts of Louisiana must adhere when they consider the Smolins' case on the merits. We are not informed by the record why it is that the States of California and Louisiana are so eager to force the Smolins halfway across the continent to face criminal charges that, at least to a majority of the California Supreme Court, appear meritless. If the Smolins are correct, they are not only innocent of the charges made against them, but also victims of a possible abuse of the criminal process. But, under the Extradition Act, it is for the Louisiana courts to do justice in this case, not the California courts: ""surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place."" Drew v. Thaw, supra, at 440. The judgment of the California Supreme Court is
+
+Reversed.",analysis,The Extradition Clause,strongly agree,The Extradition Clause,strongly agree,The Extradition Clause,2
+G16,3,1,1,I,"There is no dispute as to the facts. The critical ones are stipulated. See App. 9. Respondent Robert P. Groetzinger had worked for 20 years in sales and market research for an Illinois manufacturer when his position was terminated in February 1978. During the remainder of that year, respondent busied himself with parimutuel wagering, primarily on greyhound races. He gambled at tracks in Florida and Colorado. He went to the track 6 days a week for 48 weeks in 1978. He spent a substantial amount of time studying racing forms, programs, and other materials. He devoted from 60 to 80 hours each week to these gambling-related endeavors. He never placed bets on behalf of any other person, or sold tips, or collected commissions for placing bets, or functioned as a bookmaker. He gambled solely for his own account. He had no other profession or type of employment.[2]
+
+Respondent kept a detailed accounting of his wagers and every day noted his winnings and losses in a record book. In 1978, he had gross winnings of $70,000, but he bet $72,032; he thus realized a net gambling loss for the year of $2,032.
+
+Respondent received $6,498 in income from other sources in 1978. This came from interest, dividends, capital gains, and salary earned before his job was terminated.
+
+On the federal income tax return he filed for the calendar year 1978 respondent report as income only the $6,498 realized from nongambling sources. He did not report any gambling winnings or deduct any gambling losses.[3] He did not itemize deductions. Instead, he computed his tax liability from the tax tables.
+
+Upon audit, the Commissioner of Internal Revenue determined that respondent's $70,000 in gambling winnings were to be included in his gross income and that, pursuant to § 165(d) of the Code, 26 U.S. C. § 165(d), a deduction was to be allowed for his gambling losses to the extent of these gambling gains. But the Commissioner further determined that, under the law as it was in 1978, a portion of respondent's $70,000 gambling-loss deduction was an item of tax preference and operated to subject him to the minimum tax under § 56(a) of the Code, 26 U.S. C. § 56(a) (1976 ed.). At that time, under statutory provisions in effect from 1976 until 1982, ""items of tax preference"" were lessened by certain deductions, but not by deductions not ""attributable to a trade or business carried on by the taxpayer."" §§ 57(a)(1) and (b)(1)(A), and § 62(1), 26 U.S. C. §§ 57(a)(1) and (b)(1)(A), and § 62(1) (1976 ed. and Supp. I).[4]
+
+These determinations by the Commissioner produced a § 56(a) minimum tax of $2,142 and, with certain other adjustments not now in dispute, resulted in a total asserted tax deficiency of $2,522 for respondent for 1978.
+
+Respondent sought redetermination of the deficiency in the United States Tax Court. That court, in a reviewed decision, with only two judges dissenting, held that respondent was in the trade or business of gambling, and that, as a consequence, no part of his gambling losses constituted an item of tax preference in determining any minimum tax for 1978. 82 T.C. 793 (1984). In so ruling, the court adhered to its earlier court-reviewed decision in Ditunno v. Commissioner, 80 T.C. 362 (1983). The court in Ditunno, id., at 371, had overruled Gentile v. Commissioner, 65 T.C. 1 (1975), a case where it had rejected the Commissioner's contention (contrary to his position here) that a full-time gambler was in a trade or business and therefore was subject to self-employment tax.
+
+The United States Court of Appeals for the Seventh Circuit affirmed. 771 F.2d 269 (1985). Because of a conflict on the issue among Courts of Appeals,[5] we granted certiorari. 475 U.S. 1080 (1986).",facts,The Groetzinger Matter,strongly agree,The Groetzinger Matter,strongly agree,The Groetzinger Gambling Matter,1
+G16,3,1,1,II,"The phrase ""trade or business"" has been in § 162(a) and in that section's predecessors for many years. Indeed, the phrase is common in the Code, for it appears in over 50 sections and 800 subsections and in hundreds of places in proposed and final income tax regulations. The slightly longer phrases, ""carrying on a trade or business"" and ""engaging in a trade or business,"" themselves are used no less than 60 times in the Code. The concept thus has a well-known and almost constant presence on our tax-law terrain. Despite this, the Code has never contained a definition of the words ""trade or business"" for general application, and no regulation has been issued expounding its meaning for all purposes.[6] Neither has a broadly applicable authoritative judicial definition emerged.[7] Our task in this case is to ascertain the meaning of the phrase as it appears in the sections of the Code with which we are here concerned.[8]
+
+In one of its early tax cases, Flint v. Stone Tracy Co., 220 U.S. 107 (1911), the Court was concerned with the Corporation Tax imposed by § 38 of the Tariff Act of 1909, ch. 6, 36 Stat. 112-117, and the status of being engaged in business. It said: "" `Business' is a very comprehensive term and embraces everything about which a person can be employed."" 220 U.S., at 171. It embraced the Bouvier Dictionary definition: ""That which occupies the time, attention and labor of men for the purpose of a livelihood or profit."" Ibid. See also Helvering v. Horst, 311 U.S. 112, 118 (1940). And Justice Frankfurter has observed that ""we assume that Congress uses common words in their popular meaning, as used in the common speech of men."" Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947).
+
+With these general comments as significant background, we turn to pertinent cases decided here. Snyder v. Commissioner, 295 U.S. 134 (1935), had to do with margin trading and capital gains, and held, in that context, that an investor, seeking merely to increase his holdings, was not engaged in a trade or business. Justice Brandeis, in his opinion for the Court, noted that the Board of Tax Appeals theretofore had ruled that a taxpayer who devoted the major portion of his time to transactions on the stock exchange for the purpose of making a livelihood could treat losses incurred as having been sustained in the course of a trade or business. He went on to observe that no facts were adduced in Snyder to show that the taxpayer ""might properly be characterized as a `trader on an exchange who makes a living in buying and selling securities.' "" Id., at 139. These observations, thus, are dicta, but, by their use, the Court appears to have drawn a distinction between an active trader and an investor.
+
+In Deputy v. Du Pont, 308 U.S. 488 (1940), the Court was concerned with what were ""ordinary and necessary"" expenses of a taxpayer's trade or business, within the meaning of § 23(a) of the Revenue Act of 1928, 45 Stat. 799. In ascertaining whether carrying charges on short sales of stock were deductible as ordinary and necessary expenses of the taxpayer's business, the Court assumed that the activities of the taxpayer in conserving and enhancing his estate constituted a trade or business, but nevertheless disallowed the claimed deductions because they were not ""ordinary"" or ""necessary."" 308 U.S., at 493-497. Justice Frankfurter, in a concurring opinion joined by Justice Reed, did not join the majority. He took the position that whether the taxpayer's activities constituted a trade or business was ""open for determination,"" id., at 499, and observed:
+
+"" `. . . carrying on any trade or business,' within the contemplation of § 23(a), involves holding one's self out to others as engaged in the selling of goods or services. This the taxpayer did not do. . . . Without elaborating the reasons for this construction and not unmindful of opposing considerations, including appropriate regard for administrative practice, I prefer to make the conclusion explicit instead of making the hypothetical litigation-breeding assumption that this taxpayer's activities, for which expenses were sought to be deducted, did constitute a `trade or business.' "" Ibid.
+Next came Higgins v. Commissioner, 312 U.S. 212 (1941). There the Court, in a bare and brief unanimous opinion, ruled that salaries and other expenses incident to looking after one's own investments in bonds and stocks were not deductible under § 23(a) of the Revenue Act of 1932, 47 Stat. 179, as expenses paid or incurred in carrying on a trade or business. While surely cutting back on Flint's broad approach, the Court seemed to do little more than announce that since 1918 ""the present form [of the statute] was fixed and has so continued""; that ""[n]o regulation has ever been promulgated which interprets the meaning of `carrying on a business' ""; that the comprehensive definition of ""business"" in Flint was ""not controlling in this dissimilar inquiry""; that the facts in each case must be examined; that not all expenses of every business transaction are deductible; and that ""[n]o matter how large the estate or how continuous or extended the work required may be, such facts are not sufficient as a matter of law to permit the courts to reverse the decision of the Board."" 312 U.S., at 215-218. The opinion, therefore _x0097_ although devoid of analysis and not setting forth what elements, if any, in addition to profit motive and regularity, were required to render an activity a trade or business _x0097_ must stand for the propositions that full-time market activity in managing and preserving one's own estate is not embraced within the phrase ""carrying on a business,"" and that salaries and other expenses incident to the operation are not deductible as having been paid or incurred in a trade or business.[9] See also United States v. Gilmore, 372 U.S. 39, 44-45 (1963); Whipple v. Commissioner, 373 U.S. 193 (1963). It is of interest to note that, although Justice Frankfurter was on the Higgins Court and this time did not write separately, and although Justice Reed, who had joined the concurring opinion in Du Pont, was the author of the Higgins opinion, the Court in that case did not even cite Du Pont and thus paid no heed whatsoever to the content of Justice Frankfurter's pronouncement in his concurring opinion.[10] Adoption of the Frankfurter gloss obviously would have disposed of the case in the Commissioner's favor handily and automatically, but that easy route was not followed.
+
+Less than three months later, the Court considered the issue of the deductibility, as business expenses, of estate and trust fees. In unanimous opinions issued the same day and written by Justice Black, the Court ruled that the efforts of an estate or trust in asset conservation and maintenance did not constitute a trade or business. City Bank Farmers Trust Co. v. Helvering, 313 U.S. 121 (1941); United States v. Pyne, 313 U.S. 127 (1941). The Higgins case was deemed to be relevant and controlling. Again, no mention was made of the Frankfurter concurrence in Du Pont. Yet Justices Reed and Frankfurter were on the Court.
+
+Snow v. Commissioner, 416 U.S. 500 (1974), concerned a taxpayer who had advanced capital to a partnership formed to develop an invention. On audit of his 1966 return, a claimed deduction under § 174(a)(1) of the 1954 Code for his pro rata share of the partnership's operating loss was disallowed. The Tax Court and the Sixth Circuit upheld that disallowance. This Court reversed. Justice Douglas, writing for the eight Justices who participated, observed: ""Section 174 was enacted in 1954 to dilute some of the conception of `ordinary and necessary' business expenses under § 162(a) (then § 23(a)(1) of the Internal Revenue Code of 1939) adumbrated by Mr. Justice Frankfurter in a concurring opinion in Deputy v. Du Pont . . . where he said that the section in question . . . `involves holding one's self out to others as engaged in the selling of goods or services.' "" 416 U.S., at 502-503. He went on to state, id., at 503, that § 162(a) ""is more narrowly written than is § 174.""
+
+From these observations and decisions, we conclude (1) that, to be sure, the statutory words are broad and comprehensive (Flint); (2) that, however, expenses incident to caring for one's own investments, even though that endeavor is full time, are not deductible as paid or incurred in carrying on a trade or business (Higgins; City Bank; Pyne); (3) that the opposite conclusion may follow for an active trader (Snyder); (4) that Justice Frankfurter's attempted gloss upon the decision in Du Pont was not adopted by the Court in that case; (5) that the Court, indeed, later characterized it as an ""adumbration"" (Snow); and (6) that the Frankfurter observation, specifically or by implication, never has been accepted as law by a majority opinion of the Court, and more than once has been totally ignored. We must regard the Frankfurter gloss merely as a two-Justice pronouncement in a passing moment and, while entitled to respect, as never having achieved the status of a Court ruling. One also must acknowledge that Higgins, with its stress on examining the facts in each case, affords no readily helpful standard, in the usual sense, with which to decide the present case and others similar to it. The Court's cases, thus, give us results, but little general guidance.",analysis,The Meaning of the Term Trade or Business,strongly agree,"The Meaning of the Word ""Trade or Business""",strongly agree,"The Meaning of the Word ""Trade or Business""",2
+G16,3,1,1,III,"Federal and state legislation and court decisions, perhaps understandably, until recently have not been noticeably favorable to gambling endeavors and even have been reluctant to treat gambling on a parity with more ""legitimate"" means of making a living. See, e. g., § 4401 et seq. of the Code; Marchetti v. United States, 390 U.S. 39, 44-46, and nn. 5 and 6 (1968).[11] And the confinement of gambling-loss deductions to the amount of gambling gains, a provision brought into the income tax law as § 23(g) of the Revenue Act of 1934, 48 Stat. 689, and carried forward into § 165(d) of the 1954 Code, closed the door on suspected abuses, see H. R. Rep. No. 704, 73d Cong., 2d Sess., 22 (1934); S. Rep. No. 558, 73d Cong., 2d Sess., 25 (1934), but served partially to differentiate genuine gambling losses from many other types of adverse financial consequences sustained during the tax year. Gambling winnings, however, have not been isolated from gambling losses. The Congress has been realistic enough to recognize that such losses do exist and do have some effect on income, which is the primary focus of the federal income tax.
+
+The issue this case presents has ""been around"" for a long time and, as indicated above, has not met with consistent treatment in the Tax Court itself or in the Federal Courts of Appeals. The Seventh Circuit, in the present case, said the issue ""has proven to be most difficult and troublesome over the years."" 771 F.2d, at 271. The difficulty has not been ameliorated by the persistent absence of an all-purpose definition, by statute or regulation, of the phrase ""trade or business"" which so frequently appears in the Code. Of course, this very frequency well may be the explanation for legislative and administrative reluctance to take a position as to one use that might affect, with confusion, so many others.
+
+Be that as it may, this taxpayer's case must be decided and, from what we have outlined above, must be decided in the face of a decisional history that is not positive or even fairly indicative, as we read the cases, of what the result should be. There are, however, some helpful indicators.
+
+If a taxpayer, as Groetzinger is stipulated to have done in 1978, devotes his full-time activity to gambling, and it is his intended livelihood source, it would seem that basic concepts of fairness (if there be much of that in the income tax law) demand that his activity be regarded as a trade or business just as any other readily accepted activity, such as being a retail store proprietor or, to come closer categorically, as being a casino operator or as being an active trader on the exchanges.
+
+It is argued, however, that a full-time gambler is not offering goods or his services, within the line of demarcation that Justice Frankfurter would have drawn in Du Pont. Respondent replies that he indeed is supplying goods and services, not only to himself but, as well, to the gambling market; thus, he says, he comes within the Frankfurter test even if that were to be imposed as the proper measure. ""It takes two to gamble."" Brief for Respondent 3. Surely, one who clearly satisfies the Frankfurter adumbration usually is in a trade or business. But does it necessarily follow that one who does not satisfy the Frankfurter adumbration is not in a trade or business? One might well feel that a full-time gambler ought to qualify as much as a full-time trader,[12] as Justice Brandeis in Snyder implied and as courts have held.[13] The Commissioner, indeed, accepts the trader result. Tr. of Oral Arg. 17. In any event, while the offering of goods and services usually would qualify the activity as a trade or business, this factor, it seems to us, is not an absolute prerequisite.
+
+We are not satisfied that the Frankfurter gloss would add any helpful dimension to the resolution of cases such as this one, or that it provides a ""sensible test,"" as the Commissioner urges. See Brief for Petitioner 36. It might assist now and then, when the answer is obvious and positive, but it surely is capable of breeding litigation over the meaning of ""goods,"" the meaning of ""services,"" or the meaning of ""holding one's self out."" And we suspect that _x0097_ apart from gambling _x0097_ almost every activity would satisfy the gloss.[14] A test that everyone passes is not a test at all. We therefore now formally reject the Frankfurter gloss which the Court has never adopted anyway.
+
+Of course, not every income-producing and profit-making endeavor constitutes a trade or business. The income tax law, almost from the beginning, has distinguished between a business or trade, on the one hand, and ""transactions entered into for profit but not connected with . . . business or trade,"" on the other. See Revenue Act of 1916, § 5(a), Fifth, 39 Stat. 759. Congress ""distinguished the broad range of income or profit producing activities from those satisfying the narrow category of trade or business."" Whipple v. Commissioner, 373 U. S., at 197. We accept the fact that to be engaged in a trade or business, the taxpayer must be involved in the activity with continuity and regularity and that the taxpayer's primary purpose for engaging in the activity must be for income or profit. A sporadic activity, a hobby, or an amusement diversion does not qualify.
+
+It is suggested that we should defer to the position taken by the Commissioner and by the Solicitor General, but, in the absence of guidance, for over several decades now, through the medium of definitive statutes or regulations, we see little reason to do so. We would defer, instead, to the Code's normal focus on what we regard as a common-sense concept of what is a trade or business. Otherwise, as here, in the context of a minimum tax, it is not too extreme to say that the taxpayer is being taxed on his gambling losses,[15] a result distinctly out of line with the Code's focus on income.
+
+We do not overrule or cut back on the Court's holding in Higgins when we conclude that if one's gambling activity is pursued full time, in good faith, and with regularity, to the production of income for a livelihood, and is not a mere hobby, it is a trade or business within the meaning of the statutes with which we are here concerned. Respondent Groetzinger satisfied that test in 1978. Constant and largescale effort on his part was made. Skill was required and was applied. He did what he did for a livelihood, though with a less-than-successful result. This was not a hobby or a passing fancy or an occasional bet for amusement.
+
+We therefore adhere to the general position of the Higgins Court, taken 46 years ago, that resolution of this issue ""requires an examination of the facts in each case."" 312 U.S., at 217. This may be thought by some to be a less-than-satisfactory solution, for facts vary. See Boyle, What is a Trade or Business?, 39 Tax Lawyer 737, 767 (1986); Note, The Business of Betting: Proposals for Reforming the Taxation of Business Gamblers, 38 Tax Lawyer 759 (1985); Lopez, Defining ""Trade or Business"" Under the Internal Revenue Code: A Survey of Relevant Cases, 11 Fla. St. U. L. Rev. 949 (1984). Cf. Comment, Continuing Vitality of the ""Goods or Services"" Test, 15 U. Balt. L. Rev. 108 (1985). But the difficulty rests in the Code's wide utilization in various contexts of the term ""trade or business,"" in the absence of an all-purpose definition by statute or regulation, and in our concern that an attempt judicially to formulate and impose a test for all situations would be counterproductive, unhelpful, and even somewhat precarious for the overall integrity of the Code. We leave repair or revision, if any be needed, which we doubt, to the Congress where we feel, at this late date, the ultimate responsibility rests. Cf. Flood v. Kuhn, 407 U.S. 258, 269-285 (1972).[16]
+
+The judgment of the Court of Appeals is affirmed.
+
+It is so ordered.",analysis,Gambling Loss Deductions,disagree,The Gambling-Loss Deductions,disagree,"Petitioner's Gambling Activities as a ""Trade or Business""",3
+G16,4,1,1,I,"Since 1909, Local 134, International Brotherhood of Electrical Workers, AFL-CIO, one of the respondents in No. 73-795, has been recognized by the Illinois Bell Telephone Co. (Illinois Bell) and its predecessors as the exclusive bargaining representative for both rank-and-file and certain supervisory personnel, including general foremen, P. B. X. installation foremen, and building cable foremen. Rather than exercise its right to refuse to hire union members as supervisors, the company agreed to the inclusion of a union security clause in the collective-bargaining agreement which required that these supervisors, like the rank-and-file employees, maintain membership in Local 134. In addition, the bargaining agreement in effect at the time of this dispute contained provisions for the conditions of employment and certain wages of these foremen.
+
+Other higher ranking supervisors, however, were neither represented by the union for collective-bargaining purposes nor covered by the agreement, although they were permitted to maintain their union membership.[1] By virtue of that membership, these supervisors, like those within the bargaining units, received substantial benefits, including participation in the International's pension and death-benefit plans and in group life insurance and old-age-benefit plans sponsored by Local 134.
+
+Under the International's constitution, all union members could be penalized for committing any of 23 enumerated offenses, including ""[w]orking in the interest of any organization or cause which is detrimental to, or opposed to, the I. B. E. W.,"" App. 76, and ""[w]orking for any individual or company declared in difficulty with a [local union] or the I. B. E. W."" Id., at 77.
+
+Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the company. At the inception of the strike, Illinois Bell informed its supervisory personnel that it would like to have them come to work during the stoppage but that the decision whether or not to do so would be left to each individual, and that those who chose not to work would not be penalized. Local 134, on the other hand, warned its supervisor-members that they would be subject to disciplinary action if they performed rank-and-file work during the strike. Some of the supervisor-members crossed the union picket lines to perform rank-and-file struck work. Local 134 thereupon initiated disciplinary proceedings against these supervisors, and those found guilty were fined $500 each.[2] Charges were then filed with the NLRB by the Bell Supervisors Protective Association, an association formed by five supervisors to obtain counsel for and otherwise protect the supervisors who worked during the strike. The Board, one member dissenting, held that in thus disciplining the supervisory personnel, the union had violated § 8 (b) (1) (B) of the Act,[3] in accord with its decision of the same day in Local 2150, IBEW (Wisconsin Electric Power Co.), 192 N. L. R. B. 77 (1971), enforced, 486 F.2d 602 (CA7 1973), cert. pending No. 73-877, holding:
+
+""The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors.
+.....
+""The purpose of Section 8 (b) (1) (B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer. . . ."" 192 N. L. R. B., at 78.
+Accordingly, the Board ordered the unions to rescind the fines, to expunge all records thereof, and to reimburse the supervisors for any portions of the fines paid.
+
+The Florida Power & Light Co. (Florida Power), the petitioner in No. 73-556, has maintained a collective-bargaining agreement with the International Brotherhood of Electrical Workers, AFL-CIO and Locals 641, 622, 759, 820, and 1263, represented by the System Council U-4,[4] since 1953. That agreement does not require employees to become union members as a condition of employment, but many of its supervisory personnel have in fact joined the union. The company has elected to recognize the union as the exclusive bargaining representative of these supervisors, and certain aspects of their wages and conditions of employment are provided for in the agreement.[5] In addition, other higher supervisory personnel not covered by the agreement were allowed to maintain union membership,[6] and, although not represented by the union for collective-bargaining purposes, received substantial benefits as a result of their union membership, including pension, disability, and death benefits under the terms of the International's constitution.
+
+Since the same International union was involved in both No. 73-556 and No. 73-795, the union members of Florida Power bore the same obligations under the International's constitution as did the union members of Illinois Bell. See supra, at 793. With respect to union discipline of supervisor members, however, the Florida Power collective-bargaining agreement itself provided:
+
+""It is further agreed that employees in [supervisory] classifications have definite management responsibilities and are the direct representatives of the Company at their level of work. Employees in these classifications and any others in a supervisory capacity are not to be jacked up or disciplined through Union machinery for the acts they may have performed as supervisors in the Company's interest. The Union and the Company do not expect or intend for Union members to interfere with the proper and legitimate performance of the Foreman's management responsibilities appropriate to their classification. . . ."" App. 47.
+From October 22, 1969, through December 28, 1969, the International union and its locals engaged in an economic strike against Florida Power. During the strike, many of the supervisors who were union members crossed the picket lines maintained at nearly all the company's operation facilities, and performed rank-and-file work normally performed by the striking nonsupervisory employees. Following the strike, the union brought charges against those supervisors covered by the bargaining agreement as well as those not covered, alleging violations of the International union constitution. Those found guilty of crossing the picket lines to perform rank-and-file work, as opposed to their usual supervisory functions, received fines ranging from $100 to $6,000 and most were expelled from the union, thereby terminating their right to pension, disability, and death benefits. Upon charges filed by Florida Power, the Board, in reliance upon its prior decisions in Wisconsin Electric and Illinois Bell, held that the penalties imposed ""struck at the loyalty an employer should be able to expect from its representatives for the adjustment of grievances and therefore restrained and coerced employers in their selection of such representatives,"" in violation of § 8 (b) (1) (B) of the Act. Accordingly, the Board ordered the union to cease and desist, to rescind and refund all fines, to expunge all records of the disciplinary proceedings, and to restore those disciplined to full union membership and benefits.[7]
+
+The Illinois Bell case was first heard by a panel of the Court of Appeals for the District of Columbia Circuit, 159 U. S. App. D. C. 242, 487 F.2d 1113 (1973), and then on rehearing was consolidated with Florida Power and considered en banc. In a 5-4 decision, the court held that ""[s]ection 8 (b) (1) (B) cannot reasonably be read to prohibit discipline of union members_x0097_supervisors though they be_x0097_for performance of rank-and-file struck work,"" 159 U. S. App. D. C. 272, 300, 487 F.2d 1143, 1171 (1973), and accordingly refused to enforce the Board's orders.[8] Section 8 (b) (1) (B), the court held, was intended to proscribe only union efforts to discipline supervisors for their actions in representing management in collective bargaining and the adjustment of grievances. It was the court's view that when a supervisor forsakes his supervisory role to do work normally performed by nonsupervisory employees, he no longer acts as a managerial representative and hence ""no longer merits any immunity from discipline."" Id., at 286, 487 F.2d, at 1157. We granted certiorari, 414 U.S. 1156, to consider an important and novel question of federal labor law.",facts, Illinois Bell Telephone Co.,disagree,"The International Brotherhood of Electrical Workers, AFL-CIO",disagree,The 1969 Strike and Disciplinary Actions Taken by Respondents Unions,1
+G16,4,1,1,II,"Section 8 (b) of the National Labor Relations Act provides in pertinent part:
+
+""It shall be an unfair labor practice for a labor organization or its agents_x0097_(1) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.""
+The basic import of this provision was explained in the Senate Report as follows:
+
+""[A] union or its responsible agents could not, without violating the law, coerce an employer into joining or resigning from an employer association which negotiates labor contracts on behalf of its members; also, this subsection would not permit a union to dictate who shall represent an employer in the settlement of employee grievances, or to compel the removal of a personnel director or supervisor who has been delegated the function of settling grievances.""[9]
+For more than 20 years after § 8 (b) (1) (B) was enacted in 1947, the Board confined its application to situations clearly falling within the metes and bounds of the statutory language. Thus, in Los Angeles Cloak Joint Board ILGWU (Helen Rose Co.), 127 N. L. R. B. 1543 (1960), the Board held that § 8 (b) (1) (B) barred a union from picketing a company in an attempt to force the employer to dismiss an industrial relations consultant thought to be hostile to the union. See also Local 986, Miscellaneous Warehousemen, Drivers & Helpers (Tak-Trak, Inc.), 145 N. L. R. B. 1511 (1964); Southern California Pipe Trades District Council No. 16 (Paddock Pools of California, Inc.), 120 N. L. R. B. 249 (1958). Similarly, the Board held that § 8 (b) (1) (B) was violated by union attempts to force employers to join or resign from multi-employer bargaining associations, United Slate, Tile & Composition Roofers, Local 36 (Roofing Contractors Assn. of Southern California), 172 N. L. R. B. 2248 (1968); Orange Belt District Council of Painters No. 48 (Painting & Decorating Contractors of America, Inc.), 152 N. L. R. B. 1136 (1965); General Teamsters Local Union No. 324 (Cascade Employers Assn., Inc.), 127 N. L. R. B. 488 (1960), as well as by attempts to compel employers to select foremen from the ranks of union members, International Typographical Union & Baltimore Typographical Union No. 12 (Graphic Arts League), 87 N. L. R. B. 1215 (1949); International Typographical Union (American Newspaper Publishers Assn.), 86 N. L. R. B. 951 (1949), enforced, 193 F.2d 782 (CA7 1951); International Typographical Union (Haverhill Gazette Co.), 123 N. L. R. B. 806 (1959), enforced, 278 F.2d 6 (CA1 1960), aff'd by an equally divided Court, 365 U.S. 705 (1961).[10]
+
+In 1968, however, the Board significantly expanded the reach of § 8 (b) (1) (B), with its decision in San Francisco-Oakland Mailers' Union No. 18 (Northwest Publications, Inc.), 172 N. L. R. B. 2173. In that case, three union-member foremen were expelled from the union for allegedly assigning bargaining unit work in violation of the collective-bargaining agreement. Despite the absence of union pressure or coercion aimed at securing the replacement of the foremen, the Board held that the union had violated § 8 (b) (1) (B) by seeking to influence the manner in which the foremen interpreted the contract:
+
+""That Respondent may have sought the substitution of attitudes rather than persons, and may have exerted its pressures upon the Charging Party by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the Charging Party's control over its representatives. Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them."" 172 N. L. R. B. 2173.
+Subsequent Board decisions extended § 8 (b) (1) (B) to proscribe union discipline of management representatives both for the manner in which they performed their collective-bargaining and grievance-adjusting functions, and for the manner in which they performed other supervisory functions if those representatives also in fact possessed authority to bargain collectively or to adjust grievances. See Detroit Newspaper Printing Pressmen's Union 13, 192 N. L. R. B. 106 (1971); Meat Cutters Union Local 81, 185 N. L. R. B. 884 (1970), enforced, 147 U. S. App. D. C. 375, 458 F.2d 794 (1972); Houston Typographical Union 87, 182 N. L. R. B. 592 (1970); Dallas Mailers Union Local 143 (Dow Jones Co., Inc.), 181 N. L. R. B. 286 (1970), enforced, 144 U. S. App. D. C. 254, 445 F.2d 730 (1971); Sheet Metal Workers' International Assn., Local Union 49 (General Metal Products, Inc.), 178 N. L. R. B. 139 (1969), enforced, 430 F.2d 1348 (CA10 1970); New Mexico District Council of Carpenters & Joiners of America (A. S. Horner, Inc.), 176 N. L. R. B. 797 and 177 N. L. R. B. 500 (1969), both enforced, 454 F.2d 1116 (CA10 1972); Toledo Locals Nos. 15-P & 272, Lithographers & Photoengravers International (Toledo Blade Co., Inc.), 175 N. L. R. B. 1072 (1969), enforced, 437 F.2d 55 (CA6 1971).[11]
+
+These decisions reflected a further evolution of the Oakland Mailers doctrine. In Oakland Mailers, the union had disciplined its supervisor-members for an alleged misinterpretation or misapplication of the collective-bargaining agreement, and the Board had reasoned that the natural and foreseeable effect of such discipline was that in interpreting the agreement in the future, the supervisor would be reluctant to take a position adverse to that of the union. In the subsequent cases, however, the Board held that the same coercive effect was likely to arise from the disciplining of a supervisor whenever he was engaged in management or supervisory activities, even though his collective-bargaining or grievance-adjustment duties were not involved. Through the course of these decisions, § 8 (b) (1) (B) thus began to evolve in the view of the Board and the courts ""as a general prohibition of a union's disciplining supervisor-members for their conduct in the course of representing the interests of their employers."" Toledo Locals Nos. 15-P & 272, Lithographers & Photoengravers International, 175 N. L. R. B., at 1080, or for acts ""performed in the course of [their] management duties,"" Meat Cutters Union Local 81 v. NLRB, 147 U. S. App. D. C., at 377, 458 F.2d, at 796.[12]
+
+In the present cases, the Board has extended that doctrine to hold that § 8 (b) (1) (B) forbids union discipline of supervisors for performance of rank-and-file work on the theory that the performance of such work during a strike is an activity furthering management's interests.[13] We agree with the Court of Appeals that § 8 (b) (1) (B) cannot be so broadly read. Both the language and the legislative history of § 8 (b) (1) (B) reflect a clearly focused congressional concern with the protection of employers in the selection of representatives to engage in two particular and explicitly stated activities, namely collective bargaining and the adjustment of grievances. By its terms, the statute proscribes only union restraint or coercion of an employer ""in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances,"" and the legislative history makes clear that in enacting the provision Congress was exclusively concerned with union attempts to dictate to employers who would represent them in collective bargaining and grievance adjustment.
+
+The specific concern of Congress was to prevent unions from trying to force employers into or out of multi-employer bargaining units.[14] As Senator Taft, cosponsor of the legislation, explained:
+
+""Under this provision it would be impossible for a union to say to a company, `We will not bargain with you unless you appoint your national employers' association as your agent so that we can bergain nationally.' Under the bill the employer has a right to say, `No, I will not join in national bargaining. Here is my representative, and this is the man you have to deal with.' I believe the provision is a necessary one, and one which will accomplish substantially wise purposes."" 93 Cong. Rec. 3837.
+That the legislative creation of this unfair labor practice was in no sense intended to cut the broad swath attributed to it by the Board in the present cases is pointed up by the further observation of Senator Taft:
+
+""This unfair labor practice referred to is not perhaps of tremendous importance, but employees cannot say to their employer, `we do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y.' That has been done. It would prevent their saying to the employer, `You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you will have to fire him, or we will not go to work.' "" 93 Cong. Rec. 3837.[15]
+Nowhere in the legislative history is there to be found any implication that Congress sought to extend protection to the employer from union restraint or coercion when engaged in any activity other than the selection of its representatives for the purposes of collective bargaining and grievance adjustment. The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of § 8 (b) (1) (B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer.
+
+We may assume without deciding that the Board's Oakland Mailers decision fell within the outer limits of this test, but its decisions in the present cases clearly do not. For it is certain that these supervisors were not engaged in collective bargaining or grievance adjustment, or in any activities related thereto, when they crossed union picket lines during an economic strike to engage in rank-and-file struck work.[16]
+",analysis,The National Labor Relations Act,agree,The Board's Application of Section 8 (b),strongly agree,The Board's Application of §8(b),2
+G16,4,1,1,III,"It is strenuously asserted, however, that to permit a union to discipline supervisor-members for performing rank-and-file work during an economic strike will deprive the employer of the full loyalty of those supervisors. Indeed, it is precisely that concern that is reflected in these and other recent decisions of the Board holding that the statutory language ""restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances"" is not confined to situations in which the union's object is to force a change in the identity of the employer's representatives, but may properly be read to encompass any situation in which the union's actions are likely to deprive the employer of the undivided loyalty of his supervisory employees. As the Board stated in Wisconsin Electric:
+
+""During the strike of the Union, the Employer clearly considered its supervisors among those it could depend on during this period. The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective-bargaining agents or to act for it in adjusting grievances. Moreover, such fines clearly interfere with the Employer's control over its own representatives.
+""The purpose of Section 8 (b) (1) (B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer."" 192 N. L. R. B., at 78.
+The Board in the present cases echoes this view in arguing that ""where a supervisor is disciplined by the union for performing other supervisory or management functions, the likely effect of such discipline is to make him subservient to the union's wishes when he performs those functions in the future. Thus, even if the effect of this discipline did not carry over to the performance of the supervisor's grievance adjustment or collective bargaining functions, the result would be to deprive the employer of the full allegiance of, and control over, a representative he has selected for grievance adjustment or collective bargaining purposes."" Brief for Petitioner in No. 73-795, p. 34.
+
+The concern expressed in this argument is a very real one, but the problem is one that Congress addressed, not through § 8 (b) (1) (B), but through a completely different legislative route. Specifically, Congress in 1947 amended the definition of ""employee"" in § 2 (3), 29 U.S. C. § 152 (3), to exclude those denominated supervisors under § 2 (11), 29 U.S. C. § 152 (11), thereby excluding them from the coverage of the Act.[17] See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). Further, Congress enacted § 14 (a), 29 U.S. C. § 164 (a), explicitly providing:
+
+""Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.""
+Thus, while supervisors are permitted to become union members, Congress sought to assure the employer of the loyalty of his supervisors by reserving in him the right to refuse to hire union members as supervisors, see Carpenters District Council v. NLRB, 107 U. S. App. D. C. 55, 274 F.2d 564 (1959); A. H. Bull S. S. Co. v. National Marine Engineers' Beneficial Assn., 250 F.2d 332 (CA2 1957), the right to discharge such supervisors because of their involvement in union activities or union membership, see Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653 (1974); see also Oil City Brass Works v. NLRB, 357 F.2d 466 (CA5 1966); NLRB v. Fullerton Publishing Co., 283 F.2d 545 (CA9 1960); NLRB v. Griggs Equipment, Inc., 307 F.2d 275 (CA5 1962); NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (CA6 1948), cert. denied, 335 U.S. 908 (1949),[18] and the right to refuse to engage in collective bargaining with them, see L. A. Young Spring & Wire Corp. v. NLRB, 82 U. S. App. D. C. 327, 163 F.2d 905 (1947), cert. denied, 333 U.S. 837 (1948).
+
+The legislative history of §§ 2 (3) and 14 (a) of the Act clearly indicates that those provisions were enacted in response to the decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), in which this Court upheld the Board's finding that the statutory definition of ""employee"" included foremen, and that they were therefore entitled to the coverage of the Act in the absence of a decision by Congress to exclude them.[19] In recommending passage of this legislation, the Senate Report noted:
+
+""It is natural to expect that unless this Congress takes action, management will be deprived of the undivided loyalty of its foremen. There is an inherent tendency to subordinate their interests wherever they conflict with those of the rank and file."" Senate Report 5. (Emphasis supplied.)
+A similar concern with this conflict-of-loyalties problem was reflected in the House Report:
+
+""The evidence before the committee shows clearly that unionizing supervisors under the Labor Act is inconsistent with . . . our policy to protect the rights of employers; they, as well as workers, are entitled to loyal representatives in the plants, but when the foremen unionize, even in a union that claims to be `independent' of the union of the rank and file, they are subject to influence and control by the rank and file union, and, instead of their bossing the rank and file, the rank and file bosses them.
+.....
+""The bill does not forbid anyone to organize. It does not forbid any employer to recognize a union of foremen. Employers who, in the past, have bargained collectively with supervisors may continue to do so. What the bill does is to say what the law always has said until the Labor Board, in the exercise of what it modestly calls its `expertness', changed the law: That no one, whether employer or employee, need have as his agent one who is obligated to those on the other side, or one whom, for any reason, he does not trust."" House Report 14-17.[20] (Emphasis supplied.)
+It is clear that the conflict-of-loyalties problem that the Board has sought to reach under § 8 (b) (1) (B) was intended by Congress to be dealt with in a very different manner.[21] As we concluded in Beasley v. Food Fair of North Carolina, Inc., 416 U. S., at 661-662:
+
+""This history compels the conclusion that Congress' dominant purpose in amending §§ 2 (3) and 2 (11), and enacting § 14 (a) was to redress a perceived imbalance in labor-management relationships that was found to arise from putting supervisors in the position of serving two masters with opposed interests.""
+While we recognize that the legislative accommodation adopted in 1947 is fraught with difficulties of its own, ""[i]t is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute."" Colgate-Palmolive Peet Co. v. NLRB, 338 U.S. 355, 363 (1949).[22]
+
+Congress' solution was essentially one of providing the employer with an option. On the one hand, he is at liberty to demand absolute loyalty from his supervisory personnel by insisting, on pain of discharge, that they neither participate in, nor retain membership in, a labor union, see Beasley v. Food Fair of North Carolina, Inc., supra. Alternatively, an employer who wishes to do so can permit his supervisors to join or retain their membership in labor unions, resolving such conflicts as arise through the traditional procedures of collective bargaining.[23] But it is quite apparent, given the statutory language and the particular concerns that the legislative history shows were what motivated Congress to enact § 8 (b) (1) (B), that it did not intend to make that provision any part of the solution to the generalized problem of supervisor-member conflict of loyalties.
+
+For these reasons, we hold that the respondent unions did not violate § 8 (b) (1) (B) of the Act when they disciplined their supervisor-members for performing rank-and-file struck work. Accordingly, the judgment is
+
+Affirmed.
+",analysis,Discipline for performing rank-and-file work,strongly agree,The Effect of the Union's Fines on the Employer's Supervisory Employees,agree,The Validity of Disciplinary Actions Taken by Unions,3
+G16,6,1,1,I,"Espinosa's claim squarely raises the question whether the requirement of five years' continuous residence is constitutional, a question that is not necessarily presented by the claims of Diaz and Clara. For if the requirement of admission for permanent residence is valid, their applications were properly denied even if the durational residence requirement is ineffective.[7] We must therefore decide whether the District Court had jurisdiction over Espinosa's claim.
+
+We have little difficulty with Espinosa's failure to file an application with the Secretary until after he was joined in the action. Although 42 U. S. C. § 405 (g) establishes filing of an application as a nonwaivable condition of jurisdiction, Mathews v. Eldridge, 424 U. S. 319, 328; Weinberger v. Salfi, 422 U. S., at 764, Espinosa satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue;[8] since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact.[9] Under these circumstances, we treat the pleadings as properly supplemented by the Secretary's stipulation that Espinosa had filed an application.
+
+A further problem is presented by the absence of any formal administrative action by the Secretary denying Espinosa's application. Section 405 (g) requires a final decision by the Secretary after a hearing as a prerequisite of jurisdiction. Mathews v. Eldridge, supra, at 328-330; Weinberger v. Salfi, supra, at 763-765. However, we held in Salfi that the Secretary could waive the exhaustion requirements which this provision contemplates and that he had done so in that case. Id., at 765-767; accord, Mathews v. Eldridge, supra, at 328-330 (dictum); Weinberger v. Wiesenfeld, 420 U. S., at 641 n. 8. We reach a similar conclusion here.
+
+The plaintiffs in Salfi alleged that their claims had been denied by the local and regional Social Security offices and that the only question was one of constitutional law, beyond the competence of the Secretary to decide. These allegations did not satisfy the exhaustion requirements of § 405 (g) or the Secretary's regulations, but the Secretary failed to challenge the sufficiency of the allegations on this ground. We interpreted this failure as a determination by the Secretary that exhaustion would have been futile and deferred to his judgment that the only issue presented was the constitutionality of a provision of the Social Security Act.
+
+The same reasoning applies to the present case. Although the Secretary moved to dismiss for failure to exhaust administrative remedies, at the hearing on the motion he stipulated that no facts were in dispute, that the case was ripe for disposition by summary judgment, and that the only issue before the District Court was the constitutionality of the statute.[10] As in Salfi, this constitutional question is beyond the Secretary's competence. Indeed, the Secretary has twice stated in this Court that he stipulated in the District Court that Espinosa's application would be denied for failure to meet the durational residence requirement.[11] For jurisdictional purposes, we treat the stipulation in the District Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirements. Cf. Weinberger v. Wiesenfeld, supra, at 640 n. 6, 641 n. 8.
+
+We conclude, as we did in Salfi, that the Secretary's submission of the question for decision on the merits by the District Court satisfied the statutory requirement of a hearing and final decision. We hold that Espinosa's claim, as well as the claims of Diaz and Clara, must be decided.",analysis,Espinosa's Claim,disagree,The District Court had jurisdiction over Espinosa's claim.,agree,District Court Jurisdiction Over Secretary Hearing and Final Decision,1
+G16,6,1,1,II,"There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Wong Yang Sung v. McGrath, 339 U. S. 33, 48-51; Wong Wing v. United States, 163 U. S. 228, 238; see Russian Fleet v. United States, 282 U. S. 481, 489. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. Wong Yang Sung, supra; Wong Wing, supra.
+
+The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other;[12] and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country.[13]
+
+In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens[14] and the reservation of the power to deport[15] have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry.[16] The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is ""invidious.""
+
+In particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that as the alien's tie grows stronger, so does the strength of his claim to an equal share of that munificence.
+
+The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens_x0097_allowing benefits to some aliens but not to others_x0097_is permissible. We turn to that question.",analysis,The Constitutionality of the Exclusion of Aliens,strongly agree,The Constitutional Claim of All Aliens,disagree,The Constitutionality of Aliens and Citizens Discrimination,2
+G16,6,1,1,III,"For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.[17] Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. This very case illustrates the need for flexibility in policy choices rather than the rigidity often characteristic of constitutional adjudication. Appellees Diaz and Clara are but two of over 440,000 Cuban refugees who arrived in the United States between 1961 and 1972.[18] And the Cuban parolees are but one of several categories of aliens who have been admitted in order to make a humane response to a natural catastrophe or an international political situation.[19] Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.[20] The reasons that preclude judicial review of political questions[21] also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.
+
+Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case the appellees have challenged two requirements_x0097_first, that the alien be admitted as a permanent resident, and, second, that his residence be of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien's entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. In short, it is unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind.
+
+We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program.[22] We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity with the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not.
+
+The task of classifying persons for medical benefits, like the task of drawing lines for federal tax purposes, inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line; the differences between the eligible and the ineligible are differences in degree rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment.[23] In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation.
+",analysis, The Role of the Political Branches of Government,agree,The Constitutionality of the Immigration and Naturalization Requirements,agree,The Narrowness of the Judicial Review of Immigration and Naturalization Requirements,3
+G16,6,1,1,IV,"The cases on which appellees rely are consistent with our conclusion that this statutory classification does not deprive them of liberty or property without due process of law.
+
+Graham v. Richardson, 403 U. S. 365, provides the strongest support for appellees' position. That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens. The equal protection analysis also involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government.
+
+Insofar as state welfare policy is concerned,[24] there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Furthermore, whereas the Constitution inhibits every State's power to restrict travel across its own borders, Congress is explicitly empowered to exercise that type of control over travel across the borders of the United States.[25]
+
+The distinction between the constitutional limits on state power and the constitutional grant of power to the Federal Government also explains why appellees' reliance on Memorial Hospital v. Maricopa County, 415 U. S. 250, is misplaced. That case involved Arizona's requirement of durational residence within a county in order to receive nonemergency medical care at the county's expense. No question of alienage was involved. Since the sole basis for the classification between residents impinged on the constitutionally guaranteed right to travel within the United States, the holding in Shapiro v. Thompson, 394 U. S. 618, required that it be justified by a compelling state interest.[26] Finding no such justification, we held that the requirement violated the Equal Protection Clause. This case, however, involves no state impairment of the right to travel_x0097_nor indeed any impairment whatever of the right to travel within the United States; the predicate for the equal protection analysis in those cases is simply not present. Contrary to appellees' characterization, it is not ""political hypocrisy"" to recognize that the Fourteenth Amendment's limits on state powers are substantially different from the constitutional provisions applicable to the federal power over immigration and naturalization.
+
+Finally, we reject the suggestion that U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, lends relevant support to appellees' claim. No question involving alienage was presented in that case. Rather, we found that the denial of food stamps to households containing unrelated members was not only unsupported by any rational basis but actually was intended to discriminate against certain politically unpopular groups. This case involves no impairment of the freedom of association of either citizens or aliens.
+
+We hold that § 1395o (2) (B) has not deprived appellees of liberty or property without due process of law.
+
+The judgment of the District Court is
+
+Reversed.",analysis,Appellees' Equal Protection Argument,agree,The Cases on Which Appellants Rely,disagree,Appellees' Due Process Argument,4
+G16,7,1,1,I,"In August 2007, respondent Galin Frye was charged with driving with a revoked license. Frye had been convicted for that offense on three other occasions, so the State of Missouri charged him with a class D felony, which carries a maximum term of imprisonment of four years. See Mo. Rev. Stat. §§302.321.2, 558.011.1(4) (2011).
+
+On November 15, the prosecutor sent a letter to Frye’s counsel offering a choice of two plea bargains. App. 50. The prosecutor first offered to recommend a 3-year sentence if there was a guilty plea to the felony charge, without a recommendation regarding probation but with a recommendation that Frye serve 10 days in jail as socalled “shock” time. The second offer was to reduce the charge to a misdemeanor and, if Frye pleaded guilty to it, to recommend a 90-day sentence. The misdemeanor charge of driving with a revoked license carries a maximum term of imprisonment of one year. 311 S. W. 3d 350, 360 (Mo. App. 2010). The letter stated both offers would expire on December 28. Frye’s attorney did not advise Frye that the offers had been made. The offers expired. Id., at 356.
+
+Frye’s preliminary hearing was scheduled for January 4, 2008. On December 30, 2007, less than a week before the hearing, Frye was again arrested for driving with a revoked license. App. 47–48, 311 S. W. 3d, at 352–353. At the January 4 hearing, Frye waived his right to a preliminary hearing on the charge arising from the August 2007 arrest. He pleaded not guilty at a subsequent arraignment but then changed his plea to guilty. There was no underlying plea agreement. App. 5, 13, 16. The state trial court accepted Frye’s guilty plea. Id., at 21. The prosecutor recommended a 3-year sentence, made no recommendation regarding probation, and requested 10 days shock time in jail. Id., at 22. The trial judge sentenced Frye to three years in prison. Id., at 21, 23.
+
+Frye filed for postconviction relief in state court. Id., at 8, 25–29. He alleged his counsel’s failure to inform him of the prosecution’s plea offer denied him the effective assistance of counsel. At an evidentiary hearing, Frye testified he would have entered a guilty plea to the misdemeanor had he known about the offer. Id., at 34.
+
+A state court denied the postconviction motion, id., at 52–57, but the Missouri Court of Appeals reversed, 311 S. W. 3d 350. It determined that Frye met both of the requirements for showing a Sixth Amendment violation under Strickland. First, the court determined Frye’s counsel’s performance was deficient because the “record is void of any evidence of any effort by trial counsel to communicate the Offer to Frye during the Offer window.” 311 S. W. 3d, at 355, 356 (emphasis deleted). The court next concluded Frye had shown his counsel’s deficient performance caused him prejudice because “Frye pled guilty to a felony instead of a misdemeanor and was subject to a maximum sentence of four years instead of one year.” Id., at 360.
+
+To implement a remedy for the violation, the court deemed Frye’s guilty plea withdrawn and remanded to allow Frye either to insist on a trial or to plead guilty to any offense the prosecutor deemed it appropriate to charge. This Court granted certiorari. 562 U. S. ___ (2011).
+
+",facts,Frye,disagree,Galin Frye,disagree,Petitioner's Plea Bargain,1
+G16,7,1,1,II,"
+
+It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U. S. 778, 786 (2009) (quoting United States v. Wade, 388 U. S. 218, 227–228 (1967)). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, 368 U. S. 52 (1961) (arraignment); Massiah v. United States, 377 U. S. 201 (1964) (postindictment interrogation); Wade, supra (postindictment lineup); Argersinger v. Hamlin, 407 U. S. 25 (1972) (guilty plea).
+
+With respect to the right to effective counsel in plea negotiations, a proper beginning point is to discuss two cases from this Court considering the role of counsel in advising a client about a plea offer and an ensuing guilty plea: Hill v. Lockhart, 474 U. S. 52 (1985); and Padilla v. Kentucky, 559 U. S. ___(2010).
+
+Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland. See Hill, supra, at 57. As noted above, in Frye’s case, the Missouri Court of Appeals, applying the two part test of Strickland, determined first that defense counsel had been ineffective and second that there was resulting prejudice.
+
+In Hill, the decision turned on the second part of the Strickland test. There, a defendant who had entered a guilty plea claimed his counsel had misinformed him of the amount of time he would have to serve before he became eligible for parole. But the defendant had not alleged that, even if adequate advice and assistance had been given, he would have elected to plead not guilty and proceed to trial. Thus, the Court found that no prejudice from the inadequate advice had been shown or alleged. Hill, supra, at 60.
+
+In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” 559 U. S., at ___ (slip op., at 16). It also rejected the argument made by petitioner in this case that a knowing and voluntary plea supersedes errors by defense counsel. Cf. Brief for Respondent in Padilla v. Kentucky, O. T. 2009, No. 08–651, p. 27 (arguing Sixth Amendment’s assurance of effective assistance “does not extend to collateral aspects of the prosecution” because “knowledge of the consequences that are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea”).
+
+In the case now before the Court the State, as petitioner, points out that the legal question presented is different from that in Hill and Padilla. In those cases the claim was that the prisoner’s plea of guilty was invalid because counsel had provided incorrect advice pertinent to the plea. In the instant case, by contrast, the guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel. The challenge is not to the advice pertaining to the plea that was accepted but rather to the course of legal representation that preceded it with respect to other potential pleas and plea offers.
+
+To give further support to its contention that the instant case is in a category different from what the Court considered in Hill and Padilla, the State urges that there is no right to a plea offer or a plea bargain in any event. See Weatherford v. Bursey, 429 U. S. 545, 561 (1977). It claims Frye therefore was not deprived of any legal benefit to which he was entitled. Under this view, any wrongful or mistaken action of counsel with respect to earlier plea offers is beside the point.
+
+The State is correct to point out that Hill and Padilla concerned whether there was ineffective assistance leading to acceptance of a plea offer, a process involving a formal court appearance with the defendant and all counsel present. Before a guilty plea is entered the defendant’s understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea. See, e.g., Fed. Rule Crim. Proc. 11; Mo. Sup. Ct. Rule 24.02 (2004). Hill and Padilla both illustrate that, nevertheless, there may be instances when claims of ineffective assistance can arise after the conviction is entered. Still, the State, and the trial court itself, have had a substantial opportunity to guard against this contingency by establishing at the plea entry proceeding that the defendant has been given proper advice or, if the advice received appears to have been inadequate, to remedy that deficiency before the plea is accepted and the conviction entered.
+
+When a plea offer has lapsed or been rejected, however, no formal court proceedings are involved. This underscores that the plea-bargaining process is often in flux, with no clear standards or timelines and with no judicial supervision of the discussions between prosecution and defense. Indeed, discussions between client and defense counsel are privileged. So the prosecution has little or no notice if something may be amiss and perhaps no capacity to intervene in any event. And, as noted, the State insists there is no right to receive a plea offer. For all these reasons, the State contends, it is unfair to subject it to the consequences of defense counsel’s inadequacies, especially when the opportunities for a full and fair trial, or, as here, for a later guilty plea albeit on less favorable terms, are preserved.
+
+The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/ sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court’s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/ fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
+
+To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. “Anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).
+
+
+The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question. “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.” Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 8–9). Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process. Cf. ibid.
+
+This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects, however. Here the question is whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.
+
+This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.
+
+Though the standard for counsel’s performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides. The American Bar Association recommends defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999), and this standard has been adopted by numerous state and federal courts over the last 30 years. See, e.g., Davie v. State, 381 S. C. 601, 608–609, 675 S. E. 2d 416, 420 (2009); Cottle v. State, 733 So. 2d 963, 965–966 (Fla. 1999); Becton v. Hun, 205 W. Va. 139, 144, 516 S. E. 2d 762, 767 (1999); Harris v. State, 875 S. W. 2d 662, 665 (Tenn. 1994); Lloyd v. State, 258 Ga. 645, 648, 373 S. E. 2d 1, 3 (1988); United States v. Rodriguez Rodriguez, 929 F. 2d 747, 752 (CA1 1991) (per curiam); Pham v. United States, 317 F. 3d 178, 182 (CA2 2003); United States ex rel. Caruso v. Zelinsky, 689 F. 2d 435, 438 (CA3 1982); Griffin v. United States, 330 F. 3d 733, 737 (CA6 2003); Johnson v. Duckworth, 793 F. 2d 898, 902 (CA7 1986); United States v. Blaylock, 20 F. 3d 1458, 1466 (CA9 1994); cf. Diaz v. United States, 930 F. 2d 832, 834 (CA11 1991). The standard for prompt communication and consultation is also set out in state bar professional standards for attorneys. See, e.g., Fla. Rule Regulating Bar 4–1.4 (2008); Ill. Rule Prof. Conduct 1.4 (2011); Kan. Rule Prof. Conduct 1.4 (2010); Ky. Sup. Ct. Rule 3.130, Rule Prof. Conduct 1.4 (2011); Mass. Rule Prof. Conduct 1.4 (2011–2012); Mich. Rule Prof. Conduct 1.4 (2011).
+
+The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. See N. J. Ct. Rule 3:9–1(b) (2012) (“Any plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant’s attorney”). Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence. At least one State often follows a similar procedure before trial. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 20 (discussing hearings in Arizona conducted pursuant to State v. Donald, 198 Ariz. 406, 10 P. 3d 1193 (App. 2000)); see also N. J. Ct. Rules 3:9–1(b), (c) (requiring the prosecutor and defense counsel to discuss the case prior to the arraignment/status conference including any plea offers and to report on these discussions in open court with the defendant present); In re Alvernaz, 2 Cal. 4th 924, 938, n. 7, 830 P. 2d 747, 756, n. 7 (1992) (encouraging parties to “memorialize in some fashion prior to trial (1) the fact that a plea bargain offer was made, and (2) that the defendant was advised of the offer [and] its precise terms, . . . and (3) the defendant’s response to the plea bargain offer”); Brief for Center on the Administration of Criminal Law, New York University School of Law as Amicus Curiae 25–27.
+
+Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.
+
+To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U. S. 198, 203 (2001) (“[A]ny amount of [additional] jail time has Sixth Amendment significance”).
+
+This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U. S., at 59. Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations. Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years’ imprisonment). In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry into whether “the result of the proceeding would have been different,” 466 U. S., at 694, requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.
+
+In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea, see Weatherford, 429 U. S., at 561, nor a federal right that the judge accept it, Santobello v. New York, 404 U. S. 257, 262 (1971). In at least some States, including Missouri, it appears the prosecution has some discretion to cancel a plea agreement to which the defendant has agreed, see, e.g., 311 S. W. 3d, at 359 (case below); Ariz. Rule Crim. Proc. 17.4(b) (Supp. 2011). The Federal Rules, some state rules including in Missouri, and this Court’s precedents give trial courts some leeway to accept or reject plea agreements, see Fed. Rule Crim. Proc. 11(c)(3); see Mo. Sup. Ct. Rule 24.02(d)(4); Boykin v. Alabama, 395 U. S. 238, 243–244 (1969). It can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework.",analysis,The Right to Effective Assistance of Counsel,strongly agree, The Duty and Responsibilities of Defense Counsel,strongly agree,The Duty and Responsibilities of Defense Counsel,2
+G16,7,1,2,A,"It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U. S. 778, 786 (2009) (quoting United States v. Wade, 388 U. S. 218, 227–228 (1967)). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, 368 U. S. 52 (1961) (arraignment); Massiah v. United States, 377 U. S. 201 (1964) (postindictment interrogation); Wade, supra (postindictment lineup); Argersinger v. Hamlin, 407 U. S. 25 (1972) (guilty plea).
+
+With respect to the right to effective counsel in plea negotiations, a proper beginning point is to discuss two cases from this Court considering the role of counsel in advising a client about a plea offer and an ensuing guilty plea: Hill v. Lockhart, 474 U. S. 52 (1985); and Padilla v. Kentucky, 559 U. S. ___(2010).
+
+Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland. See Hill, supra, at 57. As noted above, in Frye’s case, the Missouri Court of Appeals, applying the two part test of Strickland, determined first that defense counsel had been ineffective and second that there was resulting prejudice.
+
+In Hill, the decision turned on the second part of the Strickland test. There, a defendant who had entered a guilty plea claimed his counsel had misinformed him of the amount of time he would have to serve before he became eligible for parole. But the defendant had not alleged that, even if adequate advice and assistance had been given, he would have elected to plead not guilty and proceed to trial. Thus, the Court found that no prejudice from the inadequate advice had been shown or alleged. Hill, supra, at 60.
+
+In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” 559 U. S., at ___ (slip op., at 16). It also rejected the argument made by petitioner in this case that a knowing and voluntary plea supersedes errors by defense counsel. Cf. Brief for Respondent in Padilla v. Kentucky, O. T. 2009, No. 08–651, p. 27 (arguing Sixth Amendment’s assurance of effective assistance “does not extend to collateral aspects of the prosecution” because “knowledge of the consequences that are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea”).
+
+In the case now before the Court the State, as petitioner, points out that the legal question presented is different from that in Hill and Padilla. In those cases the claim was that the prisoner’s plea of guilty was invalid because counsel had provided incorrect advice pertinent to the plea. In the instant case, by contrast, the guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel. The challenge is not to the advice pertaining to the plea that was accepted but rather to the course of legal representation that preceded it with respect to other potential pleas and plea offers.
+
+To give further support to its contention that the instant case is in a category different from what the Court considered in Hill and Padilla, the State urges that there is no right to a plea offer or a plea bargain in any event. See Weatherford v. Bursey, 429 U. S. 545, 561 (1977). It claims Frye therefore was not deprived of any legal benefit to which he was entitled. Under this view, any wrongful or mistaken action of counsel with respect to earlier plea offers is beside the point.
+
+The State is correct to point out that Hill and Padilla concerned whether there was ineffective assistance leading to acceptance of a plea offer, a process involving a formal court appearance with the defendant and all counsel present. Before a guilty plea is entered the defendant’s understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea. See, e.g., Fed. Rule Crim. Proc. 11; Mo. Sup. Ct. Rule 24.02 (2004). Hill and Padilla both illustrate that, nevertheless, there may be instances when claims of ineffective assistance can arise after the conviction is entered. Still, the State, and the trial court itself, have had a substantial opportunity to guard against this contingency by establishing at the plea entry proceeding that the defendant has been given proper advice or, if the advice received appears to have been inadequate, to remedy that deficiency before the plea is accepted and the conviction entered.
+
+When a plea offer has lapsed or been rejected, however, no formal court proceedings are involved. This underscores that the plea-bargaining process is often in flux, with no clear standards or timelines and with no judicial supervision of the discussions between prosecution and defense. Indeed, discussions between client and defense counsel are privileged. So the prosecution has little or no notice if something may be amiss and perhaps no capacity to intervene in any event. And, as noted, the State insists there is no right to receive a plea offer. For all these reasons, the State contends, it is unfair to subject it to the consequences of defense counsel’s inadequacies, especially when the opportunities for a full and fair trial, or, as here, for a later guilty plea albeit on less favorable terms, are preserved.
+
+The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/ sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court’s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/ fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
+
+To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. “Anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).
+",analysis,Right to Effective Assistance of Counsel in Plea Negotiations,strongly agree,The Right to Effective Assistance of Counsel,agree,Right to Effective Assistance of Counsel in Plea Negotiations,1
+G16,7,1,2,B,"The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question. “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.” Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 8–9). Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process. Cf. ibid.
+
+This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects, however. Here the question is whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.
+
+This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.
+
+Though the standard for counsel’s performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides. The American Bar Association recommends defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999), and this standard has been adopted by numerous state and federal courts over the last 30 years. See, e.g., Davie v. State, 381 S. C. 601, 608–609, 675 S. E. 2d 416, 420 (2009); Cottle v. State, 733 So. 2d 963, 965–966 (Fla. 1999); Becton v. Hun, 205 W. Va. 139, 144, 516 S. E. 2d 762, 767 (1999); Harris v. State, 875 S. W. 2d 662, 665 (Tenn. 1994); Lloyd v. State, 258 Ga. 645, 648, 373 S. E. 2d 1, 3 (1988); United States v. Rodriguez Rodriguez, 929 F. 2d 747, 752 (CA1 1991) (per curiam); Pham v. United States, 317 F. 3d 178, 182 (CA2 2003); United States ex rel. Caruso v. Zelinsky, 689 F. 2d 435, 438 (CA3 1982); Griffin v. United States, 330 F. 3d 733, 737 (CA6 2003); Johnson v. Duckworth, 793 F. 2d 898, 902 (CA7 1986); United States v. Blaylock, 20 F. 3d 1458, 1466 (CA9 1994); cf. Diaz v. United States, 930 F. 2d 832, 834 (CA11 1991). The standard for prompt communication and consultation is also set out in state bar professional standards for attorneys. See, e.g., Fla. Rule Regulating Bar 4–1.4 (2008); Ill. Rule Prof. Conduct 1.4 (2011); Kan. Rule Prof. Conduct 1.4 (2010); Ky. Sup. Ct. Rule 3.130, Rule Prof. Conduct 1.4 (2011); Mass. Rule Prof. Conduct 1.4 (2011–2012); Mich. Rule Prof. Conduct 1.4 (2011).
+
+The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. See N. J. Ct. Rule 3:9–1(b) (2012) (“Any plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant’s attorney”). Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence. At least one State often follows a similar procedure before trial. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 20 (discussing hearings in Arizona conducted pursuant to State v. Donald, 198 Ariz. 406, 10 P. 3d 1193 (App. 2000)); see also N. J. Ct. Rules 3:9–1(b), (c) (requiring the prosecutor and defense counsel to discuss the case prior to the arraignment/status conference including any plea offers and to report on these discussions in open court with the defendant present); In re Alvernaz, 2 Cal. 4th 924, 938, n. 7, 830 P. 2d 747, 756, n. 7 (1992) (encouraging parties to “memorialize in some fashion prior to trial (1) the fact that a plea bargain offer was made, and (2) that the defendant was advised of the offer [and] its precise terms, . . . and (3) the defendant’s response to the plea bargain offer”); Brief for Center on the Administration of Criminal Law, New York University School of Law as Amicus Curiae 25–27.
+
+Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.",analysis,Duty and Responsibilities of Defense Counsel,agree,Duty and Responsibilities of Defense Counsel,agree,The Duty of Counsel to Communicate the Plea Bargain Offer,2
+G16,7,1,2,C,"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U. S. 198, 203 (2001) (“[A]ny amount of [additional] jail time has Sixth Amendment significance”).
+
+This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U. S., at 59. Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations. Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years’ imprisonment). In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry into whether “the result of the proceeding would have been different,” 466 U. S., at 694, requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.
+
+In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea, see Weatherford, 429 U. S., at 561, nor a federal right that the judge accept it, Santobello v. New York, 404 U. S. 257, 262 (1971). In at least some States, including Missouri, it appears the prosecution has some discretion to cancel a plea agreement to which the defendant has agreed, see, e.g., 311 S. W. 3d, at 359 (case below); Ariz. Rule Crim. Proc. 17.4(b) (Supp. 2011). The Federal Rules, some state rules including in Missouri, and this Court’s precedents give trial courts some leeway to accept or reject plea agreements, see Fed. Rule Crim. Proc. 11(c)(3); see Mo. Sup. Ct. Rule 24.02(d)(4); Boykin v. Alabama, 395 U. S. 238, 243–244 (1969). It can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework.",analysis, Plea Negotiations,disagree,Prejudice from Ineffective Assistance of Counsel,strongly agree,Prejudice from the Lack of Communication of Counsel,3
+G16,7,1,1,III,"These standards must be applied to the instant case. As regards the deficient performance prong of Strickland, the Court of Appeals found the “record is void of any evidence of any effort by trial counsel to communicate the [formal] Offer to Frye during the Offer window, let alone any evidence that Frye’s conduct interfered with trial counsel’s ability to do so.” 311 S. W. 3d, at 356. On this record, it is evident that Frye’s attorney did not make a meaningful attempt to inform the defendant of a written plea offer before the offer expired. See supra, at 2. The Missouri Court of Appeals was correct that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, supra, at 688.
+
+The Court of Appeals erred, however, in articulating the precise standard for prejudice in this context. As noted, a defendant in Frye’s position must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecution would have adhered to the agreement and that it would have been accepted by the trial court. Frye can show he would have accepted the offer, but there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final.
+
+There appears to be a reasonable probability Frye would have accepted the prosecutor’s original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. It may be that in some cases defendants must show more than just a guilty plea to a charge or sentence harsher than the original offer. For example, revelations between plea offers about the strength of the prosecution’s case may make a late decision to plead guilty insufficient to demonstrate, without further evidence, that the defendant would have pleaded guilty to an earlier, more generous plea offer if his counsel had reported it to him. Here, however, that is not the case. The Court of Appeals did not err in finding Frye’s acceptance of the less favorable plea offer indicated that he would have accepted the earlier (and more favorable) offer had he been apprised of it; and there is no need to address here the showings that might be required in other cases.
+
+The Court of Appeals failed, however, to require Frye to show that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court. Whether the prosecution and trial court are required to do so is a matter of state law, and it is not the place of this Court to settle those matters. The Court has established the minimum requirements of the Sixth Amendment as interpreted in Strickland, and States have the discretion to add procedural protections under state law if they choose. A State may choose to preclude the prosecution from withdrawing a plea offer once it has been accepted or perhaps to preclude a trial court from rejecting a plea bargain. In Missouri, it appears “a plea offer once accepted by the defendant can be withdrawn without recourse” by the prosecution. 311 S. W. 3d, at 359. The extent of the trial court’s discretion in Missouri to reject a plea agreement appears to be in some doubt. Compare id., at 360, with Mo. Sup. Ct. Rule 24.02(d)(4).
+
+We remand for the Missouri Court of Appeals to consider these state-law questions, because they bear on the federal question of Strickland prejudice. If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice. In this case, given Frye’s new offense for driving without a license on December 30, 2007, there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the January 4, 2008, hearing, unless they were required by state law to do so.
+
+It is appropriate to allow the Missouri Court of Appeals to address this question in the first instance. The judgment of the Missouri Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
+
+It is so ordered. ",analysis,Frye’s Performance,strongly disagree,Deficient Performance Prong,strongly disagree,Petitioner's Reasonable Probability of Accepting the Deal,3
+G16,9,1,1,I,"Albert Greenwood Brown, Jr., was tried and convicted of the rape and murder of a teenage girl, and sentenced to death in California Superior Court. Before the voir dire examination of prospective jurors began, petitioner, Press-Enterprise Co., moved that the voir dire be open to the public and the press. Petitioner contended that the public had an absolute right to attend the trial, and asserted that the trial commenced with the voir dire proceedings. The State opposed petitioner's motion, arguing that if the press were present, juror responses would lack the candor necessary to assure a fair trial.
+
+The trial judge agreed and permitted petitioner to attend only the ""general voir dire."" He stated that counsel would conduct the ""individual voir dire with regard to death qualifications and any other special areas that counsel may feel some problem with regard to . . . in private. . . ."" App. 93. The voir dire consumed six weeks and all but approximately three days was closed to the public.
+
+After the jury was empaneled, petitioner moved the trial court to release a complete transcript of the voir dire proceedings. At oral argument on the motion, the trial judge described the responses of prospective jurors at their voir dire:
+
+""Most of them are of little moment. There are a few, however, in which some personal problems were discussed which could be somewhat sensitive as far as publication of those particular individuals' situations are concerned."" Id., at 103.
+Counsel for Brown argued that release of the transcript would violate the jurors' right of privacy. The prosecutor agreed, adding that the prospective jurors had answered questions under an ""implied promise of confidentiality."" Id., at 111. The court denied petitioner's motion, concluding as follows:
+
+""I agree with much of what defense counsel and People's counsel have said and I also, regardless of the public's right to know, I also feel that's rather difficult that by a person performing their civic duty as a prospective juror putting their private information as open to the public which I just think there is certain areas that the right of privacy should prevail and a right to a fair trial should prevail and the right of the people to know, I think, should have some limitations and, so, at this stage, the motion to open up . . . the individual sequestered voir dire proceedings is denied without prejudice."" Id., at 121.
+After Brown had been convicted and sentenced to death, petitioner again applied for release of the transcript. In denying this application, the judge stated:
+
+""The jurors were questioned in private relating to past experiences, and while most of the information is dull and boring, some of the jurors had some special experiences in sensitive areas that do not appear to be appropriate for public discussion."" Id., at 39.
+Petitioner then sought in the California Court of Appeal a writ of mandate to compel the Superior Court to release the transcript and vacate the order closing the voir dire proceedings. The petition was denied. The California Supreme Court denied petitioner's request for a hearing. We granted certiorari. 459 U. S. 1169 (1983). We reverse.",facts,State v. Brown,disagree,The Brown Voir Dire,agree,The Public Release of Brown Voir Dire,1
+G16,9,1,1,II,"The trial of a criminal case places the factfinding function in a jury of 12 unless by statute or consent the jury is fixed at a lesser number or a jury is waived. The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system. In Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 569 (1980), the plurality opinion summarized the evolution of the criminal trial as we know it today and concluded that ""at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open."" A review of the historical evidence is also helpful for present purposes. It reveals that, since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.
+
+The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before ""moots,"" a town meeting kind of body such as the local court of the hundred or the county court.[1] Attendance was virtually compulsory on the part of the freemen of the community, who represented the ""patria,"" or the ""country,"" in rendering judgment. The public aspect thus was ""almost a necessary incident of jury trials, since the presence of a jury. . . already insured the presence of a large part of the public.""[2]
+
+As the jury system evolved in the years after the Norman Conquest, and the jury came to be but a small segment representing the community, the obligation of all freemen to attend criminal trials was relaxed; however, the public character of the proceedings, including jury selection, remained unchanged. Later, during the 14th and 15th centuries, the jury became an impartial trier of facts, owing in large part to a development in that period, allowing challenges.[3] 1 W. Holdsworth, History of English Law 332, 335 (7th ed. 1956). Since then, the accused has generally enjoyed the right to challenge jurors in open court at the outset of the trial.[4]
+
+Although there appear to be few contemporary accounts of the process of jury selection of that day,[5] one early record written in 1565 places the trial ""[i]n the towne house, or in some open or common place."" T. Smith, De Republica Anglorum 96 (Alston ed. 1906). Smith explained that ""there is nothing put in writing but the enditement"":
+
+""All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so many as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide."" Id., at 101 (emphasis added).
+If we accept this account it appears that beginning in the 16th century, jurors were selected in public.
+
+As the trial began, the judge and the accused were present. Before calling jurors, the judge ""telleth the cause of their comming, and [thereby] giveth a good lesson to the people."" Id., at 96-97 (emphasis added). The indictment was then read; if the accused pleaded not guilty, the jurors were called forward, one by one, at which time the defendant was allowed to make his challenges. Id., at 98. Smith makes clear that the entire trial proceeded ""openly, that not only the xii [12 jurors], but the Judges, the parties and as many [others] as be present may heare."" Id., at 79 (emphasis added).
+
+This open process gave assurance to those not attending trials that others were able to observe the proceedings and enhanced public confidence. The presence of bystanders served yet another purpose according to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing at the trial, ""either party may pray a tales."" 3 W. Blackstone Commentaries *364; see also M. Hale, The History of the Common Law of England 342 (6th ed. 1820). A ""tales"" was the balance necessary to supply the deficiency.[6]
+
+The presumptive openness of the jury selection process in England, not surprisingly, carried over into proceedings in colonial America. For example, several accounts noted the need for talesmen at the trials of Thomas Preston and William Wemms, two of the British soldiers who were charged with murder after the so-called Boston Massacre in 1770.[7] Public jury selection thus was the common practice in America when the Constitution was adopted.
+
+For present purposes, how we allocate the ""right"" to openness as between the accused and the public, or whether we view it as a component inherent in the system benefiting both, is not crucial. No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.
+
+The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 569-571.
+
+This openness has what is sometimes described as a ""community therapeutic value."" Id., at 570. Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done. See T. Reik, The Compulsion to Confess 288-295, 408 (1959). Whether this is viewed as retribution or otherwise is irrelevant. When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. See United States v. Hasting, 461 U. S. 499, 507 (1983); Morris v. Slappy, 461 U. S. 1, 14-15 (1983).
+
+""People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."" Richmond Newspapers, supra, at 572. Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.[8] In Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982), we stated:
+
+""[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."" Id., at 606-607.
+The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. We now turn to whether the presumption of openness has been rebutted in this case.
+",analysis, History of the Trial,disagree,The Jury Selection Process,agree,The Right to an Open Trial,2
+G16,9,1,2,A,"The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before ""moots,"" a town meeting kind of body such as the local court of the hundred or the county court.[1] Attendance was virtually compulsory on the part of the freemen of the community, who represented the ""patria,"" or the ""country,"" in rendering judgment. The public aspect thus was ""almost a necessary incident of jury trials, since the presence of a jury. . . already insured the presence of a large part of the public.""[2]
+
+As the jury system evolved in the years after the Norman Conquest, and the jury came to be but a small segment representing the community, the obligation of all freemen to attend criminal trials was relaxed; however, the public character of the proceedings, including jury selection, remained unchanged. Later, during the 14th and 15th centuries, the jury became an impartial trier of facts, owing in large part to a development in that period, allowing challenges.[3] 1 W. Holdsworth, History of English Law 332, 335 (7th ed. 1956). Since then, the accused has generally enjoyed the right to challenge jurors in open court at the outset of the trial.[4]
+
+Although there appear to be few contemporary accounts of the process of jury selection of that day,[5] one early record written in 1565 places the trial ""[i]n the towne house, or in some open or common place."" T. Smith, De Republica Anglorum 96 (Alston ed. 1906). Smith explained that ""there is nothing put in writing but the enditement"":
+
+""All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so many as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide."" Id., at 101 (emphasis added).
+If we accept this account it appears that beginning in the 16th century, jurors were selected in public.
+
+As the trial began, the judge and the accused were present. Before calling jurors, the judge ""telleth the cause of their comming, and [thereby] giveth a good lesson to the people."" Id., at 96-97 (emphasis added). The indictment was then read; if the accused pleaded not guilty, the jurors were called forward, one by one, at which time the defendant was allowed to make his challenges. Id., at 98. Smith makes clear that the entire trial proceeded ""openly, that not only the xii [12 jurors], but the Judges, the parties and as many [others] as be present may heare."" Id., at 79 (emphasis added).
+
+This open process gave assurance to those not attending trials that others were able to observe the proceedings and enhanced public confidence. The presence of bystanders served yet another purpose according to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing at the trial, ""either party may pray a tales."" 3 W. Blackstone Commentaries *364; see also M. Hale, The History of the Common Law of England 342 (6th ed. 1820). A ""tales"" was the balance necessary to supply the deficiency.[6]
+
+The presumptive openness of the jury selection process in England, not surprisingly, carried over into proceedings in colonial America. For example, several accounts noted the need for talesmen at the trials of Thomas Preston and William Wemms, two of the British soldiers who were charged with murder after the so-called Boston Massacre in 1770.[7] Public jury selection thus was the common practice in America when the Constitution was adopted.",analysis,History of Open Trials,strongly agree,The Open Trials,strongly agree,History of Open Trial Since the Anglo-Norman Epoch,1
+G16,9,1,2,B,"For present purposes, how we allocate the ""right"" to openness as between the accused and the public, or whether we view it as a component inherent in the system benefiting both, is not crucial. No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.
+
+The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 569-571.
+
+This openness has what is sometimes described as a ""community therapeutic value."" Id., at 570. Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done. See T. Reik, The Compulsion to Confess 288-295, 408 (1959). Whether this is viewed as retribution or otherwise is irrelevant. When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. See United States v. Hasting, 461 U. S. 499, 507 (1983); Morris v. Slappy, 461 U. S. 1, 14-15 (1983).
+
+""People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."" Richmond Newspapers, supra, at 572. Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.[8] In Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982), we stated:
+
+""[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."" Id., at 606-607.
+The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. We now turn to whether the presumption of openness has been rebutted in this case.
+",analysis,The Right to Open Trial,strongly agree,The Right to Openness,strongly agree,The Right of the Public to the Openness of the Trial,2
+G16,9,1,1,III,"Although three days of voir dire in this case were open to the public, six weeks of the proceedings were closed, and media requests for the transcript were denied.[9] The Superior Court asserted two interests in support of its closure order and orders denying a transcript: the right of the defendant to a fair trial, and the right to privacy of the prospective jurors, for any whose ""special experiences in sensitive areas . . . do not appear to be appropriate for public discussion."" Supra, at 504. Of course the right of an accused to fundamental fairness in the jury selection process is a compelling interest. But the California court's conclusion that Sixth Amendment and privacy interests were sufficient to warrant prolonged closure was unsupported by findings showing that an open proceeding in fact threatened those interests;[10] hence it is not possible to conclude that closure was warranted.[11] Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire.
+
+The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain. The trial involved testimony concerning an alleged rape of a teenage girl. Some questions may have been appropriate to prospective jurors that would give rise to legitimate privacy interests of those persons. For example a prospective juror might privately inform the judge that she, or a member of her family, had been raped but had declined to seek prosecution because of the embarrassment and emotional trauma from the very disclosure of the episode. The privacy interests of such a prospective juror must be balanced against the historic values we have discussed and the need for openness of the process.
+
+To preserve fairness and at the same time protect legitimate privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.
+
+By requiring the prospective juror to make an affirmative request, the trial judge can ensure that there is in fact a valid basis for a belief that disclosure infringes a significant interest in privacy. This process will minimize the risk of unnecessary closure. The exercise of sound discretion by the court may lead to excusing such a person from jury service. When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror's valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.
+
+The judge at this trial closed an incredible six weeks of voir dire without considering alternatives to closure. Later the court declined to release a transcript of the voir dire even while stating that ""most of the information"" in the transcript was ""dull and boring."" Supra, at 504. Those parts of the transcript reasonably entitled to privacy could have been sealed without such a sweeping order; a trial judge should explain why the material is entitled to privacy.
+
+Assuming that some jurors had protectible privacy interests in some of their answers, the trial judge provided no explanation as to why his broad order denying access to information at the voir dire was not limited to information that was actually sensitive and deserving of privacy protection. Nor did he consider whether he could disclose the substance of the sensitive answers while preserving the anonymity of the jurors involved.
+
+Thus not only was there a failure to articulate findings with the requisite specificity but there was also a failure to consider alternatives to closure and to total suppression of the transcript. The trial judge should seal only such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected.
+",analysis, The Superior Court's Order Denying Access to Voir Dire Testimony,strongly agree,Closure of Voir Dire,agree,The Superior Court's Order Denying Access to Voir Dire Testimony,3
+G16,9,1,1,IV,"The judgment of the Court of Appeal is vacated, and the case is remanded for proceedings not inconsistent with this opinion.
+
+It is so ordered.
+",conclusion,order of remand,agree,remand for remand,strongly disagree,Order of Remand of the Court of Appeals' Decision,4
+G16,10,1,1,I,"
+
+The Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective . . . Discoveries.” Art. I, §8, cl. 8. Pursuant to that authority, Congress established the United States Patent and Trademark Office (Patent Office) and tasked it with “the granting and issuing of patents.” 35 U. S. C. §§1, 2(a)(1).
+
+To obtain a patent, an inventor submits an application describing the proposed patent claims to the Patent Office. See §§111(a)(1), 112. A patent examiner then reviews the application and prior art (the information available to the public at the time of the application) to determine whether the claims satisfy the statutory requirements for patentability, including that the claimed invention is useful, novel, nonobvious, and contains eligible subject matter. See §§101, 102, 103. If the Patent Office accepts the claim and issues a patent, the patent owner generally obtains exclusive rights to the patented invention throughout the United States for 20 years. §§154(a)(1), (2).
+
+After a patent issues, there are several avenues by which its validity can be revisited. The first is through a defense in an infringement action. Generally, one who intrudes upon a patent without authorization “infringes the patent” and becomes subject to civil suit in the federal district courts, where the patent owner may demand a jury trial and seek monetary damages and injunctive relief. §§271(a), 281–284. If, however, the Federal Government is the alleged patent infringer, the patent owner must sue the Government in the United States Court of Federal Claims and may recover only “reasonable and entire compensation” for the unauthorized use. 28 U. S. C. §1498(a).
+
+Once sued, an accused infringer can attempt to prove by clear and convincing evidence “that the patent never should have issued in the first place.” Microsoft Corp. v. i4i L. P., 564 U. S. 91, 96–97 (2011); see 35 U. S. C. §282(b). If a defendant succeeds in showing that the claimed invention falls short of one or more patentability requirements, the court may deem the patent invalid and absolve the defendant of liability.
+
+The Patent Office may also reconsider the validity of issued patents. Since 1980, the Patent Act has empowered the Patent Office “to reexamine—and perhaps cancel—a patent claim that it had previously allowed.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 3). This procedure is known as ex parte reexamination. “Any person at any time” may cite to the Patent Office certain prior art that may “bea[r] on the patentability of any claim of a particular patent”; and the person may additionally request that the Patent Office reexamine the claim on that basis. 35 U. S. C. §§301(a), 302(a). If the Patent Office concludes that the prior art raises “a substantial new question of patentability,” the agency may reexamine the patent and, if warranted, cancel the patent or some of its claims. §§303(a), 304–307. The Director of the Patent Office may also, on her “own initiative,” initiate such a proceeding. §303(a).
+
+In 1999 and 2002, Congress added an “inter partes reexamination” procedure, which similarly invited “[a]ny person at any time” to seek reexamination of a patent on the basis of prior art and allowed the challenger to participate in the administrative proceedings and any subsequent appeal. See §311(a) (2000 ed.); §§314(a), (b) (2006 ed.); Cuozzo Speed Technologies, 579 U. S., at ___ (slip op., at 3).
+
+
+In 2011, Congress overhauled the patent system by enacting the America Invents Act (AIA), which created the Patent Trial and Appeal Board and phased out inter partes reexamination. See 35 U. S. C. §6; H. R. Rep. No. 112–98, pt. 1, pp. 46–47. In its stead, the AIA tasked the Board with overseeing three new types of post-issuance review proceedings.
+
+First, the “inter partes review” provision permits “a person” other than the patent owner to petition for the review and cancellation of a patent on the grounds that the invention lacks novelty or nonobviousness in light of “patents or printed publications” existing at the time of the patent application. §311.
+
+Second, the “post-grant review” provision permits “a person who is not the owner of a patent” to petition for review and cancellation of a patent on any ground of patentability. §321; see §§282(b)(2), (b)(3). Such proceedings must be brought within nine months of the patent’s issuance. §321.
+
+Third, the “covered-business-method review” (CBM review) provision provides for changes to a patent that claims a method for performing data processing or other operations used in the practice or management of a financial product or service. AIA §§18(a)(1), (d)(1), 125 Stat. 329, note following 35 U. S. C. §321, p. 1442. CBM review tracks the “standards and procedures of” post-grant review with two notable exceptions: CBM review is not limited to the nine months following issuance of a patent, and “[a] person” may file for CBM review only as a defense against a charge or suit for infringement. §18(a)(1)(B), 125 Stat. 330.1
+
+The AIA’s three post-issuance review proceedings are adjudicatory in nature. Review is conducted by a threemember panel of the Patent Trial and Appeal Board, 35 U. S. C. §6(c), and the patent owner and challenger may seek discovery, file affidavits and other written memoranda, and request an oral hearing, see §§316, 326; AIA §18(a)(1), 125 Stat. 329; Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___, ___–___ (2018) (slip op., at 3–4). The petitioner has the burden of proving unpatentability by a preponderance of the evidence. §§282, 316(e), 326(e). The Board then either confirms the patent claims or cancels some or all of the claims. §§318(b), 328(b). Any party “dissatisfied” with the Board’s final decision may seek judicial review in the Court of Appeals for the Federal Circuit, §§319, 329; see §141(c), and the Director of the Patent Office may intervene, §143.
+
+In sum, in the post-AIA world, a patent can be reexamined either in federal court during a defense to an infringement action, in an ex parte reexamination by the Patent Office, or in the suite of three post-issuance review proceedings before the Patent Trial and Appeal Board. The central question in this case is whether the Federal Government can avail itself of the three post-issuance review proceedings, including CBM review.
+
+Return Mail, Inc., owns U. S. Patent No. 6,826,548 (’548 patent), which claims a method for processing mail that is undeliverable. Beginning in 2003, the United States Postal Service allegedly began exploring the possibility of licensing Return Mail’s invention for use in handling the country’s undelivered mail. But the parties never reached an agreement.
+
+In 2006, the Postal Service introduced an enhanced address-change service to process undeliverable mail. Return Mail’s representatives asserted that the new service infringed the ’548 patent, and the company renewed its offer to license the claimed invention to the Postal Service. In response, the Postal Service petitioned for ex parte reexamination of the ’548 patent. The Patent Office canceled the original claims but issued several new ones, confirming the validity of the ’548 patent. Return Mail then sued the Postal Service in the Court of Federal Claims, seeking compensation for the Postal Service’s unauthorized use of its invention, as reissued by the Patent Office.
+
+While the lawsuit was pending, the Postal Service again petitioned the Patent Office to review the ’548 patent, this time seeking CBM review. The Patent Board instituted review. The Board agreed with the Postal Service that Return Mail’s patent claims subject matter that was ineligible to be patented, and it canceled the claims underlying the ’548 patent. A divided panel of the Court of Appeals for the Federal Circuit affirmed. See 868 F. 3d 1350 (2017). As relevant here, the Federal Circuit held, over a dissent, that the Government is a “person” eligible to petition for CBM review. Id., at 1366; see AIA §18(a)(1)(B), 125 Stat. 330 (only a qualifying “person” may petition for CBM review). The court then affirmed the Patent Board’s decision on the merits, invalidating Return Mail’s patent claims.
+
+We granted certiorari to determine whether a federal agency is a “person” capable of petitioning for postissuance review under the AIA.2 586 U. S. ___ (2018).",facts,The America Invents Act,strongly disagree,The America Invents Act,strongly disagree,The Patentability Framework post AIA Enactement,1
+G16,10,1,2,A,"The Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective . . . Discoveries.” Art. I, §8, cl. 8. Pursuant to that authority, Congress established the United States Patent and Trademark Office (Patent Office) and tasked it with “the granting and issuing of patents.” 35 U. S. C. §§1, 2(a)(1).
+
+To obtain a patent, an inventor submits an application describing the proposed patent claims to the Patent Office. See §§111(a)(1), 112. A patent examiner then reviews the application and prior art (the information available to the public at the time of the application) to determine whether the claims satisfy the statutory requirements for patentability, including that the claimed invention is useful, novel, nonobvious, and contains eligible subject matter. See §§101, 102, 103. If the Patent Office accepts the claim and issues a patent, the patent owner generally obtains exclusive rights to the patented invention throughout the United States for 20 years. §§154(a)(1), (2).
+
+After a patent issues, there are several avenues by which its validity can be revisited. The first is through a defense in an infringement action. Generally, one who intrudes upon a patent without authorization “infringes the patent” and becomes subject to civil suit in the federal district courts, where the patent owner may demand a jury trial and seek monetary damages and injunctive relief. §§271(a), 281–284. If, however, the Federal Government is the alleged patent infringer, the patent owner must sue the Government in the United States Court of Federal Claims and may recover only “reasonable and entire compensation” for the unauthorized use. 28 U. S. C. §1498(a).
+
+Once sued, an accused infringer can attempt to prove by clear and convincing evidence “that the patent never should have issued in the first place.” Microsoft Corp. v. i4i L. P., 564 U. S. 91, 96–97 (2011); see 35 U. S. C. §282(b). If a defendant succeeds in showing that the claimed invention falls short of one or more patentability requirements, the court may deem the patent invalid and absolve the defendant of liability.
+
+The Patent Office may also reconsider the validity of issued patents. Since 1980, the Patent Act has empowered the Patent Office “to reexamine—and perhaps cancel—a patent claim that it had previously allowed.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___, ___ (2016) (slip op., at 3). This procedure is known as ex parte reexamination. “Any person at any time” may cite to the Patent Office certain prior art that may “bea[r] on the patentability of any claim of a particular patent”; and the person may additionally request that the Patent Office reexamine the claim on that basis. 35 U. S. C. §§301(a), 302(a). If the Patent Office concludes that the prior art raises “a substantial new question of patentability,” the agency may reexamine the patent and, if warranted, cancel the patent or some of its claims. §§303(a), 304–307. The Director of the Patent Office may also, on her “own initiative,” initiate such a proceeding. §303(a).
+
+In 1999 and 2002, Congress added an “inter partes reexamination” procedure, which similarly invited “[a]ny person at any time” to seek reexamination of a patent on the basis of prior art and allowed the challenger to participate in the administrative proceedings and any subsequent appeal. See §311(a) (2000 ed.); §§314(a), (b) (2006 ed.); Cuozzo Speed Technologies, 579 U. S., at ___ (slip op., at 3).
+",analysis, The Patentability Framework,strongly agree,The United States Patent and Trademark Office,strongly agree,The Patentability Framework before the United States Patent and Trademark Office,1
+G16,10,1,2,B,"In 2011, Congress overhauled the patent system by enacting the America Invents Act (AIA), which created the Patent Trial and Appeal Board and phased out inter partes reexamination. See 35 U. S. C. §6; H. R. Rep. No. 112–98, pt. 1, pp. 46–47. In its stead, the AIA tasked the Board with overseeing three new types of post-issuance review proceedings.
+
+First, the “inter partes review” provision permits “a person” other than the patent owner to petition for the review and cancellation of a patent on the grounds that the invention lacks novelty or nonobviousness in light of “patents or printed publications” existing at the time of the patent application. §311.
+
+Second, the “post-grant review” provision permits “a person who is not the owner of a patent” to petition for review and cancellation of a patent on any ground of patentability. §321; see §§282(b)(2), (b)(3). Such proceedings must be brought within nine months of the patent’s issuance. §321.
+
+Third, the “covered-business-method review” (CBM review) provision provides for changes to a patent that claims a method for performing data processing or other operations used in the practice or management of a financial product or service. AIA §§18(a)(1), (d)(1), 125 Stat. 329, note following 35 U. S. C. §321, p. 1442. CBM review tracks the “standards and procedures of” post-grant review with two notable exceptions: CBM review is not limited to the nine months following issuance of a patent, and “[a] person” may file for CBM review only as a defense against a charge or suit for infringement. §18(a)(1)(B), 125 Stat. 330.1
+
+The AIA’s three post-issuance review proceedings are adjudicatory in nature. Review is conducted by a threemember panel of the Patent Trial and Appeal Board, 35 U. S. C. §6(c), and the patent owner and challenger may seek discovery, file affidavits and other written memoranda, and request an oral hearing, see §§316, 326; AIA §18(a)(1), 125 Stat. 329; Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___, ___–___ (2018) (slip op., at 3–4). The petitioner has the burden of proving unpatentability by a preponderance of the evidence. §§282, 316(e), 326(e). The Board then either confirms the patent claims or cancels some or all of the claims. §§318(b), 328(b). Any party “dissatisfied” with the Board’s final decision may seek judicial review in the Court of Appeals for the Federal Circuit, §§319, 329; see §141(c), and the Director of the Patent Office may intervene, §143.
+
+In sum, in the post-AIA world, a patent can be reexamined either in federal court during a defense to an infringement action, in an ex parte reexamination by the Patent Office, or in the suite of three post-issuance review proceedings before the Patent Trial and Appeal Board. The central question in this case is whether the Federal Government can avail itself of the three post-issuance review proceedings, including CBM review.",analysis,The America Invents Act,strongly agree,The America Invents Act,strongly agree,The America Invents Act (AIA),2
+G16,10,1,2,C,"Return Mail, Inc., owns U. S. Patent No. 6,826,548 (’548 patent), which claims a method for processing mail that is undeliverable. Beginning in 2003, the United States Postal Service allegedly began exploring the possibility of licensing Return Mail’s invention for use in handling the country’s undelivered mail. But the parties never reached an agreement.
+
+In 2006, the Postal Service introduced an enhanced address-change service to process undeliverable mail. Return Mail’s representatives asserted that the new service infringed the ’548 patent, and the company renewed its offer to license the claimed invention to the Postal Service. In response, the Postal Service petitioned for ex parte reexamination of the ’548 patent. The Patent Office canceled the original claims but issued several new ones, confirming the validity of the ’548 patent. Return Mail then sued the Postal Service in the Court of Federal Claims, seeking compensation for the Postal Service’s unauthorized use of its invention, as reissued by the Patent Office.
+
+While the lawsuit was pending, the Postal Service again petitioned the Patent Office to review the ’548 patent, this time seeking CBM review. The Patent Board instituted review. The Board agreed with the Postal Service that Return Mail’s patent claims subject matter that was ineligible to be patented, and it canceled the claims underlying the ’548 patent. A divided panel of the Court of Appeals for the Federal Circuit affirmed. See 868 F. 3d 1350 (2017). As relevant here, the Federal Circuit held, over a dissent, that the Government is a “person” eligible to petition for CBM review. Id., at 1366; see AIA §18(a)(1)(B), 125 Stat. 330 (only a qualifying “person” may petition for CBM review). The court then affirmed the Patent Board’s decision on the merits, invalidating Return Mail’s patent claims.
+
+We granted certiorari to determine whether a federal agency is a “person” capable of petitioning for postissuance review under the AIA.2 586 U. S. ___ (2018).",facts,Return Mail’s Patent Claims,strongly agree,The Patent Appeal,disagree,Return Mail’s Patent Claims,3
+G16,10,1,1,II,"The AIA provides that only “a person” other than the patent owner may file with the Office a petition to institute a post-grant review or inter partes review of an issued patent. 35 U. S. C. §§311(a), 321(a). The statute likewise provides that a “person” eligible to seek CBM review may not do so “unless the person or the person’s real party in interest or privy has been sued for infringement.” AIA §18(a)(1)(B), 125 Stat. 330. The question in this case is whether the Government is a “person” capable of instituting the three AIA review proceedings.
+
+The patent statutes do not define the term “person.” In the absence of an express statutory definition, the Court applies a “longstanding interpretive presumption that ‘person’ does not include the sovereign,” and thus excludes a federal agency like the Postal Service. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 780–781 (2000); see United States v. Mine Workers, 330 U. S. 258, 275 (1947); United States v. Cooper Corp., 312 U. S. 600, 603–605 (1941); United States v. Fox, 94 U. S. 315, 321 (1877).
+
+This presumption reflects “common usage.” Mine Workers, 330 U. S., at 275. It is also an express directive from Congress: The Dictionary Act has since 1947 provided the definition of “ ‘person’ ” that courts use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U. S. 194, 199–200 (1993). The Act provides that the word “ ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” §1. Notably absent from the list of “person[s]” is the Federal Government. See Mine Workers, 330 U. S., at 275 (reasoning that Congress’ express inclusion of partnerships and corporations in §1 implies that Congress did not intend to include the Government). Thus, although the presumption is not a “hard and fast rule of exclusion,” Cooper, 312 U. S., at 604–605, “it may be disregarded only upon some affirmative showing of statutory intent to the contrary,” Stevens, 529 U. S., at 781.
+
+The Postal Service contends that the presumption is strongest where interpreting the word “person” to include the Government imposes liability on the Government, and is weakest where (as here) interpreting “person” in that way benefits the Government. In support of this argument, the Postal Service points to a different interpretive canon: that Congress must unequivocally express any waiver of sovereign immunity for that waiver to be effective. See FAA v. Cooper, 566 U. S. 284, 290 (2012). That clear-statement rule inherently applies only when a party seeks to hold the Government liable for its actions; otherwise immunity is generally irrelevant. In the Postal Service’s view, the presumption against treating the Government as a statutory person works in tandem with the clear-statement rule regarding immunity, such that both apply only when a statute would subject the Government to liability.
+
+Our precedents teach otherwise. In several instances, this Court has applied the presumption against treating the Government as a statutory person when there was no question of immunity, and doing so would instead exclude the Federal Government or one of its agencies from accessing a benefit or favorable procedural device. In Cooper, 312 U. S., at 604–605, 614, for example, the Court held that the Federal Government was not “ ‘[a]ny person’ ” who could sue for treble damages under §7 of the Sherman Anti-Trust Act. Accord, International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72, 82–84 (1991) (concluding that the National Institutes of Health was not authorized to remove an action as a “ ‘person acting under [a federal]’ officer” pursuant to 28 U. S. C. §1442(a)(1)); Davis v. Pringle, 268 U. S. 315, 317– 318 (1925) (reasoning that “normal usages of speech” indicated that the Government was not a “person” entitled to priority under the Bankruptcy Act); Fox, 94 U. S., at 321 (holding that the Federal Government was not a “ ‘person capable by law of holding real estate,’ ” absent “an express definition to that effect”).
+
+Thus, although the presumption against treating the Government as a statutory person is “ ‘particularly applicable where it is claimed that Congress has subjected the [sovereign] to liability to which they had not been subject before,’ ” Stevens, 529 U. S., at 781, it is hardly confined to such cases. Here, too, we proceed from the presumption that the Government is not a “person” authorized to initiate these proceedings absent an affirmative showing to the contrary.
+
+
+Given the presumption that a statutory reference to a “person” does not include the Government, the Postal Service must show that the AIA’s context indicates otherwise. Although the Postal Service need not cite to “an express contrary definition,” Rowland, 506 U. S., at 200, it must point to some indication in the text or context of the statute that affirmatively shows Congress intended to include the Government. See Cooper, 312 U. S., at 605.
+
+The Postal Service makes three arguments for displacing the presumption. First, the Postal Service argues that the statutory text and context offer sufficient evidence that the Government is a “person” with the power to petition for AIA review proceedings. Second, the Postal Service contends that federal agencies’ long history of participation in the patent system suggests that Congress intended for the Government to participate in AIA review proceedings as well. Third, the Postal Service maintains that the statute must permit it to petition for AIA review because §1498 subjects the Government to liability for infringement. None delivers.
+
+The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. Indeed, it is often true that when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (2006). This principle, however, “readily yields to context,” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (internal quotation marks omitted). That is the case here. The Patent Act and the AIA refer to “person[s]” in at least 18 different places, and there is no clear trend: Sometimes “person” plainly includes the Government,3 sometimes it plainly excludes the Government,4 and sometimes—as here—it might be read either way.
+
+Looking on the bright side, the Postal Service and the dissent, see post, at 2, focus on §207(a)(1), which authorizes “[e]ach [f]ederal agency” to “apply for, obtain, and maintain patents or other forms of protection . . . on inventions in which the Federal Government owns a right, title, or interest.” It follows from §207(a)(1)’s express inclusion of federal agencies among those eligible to apply for patents that the statute’s references to “person[s]” in the subsections governing the patent-application process and questions of patentability (§§102(a), 118, and 119) must also include federal agencies.5 In other words, the right described in §207(a)(1) provides a sufficient contextual clue that the word “person”—when used in the other provisions governing the application process §207(a)(1) makes available to federal agencies—includes the Government.
+
+But §207(a)(1) provides no such clue as to the interpretation of the AIA review provisions because it implies nothing about what a federal agency may or may not do following the issuance of someone else’s patent. Conversely, reading the review provisions to exclude the Government has no bearing on a federal agency’s right to obtain a patent under §207(a)(1). An agency may still apply for and obtain patents whether or not it may petition for a review proceeding under the AIA seeking cancellation of a patent it does not own. There is thus no reason to think that “person” must mean the same thing in these two different parts of the statute. See Utility Air, 573 U. S., at 320.6
+
+The Postal Service cites other provisions that may refer to the Government—namely, the “intervening rights” provisions that offer certain protections for “any person” who is lawfully making or using an invention when the Patent Office modifies an existing patent claim in a way that deems the person’s (previously lawful) use to be infringement. See §§252, 307(b), 318(c), 328(c). The Postal Service argues that the Government must be among those protected by these provisions and from there deduces that it must also be permitted to petition for AIA review proceedings because the review provisions and the intervening-rights provisions were all added to the Patent Act by the AIA at the same time. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) (invoking the consistent-usage canon where the same term was used in related provisions enacted at the same time).
+
+But regardless of whether the intervening-rights provisions apply to the Government (a separate interpretive question that we have no occasion to answer here), the Postal Service’s chain of inferences overlooks a confounding link: The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways. As noted, that is the case here. In the face of such inconsistency, the mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that Congress did not intend to include the Government among those “person[s]” eligible to petition for AIA review proceedings.7
+
+The Postal Service next points to the Federal Government’s longstanding history with the patent system. It reminds us that federal officers have been able to apply for patents in the name of the United States since 1883, see Act of Mar. 3, 1883, 22 Stat. 625—which, in the Postal Service’s view, suggests that Congress intended to allow the Government access to AIA review proceedings as well. But, as already explained, the Government’s ability to obtain a patent under §207(a)(1) does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA review proceedings. As to those proceedings, there is no longstanding practice: The AIA was enacted just eight years ago.8
+
+More pertinently, the Postal Service and the dissent both note that the Patent Office since 1981 has treated federal agencies as “persons” who may cite prior art to the agency or request an ex parte reexamination of an issued patent. See post, at 5. Recall that §301(a) provides that “[a]ny person at any time may cite to the Office in writing . . . prior art . . . which that person believes to have a bearing on the patentability of any claim of a particular patent.” As memorialized in the Patent Office’s Manual of Patent Examining Procedure (MPEP), the agency has understood §301’s reference to “any person” to include “governmental entit[ies].” Dept. of Commerce, Patent and Trademark Office, MPEP §§2203, 2212 (4th rev. ed., July 1981).
+
+We might take account of this “executive interpretation” if we were determining whether Congress meant to include the Government as a “person” for purposes of the ex parte reexamination procedures themselves. See, e.g., United States v. Hermanos y Compañia, 209 U. S. 337, 339 (1908). Here, however, the Patent Office’s statement in the 1981 MPEP has no direct relevance. Even assuming that the Government may petition for ex parte reexamination, ex parte reexamination is a fundamentally different process than an AIA post-issuance review proceeding.9 Both share the common purpose of allowing non-patent owners to bring questions of patent validity to the Patent Office’s attention, but they do so in meaningfully different ways.
+
+In an ex parte reexamination, the third party sends information to the Patent Office that the party believes bears on the patent’s validity, and the Patent Office decides whether to reexamine the patent. If it decides to do so, the reexamination process is internal; the challenger is not permitted to participate in the Patent Office’s process. See 35 U. S. C. §§302, 303. By contrast, the AIA postissuance review proceedings are adversarial, adjudicatory proceedings between the “person” who petitioned for review and the patent owner: There is briefing, a hearing, discovery, and the presentation of evidence, and the losing party has appeal rights. See supra, at 4–5. Thus, there are good reasons Congress might have authorized the Government to initiate a hands-off ex parte reexamination but not to become a party to a full-blown adversarial proceeding before the Patent Office and any subsequent appeal. After all, the Government is already in a unique position among alleged infringers given that 28 U. S. C. §1498 limits patent owners to bench trials before the Court of Federal Claims and monetary damages, whereas 35 U. S. C. §271 permits patent owners to demand jury trials in the federal district courts and seek other types of relief.
+
+Thus, there is nothing to suggest that Congress had the 1981 MPEP statement in mind when it enacted the AIA. It is true that this Court has often said, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.” Bragdon v. Abbott, 524 U. S. 624, 645 (1998). But there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings. Accordingly, the MPEP does not justify putting aside the presumptive meaning of “person” here.
+
+Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. See §§282(b)(2)–(3). In the Postal Service’s view, it is anomalous to deny it a benefit afforded to other infringers—the ability to challenge a patent de novo before the Patent Office, rather than only as an infringement defense that must be proved by clear and convincing evidence. See ibid.; Microsoft Corp., 564 U. S., at 95 (holding that §282’s presumption of validity in litigation imposes a clear and convincing evidence standard on defendants seeking to prove invalidity).
+
+The Postal Service overstates the asymmetry. Agencies retain the ability under §282 to assert defenses to infringement. Once sued, an agency may, like any other accused infringer, argue that the patent is invalid, and the agency faces the same burden of proof as a defendant in any other infringement suit. The Postal Service lacks only the additional tool of petitioning for the initiation of an administrative proceeding before the Patent Office under the AIA, a process separate from defending an infringement suit.
+
+We see no oddity, however, in Congress’ affording nongovernmental actors an expedient route that the Government does not also enjoy for heading off potential infringement suits. Those other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents. Most notably, §1498 restricts a patent owner who sues the Government to her “reasonable and entire compensation” for the Government’s infringing use; she cannot seek an injunction, demand a jury trial, or ask for punitive damages, all of which are available in infringement suits against nongovernmental actors under §271(e)(4). Thus, although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Because federal agencies face lower risks, it is reasonable for Congress to have treated them differently.10
+
+Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office). We are therefore unpersuaded that the Government’s exclusion from the AIA review proceedings is sufficiently anomalous to overcome the presumption that the Government is not a “person” under the Act.11",analysis, The Government as a “Person”,strongly agree,The Government as a “Person”,strongly agree,The Government as a “Person” in the AIA,2
+G16,10,1,2,A,"The patent statutes do not define the term “person.” In the absence of an express statutory definition, the Court applies a “longstanding interpretive presumption that ‘person’ does not include the sovereign,” and thus excludes a federal agency like the Postal Service. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 780–781 (2000); see United States v. Mine Workers, 330 U. S. 258, 275 (1947); United States v. Cooper Corp., 312 U. S. 600, 603–605 (1941); United States v. Fox, 94 U. S. 315, 321 (1877).
+
+This presumption reflects “common usage.” Mine Workers, 330 U. S., at 275. It is also an express directive from Congress: The Dictionary Act has since 1947 provided the definition of “ ‘person’ ” that courts use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U. S. 194, 199–200 (1993). The Act provides that the word “ ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” §1. Notably absent from the list of “person[s]” is the Federal Government. See Mine Workers, 330 U. S., at 275 (reasoning that Congress’ express inclusion of partnerships and corporations in §1 implies that Congress did not intend to include the Government). Thus, although the presumption is not a “hard and fast rule of exclusion,” Cooper, 312 U. S., at 604–605, “it may be disregarded only upon some affirmative showing of statutory intent to the contrary,” Stevens, 529 U. S., at 781.
+
+The Postal Service contends that the presumption is strongest where interpreting the word “person” to include the Government imposes liability on the Government, and is weakest where (as here) interpreting “person” in that way benefits the Government. In support of this argument, the Postal Service points to a different interpretive canon: that Congress must unequivocally express any waiver of sovereign immunity for that waiver to be effective. See FAA v. Cooper, 566 U. S. 284, 290 (2012). That clear-statement rule inherently applies only when a party seeks to hold the Government liable for its actions; otherwise immunity is generally irrelevant. In the Postal Service’s view, the presumption against treating the Government as a statutory person works in tandem with the clear-statement rule regarding immunity, such that both apply only when a statute would subject the Government to liability.
+
+Our precedents teach otherwise. In several instances, this Court has applied the presumption against treating the Government as a statutory person when there was no question of immunity, and doing so would instead exclude the Federal Government or one of its agencies from accessing a benefit or favorable procedural device. In Cooper, 312 U. S., at 604–605, 614, for example, the Court held that the Federal Government was not “ ‘[a]ny person’ ” who could sue for treble damages under §7 of the Sherman Anti-Trust Act. Accord, International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72, 82–84 (1991) (concluding that the National Institutes of Health was not authorized to remove an action as a “ ‘person acting under [a federal]’ officer” pursuant to 28 U. S. C. §1442(a)(1)); Davis v. Pringle, 268 U. S. 315, 317– 318 (1925) (reasoning that “normal usages of speech” indicated that the Government was not a “person” entitled to priority under the Bankruptcy Act); Fox, 94 U. S., at 321 (holding that the Federal Government was not a “ ‘person capable by law of holding real estate,’ ” absent “an express definition to that effect”).
+
+Thus, although the presumption against treating the Government as a statutory person is “ ‘particularly applicable where it is claimed that Congress has subjected the [sovereign] to liability to which they had not been subject before,’ ” Stevens, 529 U. S., at 781, it is hardly confined to such cases. Here, too, we proceed from the presumption that the Government is not a “person” authorized to initiate these proceedings absent an affirmative showing to the contrary.
+",analysis,“Person”,agree,The “person” presumption,strongly agree,"The ""Person"" Presumption Excluding the Government",1
+G16,10,1,2,B,"Given the presumption that a statutory reference to a “person” does not include the Government, the Postal Service must show that the AIA’s context indicates otherwise. Although the Postal Service need not cite to “an express contrary definition,” Rowland, 506 U. S., at 200, it must point to some indication in the text or context of the statute that affirmatively shows Congress intended to include the Government. See Cooper, 312 U. S., at 605.
+
+The Postal Service makes three arguments for displacing the presumption. First, the Postal Service argues that the statutory text and context offer sufficient evidence that the Government is a “person” with the power to petition for AIA review proceedings. Second, the Postal Service contends that federal agencies’ long history of participation in the patent system suggests that Congress intended for the Government to participate in AIA review proceedings as well. Third, the Postal Service maintains that the statute must permit it to petition for AIA review because §1498 subjects the Government to liability for infringement. None delivers.
+
+The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. Indeed, it is often true that when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (2006). This principle, however, “readily yields to context,” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (internal quotation marks omitted). That is the case here. The Patent Act and the AIA refer to “person[s]” in at least 18 different places, and there is no clear trend: Sometimes “person” plainly includes the Government,3 sometimes it plainly excludes the Government,4 and sometimes—as here—it might be read either way.
+
+Looking on the bright side, the Postal Service and the dissent, see post, at 2, focus on §207(a)(1), which authorizes “[e]ach [f]ederal agency” to “apply for, obtain, and maintain patents or other forms of protection . . . on inventions in which the Federal Government owns a right, title, or interest.” It follows from §207(a)(1)’s express inclusion of federal agencies among those eligible to apply for patents that the statute’s references to “person[s]” in the subsections governing the patent-application process and questions of patentability (§§102(a), 118, and 119) must also include federal agencies.5 In other words, the right described in §207(a)(1) provides a sufficient contextual clue that the word “person”—when used in the other provisions governing the application process §207(a)(1) makes available to federal agencies—includes the Government.
+
+But §207(a)(1) provides no such clue as to the interpretation of the AIA review provisions because it implies nothing about what a federal agency may or may not do following the issuance of someone else’s patent. Conversely, reading the review provisions to exclude the Government has no bearing on a federal agency’s right to obtain a patent under §207(a)(1). An agency may still apply for and obtain patents whether or not it may petition for a review proceeding under the AIA seeking cancellation of a patent it does not own. There is thus no reason to think that “person” must mean the same thing in these two different parts of the statute. See Utility Air, 573 U. S., at 320.6
+
+The Postal Service cites other provisions that may refer to the Government—namely, the “intervening rights” provisions that offer certain protections for “any person” who is lawfully making or using an invention when the Patent Office modifies an existing patent claim in a way that deems the person’s (previously lawful) use to be infringement. See §§252, 307(b), 318(c), 328(c). The Postal Service argues that the Government must be among those protected by these provisions and from there deduces that it must also be permitted to petition for AIA review proceedings because the review provisions and the intervening-rights provisions were all added to the Patent Act by the AIA at the same time. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) (invoking the consistent-usage canon where the same term was used in related provisions enacted at the same time).
+
+But regardless of whether the intervening-rights provisions apply to the Government (a separate interpretive question that we have no occasion to answer here), the Postal Service’s chain of inferences overlooks a confounding link: The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways. As noted, that is the case here. In the face of such inconsistency, the mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that Congress did not intend to include the Government among those “person[s]” eligible to petition for AIA review proceedings.7
+
+The Postal Service next points to the Federal Government’s longstanding history with the patent system. It reminds us that federal officers have been able to apply for patents in the name of the United States since 1883, see Act of Mar. 3, 1883, 22 Stat. 625—which, in the Postal Service’s view, suggests that Congress intended to allow the Government access to AIA review proceedings as well. But, as already explained, the Government’s ability to obtain a patent under §207(a)(1) does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA review proceedings. As to those proceedings, there is no longstanding practice: The AIA was enacted just eight years ago.8
+
+More pertinently, the Postal Service and the dissent both note that the Patent Office since 1981 has treated federal agencies as “persons” who may cite prior art to the agency or request an ex parte reexamination of an issued patent. See post, at 5. Recall that §301(a) provides that “[a]ny person at any time may cite to the Office in writing . . . prior art . . . which that person believes to have a bearing on the patentability of any claim of a particular patent.” As memorialized in the Patent Office’s Manual of Patent Examining Procedure (MPEP), the agency has understood §301’s reference to “any person” to include “governmental entit[ies].” Dept. of Commerce, Patent and Trademark Office, MPEP §§2203, 2212 (4th rev. ed., July 1981).
+
+We might take account of this “executive interpretation” if we were determining whether Congress meant to include the Government as a “person” for purposes of the ex parte reexamination procedures themselves. See, e.g., United States v. Hermanos y Compañia, 209 U. S. 337, 339 (1908). Here, however, the Patent Office’s statement in the 1981 MPEP has no direct relevance. Even assuming that the Government may petition for ex parte reexamination, ex parte reexamination is a fundamentally different process than an AIA post-issuance review proceeding.9 Both share the common purpose of allowing non-patent owners to bring questions of patent validity to the Patent Office’s attention, but they do so in meaningfully different ways.
+
+In an ex parte reexamination, the third party sends information to the Patent Office that the party believes bears on the patent’s validity, and the Patent Office decides whether to reexamine the patent. If it decides to do so, the reexamination process is internal; the challenger is not permitted to participate in the Patent Office’s process. See 35 U. S. C. §§302, 303. By contrast, the AIA postissuance review proceedings are adversarial, adjudicatory proceedings between the “person” who petitioned for review and the patent owner: There is briefing, a hearing, discovery, and the presentation of evidence, and the losing party has appeal rights. See supra, at 4–5. Thus, there are good reasons Congress might have authorized the Government to initiate a hands-off ex parte reexamination but not to become a party to a full-blown adversarial proceeding before the Patent Office and any subsequent appeal. After all, the Government is already in a unique position among alleged infringers given that 28 U. S. C. §1498 limits patent owners to bench trials before the Court of Federal Claims and monetary damages, whereas 35 U. S. C. §271 permits patent owners to demand jury trials in the federal district courts and seek other types of relief.
+
+Thus, there is nothing to suggest that Congress had the 1981 MPEP statement in mind when it enacted the AIA. It is true that this Court has often said, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.” Bragdon v. Abbott, 524 U. S. 624, 645 (1998). But there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings. Accordingly, the MPEP does not justify putting aside the presumptive meaning of “person” here.
+
+Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. See §§282(b)(2)–(3). In the Postal Service’s view, it is anomalous to deny it a benefit afforded to other infringers—the ability to challenge a patent de novo before the Patent Office, rather than only as an infringement defense that must be proved by clear and convincing evidence. See ibid.; Microsoft Corp., 564 U. S., at 95 (holding that §282’s presumption of validity in litigation imposes a clear and convincing evidence standard on defendants seeking to prove invalidity).
+
+The Postal Service overstates the asymmetry. Agencies retain the ability under §282 to assert defenses to infringement. Once sued, an agency may, like any other accused infringer, argue that the patent is invalid, and the agency faces the same burden of proof as a defendant in any other infringement suit. The Postal Service lacks only the additional tool of petitioning for the initiation of an administrative proceeding before the Patent Office under the AIA, a process separate from defending an infringement suit.
+
+We see no oddity, however, in Congress’ affording nongovernmental actors an expedient route that the Government does not also enjoy for heading off potential infringement suits. Those other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents. Most notably, §1498 restricts a patent owner who sues the Government to her “reasonable and entire compensation” for the Government’s infringing use; she cannot seek an injunction, demand a jury trial, or ask for punitive damages, all of which are available in infringement suits against nongovernmental actors under §271(e)(4). Thus, although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Because federal agencies face lower risks, it is reasonable for Congress to have treated them differently.10
+
+Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office). We are therefore unpersuaded that the Government’s exclusion from the AIA review proceedings is sufficiently anomalous to overcome the presumption that the Government is not a “person” under the Act.11",analysis,The Postal Service’s Argument,strongly agree,The Postal Service’s Arguments,strongly agree,The Postal Service’s Arguments Against the Presumption,2
+G16,10,1,3,1,"The Postal Service first argues that the AIA’s reference to a “person” in the context of post-issuance review proceedings must include the Government because other references to persons in the patent statutes appear to do so. Indeed, it is often true that when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (2006). This principle, however, “readily yields to context,” especially when a statutory term is used throughout a statute and takes on “distinct characters” in distinct statutory provisions. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (internal quotation marks omitted). That is the case here. The Patent Act and the AIA refer to “person[s]” in at least 18 different places, and there is no clear trend: Sometimes “person” plainly includes the Government,3 sometimes it plainly excludes the Government,4 and sometimes—as here—it might be read either way.
+
+Looking on the bright side, the Postal Service and the dissent, see post, at 2, focus on §207(a)(1), which authorizes “[e]ach [f]ederal agency” to “apply for, obtain, and maintain patents or other forms of protection . . . on inventions in which the Federal Government owns a right, title, or interest.” It follows from §207(a)(1)’s express inclusion of federal agencies among those eligible to apply for patents that the statute’s references to “person[s]” in the subsections governing the patent-application process and questions of patentability (§§102(a), 118, and 119) must also include federal agencies.5 In other words, the right described in §207(a)(1) provides a sufficient contextual clue that the word “person”—when used in the other provisions governing the application process §207(a)(1) makes available to federal agencies—includes the Government.
+
+But §207(a)(1) provides no such clue as to the interpretation of the AIA review provisions because it implies nothing about what a federal agency may or may not do following the issuance of someone else’s patent. Conversely, reading the review provisions to exclude the Government has no bearing on a federal agency’s right to obtain a patent under §207(a)(1). An agency may still apply for and obtain patents whether or not it may petition for a review proceeding under the AIA seeking cancellation of a patent it does not own. There is thus no reason to think that “person” must mean the same thing in these two different parts of the statute. See Utility Air, 573 U. S., at 320.6
+
+The Postal Service cites other provisions that may refer to the Government—namely, the “intervening rights” provisions that offer certain protections for “any person” who is lawfully making or using an invention when the Patent Office modifies an existing patent claim in a way that deems the person’s (previously lawful) use to be infringement. See §§252, 307(b), 318(c), 328(c). The Postal Service argues that the Government must be among those protected by these provisions and from there deduces that it must also be permitted to petition for AIA review proceedings because the review provisions and the intervening-rights provisions were all added to the Patent Act by the AIA at the same time. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) (invoking the consistent-usage canon where the same term was used in related provisions enacted at the same time).
+
+But regardless of whether the intervening-rights provisions apply to the Government (a separate interpretive question that we have no occasion to answer here), the Postal Service’s chain of inferences overlooks a confounding link: The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways. As noted, that is the case here. In the face of such inconsistency, the mere existence of some Government-inclusive references cannot make the “affirmative showing,” Stevens, 529 U. S., at 781, required to overcome the presumption that Congress did not intend to include the Government among those “person[s]” eligible to petition for AIA review proceedings.7",analysis,References to a “Person”,agree,“Person”,disagree,Ambiguous References to a “Person” in the AIA,1
+G16,10,1,3,2,"The Postal Service next points to the Federal Government’s longstanding history with the patent system. It reminds us that federal officers have been able to apply for patents in the name of the United States since 1883, see Act of Mar. 3, 1883, 22 Stat. 625—which, in the Postal Service’s view, suggests that Congress intended to allow the Government access to AIA review proceedings as well. But, as already explained, the Government’s ability to obtain a patent under §207(a)(1) does not speak to whether Congress meant for the Government to participate as a third-party challenger in AIA review proceedings. As to those proceedings, there is no longstanding practice: The AIA was enacted just eight years ago.8
+
+More pertinently, the Postal Service and the dissent both note that the Patent Office since 1981 has treated federal agencies as “persons” who may cite prior art to the agency or request an ex parte reexamination of an issued patent. See post, at 5. Recall that §301(a) provides that “[a]ny person at any time may cite to the Office in writing . . . prior art . . . which that person believes to have a bearing on the patentability of any claim of a particular patent.” As memorialized in the Patent Office’s Manual of Patent Examining Procedure (MPEP), the agency has understood §301’s reference to “any person” to include “governmental entit[ies].” Dept. of Commerce, Patent and Trademark Office, MPEP §§2203, 2212 (4th rev. ed., July 1981).
+
+We might take account of this “executive interpretation” if we were determining whether Congress meant to include the Government as a “person” for purposes of the ex parte reexamination procedures themselves. See, e.g., United States v. Hermanos y Compañia, 209 U. S. 337, 339 (1908). Here, however, the Patent Office’s statement in the 1981 MPEP has no direct relevance. Even assuming that the Government may petition for ex parte reexamination, ex parte reexamination is a fundamentally different process than an AIA post-issuance review proceeding.9 Both share the common purpose of allowing non-patent owners to bring questions of patent validity to the Patent Office’s attention, but they do so in meaningfully different ways.
+
+In an ex parte reexamination, the third party sends information to the Patent Office that the party believes bears on the patent’s validity, and the Patent Office decides whether to reexamine the patent. If it decides to do so, the reexamination process is internal; the challenger is not permitted to participate in the Patent Office’s process. See 35 U. S. C. §§302, 303. By contrast, the AIA postissuance review proceedings are adversarial, adjudicatory proceedings between the “person” who petitioned for review and the patent owner: There is briefing, a hearing, discovery, and the presentation of evidence, and the losing party has appeal rights. See supra, at 4–5. Thus, there are good reasons Congress might have authorized the Government to initiate a hands-off ex parte reexamination but not to become a party to a full-blown adversarial proceeding before the Patent Office and any subsequent appeal. After all, the Government is already in a unique position among alleged infringers given that 28 U. S. C. §1498 limits patent owners to bench trials before the Court of Federal Claims and monetary damages, whereas 35 U. S. C. §271 permits patent owners to demand jury trials in the federal district courts and seek other types of relief.
+
+Thus, there is nothing to suggest that Congress had the 1981 MPEP statement in mind when it enacted the AIA. It is true that this Court has often said, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.” Bragdon v. Abbott, 524 U. S. 624, 645 (1998). But there is no “settled” meaning of the term “person” with respect to the newly established AIA review proceedings. Accordingly, the MPEP does not justify putting aside the presumptive meaning of “person” here.",analysis,The Federal Government’s History with the Patent System,strongly agree,The Government’s Longstanding History,strongly agree,The Federal Government’s History with the Patent System,2
+G16,10,1,3,3,"Finally, the Postal Service argues that it must be a “person” who may petition for AIA review proceedings because, like other potential infringers, it is subject to civil liability and can assert a defense of patent invalidity. See §§282(b)(2)–(3). In the Postal Service’s view, it is anomalous to deny it a benefit afforded to other infringers—the ability to challenge a patent de novo before the Patent Office, rather than only as an infringement defense that must be proved by clear and convincing evidence. See ibid.; Microsoft Corp., 564 U. S., at 95 (holding that §282’s presumption of validity in litigation imposes a clear and convincing evidence standard on defendants seeking to prove invalidity).
+
+The Postal Service overstates the asymmetry. Agencies retain the ability under §282 to assert defenses to infringement. Once sued, an agency may, like any other accused infringer, argue that the patent is invalid, and the agency faces the same burden of proof as a defendant in any other infringement suit. The Postal Service lacks only the additional tool of petitioning for the initiation of an administrative proceeding before the Patent Office under the AIA, a process separate from defending an infringement suit.
+
+We see no oddity, however, in Congress’ affording nongovernmental actors an expedient route that the Government does not also enjoy for heading off potential infringement suits. Those other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents. Most notably, §1498 restricts a patent owner who sues the Government to her “reasonable and entire compensation” for the Government’s infringing use; she cannot seek an injunction, demand a jury trial, or ask for punitive damages, all of which are available in infringement suits against nongovernmental actors under §271(e)(4). Thus, although federal agencies remain subject to damages for impermissible uses, they do not face the threat of preliminary injunctive relief that could suddenly halt their use of a patented invention, and they enjoy a degree of certainty about the extent of their potential liability that ordinary accused infringers do not. Because federal agencies face lower risks, it is reasonable for Congress to have treated them differently.10
+
+Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office). We are therefore unpersuaded that the Government’s exclusion from the AIA review proceedings is sufficiently anomalous to overcome the presumption that the Government is not a “person” under the Act.11",analysis,The Postal Service’s Ability to Petition,agree, The Postal Service,disagree,The Postal Service's Civil Liability and Ability to Sue,3
+G16,10,1,1,III,"For the foregoing reasons, we hold that a federal agency is not a “person” who may petition for post-issuance review under the AIA. The judgment of the United States Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered. ",conclusion,Petition for Post-ISSuance Review,disagree,Post-Issuance Review,disagree,"Deniance of ""Person""-status to the Postal Service and Remand",3
+G16,12,1,1,I,"The column on its face contains no clearly actionable statement. Although the questions ""What happened to all the money last year? and every other year?"" could be read to imply peculation, they could also be read, in context, merely to praise the present administration. The only persons mentioned by name are officials of the new regime; no reference is made to respondent, the three elected commissioners, or anyone else who had a part in the administration of the Area during respondent's tenure. Persons familiar with the controversy over the Area might well read it as complimenting the luck or skill of the new management in attracting increased patronage and producing a ""tremendous difference in net cash results"" despite less favorable snow; indeed, witnesses for petitioner testified that they so read the column.
+
+Respondent offered extrinsic proofs to supply a defamatory meaning. These proofs were that the column greatly exaggerated any improvement under the new regime, and that a large part of the community understood it to say that the asserted improvements were not explicable by anything the new management had done. Rather, his witnesses testified, they read the column as imputing mismanagement and peculation during respondent's tenure. Respondent urged two theories to support a recovery based on that imputation.
+",analysis,Pleculation,strongly disagree,The Column,agree,Petitioner's Column Lack Of Clear Defamatory Statement,1
+G16,12,1,1,II,"The first was that the jury could award him damages if it found that the column cast suspicion indiscriminately on the small number of persons who composed the former management group, whether or not it found that the imputation of misconduct was specifically made of and concerning him.[2] This theory of recovery was open to respondent under New Hampshire law; the trial judge explicitly instructed the jury that ""an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable.""[3] The question is presented, however, whether that theory of recovery is precluded by our holding in New York Times that, in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations. 376 U. S., at 290-292.
+
+The plaintiff in New York Times was one of the three elected Commissioners of the City of Montgomery, Alabama. His duties included the supervision of the police department. The statements in the advertisement upon which he principally relied as referring to him were that ""truckloads of police . . . ringed the Alabama State College Campus"" after a demonstration on the State Capitol steps, and that Dr. Martin Luther King had been ""arrested . . . seven times."" These statements were false in that although the police had been ""deployed near the campus,"" they had not actually ""ringed"" it and had not gone there in connection with a State Capitol demonstration, and in that Dr. King had been arrested only four times. We held that evidence that Sullivan as Police Commissioner was the supervisory head of the Police Department was constitutionally insufficient to show that the statements about police activity were ""of and concerning"" him; we rejected as inconsistent with the First and Fourteenth Amendments the proposition followed by the Alabama Supreme Court in the case that ""[i]n measuring the performance or deficiencies of . . . groups, praise or criticism is usually attached to the official in complete control of the body,"" 273 Ala. 656, 674-675, 144 So. 2d 25, 39. To allow the jury to connect the statements with Sullivan on that presumption alone was, in our view, to invite the spectre of prosecutions for libel on government, which the Constitution does not tolerate in any form. 376 U. S., at 273-276, 290-292.[4] We held ""that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations."" 376 U. S., at 292. There must be evidence showing that the attack was read as specifically directed at the plaintiff.
+
+Were the statement at issue in this case an explicit charge that the Commissioners and Baer or the entire Area management were corrupt, we assume without deciding that any member of the identified group might recover.[5] The statement itself might be sufficient evidence that the attack was specifically directed at each individual. Even if a charge and reference were merely implicit, as is alleged here, but a plaintiff could show by extrinsic proofs that the statement referred to him, it would be no defense to a suit by one member of an identifiable group engaged in governmental activity that another was also attacked. These situations are distinguishable from the present case; here, the jury was permitted to infer both defamatory content and reference from the challenged statement itself, although the statement on its face is only an impersonal discussion of government activity. To the extent the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous.[6] Here, no explicit charge of peculation was made; no assault on the previous management appears. The jury was permitted to award damages upon a finding merely that respondent was one of a small group acting for an organ of government, only some of whom were implicated, but all of whom were tinged with suspicion. In effect, this permitted the jury to find liability merely on the basis of his relationship to the government agency, the operations of which were the subject of discussion. It is plain that the elected Commissioners, also members of that group, would have been barred from suit on this theory under New York Times. They would be required to show specific reference. Whether or not respondent was a public official, as a member of the group he bears the same burden.[7] A theory that the column cast indiscriminate suspicion on the members of the group responsible for the conduct of this governmental operation is tantamount to a demand for recovery based on libel of government, and therefore is constitutionally insufficient. Since the trial judge's instructions were erroneous in this respect, the judgment must be reversed.
+",analysis,The New Hampshire Theory of Recovery,agree,The Theory of Recovery,disagree,Jury Instruction Of New Hampshire Theory of Recovery and New York Times Ruling,2
+G16,12,1,1,III,"Respondent's second theory, supported by testimony of several witnesses, was that the column was read as referring specifically to him, as the ""man in charge"" at the Area, personally responsible for its financial affairs. Even accepting respondent's reading, the column manifestly discusses the conduct of operations of government.[8] The subject matter may have been only of local interest, but at least here, where publication was addressed primarily to the interested community, that fact is constitutionally irrelevant. The question is squarely presented whether the ""public official"" designation under New York Times applies.
+
+If it does, it is clear that the jury instructions were improper. Under the instructions, the jury was permitted to find that negligent misstatement of fact would defeat petitioner's privilege. That test was rejected in Garrison, 379 U. S., at 79, where we said, ""The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth."" The trial court also charged that ""[d]efamatory matter which constitutes comment rather than fact is justified if made without malice and represented fair comment on matters of public interest,"" and defined malice to include ""ill will, evil motive, intention to injure . . . ."" This definition of malice is constitutionally insufficient where discussion of public affairs is concerned; ""[w]e held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true."" Garrison, 379 U. S., at 74.
+
+Turning, then, to the question whether respondent was a ""public official"" within New York Times, we reject at the outset his suggestion that it should be answered by reference to state-law standards. States have developed definitions of ""public official"" for local administrative purposes, not the purposes of a national constitutional protection.[9] If existing state-law standards reflect the purposes of New York Times, this is at best accidental. Our decision in New York Times, moreover, draws its force from the constitutional protections afforded free expression. The standards that set the scope of its principles cannot therefore be such that ""the constitutional limits of free expression in the Nation would vary with state lines."" Pennekamp v. Florida, 328 U. S. 331, 335.[10]
+
+We remarked in New York Times that we had no occasion ""to determine how far down into the lower ranks of government employees the `public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included."" 376 U. S., at 283, n. 23. No precise lines need be drawn for the purposes of this case. The motivating force for the decision in New York Times was twofold. We expressed ""a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."" 376 U. S., at 270. (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the ""public official"" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.[11]
+
+This conclusion does not ignore the important social values which underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation. But in cases like the present, there is tension between this interest and the values nurtured by the First and Fourteenth Amendments. The thrust of New York Times is that when interests in public discussion are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present[12] and the New York Times malice standards apply.[13]
+
+As respondent framed his case, he may have held such a position. Since New York Times had not been decided when his case went to trial, his presentation was not shaped to the ""public official"" issue. He did, however, seek to show that the article referred particularly to him. His theory was that his role in the management of the Area was so prominent and important that the public regarded him as the man responsible for its operations, chargeable with its failures and to be credited with its successes. Thus, to prove the article referred to him, he showed the importance of his role; the same showing, at the least, raises a substantial argument that he was a ""public official.""[14]
+
+The record here, however, leaves open the possibility that respondent could have adduced proofs to bring his claim outside the New York Times rule. Moreover, even if the claim falls within New York Times, the record suggests respondent may be able to present a jury question of malice as there defined. Because the trial here was had before New York Times, we have concluded that we should not foreclose him from attempting retrial of his action. We remark only that, as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a ""public official.""[15]
+
+The judgment is reversed and the case remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.
+
+It is so ordered.",analysis, Public Official,agree,The Column's Reference to Respondent,disagree,"The Definition of ""Public Official"" Since New York Times",3
+G16,13,1,1,I,"The complex statutory scheme at issue in these cases establishes processes both for obtaining FDA approval of biosimilars and for resolving patent disputes between manufacturers of licensed biologics and manufacturers of biosimilars. Before turning to the questions presented, we first explain the statutory background.
+
+
+
+A biologic is a type of drug derived from natural, biological sources such as animals or microorganisms. Biologics thus differ from traditional drugs, which are typically synthesized from chemicals.1 A manufacturer of a biologic may market the drug only if the FDA has licensed it pursuant to either of two review processes set forth in §262. The default pathway for approval, used for new biologics, is set forth in §262(a). Under that subsection, the FDA may license a new biologic if, among other things, the manufacturer demonstrates that it is “safe, pure, and potent.” §262(a)(2)(C)(i)(I). In addition to this default route, the statute also prescribes an alternative, abbreviated route for FDA approval of biosimilars, which is set forth in §262(k).
+
+To obtain approval through the BPCIA’s abbreviated process, the manufacturer of a biosimilar (applicant) does not need to show that the product is “safe, pure, and potent.” Instead, the applicant may piggyback on the showing made by the manufacturer (sponsor) of a previously licensed biologic (reference product). See §262(k)(2)(A)(iii). An applicant must show that its product is “highly similar” to the reference product and that there are no “clinically meaningful differences” between the two in terms of “safety, purity, and potency.” §§262(i)(2)(A), (B); see also §262(k)(2)(A)(i)(I). An applicant may not submit an application until 4 years after the reference product is first licensed, and the FDA may not license a biosimilar until 12 years after the reference product is first licensed. §§262(k)(7)(A), (B). As a result, the manufacturer of a new biologic enjoys a 12-year period when its biologic may be marketed without competition from biosimilars.
+
+A sponsor may hold multiple patents covering the biologic, its therapeutic uses, and the processes used to manufacture it. Those patents may constrain an applicant’s ability to market its biosimilar even after the expiration of the 12-year exclusivity period contained in §262(k)(7)(A).
+
+The BPCIA facilitates litigation during the period preceding FDA approval so that the parties do not have to wait until commercial marketing to resolve their patent disputes. It enables the parties to bring infringement actions at certain points in the application process, even if the applicant has not yet committed an act that would traditionally constitute patent infringement. See 35 U.S. C. §271(a) (traditionally infringing acts include making, using, offering to sell, or selling any patented invention within the United States without authority to do so). Specifically, it provides that the mere submission of a biosimilar application constitutes an act of infringement. §§271(e)(2)(C)(i), (ii). We will refer to this kind of preapproval infringement as “artificial” infringement. Section 271(e)(4) provides remedies for artificial infringement, including injunctive relief and damages.
+
+The BPCIA sets forth a carefully calibrated scheme for preparing to adjudicate, and then adjudicating, claims of infringement. See 42 U.S. C. §262(l). When the FDA accepts an application for review, it notifies the applicant, who within 20 days “shall provide” to the sponsor a copy of the application and information about how the biosimilar is manufactured. §262(l)(2)(A). The applicant also “may provide” the sponsor with any additional information that it requests. §262(l)(2)(B). These disclosures enable the sponsor to evaluate the biosimilar for possible infringement of patents it holds on the reference product (i.e., the corresponding biologic). §262(l)(1)(D). The information the applicant provides is subject to strict confidentiality rules, enforceable by injunction. See §262(l)(1)(H). The first question presented by these cases is whether §262(l)(2)(A)’s requirement—that the applicant provide its application and manufacturing information to the sponsor—is itself enforceable by injunction.
+
+After the applicant makes the requisite disclosures, the parties exchange information to identify relevant patents and to flesh out the legal arguments that they might raise in future litigation. Within 60 days of receiving the application and manufacturing information, the sponsor “shall provide” to the applicant “a list of patents” for which it believes it could assert an infringement claim if a person without a license made, used, offered to sell, sold, or imported “the biological product that is the subject of the [biosimilar] application.” §262(l)(3)(A)(i). The sponsor must also identify any patents on the list that it would be willing to license. §262(l)(3)(A)(ii).
+
+Next, within 60 days of receiving the sponsor’s list, the applicant may provide to the sponsor a list of patents that the applicant believes are relevant but that the sponsor omitted from its own list, §262(l)(3)(B)(i), and “shall provide” to the sponsor reasons why it could not be held liable for infringing the relevant patents, §262(l)(3)(B)(ii). The applicant may argue that the relevant patents are invalid, unenforceable, or not infringed, or the applicant may agree not to market the biosimilar until a particular patent has expired. Ibid. The applicant must also respond to the sponsor’s offers to license particular patents. §262(l)(3)(B)(iii). Then, within 60 days of receiving the applicant’s responses, the sponsor “shall provide” to the applicant its own arguments concerning infringement, enforceability, and validity as to each relevant patent. §262(l)(3)(C).
+
+Following this exchange, the BPCIA channels the parties into two phases of patent litigation. In the first phase, the parties collaborate to identify patents that they would like to litigate immediately. The second phase is triggered by the applicant’s notice of commercial marketing and involves any patents that were included on the parties’ §262(l)(3) lists but not litigated in the first phase.
+
+At the outset of the first phase, the applicant and the sponsor must negotiate to determine which patents included on the §262(l)(3) lists will be litigated immediately. See §§262(l)(4)(A), (l)(6). If they cannot agree, then they must engage in another list exchange. §262(l)(4)(B). The applicant “shall notify” the sponsor of the number of patents it intends to list for litigation, §262(l)(5)(A), and, within five days, the parties “shall simultaneously exchange” lists of the patents they would like to litigate immediately. §262(l)(5)(B)(i). This process gives the applicant substantial control over the scope of the first phase of litigation: The number of patents on the sponsor’s list is limited to the number contained in the applicant’s list, though the sponsor always has the right to list at least one patent. §262(l)(5)(B)(ii).
+
+The parties then proceed to litigate infringement with respect to the patents they agreed to litigate or, if they failed to agree, the patents contained on the lists they simultaneously exchanged under §262(l)(5). §§262(l)(6)(A), (B). Section 271(e)(2)(C)(i) facilitates this first phase of litigation by making it an act of artificial infringement, with respect to any patent included on the parties’ §262(l)(3) lists, to submit an application for a license from the FDA. The sponsor “shall bring an action” in court within 30 days of the date of agreement or the simultaneous list exchange. §§262(l)(6)(A), (B). If the sponsor brings a timely action and prevails, it may obtain a remedy provided by §271(e)(4).
+
+The second phase of litigation involves patents that were included on the original §262(l)(3) lists but not litigated in the first phase (and any patents that the sponsor acquired after the §262(l)(3) exchange occurred and added to the lists, see §262(l)(7)). The second phase is commenced by the applicant’s notice of commercial marketing, which the applicant “shall provide” to the sponsor “not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” §262(l)(8)(A). The BPCIA bars any declaratory judgment action prior to this notice. §262(l)(9)(A) (prohibiting, in situations where the parties have complied with each step of the BPCIA process, either the sponsor or the applicant from seeking a “declaration of infringement, validity, or enforceability of any patent” that was included on the §262(l)(3) lists but not litigated in the first phase “prior to the date notice is received under paragraph (8)(A)”). Because the applicant (subject to certain constraints) chooses when to begin commercial marketing and when to give notice, it wields substantial control over the timing of the second phase of litigation. The second question presented is whether notice is effective if an applicant provides it prior to the FDA’s decision to license the biosimilar.
+
+In this second phase of litigation, either party may sue for declaratory relief. See §262(l)(9)(A). In addition, prior to the date of first commercial marketing, the sponsor may “seek a preliminary injunction prohibiting the [biosimilar] applicant from engaging in the commercial manufacture or sale of [the biosimilar] until the court decides the issue of patent validity, enforcement, and infringement with respect to any patent that” was included on the §262(l)(3) lists but not litigated in the first phase. §262(l)(8)(B).
+
+If the parties comply with each step outlined in the BPCIA, they will have the opportunity to litigate the relevant patents before the biosimilar is marketed. To encourage parties to comply with its procedural requirements, the BPCIA includes various consequences for failing to do so. Two of the BPCIA’s remedial provisions are at issue here. Under §262(l)(9)(C), if an applicant fails to provide its application and manufacturing information to the sponsor—thus effectively pretermitting the entire two-phase litigation process—then the sponsor, but not the applicant, may immediately bring an action “for a declaration of infringement, validity, or enforceability of any patent that claims the biological product or a use of the biological product.” Section 271(e)(2)(C)(ii) facilitates this action by making it an artificial act of infringement, with respect to any patent that could have been included on the §262(l)(3) lists, to submit a biosimilar application. Similarly, when an applicant provides the application and manufacturing information but fails to complete a subsequent step, §262(l)(9)(B) provides that the sponsor, but not the applicant, may bring a declaratory-judgment action with respect to any patent included on the sponsor’s §262(l)(3)(A) list of patents (as well as those it acquired later and added to the list). As noted, it is an act of artificial infringement, with respect to any patent on the §262(l)(3) lists, to submit an application to the FDA. See §271(e)(2)(C)(i).",analysis,Biosimilars,strongly disagree,The BPCIA’s Statutory Scheme,strongly agree,The BPCIA’s Statutory Scheme,1
+G16,13,1,2,A,"A biologic is a type of drug derived from natural, biological sources such as animals or microorganisms. Biologics thus differ from traditional drugs, which are typically synthesized from chemicals.1 A manufacturer of a biologic may market the drug only if the FDA has licensed it pursuant to either of two review processes set forth in §262. The default pathway for approval, used for new biologics, is set forth in §262(a). Under that subsection, the FDA may license a new biologic if, among other things, the manufacturer demonstrates that it is “safe, pure, and potent.” §262(a)(2)(C)(i)(I). In addition to this default route, the statute also prescribes an alternative, abbreviated route for FDA approval of biosimilars, which is set forth in §262(k).
+
+To obtain approval through the BPCIA’s abbreviated process, the manufacturer of a biosimilar (applicant) does not need to show that the product is “safe, pure, and potent.” Instead, the applicant may piggyback on the showing made by the manufacturer (sponsor) of a previously licensed biologic (reference product). See §262(k)(2)(A)(iii). An applicant must show that its product is “highly similar” to the reference product and that there are no “clinically meaningful differences” between the two in terms of “safety, purity, and potency.” §§262(i)(2)(A), (B); see also §262(k)(2)(A)(i)(I). An applicant may not submit an application until 4 years after the reference product is first licensed, and the FDA may not license a biosimilar until 12 years after the reference product is first licensed. ��§262(k)(7)(A), (B). As a result, the manufacturer of a new biologic enjoys a 12-year period when its biologic may be marketed without competition from biosimilars.",analysis,Biosimilars,strongly disagree,The BPCIA’s Abbreviated Process,strongly agree,The BPCIA's Abbreviated Approval Process of Biologics,1
+G16,13,1,2,B,"A sponsor may hold multiple patents covering the biologic, its therapeutic uses, and the processes used to manufacture it. Those patents may constrain an applicant’s ability to market its biosimilar even after the expiration of the 12-year exclusivity period contained in §262(k)(7)(A).
+
+The BPCIA facilitates litigation during the period preceding FDA approval so that the parties do not have to wait until commercial marketing to resolve their patent disputes. It enables the parties to bring infringement actions at certain points in the application process, even if the applicant has not yet committed an act that would traditionally constitute patent infringement. See 35 U.S. C. §271(a) (traditionally infringing acts include making, using, offering to sell, or selling any patented invention within the United States without authority to do so). Specifically, it provides that the mere submission of a biosimilar application constitutes an act of infringement. §§271(e)(2)(C)(i), (ii). We will refer to this kind of preapproval infringement as “artificial” infringement. Section 271(e)(4) provides remedies for artificial infringement, including injunctive relief and damages.",analysis,Preapproval Infringement,strongly agree,The BPCI,strongly disagree,The BPCIA's Preapproval Infringement Provisions,2
+G16,13,1,2,C,"The BPCIA sets forth a carefully calibrated scheme for preparing to adjudicate, and then adjudicating, claims of infringement. See 42 U.S. C. §262(l). When the FDA accepts an application for review, it notifies the applicant, who within 20 days “shall provide” to the sponsor a copy of the application and information about how the biosimilar is manufactured. §262(l)(2)(A). The applicant also “may provide” the sponsor with any additional information that it requests. §262(l)(2)(B). These disclosures enable the sponsor to evaluate the biosimilar for possible infringement of patents it holds on the reference product (i.e., the corresponding biologic). §262(l)(1)(D). The information the applicant provides is subject to strict confidentiality rules, enforceable by injunction. See §262(l)(1)(H). The first question presented by these cases is whether §262(l)(2)(A)’s requirement—that the applicant provide its application and manufacturing information to the sponsor—is itself enforceable by injunction.
+
+After the applicant makes the requisite disclosures, the parties exchange information to identify relevant patents and to flesh out the legal arguments that they might raise in future litigation. Within 60 days of receiving the application and manufacturing information, the sponsor “shall provide” to the applicant “a list of patents” for which it believes it could assert an infringement claim if a person without a license made, used, offered to sell, sold, or imported “the biological product that is the subject of the [biosimilar] application.” §262(l)(3)(A)(i). The sponsor must also identify any patents on the list that it would be willing to license. §262(l)(3)(A)(ii).
+
+Next, within 60 days of receiving the sponsor’s list, the applicant may provide to the sponsor a list of patents that the applicant believes are relevant but that the sponsor omitted from its own list, §262(l)(3)(B)(i), and “shall provide” to the sponsor reasons why it could not be held liable for infringing the relevant patents, §262(l)(3)(B)(ii). The applicant may argue that the relevant patents are invalid, unenforceable, or not infringed, or the applicant may agree not to market the biosimilar until a particular patent has expired. Ibid. The applicant must also respond to the sponsor’s offers to license particular patents. §262(l)(3)(B)(iii). Then, within 60 days of receiving the applicant’s responses, the sponsor “shall provide” to the applicant its own arguments concerning infringement, enforceability, and validity as to each relevant patent. §262(l)(3)(C).
+
+Following this exchange, the BPCIA channels the parties into two phases of patent litigation. In the first phase, the parties collaborate to identify patents that they would like to litigate immediately. The second phase is triggered by the applicant’s notice of commercial marketing and involves any patents that were included on the parties’ §262(l)(3) lists but not litigated in the first phase.
+
+At the outset of the first phase, the applicant and the sponsor must negotiate to determine which patents included on the §262(l)(3) lists will be litigated immediately. See §§262(l)(4)(A), (l)(6). If they cannot agree, then they must engage in another list exchange. §262(l)(4)(B). The applicant “shall notify” the sponsor of the number of patents it intends to list for litigation, §262(l)(5)(A), and, within five days, the parties “shall simultaneously exchange” lists of the patents they would like to litigate immediately. §262(l)(5)(B)(i). This process gives the applicant substantial control over the scope of the first phase of litigation: The number of patents on the sponsor’s list is limited to the number contained in the applicant’s list, though the sponsor always has the right to list at least one patent. §262(l)(5)(B)(ii).
+
+The parties then proceed to litigate infringement with respect to the patents they agreed to litigate or, if they failed to agree, the patents contained on the lists they simultaneously exchanged under §262(l)(5). §§262(l)(6)(A), (B). Section 271(e)(2)(C)(i) facilitates this first phase of litigation by making it an act of artificial infringement, with respect to any patent included on the parties’ §262(l)(3) lists, to submit an application for a license from the FDA. The sponsor “shall bring an action” in court within 30 days of the date of agreement or the simultaneous list exchange. §§262(l)(6)(A), (B). If the sponsor brings a timely action and prevails, it may obtain a remedy provided by §271(e)(4).
+
+The second phase of litigation involves patents that were included on the original §262(l)(3) lists but not litigated in the first phase (and any patents that the sponsor acquired after the §262(l)(3) exchange occurred and added to the lists, see §262(l)(7)). The second phase is commenced by the applicant’s notice of commercial marketing, which the applicant “shall provide” to the sponsor “not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” §262(l)(8)(A). The BPCIA bars any declaratory judgment action prior to this notice. §262(l)(9)(A) (prohibiting, in situations where the parties have complied with each step of the BPCIA process, either the sponsor or the applicant from seeking a “declaration of infringement, validity, or enforceability of any patent” that was included on the §262(l)(3) lists but not litigated in the first phase “prior to the date notice is received under paragraph (8)(A)”). Because the applicant (subject to certain constraints) chooses when to begin commercial marketing and when to give notice, it wields substantial control over the timing of the second phase of litigation. The second question presented is whether notice is effective if an applicant provides it prior to the FDA’s decision to license the biosimilar.
+
+In this second phase of litigation, either party may sue for declaratory relief. See §262(l)(9)(A). In addition, prior to the date of first commercial marketing, the sponsor may “seek a preliminary injunction prohibiting the [biosimilar] applicant from engaging in the commercial manufacture or sale of [the biosimilar] until the court decides the issue of patent validity, enforcement, and infringement with respect to any patent that” was included on the §262(l)(3) lists but not litigated in the first phase. §262(l)(8)(B).",analysis,The BPCIA’s Disclosure Scheme,agree,The BPCIA’s Injunction Requirement,agree,The BPCIA's Litigation Process Scheme,3
+G16,13,1,2,D,"If the parties comply with each step outlined in the BPCIA, they will have the opportunity to litigate the relevant patents before the biosimilar is marketed. To encourage parties to comply with its procedural requirements, the BPCIA includes various consequences for failing to do so. Two of the BPCIA’s remedial provisions are at issue here. Under §262(l)(9)(C), if an applicant fails to provide its application and manufacturing information to the sponsor—thus effectively pretermitting the entire two-phase litigation process—then the sponsor, but not the applicant, may immediately bring an action “for a declaration of infringement, validity, or enforceability of any patent that claims the biological product or a use of the biological product.” Section 271(e)(2)(C)(ii) facilitates this action by making it an artificial act of infringement, with respect to any patent that could have been included on the §262(l)(3) lists, to submit a biosimilar application. Similarly, when an applicant provides the application and manufacturing information but fails to complete a subsequent step, §262(l)(9)(B) provides that the sponsor, but not the applicant, may bring a declaratory-judgment action with respect to any patent included on the sponsor’s §262(l)(3)(A) list of patents (as well as those it acquired later and added to the list). As noted, it is an act of artificial infringement, with respect to any patent on the §262(l)(3) lists, to submit an application to the FDA. See §271(e)(2)(C)(i).",analysis,BPCIA Remedial Provisions,strongly agree,The BPCIA’s Remedial Provisions,strongly agree,The BPCIA’s Remedial Provisions,4
+G16,13,1,1,II,"These cases concern filgrastim, a biologic used to stimulate the production of white blood cells. Amgen, the respondent in No. 15–1039 and the petitioner in No. 15– 1195, has marketed a filgrastim product called Neupogen since 1991 and claims to hold patents on methods of manufacturing and using filgrastim. In May 2014, Sandoz, the petitioner in No. 15–1039 and the respondent in No. 15– 1195, filed an application with the FDA seeking approval to market a filgrastim biosimilar under the brand name Zarxio, with Neupogen as the reference product. The FDA informed Sandoz on July 7, 2014, that it had accepted the application for review. One day later, Sandoz notified Amgen both that it had submitted an application and that it intended to begin marketing Zarxio immediately upon receiving FDA approval, which it expected in the first half of 2015. Sandoz later confirmed that it did not intend to provide the requisite application and manufacturing information under §262(l)(2)(A) and informed Amgen that Amgen could sue for infringement immediately under §262(l)(9)(C).
+
+In October 2014, Amgen sued Sandoz for patent infringement. Amgen also asserted two claims under California’s unfair competition law, which prohibits “any unlawful . . . business act or practice.” Cal. Bus. & Prof. Code Ann. §17200 (West 2008). A “business act or practice” is “unlawful” under the unfair competition law if it violates a rule contained in some other state or federal statute. Rose v. Bank of America, N. A., 57 Cal. 4th 390, 396, 304 P.3d 181, 185 (2013). Amgen alleged that Sandoz engaged in “unlawful” conduct when it failed to provide its application and manufacturing information under §262(l)(2)(A), and when it provided notice of commercial marketing under §262(l)(8)(A) before, rather than after, the FDA licensed its biosimilar. Amgen sought injunctions to enforce both requirements. Sandoz counterclaimed for declaratory judgments that the asserted patent was invalid and not infringed and that it had not violated the BPCIA.
+
+While the case was pending in the District Court, the FDA licensed Zarxio, and Sandoz provided Amgen a further notice of commercial marketing. The District Court subsequently granted partial judgment on the pleadings to Sandoz on its BPCIA counterclaims and dismissed Amgen’s unfair competition claims with prejudice. 2015 WL 1264756, *7–*9 (ND Cal., Mar. 19, 2015). After the District Court entered final judgment as to these claims, Amgen appealed to the Federal Circuit, which granted an injunction pending appeal against the commercial marketing of Zarxio.
+
+A divided Federal Circuit affirmed in part, vacated in part, and remanded. First, the court affirmed the dismissal of Amgen’s state-law claim based on Sandoz’s alleged violation of §262(l)(2)(A). It held that Sandoz did not violate the BPCIA in failing to disclose its application and manufacturing information. It further held that the remedies contained in the BPCIA are the exclusive remedies for an applicant’s failure to comply with §262(l)(2)(A). 794 F.3d 1347, 1357, 1360 (2015).
+
+Second, the court held that an applicant may provide effective notice of commercial marketing only after the FDA has licensed the biosimilar. Id., at 1358. Accordingly, the 180-day clock began after Sandoz’s second, postlicensure notice. The Federal Circuit further concluded that the notice requirement is mandatory and extended its injunction pending appeal to bar Sandoz from marketing Zarxio until 180 days after the date it provided its second notice. Id., at 1360–1361.
+
+We granted Sandoz’s petition for certiorari, No. 15– 1039, and Amgen’s conditional cross-petition for certiorari, No. 15–1195, and consolidated the cases. 580 U. S. ___ (2017).",facts,Sandoz v. Amgen,agree,The Patent Infringement Claims,disagree,Sandoz and Amgen Patent Suit,2
+G16,13,1,1,III,"The first question we must answer is whether §262(l)(2)(A)’s requirement that an applicant provide the sponsor with its application and manufacturing information is enforceable by an injunction under either federal or state law.
+
+We agree with the Federal Circuit that an injunction under federal law is not available to enforce §262(l)(2)(A), though for slightly different reasons than those provided by the court below. The Federal Circuit held that “42 U.S. C. §262(l)(9)(C) and 35 U.S. C. §271(e) expressly provide the only remedies” for a violation of §262(l)(2)(A), 794 F.3d, at 1357, and neither of those provisions authorizes a court to compel compliance with §262(l)(2)(A). In concluding that the remedies specified in the BPCIA are exclusive, the Federal Circuit relied primarily on §271(e)(4), which states that it provides “ ‘the only remedies which may be granted by a court for an act of [artificial] infringement.’ ” Id., at 1356 (emphasis deleted).
+
+The flaw in the Federal Circuit’s reasoning is that Sandoz’s failure to disclose its application and manufacturing information was not an act of artificial infringement, and thus was not remediable under §271(e)(4). Submitting an application constitutes an act of artificial infringement. See §§271(e)(2)(C)(i), (ii) (“It shall be an act of infringement to submit . . . an application seeking approval of a biological product”). Failing to disclose the application and manufacturing information under §262(l)(2)(A) does not.
+
+In reaching the opposite conclusion, the Federal Circuit relied on §271(e)(2)(C)(ii), which states that “[i]t shall be an act of infringement to submit[,] if the applicant for the application fails to provide the application and information required under [§262(l)(2)(A)], an application seeking approval of a biological product for a patent that could be identified pursuant to [§262(l)(3)(A)(i)].” (Emphasis added.) The court appeared to conclude, based on the italicized language, that an applicant’s noncompliance with §262(l)(2)(A) is an element of the act of artificial infringement (along with the submission of the application). 794 F.3d, at 1356. We disagree. The italicized language merely assists in identifying which patents will be the subject of the artificial infringement suit. It does not define the act of artificial infringement itself.
+
+This conclusion follows from the structure of §271(e)(2)(C). Clause (i) of §271(e)(2)(C) defines artificial infringement in the situation where the parties proceed through the list exchange process and the patents subject to suit are those contained in the §262(l)(3) lists, as supplemented under §262(l)(7). That clause provides that it is an act of artificial infringement to submit, “with respect to a patent that is identified in the list of patents described in [§262(l)(3)] (including as provided under [§262(l)(7)]), an application seeking approval of a biological product.” (Emphasis added.) Clause (ii) of §271(e)(2)(C), in contrast, defines artificial infringement in the situation where an applicant fails to disclose its application and manufacturing information altogether and the parties never prepare the §262(l)(3) lists. That clause provides that the submission of the application represents an act of artificial infringement with respect to any patent that could have been included on the lists.
+
+In this way, the two clauses of §271(e)(2)(C) work in tandem. They both treat submission of the application as the act of artificial infringement for which §271(e)(4) provides the remedies. And they both identify the patents subject to suit, although by different means depending on whether the applicant disclosed its application and manufacturing information under §262(l)(2)(A). If the applicant made the disclosures, clause (i) applies; if it did not, clause (ii) applies. In neither instance is the applicant’s failure to provide its application and manufacturing information an element of the act of artificial infringement, and in neither instance does §271(e)(4) provide a remedy for that failure. See Brief for Amgen Inc. et al. 66–67 (conceding both points).
+
+A separate provision of §262, however, does provide a remedy for an applicant’s failure to turn over its application and manufacturing information. When an applicant fails to comply with §262(l)(2)(A), §262(l)(9)(C) authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action for artificial infringement as defined in §271(e)(2)(C)(ii). Section 262(l)(9)(C) thus vests in the sponsor the control that the applicant would otherwise have exercised over the scope and timing of the patent litigation. It also deprives the applicant of the certainty that it could have obtained by bringing a declaratory-judgment action prior to marketing its product.
+
+The remedy provided by §262(l)(9)(C) excludes all other federal remedies, including injunctive relief. Where, as here, “a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.” Karahalios v. Federal Employees, 489 U.S. 527, 533 (1989). The BPCIA’s “carefully crafted and detailed enforcement scheme provides strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 (2002) (internal quotation marks omitted). The presence of §262(l)(9)(C), coupled with the absence of any other textually specified remedies, indicates that Congress did not intend sponsors to have access to injunctive relief, at least as a matter of federal law, to enforce the disclosure requirement.
+
+Statutory context further confirms that Congress did not authorize courts to enforce §262(l)(2)(A) by injunction. Section 262(l)(1)(H) provides that “the court shall consider immediate injunctive relief to be an appropriate and necessary remedy for any violation or threatened violation” of the rules governing the confidentiality of information disclosed under §262(l). We assume that Congress acted intentionally when it provided an injunctive remedy for breach of the confidentiality requirements but not for breach of §262(l)(2)(A)’s disclosure requirement. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979) (“[W]hen Congress wished to provide a private damage remedy, it knew how to do so and did so expressly”).2 Accordingly, the Federal Circuit properly declined to grant an injunction under federal law.
+
+B
+
+The Federal Circuit rejected Amgen’s request for an injunction under state law for two reasons. First, it interpreted California’s unfair competition law not to provide a remedy when the underlying statute specifies an “expressly . . . exclusive” remedy. 794 F.3d, at 1360 (citing Cal. Bus. & Prof. Code Ann. §17205; Loeffler v. Target Corp., 58 Cal. 4th 1081, 1125–1126, 324 P.3d 50, 76 (2014)). It further held that §271(e)(4), by its text, “provides ‘the only remedies’ ” for an applicant’s failure to disclose its application and manufacturing information. 794 F.3d, at 1360 (quoting §271(e)(4)). The court thus concluded that no state remedy was available for Sandoz’s alleged violation of §262(l)(2)(A) under the terms of California’s unfair competition law.
+
+This state-law holding rests on an incorrect interpretation of federal law. As we have explained, failure to comply with §262(l)(2)(A) is not an act of artificial infringement. Because §271(e)(4) provides remedies only for artificial infringement, it provides no remedy at all, much less an “expressly . . . exclusive” one, for Sandoz’s failure to comply with §262(l)(2)(A).
+
+Second, the Federal Circuit held in the alternative that Sandoz’s failure to disclose its application and manufacturing information was not “unlawful” under California’s unfair competition law. In the court’s view, when an applicant declines to provide its application and manufacturing information to the sponsor, it takes a path “expressly contemplated by” §262(l)(9)(C) and §271(e)(2)(C)(ii) and thus does not violate the BPCIA. 794 F.3d, at 1357, 1360. In their briefs before this Court, the parties frame this issue as whether the §262(l)(2)(A) requirement is mandatory in all circumstances, see Brief for Amgen Inc. et al. 58, or merely a condition precedent to the information exchange process, see Reply Brief for Sandoz Inc. 33. If it is only a condition precedent, then an applicant effectively has the option to withhold its application and manufacturing information and does not commit an “unlawful” act in doing so.
+
+We decline to resolve this particular dispute definitively because it does not present a question of federal law. The BPCIA, standing alone, does not require a court to decide whether §262(l)(2)(A) is mandatory or conditional; the court need only determine whether the applicant supplied the sponsor with the information required under §262(l)(2)(A). If the applicant failed to provide that information, then the sponsor, but not the applicant, could bring an immediate declaratory-judgment action pursuant to §262(l)(9)(C). The parties in these cases agree—as did the Federal Circuit—that Sandoz failed to comply with §262(l)(2)(A), thus subjecting itself to that consequence. There is no dispute about how the federal scheme actually works, and thus nothing for us to decide as a matter of federal law. The mandatory or conditional nature of the BPCIA’s requirements matters only for purposes of California’s unfair competition law, which penalizes “unlawful” conduct. Whether Sandoz’s conduct was “unlawful” under the unfair competition law is a state-law question, and the court below erred in attempting to answer that question by referring to the BPCIA alone.
+
+On remand, the Federal Circuit should determine whether California law would treat noncompliance with §262(l)(2)(A) as “unlawful.” If the answer is yes, then the court should proceed to determine whether the BPCIA pre-empts any additional remedy available under state law for an applicant’s failure to comply with §262(l)(2)(A) (and whether Sandoz has forfeited any pre-emption defense, see 794 F.3d, at 1360, n. 5). The court is also of course free to address the pre-emption question first by assuming that a remedy under state law exists.",analysis,Enforcement of the BPCIA,strongly agree,The Injunction,agree,Enforcement of the BPCIA,3
+G16,13,1,2,A,"We agree with the Federal Circuit that an injunction under federal law is not available to enforce §262(l)(2)(A), though for slightly different reasons than those provided by the court below. The Federal Circuit held that “42 U.S. C. §262(l)(9)(C) and 35 U.S. C. §271(e) expressly provide the only remedies” for a violation of §262(l)(2)(A), 794 F.3d, at 1357, and neither of those provisions authorizes a court to compel compliance with §262(l)(2)(A). In concluding that the remedies specified in the BPCIA are exclusive, the Federal Circuit relied primarily on §271(e)(4), which states that it provides “ ‘the only remedies which may be granted by a court for an act of [artificial] infringement.’ ” Id., at 1356 (emphasis deleted).
+
+The flaw in the Federal Circuit’s reasoning is that Sandoz’s failure to disclose its application and manufacturing information was not an act of artificial infringement, and thus was not remediable under §271(e)(4). Submitting an application constitutes an act of artificial infringement. See §§271(e)(2)(C)(i), (ii) (“It shall be an act of infringement to submit . . . an application seeking approval of a biological product”). Failing to disclose the application and manufacturing information under §262(l)(2)(A) does not.
+
+In reaching the opposite conclusion, the Federal Circuit relied on §271(e)(2)(C)(ii), which states that “[i]t shall be an act of infringement to submit[,] if the applicant for the application fails to provide the application and information required under [§262(l)(2)(A)], an application seeking approval of a biological product for a patent that could be identified pursuant to [§262(l)(3)(A)(i)].” (Emphasis added.) The court appeared to conclude, based on the italicized language, that an applicant’s noncompliance with §262(l)(2)(A) is an element of the act of artificial infringement (along with the submission of the application). 794 F.3d, at 1356. We disagree. The italicized language merely assists in identifying which patents will be the subject of the artificial infringement suit. It does not define the act of artificial infringement itself.
+
+This conclusion follows from the structure of §271(e)(2)(C). Clause (i) of §271(e)(2)(C) defines artificial infringement in the situation where the parties proceed through the list exchange process and the patents subject to suit are those contained in the §262(l)(3) lists, as supplemented under §262(l)(7). That clause provides that it is an act of artificial infringement to submit, “with respect to a patent that is identified in the list of patents described in [§262(l)(3)] (including as provided under [§262(l)(7)]), an application seeking approval of a biological product.” (Emphasis added.) Clause (ii) of §271(e)(2)(C), in contrast, defines artificial infringement in the situation where an applicant fails to disclose its application and manufacturing information altogether and the parties never prepare the §262(l)(3) lists. That clause provides that the submission of the application represents an act of artificial infringement with respect to any patent that could have been included on the lists.
+
+In this way, the two clauses of §271(e)(2)(C) work in tandem. They both treat submission of the application as the act of artificial infringement for which §271(e)(4) provides the remedies. And they both identify the patents subject to suit, although by different means depending on whether the applicant disclosed its application and manufacturing information under §262(l)(2)(A). If the applicant made the disclosures, clause (i) applies; if it did not, clause (ii) applies. In neither instance is the applicant’s failure to provide its application and manufacturing information an element of the act of artificial infringement, and in neither instance does §271(e)(4) provide a remedy for that failure. See Brief for Amgen Inc. et al. 66–67 (conceding both points).
+
+A separate provision of §262, however, does provide a remedy for an applicant’s failure to turn over its application and manufacturing information. When an applicant fails to comply with §262(l)(2)(A), §262(l)(9)(C) authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action for artificial infringement as defined in §271(e)(2)(C)(ii). Section 262(l)(9)(C) thus vests in the sponsor the control that the applicant would otherwise have exercised over the scope and timing of the patent litigation. It also deprives the applicant of the certainty that it could have obtained by bringing a declaratory-judgment action prior to marketing its product.
+
+The remedy provided by §262(l)(9)(C) excludes all other federal remedies, including injunctive relief. Where, as here, “a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.” Karahalios v. Federal Employees, 489 U.S. 527, 533 (1989). The BPCIA’s “carefully crafted and detailed enforcement scheme provides strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 (2002) (internal quotation marks omitted). The presence of §262(l)(9)(C), coupled with the absence of any other textually specified remedies, indicates that Congress did not intend sponsors to have access to injunctive relief, at least as a matter of federal law, to enforce the disclosure requirement.
+
+Statutory context further confirms that Congress did not authorize courts to enforce §262(l)(2)(A) by injunction. Section 262(l)(1)(H) provides that “the court shall consider immediate injunctive relief to be an appropriate and necessary remedy for any violation or threatened violation” of the rules governing the confidentiality of information disclosed under §262(l). We assume that Congress acted intentionally when it provided an injunctive remedy for breach of the confidentiality requirements but not for breach of §262(l)(2)(A)’s disclosure requirement. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979) (“[W]hen Congress wished to provide a private damage remedy, it knew how to do so and did so expressly”).2 Accordingly, the Federal Circuit properly declined to grant an injunction under federal law.
+
+B",analysis,The Federal Circuit’s Decision,disagree,The Federal Circuit’s Injunction,agree,Enforceability of BPCIA's §262(1)(2)(A) by Injunction,1
+G16,13,1,2,B,"The Federal Circuit rejected Amgen’s request for an injunction under state law for two reasons. First, it interpreted California’s unfair competition law not to provide a remedy when the underlying statute specifies an “expressly . . . exclusive” remedy. 794 F.3d, at 1360 (citing Cal. Bus. & Prof. Code Ann. §17205; Loeffler v. Target Corp., 58 Cal. 4th 1081, 1125–1126, 324 P.3d 50, 76 (2014)). It further held that §271(e)(4), by its text, “provides ‘the only remedies’ ” for an applicant’s failure to disclose its application and manufacturing information. 794 F.3d, at 1360 (quoting §271(e)(4)). The court thus concluded that no state remedy was available for Sandoz’s alleged violation of §262(l)(2)(A) under the terms of California’s unfair competition law.
+
+This state-law holding rests on an incorrect interpretation of federal law. As we have explained, failure to comply with §262(l)(2)(A) is not an act of artificial infringement. Because §271(e)(4) provides remedies only for artificial infringement, it provides no remedy at all, much less an “expressly . . . exclusive” one, for Sandoz’s failure to comply with §262(l)(2)(A).
+
+Second, the Federal Circuit held in the alternative that Sandoz’s failure to disclose its application and manufacturing information was not “unlawful” under California’s unfair competition law. In the court’s view, when an applicant declines to provide its application and manufacturing information to the sponsor, it takes a path “expressly contemplated by” §262(l)(9)(C) and §271(e)(2)(C)(ii) and thus does not violate the BPCIA. 794 F.3d, at 1357, 1360. In their briefs before this Court, the parties frame this issue as whether the §262(l)(2)(A) requirement is mandatory in all circumstances, see Brief for Amgen Inc. et al. 58, or merely a condition precedent to the information exchange process, see Reply Brief for Sandoz Inc. 33. If it is only a condition precedent, then an applicant effectively has the option to withhold its application and manufacturing information and does not commit an “unlawful” act in doing so.
+
+We decline to resolve this particular dispute definitively because it does not present a question of federal law. The BPCIA, standing alone, does not require a court to decide whether §262(l)(2)(A) is mandatory or conditional; the court need only determine whether the applicant supplied the sponsor with the information required under §262(l)(2)(A). If the applicant failed to provide that information, then the sponsor, but not the applicant, could bring an immediate declaratory-judgment action pursuant to §262(l)(9)(C). The parties in these cases agree—as did the Federal Circuit—that Sandoz failed to comply with §262(l)(2)(A), thus subjecting itself to that consequence. There is no dispute about how the federal scheme actually works, and thus nothing for us to decide as a matter of federal law. The mandatory or conditional nature of the BPCIA’s requirements matters only for purposes of California’s unfair competition law, which penalizes “unlawful” conduct. Whether Sandoz’s conduct was “unlawful” under the unfair competition law is a state-law question, and the court below erred in attempting to answer that question by referring to the BPCIA alone.
+
+On remand, the Federal Circuit should determine whether California law would treat noncompliance with §262(l)(2)(A) as “unlawful.” If the answer is yes, then the court should proceed to determine whether the BPCIA pre-empts any additional remedy available under state law for an applicant’s failure to comply with §262(l)(2)(A) (and whether Sandoz has forfeited any pre-emption defense, see 794 F.3d, at 1360, n. 5). The court is also of course free to address the pre-emption question first by assuming that a remedy under state law exists.",analysis,Federal Circuit Decision,disagree,State Law Remedy,agree,BPCIA's Preemption Of State Law Remedies,2
+G16,13,1,1,IV,"The second question at issue in these cases is whether an applicant must provide notice after the FDA licenses its biosimilar, or if it may also provide effective notice before licensure. Section 262(l)(8)(A) states that the applicant “shall provide notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” The Federal Circuit held that an applicant’s biosimilar must already be “licensed” at the time the applicant gives notice. 794 F.3d, at 1358.
+
+We disagree. The applicant must give “notice” at least 180 days “before the date of the first commercial marketing.” “[C]ommercial marketing,” in turn, must be “of the biological product licensed under subsection (k).” §262(l)(8)(A). Because this latter phrase modifies “commercial marketing” rather than “notice,” “commercial marketing” is the point in time by which the biosimilar must be “licensed.” The statute’s use of the word “licensed” merely reflects the fact that, on the “date of the first commercial marketing,” the product must be “licensed.” See §262(a)(1)(A). Accordingly, the applicant may provide notice either before or after receiving FDA approval.
+
+Statutory context confirms this interpretation. Section 262(l)(8)(A) contains a single timing requirement: The applicant must provide notice at least 180 days prior to marketing its biosimilar. The Federal Circuit, however, interpreted the provision to impose two timing requirements: The applicant must provide notice after the FDA licenses the biosimilar and at least 180 days before the applicant markets the biosimilar. An adjacent provision expressly sets forth just that type of dual timing requirement. See §262(l)(8)(B) (“After receiving notice under subparagraph (A) and before such date of the first commercial marketing of such biological product, the reference product sponsor may seek a preliminary injunction” (emphasis added)). But Congress did not use that structure in §262(l)(8)(A). “Had Congress intended to” impose two timing requirements in §262(l)(8)(A), “it presumably would have done so expressly as it did in the immediately following” subparagraph. Russello v. United States, 464 U.S. 16, 23 (1983).
+
+We are not persuaded by Amgen’s arguments to the contrary. Amgen points out that other provisions refer to “ ‘the biological product that is the subject of ’ ” the application, rather than the “ ‘biological product licensed under subsection (k).’ ” Brief for Amgen Inc. et al. 28 (emphasis added). In its view, this variation “is a strong textual indication that §262(l)(8)(A), unlike the other provisions, refers to a product that has already been ‘licensed’ by the FDA.” Ibid.
+
+Amgen’s interpretation is not necessary to harmonize Congress’ use of the two different phrases. The provision upon which Amgen primarily relies (and that is generally illustrative of the other provisions it cites) requires the applicant to explain why the sponsor’s patents are “ ‘invalid, unenforceable, or will not be infringed by the commercial marketing of the biological product that is the subject of the subsection (k) application.’ ” Id., at 29–30 (quoting §262(l)(3)(B)(ii)(I); emphasis deleted). This provision uses the phrase “subject of the subsection (k) application” rather than “product licensed under subsection (k)” because the applicant can evaluate validity, enforceability, and infringement with respect to the biosimilar only as it exists when the applicant is conducting the evaluation, which it does before licensure. The applicant cannot make the same evaluation with respect to the biosimilar as it will exist after licensure, because the biosimilar’s specifications may change during the application process. See, e.g., 794 F.3d, at 1358. In contrast, nothing in §262(l)(8)(A) turns on the precise status or characteristics of the biosimilar application.
+
+Amgen also advances a host of policy arguments that prelicensure notice is undesirable. See Brief for Amgen Inc. et al. 35–42. Sandoz and the Government, in turn, respond with their own bevy of arguments that Amgen’s concerns are misplaced and that prelicensure notice affirmatively furthers Congress’ intent. See Brief for Sandoz Inc. 39–42, 56; Brief for United States as Amicus Curiae 28–29. The plausibility of the contentions on both sides illustrates why such disputes are appropriately addressed to Congress, not the courts. Even if we were persuaded that Amgen had the better of the policy arguments, those arguments could not overcome the statute’s plain language, which is our “primary guide” to Congress’ preferred policy. McFarland v. Scott, 512 U.S. 849, 865 (1994) (THOMAS, J., dissenting).
+
+In sum, because Sandoz fully complied with §262(l)(8)(A) when it first gave notice (before licensure) in July 2014, the Federal Circuit erred in issuing a federal injunction prohibiting Sandoz from marketing Zarxio until 180 days after licensure. Furthermore, because Amgen’s request for state-law relief is predicated on its argument that the BPCIA forbids prelicensure notice, its claim under California’s unfair competition law also fails. We accordingly reverse the Federal Circuit’s judgment as to the notice provision.
+",analysis,Timing Requirements,strongly agree,The Timeliness of the Biosimilar,disagree,The Timing Requirement of §262(1)(8)(A),4
+G16,13,1,1,*,"For the foregoing reasons, the judgment of the Court of Appeals is vacated in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.
+",conclusion,on remand for further proceedings,strongly agree,order of remand,strongly agree,Holding and Order of Remand,5
+G16,15,1,1,I,"
+
+Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an “interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute . . . upon the ground of the unconstitutionality of such statute.” 28 U. S. C. §2281 (1970 ed.), repealed, Pub. L. 94–381, §1, 90 Stat. 1119. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3–12 (1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U. S. C. §1253.
+
+In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94–381, §1, 90 Stat. 1119 (repealing 28 U. S. C. §2281), but was mandated for “an action . . . challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” Id., §3, now codified at 28 U. S. C. §2284(a).
+
+Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: “The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(1) (1970 ed.). The amended statute provides: “Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(b)(1) (2012 ed.) (emphasis added). The dispute here concerns the scope of the italicized text.
+
+In response to the 2010 Census, Maryland enacted a statute in October 2011 establishing—or, more pejoratively, gerrymandering—the districts for the State’s eight congressional seats. Dissatisfied with the crazy-quilt results, see App. to Pet. for Cert. 23a, petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court. Their amended complaint alleges, inter alia, that Maryland’s redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case.
+
+The District Judge, however, thought the claim “not one for which relief can be granted.” Benisek v. Mack, 11 F. Supp. 3d 516, 526 (Md. 2014). “[N]othing about the congressional districts at issue in this case affects in any proscribed way [petitioners’] ability to participate in the political debate in any of the Maryland congressional districts in which they might find themselves. They are free to join preexisting political committees, form new ones, or use whatever other means are at their disposal to influence the opinions of their congressional representatives.” Ibid. (brackets, ellipsis, and internal quotation marks omitted).
+
+For that reason, instead of notifying the Chief Judge of the Circuit of the need for a three-judge court, the District Judge dismissed the action. The Fourth Circuit summarily affirmed in an unpublished disposition. Benisek v. Mack, 584 Fed. Appx. 140 (CA4 2014). Seeking review in this Court, petitioners pointed out that at least two other Circuits consider it reversible error for a district judge to dismiss a case under §2284 for failure to state a claim for relief rather than refer it for transfer to a three-judge court. See LaRouche v. Fowler, 152 F. 3d 974, 981–983 (CADC 1998); LULAC v. Texas, 113 F. 3d 53, 55–56 (CA5 1997) (per curiam). We granted certiorari. Shapiro v. Mack, 576 U. S. ___ (2015).",facts,Three-Judge District Court Decisions,agree,The Three-Judge District Court,agree,Petitioner's Three-Judge Request and Its Dismissal,1
+G16,15,1,2,A,"Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an “interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute . . . upon the ground of the unconstitutionality of such statute.” 28 U. S. C. §2281 (1970 ed.), repealed, Pub. L. 94–381, §1, 90 Stat. 1119. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3–12 (1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U. S. C. §1253.
+
+In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94–381, §1, 90 Stat. 1119 (repealing 28 U. S. C. §2281), but was mandated for “an action . . . challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” Id., §3, now codified at 28 U. S. C. §2284(a).
+
+Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: “The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(1) (1970 ed.). The amended statute provides: “Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(b)(1) (2012 ed.) (emphasis added). The dispute here concerns the scope of the italicized text.",facts,Three-judge district courts,agree,The Three-Judge Court,agree,Three-Judge Court Statutory Requirement,1
+G16,15,1,2,B,"In response to the 2010 Census, Maryland enacted a statute in October 2011 establishing—or, more pejoratively, gerrymandering—the districts for the State’s eight congressional seats. Dissatisfied with the crazy-quilt results, see App. to Pet. for Cert. 23a, petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court. Their amended complaint alleges, inter alia, that Maryland’s redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case.
+
+The District Judge, however, thought the claim “not one for which relief can be granted.” Benisek v. Mack, 11 F. Supp. 3d 516, 526 (Md. 2014). “[N]othing about the congressional districts at issue in this case affects in any proscribed way [petitioners’] ability to participate in the political debate in any of the Maryland congressional districts in which they might find themselves. They are free to join preexisting political committees, form new ones, or use whatever other means are at their disposal to influence the opinions of their congressional representatives.” Ibid. (brackets, ellipsis, and internal quotation marks omitted).
+
+For that reason, instead of notifying the Chief Judge of the Circuit of the need for a three-judge court, the District Judge dismissed the action. The Fourth Circuit summarily affirmed in an unpublished disposition. Benisek v. Mack, 584 Fed. Appx. 140 (CA4 2014). Seeking review in this Court, petitioners pointed out that at least two other Circuits consider it reversible error for a district judge to dismiss a case under §2284 for failure to state a claim for relief rather than refer it for transfer to a three-judge court. See LaRouche v. Fowler, 152 F. 3d 974, 981–983 (CADC 1998); LULAC v. Texas, 113 F. 3d 53, 55–56 (CA5 1997) (per curiam). We granted certiorari. Shapiro v. Mack, 576 U. S. ___ (2015).",facts,Petitioners’ Suit in Federal District Court,strongly agree,The Maryland Redistricting Plan,agree,Petitioners’ Suit Before the Federal District Court Judge,2
+G16,15,1,1,II,"Petitioners’ sole contention is that the District Judge had no authority to dismiss the case rather than initiate the procedures to convene a three-judge court. Not so, argue respondents; the 1976 addition to §2284(b)(1) of the clause “unless he determines that three judges are not required” is precisely such a grant of authority. Moreover, say respondents, Congress declined to specify a standard to constrain the exercise of this authority. Choosing, as the District Judge did, the familiar standard for dismissal under Federal Rule of Civil Procedure 12(b)(6) best serves the purposes of a three-judge court, which (in respondents’ view) is to protect States from “hasty, imprudent invalidation” of their statutes by rogue district judges acting alone. Brief for Respondents 27.
+
+Whatever the purposes of a three-judge court may be, respondents’ argument needlessly produces a contradiction in the statutory text. That text’s initial prescription could not be clearer: “A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts . . . .” 28 U. S. C. §2284(a) (emphasis added). Nobody disputes that the present suit is “an action . . . challenging the constitutionality of the apportionment of congressional districts.” It follows that the district judge was required to refer the case to a three-judge court, for §2284(a) admits of no exception, and “the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998); see also National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 661–662 (2007) (same).
+
+The subsequent provision of §2284(b)(1), that the district judge shall commence the process for appointment of a three-judge panel “unless he determines that three judges are not required,” need not and therefore should not be read as a grant of discretion to the district judge to ignore §2284(a). It is not even framed as a proviso, or an exception from that provision, but rather as an administrative detail that is entirely compatible with §2284(a). The old §2284(1) triggered the district judge’s duty to refer the matter for the convening of a three-judge court “[o]n the filing of the application” to enjoin an unconstitutional state law. By contrast, the current §2284(b)(1) triggers the district judge’s duty “[u]pon the filing of a request for three judges” (emphasis added). But of course a party may—whether in good faith or bad, through ignorance or hope or malice—file a request for a three-judge court even if the case does not merit one under §2284(a). Section 2284(b)(1) merely clarifies that a district judge need not unthinkingly initiate the procedures to convene a threejudge court without first examining the allegations in the complaint. In short, all the district judge must “determin[e]” is whether the “request for three judges” is made in a case covered by §2284(a)—no more, no less.
+
+That conclusion is bolstered by §2284(b)(3)’s explicit command that “[a] single judge shall not . . . enter judgment on the merits.” It would be an odd interpretation that allowed a district judge to do under §2284(b)(1) what he is forbidden to do under §2284(b)(3). More likely that Congress intended a three-judge court, and not a single district judge, to enter all final judgments in cases satisfying the criteria of §2284(a).",analysis,Dismissal of the Case,agree,The District Judge’s Authority to Dismiss,strongly agree,The District Judge’s Authority to Dismiss Under §2284(a),2
+G16,15,1,1,III,"Respondents argue in the alternative that a district judge is not required to refer a case for the convening of a three-judge court if the constitutional claim is (as they assert petitioners’ claim to be) “insubstantial.” In Goosby v. Osser, 409 U. S. 512 (1973), we stated that the filing of a “constitutionally insubstantial” claim did not trigger the three-judge-court requirement under the pre-1976 statutory regime. Id., at 518. Goosby rested not on an interpretation of statutory text, but on the familiar proposition that “[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented.” Ex parte Poresky, 290 U. S. 30, 31 (1933) (per curiam) (emphasis added). Absent a substantial federal question, even a single-judge district court lacks jurisdiction, and “[a] three-judge court is not required where the district court itself lacks jurisdiction of the complaint or the complaint is not justiciable in the federal courts.” Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 100 (1974).
+
+In the present case, however, the District Judge dismissed petitioners’ complaint not because he thought he lacked jurisdiction, but because he concluded that the allegations failed to state a claim for relief on the merits, citing Ashcroft v. Iqbal, 556 U. S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007). See 11 F. Supp. 3d, at 520. That was in accord with Fourth Circuit precedent, which holds that where the “pleadings do not state a claim, then by definition they are insubstantial and so properly are subject to dismissal by the district court without convening a three-judge court.” Duckworth v. State Admin. Bd. of Election Laws, 332 F. 3d 769, 772– 773 (CA4 2003) (emphasis added).
+
+We think this standard both too demanding and inconsistent with our precedents. “[C]onstitutional claims will not lightly be found insubstantial for purposes of ” the three-judge-court statute. Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 147–148 (1980). We have long distinguished between failing to raise a substantial federal question for jurisdictional purposes—which is what Goosby addressed—and failing to state a claim for relief on the merits; only “wholly insubstantial and frivolous” claims implicate the former. Bell v. Hood, 327 U. S. 678, 682–683 (1946); see also Hannis Distilling Co. v. Mayor and City Council of Baltimore, 216 U. S. 285, 288 (1910) (“obviously frivolous or plainly insubstantial”); Bailey v. Patterson, 369 U. S. 31, 33 (1962) (per curiam) (“wholly insubstantial,” “legally speaking non-existent,” “essentially fictitious”); Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (“frivolous or immaterial”). Absent such frivolity, “the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Bell, supra, at 682. Consistent with this principle, Goosby clarified that “ ‘[c]onstitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously without merit.’ ” 409 U. S., at 518 (citations omitted). And the adverbs were no mere throwaways; “[t]he limiting words ‘wholly’ and ‘obviously’ have cogent legal significance.” Ibid.
+
+Without expressing any view on the merits of petitioners’ claim, we believe it easily clears Goosby’s low bar; after all, the amended complaint specifically challenges Maryland’s apportionment “along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U. S. 267 (2004)].” App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, JUSTICE KENNEDY, concurring in the judgment, surmised that if “a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. . . . Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315 (2004). Whatever “wholly insubstantial,” “obviously frivolous,” etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as “constitutionally insubstantial” under Goosby. Perhaps petitioners will ultimately fail on the merits of their suit, but §2284 entitles them to make their case before a threejudge district court.
+",analysis,The Three-Judge-Court Requirement,disagree,The Three-Judge Requirement,disagree,The Constitutional Substance of Petitioner's Claim,3
+G16,15,1,1,*,"The judgment of the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.
+",conclusion, order remanding for further proceedings,agree,The Fourth Circuit's Order,strongly disagree,Reversal and Order of Remand,4
+G16,16,1,1,I,"The Freedom of Information Act (FOIA) accords ""any person"" a right to request any records held by a federal agency. 5 U.S.C. § 552(a)(3)(A) (2006 ed.). No reason need be given for a FOIA request, and unless the requested materials fall within one of the Act's enumerated exemptions, see § 552(a)(3)(E), (b), the agency must ""make the records promptly available"" to the requester, § 552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction ""order[ing] the production of any agency records improperly withheld."" § 552(a)(4)(B).
+
+The courts below held the instant FOIA suit barred by the judgment in earlier litigation seeking the same records. Because the lower courts' decisions turned on the connection between the two lawsuits, we begin with a full account of each action.
+
+The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F-45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930's. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F-45 contained in the agency's records.
+
+To gain a certificate authorizing the manufacture and sale of the F-45, FEAC had submitted to the FAA's predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA's records. The FAA denied Herrick's request, however, upon finding that the documents he sought are subject to FOIA's exemption for ""trade secrets and commercial or financial information obtained from a person and privileged or confidential,"" 5 U.S.C. § 552(b)(4) (2006 ed.). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC's corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision.
+
+Herrick then filed suit in the U.S. District Court for the District of Wyoming. Challenging the FAA's invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public ""for use in making repairs or replacement parts for aircraft produced by Fairchild."" Herrick v. Garvey, 298 F.3d 1184, 1193 (C.A.10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F-45 certification records held by the FAA could not be regarded as ""secre[t]"" or ""confidential"" within the meaning of § 552(b)(4).
+
+Rejecting Herrick's argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328-1329 (D.Wyo.2000). The 1955 letter, the court reasoned, did not deprive the F-45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter's blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully ""reversed"" the waiver by objecting to the FAA's release of the records to Herrick. Ibid.
+
+On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F.3d, at 1194. But the Court of Appeals upheld the District Court's alternative determination _x0097_i.e., that Fairchild had restored trade-secret status by objecting to Herrick's FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA.
+
+In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court's decision. First, the District Court assumed trade-secret status could be ""restored"" to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only ""after Herrick had initiated his request"" for the F-45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194-1195, n. 10.
+
+The Tenth Circuit's decision issued on July 24, 2002. Less than a month later, on August 22, petitioner Brent Taylor_x0097_a friend of Herrick's and an antique aircraft enthusiast in his own right_x0097_submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U.S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC's 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit.
+
+After Fairchild intervened as a defendant,[1] the District Court in D.C. concluded that Taylor's suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick's suit. Relying on the Eighth Circuit's decision in Tyus v. Schoemehl, 93 F.3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was ""virtually represented"" by a party. App. to Pet. for Cert. 30a-31a.
+
+The Eighth Circuit's seven-factor test for virtual representation, adopted by the District Court in Taylor's case, requires an ""identity of interests"" between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F.3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit's test, but are not prerequisites: (1) a ""close relationship"" between the present party and a party to the judgment alleged to be preclusive; (2) ""participation in the prior litigation"" by the present party; (3) the present party's ""apparent acquiescence"" to the preclusive effect of the judgment; (4) ""deliberat[e] maneuver[ing]"" to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a ""public law"" rather than a ""private law"" issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F.3d, at 454-456). These factors, the D.C. District Court observed, ""constitute a fluid test with imprecise boundaries"" and call for ""a broad, case-by-case inquiry."" App. to Pet. for Cert. 32a.
+
+The record before the District Court in Taylor's suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are ""close associate[s],"" App. 54; Herrick asked Taylor to help restore Herrick's F-45, though they had no contract or agreement for Taylor's participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit.
+
+Fairchild and the FAA conceded that Taylor had not participated in Herrick's suit. App. to Pet. for Cert. 32a. The D.C. District Court determined, however, that Herrick ranked as Taylor's virtual representative because the facts fit each of the other six indicators on the Eighth Circuit's list. See id., at 32a-35a. Accordingly, the District Court held Taylor's suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a.
+
+The D.C. Circuit affirmed. It observed, first, that other Circuits ""vary widely"" in their approaches to virtual representation. Taylor v. Blakey, 490 F.3d 965, 971 (2007). In this regard, the D.C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D.C. District Court with the Fourth Circuit's narrower approach, which ""treats a party as a virtual representative only if the party is `accountable to the nonparties who file a subsequent suit' and has `the tacit approval of the court' to act on the nonpart[ies'] behalf."" Ibid. (quoting Klugh v. United States, 818 F.2d 294, 300 (C.A.4 1987)).
+
+Rejecting both of these approaches, the D.C. Circuit announced its own five-factor test. The first two factors_x0097_""identity of interests"" and ""adequate representation""_x0097_ are necessary but not sufficient for virtual representation. 490 F.3d, at 971-972. In addition, at least one of three other factors must be established: ""a close relationship between the present party and his putative representative,"" ""substantial participation by the present party in the first case,"" or ""tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment."" Id., at 972.
+
+Applying this test to the record in Taylor's case, the D.C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result_x0097_release of the F-45 documents. Moreover, the D.C. Circuit observed, Herrick owned an F-45 airplane, and therefore had ""if anything, a stronger incentive to litigate"" than Taylor, who had only a ""general interest in public disclosure and the preservation of antique aircraft heritage."" Id., at 973 (internal quotation marks omitted).
+
+Turning to adequacy of representation, the D.C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973-974 (citing Perez v. Volvo Car Corp., 247 F.3d 303, 312 (C.A.1 2001), and Tice v. American Airlines, Inc., 162 F.3d 966, 973 (C.A.7 1998)). Disagreeing with these courts, the D.C. Circuit deemed notice an ""important"" but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick's suit. For this conclusion, the appeals court relied on Herrick's ""strong incentive to litigate"" and Taylor's later engagement of the same attorney, which indicated to the court Taylor's satisfaction with that attorney's performance in Herrick's case. See 490 F.3d, at 974-975.
+
+The D.C. Circuit also found its ""close relationship"" criterion met, for Herrick had ""asked Taylor to assist him in restoring his F-45"" and ""provided information to Taylor that Herrick had obtained through discovery""; furthermore, Taylor ""did not oppose Fairchild's characterization of Herrick as his `close associate.'"" Id., at 975. Because the three above-described factors sufficed to establish virtual representation under the D.C. Circuit's five-factor test, the appeals court left open the question whether Taylor had engaged in ""tactical maneuvering."" See id., at 976 (calling the facts bearing on tactical maneuvering ""ambigu[ous]"").[2]
+
+We granted certiorari, 552 U.S. ___, 128 S. Ct. 977, 169 L. Ed. 2d 800 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on ""virtual representation.""[3]",facts,The First FOIA Suit,disagree, The FOIA Suit,disagree,Herrick and Petitioner's Suits for the Same Claim,1
+G16,16,1,2,A,"The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F-45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930's. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F-45 contained in the agency's records.
+
+To gain a certificate authorizing the manufacture and sale of the F-45, FEAC had submitted to the FAA's predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA's records. The FAA denied Herrick's request, however, upon finding that the documents he sought are subject to FOIA's exemption for ""trade secrets and commercial or financial information obtained from a person and privileged or confidential,"" 5 U.S.C. § 552(b)(4) (2006 ed.). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC's corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision.
+
+Herrick then filed suit in the U.S. District Court for the District of Wyoming. Challenging the FAA's invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public ""for use in making repairs or replacement parts for aircraft produced by Fairchild."" Herrick v. Garvey, 298 F.3d 1184, 1193 (C.A.10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F-45 certification records held by the FAA could not be regarded as ""secre[t]"" or ""confidential"" within the meaning of § 552(b)(4).
+
+Rejecting Herrick's argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328-1329 (D.Wyo.2000). The 1955 letter, the court reasoned, did not deprive the F-45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter's blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully ""reversed"" the waiver by objecting to the FAA's release of the records to Herrick. Ibid.
+
+On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F.3d, at 1194. But the Court of Appeals upheld the District Court's alternative determination _x0097_i.e., that Fairchild had restored trade-secret status by objecting to Herrick's FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA.
+
+In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court's decision. First, the District Court assumed trade-secret status could be ""restored"" to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only ""after Herrick had initiated his request"" for the F-45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194-1195, n. 10.",facts, The Herrick Suit,strongly agree,Herrick v. FAA,strongly agree,The Herrick Suit,1
+G16,16,1,2,B,"The Tenth Circuit's decision issued on July 24, 2002. Less than a month later, on August 22, petitioner Brent Taylor_x0097_a friend of Herrick's and an antique aircraft enthusiast in his own right_x0097_submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U.S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC's 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit.
+
+After Fairchild intervened as a defendant,[1] the District Court in D.C. concluded that Taylor's suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick's suit. Relying on the Eighth Circuit's decision in Tyus v. Schoemehl, 93 F.3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was ""virtually represented"" by a party. App. to Pet. for Cert. 30a-31a.
+
+The Eighth Circuit's seven-factor test for virtual representation, adopted by the District Court in Taylor's case, requires an ""identity of interests"" between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F.3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit's test, but are not prerequisites: (1) a ""close relationship"" between the present party and a party to the judgment alleged to be preclusive; (2) ""participation in the prior litigation"" by the present party; (3) the present party's ""apparent acquiescence"" to the preclusive effect of the judgment; (4) ""deliberat[e] maneuver[ing]"" to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a ""public law"" rather than a ""private law"" issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F.3d, at 454-456). These factors, the D.C. District Court observed, ""constitute a fluid test with imprecise boundaries"" and call for ""a broad, case-by-case inquiry."" App. to Pet. for Cert. 32a.
+
+The record before the District Court in Taylor's suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are ""close associate[s],"" App. 54; Herrick asked Taylor to help restore Herrick's F-45, though they had no contract or agreement for Taylor's participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit.
+
+Fairchild and the FAA conceded that Taylor had not participated in Herrick's suit. App. to Pet. for Cert. 32a. The D.C. District Court determined, however, that Herrick ranked as Taylor's virtual representative because the facts fit each of the other six indicators on the Eighth Circuit's list. See id., at 32a-35a. Accordingly, the District Court held Taylor's suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a.
+
+The D.C. Circuit affirmed. It observed, first, that other Circuits ""vary widely"" in their approaches to virtual representation. Taylor v. Blakey, 490 F.3d 965, 971 (2007). In this regard, the D.C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D.C. District Court with the Fourth Circuit's narrower approach, which ""treats a party as a virtual representative only if the party is `accountable to the nonparties who file a subsequent suit' and has `the tacit approval of the court' to act on the nonpart[ies'] behalf."" Ibid. (quoting Klugh v. United States, 818 F.2d 294, 300 (C.A.4 1987)).
+
+Rejecting both of these approaches, the D.C. Circuit announced its own five-factor test. The first two factors_x0097_""identity of interests"" and ""adequate representation""_x0097_ are necessary but not sufficient for virtual representation. 490 F.3d, at 971-972. In addition, at least one of three other factors must be established: ""a close relationship between the present party and his putative representative,"" ""substantial participation by the present party in the first case,"" or ""tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment."" Id., at 972.
+
+Applying this test to the record in Taylor's case, the D.C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result_x0097_release of the F-45 documents. Moreover, the D.C. Circuit observed, Herrick owned an F-45 airplane, and therefore had ""if anything, a stronger incentive to litigate"" than Taylor, who had only a ""general interest in public disclosure and the preservation of antique aircraft heritage."" Id., at 973 (internal quotation marks omitted).
+
+Turning to adequacy of representation, the D.C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973-974 (citing Perez v. Volvo Car Corp., 247 F.3d 303, 312 (C.A.1 2001), and Tice v. American Airlines, Inc., 162 F.3d 966, 973 (C.A.7 1998)). Disagreeing with these courts, the D.C. Circuit deemed notice an ""important"" but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick's suit. For this conclusion, the appeals court relied on Herrick's ""strong incentive to litigate"" and Taylor's later engagement of the same attorney, which indicated to the court Taylor's satisfaction with that attorney's performance in Herrick's case. See 490 F.3d, at 974-975.
+
+The D.C. Circuit also found its ""close relationship"" criterion met, for Herrick had ""asked Taylor to assist him in restoring his F-45"" and ""provided information to Taylor that Herrick had obtained through discovery""; furthermore, Taylor ""did not oppose Fairchild's characterization of Herrick as his `close associate.'"" Id., at 975. Because the three above-described factors sufficed to establish virtual representation under the D.C. Circuit's five-factor test, the appeals court left open the question whether Taylor had engaged in ""tactical maneuvering."" See id., at 976 (calling the facts bearing on tactical maneuvering ""ambigu[ous]"").[2]
+
+We granted certiorari, 552 U.S. ___, 128 S. Ct. 977, 169 L. Ed. 2d 800 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on ""virtual representation.""[3]",facts,Taylor v. Fairchild,agree,The Taylor Case,strongly agree,The Petitioner (Taylor) Suit,2
+G16,16,1,1,II,"The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-508, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001). For judgments in federal-question cases_x0097_ for example, Herrick's FOIA suit _x0097_ federal courts participate in developing ""uniform federal rule[s]"" of res judicata, which this Court has ultimate authority to determine and declare. Id., at 508, 121 S. Ct. 1021.[4] The federal common law of preclusion is, of course, subject to due process limitations. See Richards v. Jefferson County, 517 U.S. 793, 797, 116 S. Ct. 1761, 135 L. Ed. 2d 76 (1996).
+
+Taylor's case presents an issue of first impression in this sense: Until now, we have never addressed the doctrine of ""virtual representation"" adopted (in varying forms) by several Circuits and relied upon by the courts below. Our inquiry, however, is guided by well-established precedent regarding the propriety of nonparty preclusion. We review that precedent before taking up directly the issue of virtual representation.
+
+The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ""res judicata.""[5] Under the doctrine of claim preclusion, a final judgment forecloses ""successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit."" New Hampshire v. Maine, 532 U.S. 742, 748, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). Issue preclusion, in contrast, bars ""successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,"" even if the issue recurs in the context of a different claim. Id., at 748-749, 121 S. Ct. 1808. By ""preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,"" these two doctrines protect against ""the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions."" Montana v. United States, 440 U.S. 147, 153-154, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979).
+
+A person who was not a party to a suit generally has not had a ""full and fair opportunity to litigate"" the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the ""deep-rooted historic tradition that everyone should have his own day in court."" Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that ""one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process."" Hansberry, 311 U.S., at 40, 61 S. Ct. 115. See also, e.g., Richards, 517 U.S., at 798, 116 S. Ct. 1761; Martin v. Wilks, 490 U.S. 755, 761, 109 S. Ct. 2180, 104 L. Ed. 2d 835 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969).
+
+Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present purposes, the recognized exceptions can be grouped into six categories.[6]
+
+First, ""[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement."" 1 Restatement (Second) of Judgments § 40, p. 390 (1980) (hereinafter Restatement). For example, ""if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant's liability will be definitely determined, one way or the other, in a `test case.'"" D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77-78 (2001) (hereinafter Shapiro). See also California v. Texas, 459 U.S. 1096, 1097, 103 S. Ct. 714, 74 L. Ed. 2d 944 (1983) (dismissing certain defendants from a suit based on a stipulation ""that each of said defendants . . . will be bound by a final judgment of this Court"" on a specified issue).[7]
+
+Second, nonparty preclusion may be justified based on a variety of pre-existing ""substantive legal relationship[s]"" between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U.S., at 798, 116 S. Ct. 1761. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§ 43-44, 52, 55. These exceptions originated ""as much from the needs of property law as from the values of preclusion by judgment."" 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4448, p. 329 (2d ed.2002) (hereinafter Wright & Miller).[8]
+
+Third, we have confirmed that, ""in certain limited circumstances,"" a nonparty may be bound by a judgment because she was ""adequately represented by someone with the same interests who [wa]s a party"" to the suit. Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974). See also 1 Restatement § 41.
+
+Fourth, a nonparty is bound by a judgment if she ""assume[d] control"" over the litigation in which that judgment was rendered. Montana, 440 U.S., at 154, 99 S. Ct. 970. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 262, n. 4, 81 S. Ct. 557, 5 L. Ed. 2d 546 (1961); 1 Restatement § 39. Because such a person has had ""the opportunity to present proofs and argument,"" he has already ""had his day in court"" even though he was not a formal party to the litigation. Id., Comment a, p. 382.
+
+Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R.I. & P.R. Co. v. Schendel, 270 U.S. 611, 620, 623, 46 S. Ct. 420, 70 L. Ed. 757 (1926); 18A Wright & Miller § 4454, pp. 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment. See id., § 4449, p. 335.
+
+Sixth, in certain circumstances a special statutory scheme may ""expressly foreclos[e] successive litigation by nonlitigants. . . if the scheme is otherwise consistent with due process."" Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180. Examples of such schemes include bankruptcy and probate proceedings, see ibid., and quo warranto actions or other suits that, ""under [the governing] law, [may] be brought only on behalf of the public at large,"" Richards, 517 U.S., at 804, 116 S. Ct. 1761.",analysis,The Federal Common Law of Preclusion,strongly agree,The Preclusion of Virtual Representation,disagree,The Federal Common Law of Preclusion,2
+G16,16,1,2,A,"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ""res judicata.""[5] Under the doctrine of claim preclusion, a final judgment forecloses ""successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit."" New Hampshire v. Maine, 532 U.S. 742, 748, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). Issue preclusion, in contrast, bars ""successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,"" even if the issue recurs in the context of a different claim. Id., at 748-749, 121 S. Ct. 1808. By ""preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,"" these two doctrines protect against ""the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions."" Montana v. United States, 440 U.S. 147, 153-154, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979).
+
+A person who was not a party to a suit generally has not had a ""full and fair opportunity to litigate"" the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the ""deep-rooted historic tradition that everyone should have his own day in court."" Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that ""one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process."" Hansberry, 311 U.S., at 40, 61 S. Ct. 115. See also, e.g., Richards, 517 U.S., at 798, 116 S. Ct. 1761; Martin v. Wilks, 490 U.S. 755, 761, 109 S. Ct. 2180, 104 L. Ed. 2d 835 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969).",analysis,Claim Preclusion and Issue Preclusion,strongly agree,The Preclusive Effect of the Judgment,agree,Claim Preclusion and Issue Preclusion Doctrine,1
+G16,16,1,2,B,"Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present purposes, the recognized exceptions can be grouped into six categories.[6]
+
+First, ""[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement."" 1 Restatement (Second) of Judgments § 40, p. 390 (1980) (hereinafter Restatement). For example, ""if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant's liability will be definitely determined, one way or the other, in a `test case.'"" D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77-78 (2001) (hereinafter Shapiro). See also California v. Texas, 459 U.S. 1096, 1097, 103 S. Ct. 714, 74 L. Ed. 2d 944 (1983) (dismissing certain defendants from a suit based on a stipulation ""that each of said defendants . . . will be bound by a final judgment of this Court"" on a specified issue).[7]
+
+Second, nonparty preclusion may be justified based on a variety of pre-existing ""substantive legal relationship[s]"" between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U.S., at 798, 116 S. Ct. 1761. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§ 43-44, 52, 55. These exceptions originated ""as much from the needs of property law as from the values of preclusion by judgment."" 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4448, p. 329 (2d ed.2002) (hereinafter Wright & Miller).[8]
+
+Third, we have confirmed that, ""in certain limited circumstances,"" a nonparty may be bound by a judgment because she was ""adequately represented by someone with the same interests who [wa]s a party"" to the suit. Richards, 517 U.S., at 798, 116 S. Ct. 1761 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974). See also 1 Restatement § 41.
+
+Fourth, a nonparty is bound by a judgment if she ""assume[d] control"" over the litigation in which that judgment was rendered. Montana, 440 U.S., at 154, 99 S. Ct. 970. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 262, n. 4, 81 S. Ct. 557, 5 L. Ed. 2d 546 (1961); 1 Restatement § 39. Because such a person has had ""the opportunity to present proofs and argument,"" he has already ""had his day in court"" even though he was not a formal party to the litigation. Id., Comment a, p. 382.
+
+Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R.I. & P.R. Co. v. Schendel, 270 U.S. 611, 620, 623, 46 S. Ct. 420, 70 L. Ed. 757 (1926); 18A Wright & Miller § 4454, pp. 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment. See id., § 4449, p. 335.
+
+Sixth, in certain circumstances a special statutory scheme may ""expressly foreclos[e] successive litigation by nonlitigants. . . if the scheme is otherwise consistent with due process."" Martin, 490 U.S., at 762, n. 2, 109 S. Ct. 2180. Examples of such schemes include bankruptcy and probate proceedings, see ibid., and quo warranto actions or other suits that, ""under [the governing] law, [may] be brought only on behalf of the public at large,"" Richards, 517 U.S., at 804, 116 S. Ct. 1761.",analysis,Exceptions to Preclusion,agree,The Exceptions,agree,Exceptions of Preclusion of Nonparty,2
+G16,16,1,1,III,"Reaching beyond these six established categories, some lower courts have recognized a ""virtual representation"" exception to the rule against nonparty preclusion. Decisions of these courts, however, have been far from consistent. See 18A Wright & Miller § 4457, p. 513 (virtual representation lacks a ""clear or coherent theory""; decisions applying it have ""an episodic quality""). Some Circuits use the label, but define ""virtual representation"" so that it is no broader than the recognized exception for adequate representation. See, e.g., Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F.3d 415, 423, 427 (C.A.6 1999). But other courts, including the Eighth, Ninth, and D.C. Circuits, apply multifactor tests for virtual representation that permit nonparty preclusion in cases that do not fit within any of the established exceptions. See supra, at 2168-2170, and n. 3.
+
+The D.C. Circuit, the FAA, and Fairchild have presented three arguments in support of an expansive doctrine of virtual representation. We find none of them persuasive.
+
+The D.C. Circuit purported to ground its virtual representation doctrine in this Court's decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F.3d, at 970-971. But the D.C. Circuit's definition of ""adequate representation"" strayed from the meaning our decisions have attributed to that term.
+
+In Richards, we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U.S., at 795-797, 116 S. Ct. 1761. The plaintiffs in the first suit ""did not sue on behalf of a class,"" their complaint ""did not purport to assert any claim against or on behalf of any nonparties,"" and the judgment ""did not purport to bind"" nonparties. Id., at 801, 116 S. Ct. 1761. There was no indication, we emphasized, that the court in the first suit ""took care to protect the interests"" of absent parties, or that the parties to that litigation ""understood their suit to be on behalf of absent [parties]."" Id., at 802, 116 S. Ct. 1761. In these circumstances, we held, the application of claim preclusion was inconsistent with ""the due process of law guaranteed by the Fourteenth Amendment."" Id., at 797, 116 S. Ct. 1761.
+
+The D.C. Circuit stated, without elaboration, that it did not ""read Richards to hold a nonparty . . . adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty."" 490 F.3d, at 971. As the D.C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick's lawyer, suggesting Taylor's ""satisfaction with the attorney's performance in the prior case."" Id., at 975.
+
+The D.C. Circuit misapprehended Richards. As just recounted, our holding that the Alabama Supreme Court's application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties' interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761. Richards thus established that representation is ""adequate"" for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present.
+
+We restated Richards' core holding in South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180, 143 L. Ed. 2d 258 (1999). In that case, as in Richards, the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U.S., at 164-165, 119 S. Ct. 1180. In South Central Bell, however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id., at 167-168, 119 S. Ct. 1180. Under the D.C. Circuit's decision in Taylor's case, these factors apparently would have sufficed to establish adequate representation. See 490 F.3d, at 973-975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U.S., at 168, 119 S. Ct. 1180.
+
+Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D.C. Circuit's broad theory of virtual representation.
+
+Fairchild and the FAA do not argue that the D.C. Circuit's virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever ""the relationship between a party and a non-party is `close enough' to bring the second litigant within the judgment."" Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22-24. Courts should make the ""close enough"" determination, they urge, through a ""heavily fact-driven"" and ""equitable"" inquiry. Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22 (""there is no clear test"" for nonparty preclusion; rather, an ""equitable and fact-intensive"" inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fairchild and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate.
+
+We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e.g., Richards, 517 U.S., at 798-799, 116 S. Ct. 1761; Martin, 490 U.S., at 761-762, 109 S. Ct. 2180. Accordingly, we have endeavored to delineate discrete exceptions that apply in ""limited circumstances."" Id., at 762, n. 2, 109 S. Ct. 2180. Respondents' amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance.
+
+Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps, 317 U.S. 406, 411, 63 S. Ct. 291, 87 L. Ed. 363 (1943), that privity ""turns on the facts of particular cases."" See Brief for Respondent Fairchild 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test.[9] Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 334, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), which stated that estoppel questions turn on ""the trial courts' sense of justice and equity."" See Brief for Respondent Fairchild 20. This passing statement, however, was not made with nonparty preclusion in mind; it appeared in a discussion recognizing district courts' discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue, 402 U.S., at 334, 91 S. Ct. 1434.
+
+The FAA relies on United States v. Des Moines Valley R. Co., 84 F. 40 (C.A.8 1897), an opinion we quoted with approval in Schendel, 270 U.S., at 619-620, 46 S. Ct. 420. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had ""no interest in the land"" and had ""simply permitted [the landowner] to use its name as the nominal plaintiff."" 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: ""[W]here the government lends its name as a plaintiff . . . to enable one private person to maintain a suit against another,"" the government is ""subject to the same defenses which exist . . . against the real party in interest."" Id., at 43. Des Moines Valley, the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31-33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See supra, at 2172-2173.[10] We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents.
+
+Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party's representation of a nonparty is ""adequate"" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry, 311 U.S., at 43, 61 S. Ct. 115; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards, 517 U.S., at 801-802, 116 S. Ct. 1761; supra, at 2173-2174. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards, 517 U.S., at 801, 116 S. Ct. 1761.[11] In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23.
+
+An expansive doctrine of virtual representation, however, would ""recogniz[e], in effect, a common-law kind of class action."" Tice, 162 F.3d, at 972 (internal quotation marks omitted). That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry, Richards, and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to ""create de facto class actions at will."" Tice, 162 F.3d, at 973.
+
+Third, a diffuse balancing approach to nonparty preclusion would likely create more headaches than it relieves. Most obviously, it could significantly complicate the task of district courts faced in the first instance with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under seven- or five-prong tests. And after the relevant facts are established, district judges would be called upon to evaluate them under a standard that provides no firm guidance. See Tyus, 93 F.3d, at 455 (conceding that ""there is no clear test for determining the applicability of"" the virtual representation doctrine announced in that case). Preclusion doctrine, it should be recalled, is intended to reduce the burden of litigation on courts and parties. Cf. Montana, 440 U.S., at 153-154, 99 S. Ct. 970. ""In this area of the law,"" we agree, ""`crisp rules with sharp corners' are preferable to a round-about doctrine of opaque standards."" Bittinger v. Tecumseh Products Co., 123 F.3d 877, 881 (C.A.6 1997).
+
+
+Finally, relying on the Eighth Circuit's decision in Tyus, 93 F.3d, at 456, the FAA maintains that nonparty preclusion should apply more broadly in ""public-law"" litigation than in ""private-law"" controversies. To support this position, the FAA offers two arguments. First, the FAA urges, our decision in Richards acknowledges that, in certain cases, the plaintiff has a reduced interest in controlling the litigation ""because of the public nature of the right at issue."" Brief for Respondent FAA 28. When a taxpayer challenges ""an alleged misuse of public funds"" or ""other public action,"" we observed in Richards, the suit ""has only an indirect impact on [the plaintiff's] interests."" 517 U.S., at 803, 116 S. Ct. 1761. In actions of this character, the Court said, ""we may assume that the States have wide latitude to establish procedures . . . to limit the number of judicial proceedings that may be entertained."" Ibid.
+
+Taylor's FOIA action falls within the category described in Richards, the FAA contends, because ""the duty to disclose under FOIA is owed to the public generally."" See Brief for Respondent FAA 34. The opening sentence of FOIA, it is true, states that agencies ""shall make [information] available to the public."" 5 U.S.C. § 552(a) (2006 ed.). Equally true, we have several times said that FOIA vindicates a ""public"" interest. E.g., National Archives and Records Admin. v. Favish, 541 U.S. 157, 172, 124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004). The Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the ""person"" making the request. § 552(a)(3)(A). See also § 552(a)(3)(B) (""In making any record available to a person under this paragraph, an agency shall provide the record in any [readily reproducible] form or format requested by the person . . . ."" (emphasis added)); Brief for National Security Archive et al. as Amici Curiae 10 (""Government agencies do not systematically make released records available to the general public.""). Thus, in contrast to the public-law litigation contemplated in Richards, a successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large.
+
+Furthermore, we said in Richards only that, for the type of public-law claims there envisioned, States are free to adopt procedures limiting repetitive litigation. See 517 U.S., at 803, 116 S. Ct. 1761. In this regard, we referred to instances in which the first judgment foreclosed successive litigation by other plaintiffs because, ""under state law, [the suit] could be brought only on behalf of the public at large."" Id., at 804, 116 S. Ct. 1761.[12]Richards spoke of state legislation, but it appears equally evident that Congress, in providing for actions vindicating a public interest, may ""limit the number of judicial proceedings that may be entertained."" Id., at 803, 116 S. Ct. 1761. It hardly follows, however, that this Court should proscribe or confine successive FOIA suits by different requesters. Indeed, Congress' provision for FOIA suits with no statutory constraint on successive actions counsels against judicial imposition of constraints through extraordinary application of the common law of preclusion.
+
+The FAA next argues that ""the threat of vexatious litigation is heightened"" in public-law cases because ""the number of plaintiffs with standing is potentially limitless."" Brief for Respondent FAA 28 (internal quotation marks omitted). FOIA does allow ""any person"" whose request is denied to resort to federal court for review of the agency's determination. 5 U.S.C. § 552(a)(3)(A), (4)(B) (2006 ed.). Thus it is theoretically possible that several persons could coordinate to mount a series of repetitive lawsuits.
+
+But we are not convinced that this risk justifies departure from the usual rules governing nonparty preclusion. First, stare decisis will allow courts swiftly to dispose of repetitive suits brought in the same circuit. Second, even when stare decisis is not dispositive, ""the human tendency not to waste money will deter the bringing of suits based on claims or issues that have already been adversely determined against others."" Shapiro 97. This intuition seems to be borne out by experience: The FAA has not called our attention to any instances of abusive FOIA suits in the Circuits that reject the virtual-representation theory respondents advocate here.",analysis,Virtual Representation,strongly agree,Virtual Representation,strongly agree,Virtual Representation Standard,3
+G16,16,1,2,A,"The D.C. Circuit purported to ground its virtual representation doctrine in this Court's decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F.3d, at 970-971. But the D.C. Circuit's definition of ""adequate representation"" strayed from the meaning our decisions have attributed to that term.
+
+In Richards, we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U.S., at 795-797, 116 S. Ct. 1761. The plaintiffs in the first suit ""did not sue on behalf of a class,"" their complaint ""did not purport to assert any claim against or on behalf of any nonparties,"" and the judgment ""did not purport to bind"" nonparties. Id., at 801, 116 S. Ct. 1761. There was no indication, we emphasized, that the court in the first suit ""took care to protect the interests"" of absent parties, or that the parties to that litigation ""understood their suit to be on behalf of absent [parties]."" Id., at 802, 116 S. Ct. 1761. In these circumstances, we held, the application of claim preclusion was inconsistent with ""the due process of law guaranteed by the Fourteenth Amendment."" Id., at 797, 116 S. Ct. 1761.
+
+The D.C. Circuit stated, without elaboration, that it did not ""read Richards to hold a nonparty . . . adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty."" 490 F.3d, at 971. As the D.C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick's lawyer, suggesting Taylor's ""satisfaction with the attorney's performance in the prior case."" Id., at 975.
+
+The D.C. Circuit misapprehended Richards. As just recounted, our holding that the Alabama Supreme Court's application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties' interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761. Richards thus established that representation is ""adequate"" for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present.
+
+We restated Richards' core holding in South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180, 143 L. Ed. 2d 258 (1999). In that case, as in Richards, the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U.S., at 164-165, 119 S. Ct. 1180. In South Central Bell, however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id., at 167-168, 119 S. Ct. 1180. Under the D.C. Circuit's decision in Taylor's case, these factors apparently would have sufficed to establish adequate representation. See 490 F.3d, at 973-975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U.S., at 168, 119 S. Ct. 1180.
+
+Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D.C. Circuit's broad theory of virtual representation.",analysis, The D.C. Circuit's View of Richards,strongly agree, The D.C. Circuit's Definition of Adequate Representation,strongly agree,The D.C. Circuit's Definition of Adequate Representation,1
+G16,16,1,2,B,"Fairchild and the FAA do not argue that the D.C. Circuit's virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever ""the relationship between a party and a non-party is `close enough' to bring the second litigant within the judgment."" Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22-24. Courts should make the ""close enough"" determination, they urge, through a ""heavily fact-driven"" and ""equitable"" inquiry. Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22 (""there is no clear test"" for nonparty preclusion; rather, an ""equitable and fact-intensive"" inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fairchild and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate.
+
+We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e.g., Richards, 517 U.S., at 798-799, 116 S. Ct. 1761; Martin, 490 U.S., at 761-762, 109 S. Ct. 2180. Accordingly, we have endeavored to delineate discrete exceptions that apply in ""limited circumstances."" Id., at 762, n. 2, 109 S. Ct. 2180. Respondents' amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance.
+
+Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps, 317 U.S. 406, 411, 63 S. Ct. 291, 87 L. Ed. 363 (1943), that privity ""turns on the facts of particular cases."" See Brief for Respondent Fairchild 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test.[9] Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 334, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), which stated that estoppel questions turn on ""the trial courts' sense of justice and equity."" See Brief for Respondent Fairchild 20. This passing statement, however, was not made with nonparty preclusion in mind; it appeared in a discussion recognizing district courts' discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue, 402 U.S., at 334, 91 S. Ct. 1434.
+
+The FAA relies on United States v. Des Moines Valley R. Co., 84 F. 40 (C.A.8 1897), an opinion we quoted with approval in Schendel, 270 U.S., at 619-620, 46 S. Ct. 420. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had ""no interest in the land"" and had ""simply permitted [the landowner] to use its name as the nominal plaintiff."" 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: ""[W]here the government lends its name as a plaintiff . . . to enable one private person to maintain a suit against another,"" the government is ""subject to the same defenses which exist . . . against the real party in interest."" Id., at 43. Des Moines Valley, the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31-33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See supra, at 2172-2173.[10] We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents.
+
+Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party's representation of a nonparty is ""adequate"" for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry, 311 U.S., at 43, 61 S. Ct. 115; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards, 517 U.S., at 801-802, 116 S. Ct. 1761; supra, at 2173-2174. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards, 517 U.S., at 801, 116 S. Ct. 1761.[11] In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23.
+
+An expansive doctrine of virtual representation, however, would ""recogniz[e], in effect, a common-law kind of class action."" Tice, 162 F.3d, at 972 (internal quotation marks omitted). That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry, Richards, and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to ""create de facto class actions at will."" Tice, 162 F.3d, at 973.
+
+Third, a diffuse balancing approach to nonparty preclusion would likely create more headaches than it relieves. Most obviously, it could significantly complicate the task of district courts faced in the first instance with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under seven- or five-prong tests. And after the relevant facts are established, district judges would be called upon to evaluate them under a standard that provides no firm guidance. See Tyus, 93 F.3d, at 455 (conceding that ""there is no clear test for determining the applicability of"" the virtual representation doctrine announced in that case). Preclusion doctrine, it should be recalled, is intended to reduce the burden of litigation on courts and parties. Cf. Montana, 440 U.S., at 153-154, 99 S. Ct. 970. ""In this area of the law,"" we agree, ""`crisp rules with sharp corners' are preferable to a round-about doctrine of opaque standards."" Bittinger v. Tecumseh Products Co., 123 F.3d 877, 881 (C.A.6 1997).
+",analysis,Fairchild and the FAA,strongly disagree,"  Fairchild and the FAA
+",strongly disagree,Discretionary Power of the Courts to Determine Virtual Representation,2
+G16,16,1,2,C,"Finally, relying on the Eighth Circuit's decision in Tyus, 93 F.3d, at 456, the FAA maintains that nonparty preclusion should apply more broadly in ""public-law"" litigation than in ""private-law"" controversies. To support this position, the FAA offers two arguments. First, the FAA urges, our decision in Richards acknowledges that, in certain cases, the plaintiff has a reduced interest in controlling the litigation ""because of the public nature of the right at issue."" Brief for Respondent FAA 28. When a taxpayer challenges ""an alleged misuse of public funds"" or ""other public action,"" we observed in Richards, the suit ""has only an indirect impact on [the plaintiff's] interests."" 517 U.S., at 803, 116 S. Ct. 1761. In actions of this character, the Court said, ""we may assume that the States have wide latitude to establish procedures . . . to limit the number of judicial proceedings that may be entertained."" Ibid.
+
+Taylor's FOIA action falls within the category described in Richards, the FAA contends, because ""the duty to disclose under FOIA is owed to the public generally."" See Brief for Respondent FAA 34. The opening sentence of FOIA, it is true, states that agencies ""shall make [information] available to the public."" 5 U.S.C. § 552(a) (2006 ed.). Equally true, we have several times said that FOIA vindicates a ""public"" interest. E.g., National Archives and Records Admin. v. Favish, 541 U.S. 157, 172, 124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004). The Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the ""person"" making the request. § 552(a)(3)(A). See also § 552(a)(3)(B) (""In making any record available to a person under this paragraph, an agency shall provide the record in any [readily reproducible] form or format requested by the person . . . ."" (emphasis added)); Brief for National Security Archive et al. as Amici Curiae 10 (""Government agencies do not systematically make released records available to the general public.""). Thus, in contrast to the public-law litigation contemplated in Richards, a successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large.
+
+Furthermore, we said in Richards only that, for the type of public-law claims there envisioned, States are free to adopt procedures limiting repetitive litigation. See 517 U.S., at 803, 116 S. Ct. 1761. In this regard, we referred to instances in which the first judgment foreclosed successive litigation by other plaintiffs because, ""under state law, [the suit] could be brought only on behalf of the public at large."" Id., at 804, 116 S. Ct. 1761.[12]Richards spoke of state legislation, but it appears equally evident that Congress, in providing for actions vindicating a public interest, may ""limit the number of judicial proceedings that may be entertained."" Id., at 803, 116 S. Ct. 1761. It hardly follows, however, that this Court should proscribe or confine successive FOIA suits by different requesters. Indeed, Congress' provision for FOIA suits with no statutory constraint on successive actions counsels against judicial imposition of constraints through extraordinary application of the common law of preclusion.
+
+The FAA next argues that ""the threat of vexatious litigation is heightened"" in public-law cases because ""the number of plaintiffs with standing is potentially limitless."" Brief for Respondent FAA 28 (internal quotation marks omitted). FOIA does allow ""any person"" whose request is denied to resort to federal court for review of the agency's determination. 5 U.S.C. § 552(a)(3)(A), (4)(B) (2006 ed.). Thus it is theoretically possible that several persons could coordinate to mount a series of repetitive lawsuits.
+
+But we are not convinced that this risk justifies departure from the usual rules governing nonparty preclusion. First, stare decisis will allow courts swiftly to dispose of repetitive suits brought in the same circuit. Second, even when stare decisis is not dispositive, ""the human tendency not to waste money will deter the bringing of suits based on claims or issues that have already been adversely determined against others."" Shapiro 97. This intuition seems to be borne out by experience: The FAA has not called our attention to any instances of abusive FOIA suits in the Circuits that reject the virtual-representation theory respondents advocate here.",analysis,Public-Law Litigation,disagree,Tyus,strongly disagree,Broadness of Virtual Representation in Public-Law Litigation,3
+G16,16,1,1,IV,"For the foregoing reasons, we disapprove the theory of virtual representation on which the decision below rested. The preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion described in this opinion. See Part II-B, supra.
+
+Although references to ""virtual representation"" have proliferated in the lower courts, our decision is unlikely to occasion any great shift in actual practice. Many opinions use the term ""virtual representation"" in reaching results at least arguably defensible on established grounds. See 18A Wright & Miller § 4457, pp. 535-539, and n. 38 (collecting cases). In these cases, dropping the ""virtual representation"" label would lead to clearer analysis with little, if any, change in outcomes. See Tice, 162 F.3d, at 971. (""[T]he term `virtual representation' has cast more shadows than light on the problem [of nonparty preclusion]."").
+
+In some cases, however, lower courts have relied on virtual representation to extend nonparty preclusion beyond the latter doctrine's proper bounds. We now turn back to Taylor's action to determine whether his suit is such a case, or whether the result reached by the courts below can be justified on one of the recognized grounds for nonparty preclusion.
+
+
+It is uncontested that four of the six grounds for nonparty preclusion have no application here: There is no indication that Taylor agreed to be bound by Herrick's litigation, that Taylor and Herrick have any legal relationship, that Taylor exercised any control over Herrick's suit, or that this suit implicates any special statutory scheme limiting relitigation. Neither the FAA nor Fairchild contends otherwise.
+
+It is equally clear that preclusion cannot be justified on the theory that Taylor was adequately represented in Herrick's suit. Nothing in the record indicates that Herrick understood himself to be suing on Taylor's behalf, that Taylor even knew of Herrick's suit, or that the Wyoming District Court took special care to protect Taylor's interests. Under our pathmarking precedent, therefore, Herrick's representation was not ""adequate."" See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761.
+
+That leaves only the fifth category: preclusion because a nonparty to an earlier litigation has brought suit as a representative or agent of a party who is bound by the prior adjudication. Taylor is not Herrick's legal representative and he has not purported to sue in a representative capacity. He concedes, however, that preclusion would be appropriate if respondents could demonstrate that he is acting as Herrick's ""undisclosed agen[t]."" Brief for Petitioner 23, n. 4. See also id., at 24, n. 5.
+
+Respondents argue here, as they did below, that Taylor's suit is a collusive attempt to relitigate Herrick's action. See Brief for Respondent Fairchild 32, and n. 18; Brief for Respondent FAA 18-19, 33, 39. The D.C. Circuit considered a similar question in addressing the ""tactical maneuvering"" prong of its virtual representation test. See 490 F.3d, at 976. The Court of Appeals did not, however, treat the issue as one of agency, and it expressly declined to reach any definitive conclusions due to ""the ambiguity of the facts."" Ibid. We therefore remand to give the courts below an opportunity to determine whether Taylor, in pursuing the instant FOIA suit, is acting as Herrick's agent. Taylor concedes that such a remand is appropriate. See Tr. of Oral Arg. 56-57.
+
+We have never defined the showing required to establish that a nonparty to a prior adjudication has become a litigating agent for a party to the earlier case. Because the issue has not been briefed in any detail, we do not discuss the matter elaboratively here. We note, however, that courts should be cautious about finding preclusion on this basis. A mere whiff of ""tactical maneuvering"" will not suffice; instead, principles of agency law are suggestive. They indicate that preclusion is appropriate only if the putative agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication. See 1 Restatement (Second) of Agency § 14, p. 60 (1957) (""A principal has the right to control the conduct of the agent with respect to matters entrusted to him."").[13]
+
+
+On remand, Fairchild suggests, Taylor should bear the burden of proving he is not acting as Herrick's agent. When a defendant points to evidence establishing a close relationship between successive litigants, Fairchild maintains, ""the burden [should] shif[t] to the second litigant to submit evidence refuting the charge"" of agency. Brief for Respondent Fairchild 27-28. Fairchild justifies this proposed burden-shift on the ground that ""it is unlikely an opposing party will have access to direct evidence of collusion."" Id., at 28, n. 14.
+
+We reject Fairchild's suggestion. Claim preclusion, like issue preclusion, is an affirmative defense. See Fed. Rule Civ. Proc. 8(c); Blonder-Tongue, 402 U.S., at 350, 91 S. Ct. 1434. Ordinarily, it is incumbent on the defendant to plead and prove such a defense, see Jones v. Bock, 549 U.S. 199, 204, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007), and we have never recognized claim preclusion as an exception to that general rule, see 18 Wright & Miller § 4405, p. 83 (""[A] party asserting preclusion must carry the burden of establishing all necessary elements.""). We acknowledge that direct evidence justifying nonparty preclusion is often in the hands of plaintiffs rather than defendants. See, e.g., Montana, 440 U.S., at 155, 99 S. Ct. 970 (listing evidence of control over a prior suit). But ""[v]ery often one must plead and prove matters as to which his adversary has superior access to the proof."" 2 K. Broun, McCormick on Evidence § 337, p. 475 (6th ed.2006). In these situations, targeted interrogatories or deposition questions can reduce the information disparity. We see no greater cause here than in other matters of affirmative defense to disturb the traditional allocation of the proof burden.",analysis,Virtual Representation,strongly agree,The Theory of Virtual Representation,strongly agree,Petitioner's Virtual Representation in Herrick Suit,4
+G16,16,1,2,A,"It is uncontested that four of the six grounds for nonparty preclusion have no application here: There is no indication that Taylor agreed to be bound by Herrick's litigation, that Taylor and Herrick have any legal relationship, that Taylor exercised any control over Herrick's suit, or that this suit implicates any special statutory scheme limiting relitigation. Neither the FAA nor Fairchild contends otherwise.
+
+It is equally clear that preclusion cannot be justified on the theory that Taylor was adequately represented in Herrick's suit. Nothing in the record indicates that Herrick understood himself to be suing on Taylor's behalf, that Taylor even knew of Herrick's suit, or that the Wyoming District Court took special care to protect Taylor's interests. Under our pathmarking precedent, therefore, Herrick's representation was not ""adequate."" See Richards, 517 U.S., at 801-802, 116 S. Ct. 1761.
+
+That leaves only the fifth category: preclusion because a nonparty to an earlier litigation has brought suit as a representative or agent of a party who is bound by the prior adjudication. Taylor is not Herrick's legal representative and he has not purported to sue in a representative capacity. He concedes, however, that preclusion would be appropriate if respondents could demonstrate that he is acting as Herrick's ""undisclosed agen[t]."" Brief for Petitioner 23, n. 4. See also id., at 24, n. 5.
+
+Respondents argue here, as they did below, that Taylor's suit is a collusive attempt to relitigate Herrick's action. See Brief for Respondent Fairchild 32, and n. 18; Brief for Respondent FAA 18-19, 33, 39. The D.C. Circuit considered a similar question in addressing the ""tactical maneuvering"" prong of its virtual representation test. See 490 F.3d, at 976. The Court of Appeals did not, however, treat the issue as one of agency, and it expressly declined to reach any definitive conclusions due to ""the ambiguity of the facts."" Ibid. We therefore remand to give the courts below an opportunity to determine whether Taylor, in pursuing the instant FOIA suit, is acting as Herrick's agent. Taylor concedes that such a remand is appropriate. See Tr. of Oral Arg. 56-57.
+
+We have never defined the showing required to establish that a nonparty to a prior adjudication has become a litigating agent for a party to the earlier case. Because the issue has not been briefed in any detail, we do not discuss the matter elaboratively here. We note, however, that courts should be cautious about finding preclusion on this basis. A mere whiff of ""tactical maneuvering"" will not suffice; instead, principles of agency law are suggestive. They indicate that preclusion is appropriate only if the putative agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication. See 1 Restatement (Second) of Agency § 14, p. 60 (1957) (""A principal has the right to control the conduct of the agent with respect to matters entrusted to him."").[13]
+",analysis,Taylor's Representation,agree,Taylor's Preclusion,agree,Petitioner Acting as an Agent of Herrick,1
+G16,16,1,2,B,"On remand, Fairchild suggests, Taylor should bear the burden of proving he is not acting as Herrick's agent. When a defendant points to evidence establishing a close relationship between successive litigants, Fairchild maintains, ""the burden [should] shif[t] to the second litigant to submit evidence refuting the charge"" of agency. Brief for Respondent Fairchild 27-28. Fairchild justifies this proposed burden-shift on the ground that ""it is unlikely an opposing party will have access to direct evidence of collusion."" Id., at 28, n. 14.
+
+We reject Fairchild's suggestion. Claim preclusion, like issue preclusion, is an affirmative defense. See Fed. Rule Civ. Proc. 8(c); Blonder-Tongue, 402 U.S., at 350, 91 S. Ct. 1434. Ordinarily, it is incumbent on the defendant to plead and prove such a defense, see Jones v. Bock, 549 U.S. 199, 204, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007), and we have never recognized claim preclusion as an exception to that general rule, see 18 Wright & Miller § 4405, p. 83 (""[A] party asserting preclusion must carry the burden of establishing all necessary elements.""). We acknowledge that direct evidence justifying nonparty preclusion is often in the hands of plaintiffs rather than defendants. See, e.g., Montana, 440 U.S., at 155, 99 S. Ct. 970 (listing evidence of control over a prior suit). But ""[v]ery often one must plead and prove matters as to which his adversary has superior access to the proof."" 2 K. Broun, McCormick on Evidence § 337, p. 475 (6th ed.2006). In these situations, targeted interrogatories or deposition questions can reduce the information disparity. We see no greater cause here than in other matters of affirmative defense to disturb the traditional allocation of the proof burden.",analysis,Burden-Shifting on Remand,disagree, Burden Shifting,strongly agree,Burden of Proof ,2
+G16,16,1,1,*,"For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
+
+It is so ordered.
+",conclusion,on remand for further proceedings,strongly agree,remand for further proceedings,strongly agree,Conclusion and Order of Remand,5
+G16,17,1,1,I,"Early in this century, Congress recognized that farmers had a tremendous need for long-term capital at low interest rates. This led to the enactment of the Federal Farm Loan Act of 1916, 39 Stat. 360, as amended, 12 U.S. C. § 641 et seq. The immediate purpose of the bill was ""to afford those who [were] engaged in farming or who desire[d] to engage in that occupation a vastly greater volume of land credit on more favorable terms and at materially lower and more nearly uniform interest rates than [were] present[ly] available."" H. R. Rep. No. 630, 64th Cong., 1st Sess., 2. The longrange purpose was to stimulate and foster a cooperative spirit among farmers who, it was hoped, would work together to seek agricultural improvements which they would finance themselves. Id., at 2-3; S. Rep. No. 144, 64th Cong., 1st Sess., 5.
+
+The 1916 Act divided the United States into 12 regional districts under the general supervision of a Federal Farm Loan Board. Each district contained a federal land bank designed to loan money to farmers at low interest rates. Persons desiring to borrow were required to organize into groups of 10 or more which were called ""national farm loan associations."" Sec. 7, 39 Stat. 365.
+
+In order to borrow from the district bank, an association had to establish that each of its members was an owner or a prospective owner of a farm, that the loan desired by each member was not less than $100 nor more than $10,000, and that the aggregate of the loans was not less than $20,000. Each association also had to subscribe for capital stock of the bank in the amount of 5% of the total loan sought by its members. The association, in turn, was required to compel each of its members to purchase stock in the association equal to 5% of the amount of the loan sought by that member. Hence, there were two separate levels of cooperative association.[5]
+
+The legislative history and the language of the Act itself indicate that Congress faced somewhat of a dilemma in structuring the land bank system. On the one hand, there was a strong congressional desire to stimulate a privately controlled, privately owned, and privately financed program based upon the cooperative efforts of dedicated farmers. This desire was effectuated in large measure in the stock-purchase requirements discussed above. On the other hand, Congress realized that without federal help, the existing plight of the farmers would probably render them unable to support the system themselves, and it would thus be doomed to failure:
+
+""The greatest difficulty in the establishment of a rural-credit system, based upon the cooperative principle, is met in connection with the inauguration of the system. Ample capital is absolutely necessary at the start and whatever sums the first borrowers might be able to contribute would in no wise suffice to get the system into successful operation. The system must be endowed, temporarily at least, with capital from sources other than the subscriptions to capital stock among the borrowers."" H. R. Rep. No. 630, 64th Cong., 1st Sess., 9.
+Accord, S. Rep. No. 144, 64th Cong., 1st Sess., 4.
+
+To resolve the dilemma, Congress provided for temporary public financing without charge to supplement the stock-purchase requirements of the statute. Congress also provided that each land bank must periodically increase its capital shares in order to achieve the goal of private ownership of the system, and to repay the temporary federal financing.
+
+The land bank system remained virtually untouched[6] until the economic depression of the 1930's when Congress determined that more action was needed to aid farmers in establishing privately owned institutions designed to provide ready sources of long-term credit. The Farm Credit Act of 1933 was passed to supplement the 1916 legislation. It established, inter alia, regional Banks for Cooperatives in each of the 12 land bank districts and a Central Bank for Cooperatives in Washington, D. C.[7]
+
+These Banks were authorized to make loans to ""cooperative associations,"" defined as ""association[s] in which farmers act together in processing, preparing for market, handling, and/or marketing the farm products of persons so engaged, and also . . . association[s] in which farmers act together in purchasing, testing, grading, processing, distributing, and/or furnishing farm supplies and/or farm business services."" Agricultural Marketing Act § 15, 46 Stat. 18, as amended, 12 U.S. C. § 1141j.
+
+The new Banks paralleled in many ways those already established under the 1916 legislation. The same regional districts were used, many of the same persons were eligible for loans from both institutions, and borrowers from both banks were required to be stockholders. The 1933 Act required cooperative associations to own, at the time a loan was made, an amount of stock in the Bank for Cooperatives equal in fair book value (not to exceed par value) to $100 per $2,000 of the amount of the loan, or 5%, the same amount of stock required of borrowers from land banks under the 1916 Act.
+
+One notable difference between the 1916 and the 1933 Acts was that the latter did not regulate the membership of the cooperative association to any great degree. For example, members of cooperative associations did not have to own stock in the associations, only in the Banks; they did not have to borrow a minimum amount; and they did not have to be farm owners or prospective farm owners, but could be processors, handlers, testers, or marketers. This is in sharp contrast to the stringent requirements of the 1916 legislation. Another notable difference is that Congress invested substantially more money in the 1933 program ($110,000,000) than it had invested in the land banks ($9,000,000). See S. Rep. No. 1201, 84th Cong., 1st Sess., 5, 7.
+
+As time passed, Congress watched the land bank system develop as planned. The temporary Government capitalization that had solidified the program in its inception was gradually replaced by private capital, and by the end of 1947, the Government's capital had been completely returned. S. Doc. No. 7, 84th Cong., 1st Sess., 4; S. Rep. No. 1201, 84th Cong., 1st Sess., 7. The land banks became totally private concerns _x0097_owned, operated, and financed by farmers without Government assistance.
+
+Congress also watched the development of the Banks for Cooperatives and became concerned about their lack of success in attracting and keeping private investment. By the 1950's, the Government still retained over 88% of the stock in the Banks. In § 2 of the Farm Credit Act of 1953, 67 Stat. 390, 12 U.S. C. § 636a, Congress stated that ""[i]t is declared to be the policy of the Congress to encourage and facilitate increased borrower participation in the management, control, and ultimate ownership of the permanent system of agricultural credit made available through institutions operating under the supervision of the Farm Credit Administration . . . ."" A Federal Farm Credit Board was created for the purpose, inter alia, of making recommendations concerning the best way to convert the Banks for Cooperatives from predominantly Government-owned to predominantly privately owned institutions.
+
+The result of the Board's report and recommendations was the Farm Credit Act of 1955, 69 Stat. 655. It sought to effectuate Congress' policy by providing for the orderly withdrawal of Government capital from the Banks and the continual influx and retention of substitute private financing. See S. Doc. No. 7, 84th Cong., 1st Sess., 6; S. Rep. No. 1201, 84th Cong., 1st Sess., 1; Hearings on Farm Credit Act of 1955 before the House Committee on Agriculture, 84th Cong., 1st Sess., 30-31.",facts,The Federal Farm Loan Act of 1916,agree,Federal Farm Loan Act of 1916,agree,Legislative History Before 1955,1
+G16,17,1,1,II,"Under the Farm Credit Act of 1933, there was only one class of capital stock in the Banks for Cooperatives. The Farm Credit Act of 1955 provided for three distinct classes of stock_x0097_A, B, and C.
+
+Class A stock may only be held by the Governor of the Farm Credit Association on behalf of the United States. Whatever stock the Government held in the Banks prior to the 1955 Act was converted to Class A stock. This stock is nonvoting and receives no dividends. Class A stock must be retired each year in an amount equal to the amount of Class C stock issued during the year. 12 U.S. C. § 1134d (a) (1). Once the United States' stock is completely redeemed, the Government will invest no more in the Banks, except that it may purchase additional shares of the Class A stock if an emergency makes it necessary in order for the bank to meet the credit needs of eligible borrowers.[8] See 12 U.S. C. §§ 1134d (a) (1), 1134b, 1134i.
+
+Class B stock represents a new approach to capitalizing the Banks. It is an investment stock available to the public. It pays noncumulative dividends upon certain conditions. Class B stock may be retired only after all Class A stock. 12 U.S. C. § 1134d (a) (2).[9]
+
+Class C stock may be issued only to farmers' cooperative associations, except that each regional bank is required to purchase such shares from the Central Bank. This stock may be obtained under four circumstances. One share is required to initially qualify any association as a borrower of a regional Bank. Each borrower must then make the quarterly stock purchases which gave rise to this lawsuit. In addition, 12 U.S. C. § 1134l (b) provides that after certain expenditures are made each year, patronage refunds may be allocated to borrowers in the form of Class C stock. ""All patronage refunds shall be paid in the proportion that the amount of interest earned on the loans of each borrower bears to the total interest earned on the loans of all borrowers during the fiscal year."" Ibid.[10] Borrowers also receive at the end of each fiscal year an ""allocated surplus"" credit which is payable out of the Bank's net savings. Like patronage refunds, allocated surplus is credited to each member in accordance with the proportion that the interest on its loans bears to the interest on all loans. When the surplus account reaches 25% of the total outstanding capital stock of the Bank, the excess may be distributed to members in the form of Class C stock.
+
+Only the tax treatment of the quarterly purchases is disputed here.[11] The taxpayers correctly note that the Class C stock has attributes which would make a normal commercial stock undesirable. For example, the C stock pays no dividends;[12] it is transferable only between cooperatives and only under rare circumstances; additional shares do not provide additional voting power;[13] and the stock cannot be redeemed until all A, all B issued earlier or in the same year, and all earlier issued C shares have been called for redemption. These characteristics render the market for C shares virtually nonexistent.
+
+It must be remembered, however, that the stock was intentionally given these characteristics by a Congress with definite goals in mind.[14] The legislative history of the Farm Credit Act of 1955 indicates that Congress placed much of the blame for the Bank's inability to repay the capital extended by the Government and to retain private capital on the provision in the 1933 legislation which permitted borrowers to redeem their stock for cash upon paying off their loans. The restrictions on redemption and transferability and the dividend prohibition were designed to obviate this difficulty and to provide both a stable membership and permanent capital, two necessities for the success of any cooperative venture.",analysis,The Farm Credit Act of 1933,disagree,The Farm Credit Act of 1955,strongly agree,The Farm Credit Act of 1955 Statutory Scheme,2
+G16,17,1,1,III,"The taxpayers do not seek to deduct the cost of their initial shares in the Bank as interest. They accept the fact that these shares represent one cost of membership and that this cost is a capital expense because membership is a valuable asset in more than one taxable year. But, they argue that once they purchased their initial shares, they obtained full membership rights, and, a fortiori, that Congress must have intended the quarterly expenditures for stock to be a charge for borrowing money since the stock has no value. The fact is, however, that the stock purchased quarterly is indeed valuable. The amounts paid for C shares become part of the permanent capital structure of the Bank, thereby increasing the stability of the Bank and insuring its continued ability to extend credit. Each share also provides an opportunity for more patronage and surplus dividends, an ultimate right of redemption, and an asset that may be used as a set-off in case of a default on the loan. In sum, every share of stock purchased quarterly by the taxpayers is nearly as valuable as the shares purchased initially. It is therefore difficult to understand why these different purchases should receive radically different tax treatment. If Congress had required 1,000 or 100,000 shares of Class C stock to be purchased before an association could borrow from the Banks, under the taxpayers' theory of the case the cost of those shares would be a nondeductible capital expense. Simply because Congress eased the burden on farmers by spreading the requirement of capital investment over a period of time rather than requiring it as a prerequisite to borrowing, the taxpayers are entitled to no more favorable tax treatment.
+
+It is important not to lose sight of the congressional purposes in enacting the farm credit legislation. The immediate goal was to provide loans to farmers at low interest rates. It would, therefore, be odd for Congress to provide a ""hidden"" interest charge in the legislation. The long-range goal was to make the Banks ""fully cooperative and to place full ownership and responsibility for their operations and success in the hands of those eligible to borrow from them."" Hearings on Farm Credit Act of 1955 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 84th Cong., 1st Sess., 60. Congress felt, in light of its experience under the Farm Credit Act of 1933, that the long-range goal could only be achieved if Bank members made longterm investments in the Banks. Hence, Congress created Class C stock, a security with a special value in cooperative ventures. While this security is sui generis, the congressional scheme makes it clear that it has value over the long run.
+
+Since the security is of value in more than one taxable year, it is a capital asset within the meaning of § 1221 of the Internal Revenue Code, and its cost is nondeductible. Cf. Commissioner v. Lincoln Savings & Loan Assn., 403 U.S. 345 (1971); Old Colony R. Co. v. United States, 284 U.S. 552 (1932); 26 CFR § 1.461-1.
+
+We reject the contention that while the Class C stock may be a capital asset, it is worth only $1,[15] and that the additional $99 paid for each share must represent interest. Were we dealing with the traditional corporate structure in this case, the taxpayers' argument would have strength. But, as we have pointed out previously, the essential nature of cooperatives and corporations differs. The value of the Class C stock derives primarily from attributes other than marketability. The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity. The stock also has value because it enables the farmers to work together toward common goals. It enables them to share in a venture of common concerns and to reap the rewards of knowing that they can finance themselves without the assistance of the Federal Government. It is perhaps debatable whether these attributes should properly be valued at $100 per share, but we are not called upon merely to resolve a question of valuation. Rather, we must decide whether it is artificial to characterize these unique expenditures as payments for a capital asset. We find that it is not.
+
+The taxpayers and the Government each allege that the other is looking at form rather than substance. At some point, however, the form in which a transaction is cast must have considerable impact. Guterman, Substance v. Form in the Taxation of Personal and Business Transactions, N. Y. U. 20th Inst. on Fed. Tax. 951 (1962). Congress chose to make the taxpayers buy stock; Congress determined that the stock was worth $100 a share; and this stock was endowed with a long-term value. While Congress might have been able to achieve the same ends through additional interest payments, it chose the form of stock purchases. This form assures long-term commitment and has bearing on the tax consequences of the purchases.
+
+Accordingly, the decision of the Court of Appeals is reversed and the case is remanded with direction that judgment be entered for the United States.
+
+It is so ordered.",analysis,Interest on Stock Purchases,agree,The Taxpayers' Theory of the Case,disagree,Deductability of Class C Stock Purchases,3