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1958_92

MR. JUSTICE CLARK delivered the opinion of the Court.Petitioner, an interstate motor carrier certificated by the Interstate Commerce Commission, but without a permit from Virginia allowing intrastate operations, was fined $5,000 by the State Corporation Commission for carrying 10 shipments of freight alleged to have been of in intrastate character and, therefore, in violation of Chapter 12, Title 56, of the Code of Virginia. [Footnote 1] The shipments in question originated at Virginia points and were destined to Virginia points, but were routed through Bluefield, West Virginia, where petitioner maintains its main terminal. They were transported in a vehicle with freight destined to points outside of Virginia. Upon arrival at Bluefield, the freight destined to Virginia was removed and consolidated with freight coming to the Page 359 U. S. 173 terminal from non-Virginia origins. It then moved back into Virginia to its destinations. The Corporation Commission found that the routes thus employed through Bluefield were a subterfuge to evade state law. The Virginia Court of Appeals agreed, but directed that the fine be reduced to $3,500 because of a failure of the Commonwealth's case on three of the shipments. 199 Va. 797, 102 S.E.2d 339. Petitioner pleads that Virginia's interpretation of its operations conflicts with its interstate certificate, as well as an interpretation thereof by the Interstate Commerce Commission. It claims that respondent was without power thus to impose criminal sanctions on its certificated interstate operations. We granted certiorari, 358 U.S. 810, to test out the conflicting contentions. We agree with the petitioner that, under the facts here, the interpretation of petitioner's interstate commerce certificate should first be litigated before the Interstate Commerce Commission under the provision of § 204(c) of the Interstate Commerce Act, 49 U.S.C. § 304(c). [Footnote 2]Petitioner operates its truck lines in parts of Virginia and West Virginia. Its activity is carried on under a certificate of convenience and necessity issued by the Interstate Commerce Commission. The petitioner's present Page 359 U. S. 174 ICC certificate is a combination of its original 1941 certificate and a second certificate issued in 1943 upon its purchase of the operating rights of another carrier. Neither it nor its predecessor held a certificate from the State Corporation Commission authorizing any intrastate carriage. It is authorized under the relevant parts of its interstate certificate to transport general commodities as a motor common carrier in interstate commerce:"Between Bluefield, Va., Bluefield, W. Va., and points and places within five miles of Bluefield, W. Va.""Between Bluefield, Va., and points and places within five miles of Bluefield, Va., and those within five miles of Bluefield, W. Va., respectively, on the one hand, and, on the other, points and places in that part of Virginia and West Virginia within 75 miles of that territory. Between Bluefield, W. Va., on the one hand, and, on the other, points and places in West Virginia, that part of Virginia west of U.S. Highway 29 and south of U.S. Highway 60 including points and places on the indicated portions of the highways specified, and that part of Virginia north of U.S. Highway 60 which is within 80 miles of Bluefield, W. Va."Petitioner's method of operation is uncontradicted in the record. It maintains its headquarters in Bluefield, West Virginia, and terminal points in Virginia at Bristol and Roanoke. Its main activity is the movement of freight of less than truckload shipments. In order to gather the shipments and, by combining them, make up a full truckload, it operates "peddler runs" from its Virginia terminals which serve as pick ups for freight in the vicinity. All of the traffic is directed through the Bluefield, West Virginia, terminal. About three percent of the traffic consists of shipments destined from one Virginia point to another, while the remainder is directed Page 359 U. S. 175 from points within to those outside that State. The freight gathered by the "peddler runs" is combined at a terminal and placed in an "over the road" tractor trailer unit and carried to Bluefield, West Virginia. There, it is broken down and combined with other shipments received from all of the other runs of petitioner. That part destined to points in and around Bluefield is delivered locally through "peddler runs" operated from that terminal. The remainder is sorted out for forwarding to the terminal nearest its destination, and is "filed out" by "over the road" operation. Upon arrival at the latter terminal, it is delivered by "peddler runs" to its local destination.The Commonwealth's criminal case is bottomed on shipments the origin and final destination of which are in Virginia. While it stipulated that all of these shipments were routed through Bluefield, West Virginia, and were, therefore, on their face, interstate shipments, [Footnote 3] Virginia takes the position that they were clearly intrastate in character because, had they been moved over direct routes, none would ever have left the Commonwealth. It contends that petitioner's circuitous and unnecessarily long routes were a mere subterfuge to escape intrastate regulation and evade its jurisdiction. Aside from the testimony of highway officers as to the actual shipments, none of which is disputed, the Commonwealth's evidence consisted solely of maps substantiating its position that petitioner's routes were circuitous and often long, sometimes exceeding twice the shortest possible route. However, it offered no direct evidence of bad faith on the part of petitioner in moving its traffic through Bluefield, West Virginia.On the other hand, petitioner offered the testimony of its manager and others as to the bona fides of its operation. Page 359 U. S. 176 It proved that it and its predecessor operator had been carrying on its business in Virginia in a similar manner for many years, and that it enjoyed certificates from the Interstate Commerce Commission authorizing its operations. Petitioner admits that some of its routes are circuitous, but claims this is because of its method of gathering less than truckload shipments regardless of final destination and routing them through its "gateway" terminal at Bluefield, where they are assorted according to final destination. It stands uncontradicted that its operation is not only practical, efficient and profitable, but also that the creation of this "flow of traffic" is a time-saver to the shipper, since there is less time lost waiting for the making up of a full truckload. It also claims a unique service for less than truckload shipments of central Virginians who ship commodities to southwest Virginia and Kentucky and who otherwise would suffer long delays on deliveries, or would be obliged to ship by special truck at higher rates. While these considerations are not controlling, they throw light on petitioner's claim of bona fides.In Castle v. Hayes Freight Lines, 348 U. S. 61, 348 U. S. 63-64 (1954), we observed that"Congress in the Motor Carrier Act adopted a comprehensive plan for regulating the carriage of goods by motor truck in interstate commerce."We pointed out that 49 U.S.C. § 312, provides"that all certificates, permits or licenses issued by the Commission 'shall remain in effect until suspended or terminated as herein provided'. . . . Under these circumstances, it would be odd if a state could take action amounting to a suspension or revocation of an interstate carrier's commission-granted right to operate."To uphold the criminal fines here assessed would be tantamount to a partial suspension of petitioner's federally granted certificate. Even though the questioned operations constitute only a minor, i.e., three percent, portion of the petitioner's business, that Page 359 U. S. 177 portion is nevertheless entitled to the same protection as are the other operations which are conducted under the certificate. In fact, the method of handling is identical, and the freight is often transported in the same vehicle. The certificate, on its face, covers the whole operation. In fact, in 1953, in approving the acquisition of petitioner by another carrier, the ICC expressly approved the very type of operation now being carried on. In its unpublished report, the Commission noted:"Under its existing authority, Service Storage may lawfully perform a cross-haul service under a combination of its radial rights by operating, for example, between points in West Virginia within 75 miles of the base area, on the one hand, and, on the other, points in Virginia on and west of U.S. Highway 29 and on the south of U.S. Highway 60, and points in the three Kentucky counties provided such operations under a combination of the various rights are routed through Bluefield as a gateway."MC-F-5361, Smith's Transfer Corporation of Staunton, Va. -- Control -- Service Storage and Transfer Company, Inc., 59 M.C.C. 803 (report not published.)It appears clear that interpretations of federal certificates of this character should be made in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action. The Commission has long taken this position. Compare Atlantic Freight Lines, Inc., v. Pennsylvania Public Utility Commission, 163 Pa.Super. 215, 60 A.2d 589, with Atlantic Freight Lines, Inc. -- Petition for Declaratory Order, 51 M.C.C. 175. The wisdom of such a practice is highlighted by the facts of this case. Between the close of the hearing, and the announcement of the Virginia Commission's decision, Service petitioned the ICC for a declaratory order interpreting its certificate. The Page 359 U. S. 178 Commonwealth, although it had notice of the ICC proceeding, elected not to participate. After the Virginia Commission had found petitioner to be operating in intrastate commerce and fined it for such operation, the ICC issued an opinion, 71 M.C.C. 304, in which it construed petitioner's certificate as authorizing Virginia-to-Virginia traffic routed through Bluefield, West Virginia. [Footnote 4] This was but a reaffirmation of its prior interpretation of the certificate. 59 M.C.C. 803, supra. Such conflicts can best be avoided if the interpretation of ICC certificates is left to the Interstate Commerce Commission.Nor is Eichholz v. Public Service Commission, 306 U. S. 268, 622 (1939), to the contrary. There, Missouri revoked a carrier's interstate permit because it crossed state lines into Kansas City, Kansas, for the sole purpose of creating an interstate operation. Eichholz, however, had no certificate from the Interstate Commerce Commission, and this Court's opinion was premised on this fact rather than that the interstate operations were merely a subterfuge, and hence not bona fide. The words of Chief Justice Hughes there clearly distinguish that case from the present:"When the [Missouri] Commission revoked the permit, the Interstate Commerce Commission had not acted upon appellant's application under the Federal Page 359 U. S. 179 Motor Carrier Act, and, meanwhile, the authority of the state body to take appropriate action under the state law to enforce reasonable regulations of traffic upon the state highways had not been superseded."306 U.S. at 306 U. S. 273. Eichholz followed naturally from the holding of the Court in Welch Co. v. New Hampshire, 306 U. S. 79 (1939), that the enactment of the Motor Carrier Act did not, without more, supersede all reasonable state regulation, the latter continuing in effect until the Interstate Commerce Commission acted on the same subject matter. That it has admittedly done here.Finally, the Commonwealth is not helpless to act. If it believes that petitioner's operation is not bona fide interstate, but is merely a subterfuge to escape its jurisdiction, it can avail itself of the remedy Congress has provided in the Act. Section 204(c), supra, note 2 authorizes the filing of a "complaint in writing to the Commission by any . . . State board . . . [that] any . . . carrier . . . " has abused its certificate. See also Castle v. Hayes Freight Lines, supra. Thus, the possibility of a multitude of interpretations of the same federal certificate by several States will be avoided and a uniform administration of the Act achieved.The judgment isReversed

U.S. Supreme CourtService Storage & Transfer Co., Inc. v. Virginia, 359 U.S. 171 (1959)Service Storage & Transfer Co., Inc. v. VirginiaNo. 92Argued February 26, 1959Decided March 30, 1959359 U.S. 171SyllabusPetitioner, a motor carrier authorized by the Interstate Commerce Commission to transport commodities between Bluefield, W. Va., and various points in Virginia and West Virginia, was fined by Virginia for carrying certain allegedly intrastate shipments without complying with a Virginia statute governing intrastate operations. The shipments in question were from Virginia points to other Virginia points, but were routed through petitioner's main terminal in Bluefield, W. Va., in accordance with petitioner's usual practice regarding less than truckload shipments. Subsequently, the Interstate Commerce Commission rendered an opinion construing petitioner's certificate as authorizing Virginia-to-Virginia traffic routed through Bluefield, W. Va.Held: the interpretation of petitioner's interstate certificate should have been litigated before the Interstate Commerce Commission under § 204(c) of the Interstate Commerce Act before the State attempted to fine petitioner for allegedly unlawful operations, and the judgment sustaining the fine is reversed. Pp. 359 U. S. 172-179.(a) To sustain the fines here assessed by the State would be tantamount to a partial suspension of petitioner's federally granted certificate, contrary to 49 U.S.C. § 312. Pp. 359 U. S. 176-177.(b) Interpretations of federal certificates of this character should be made in the first instance by the authority issuing the certificates. Pp. 359 U. S. 177-178.(c) Eichholz v. Public Service Comm'n, 306 U. S. 268, distinguished. Pp. 359 U. S. 178-179.(d) If the State believes that petitioner's operation is not bona fide interstate, but is merely a subterfuge to escape its jurisdiction, it can file a complaint with the Interstate Commerce Commission under § 204(c). P. 359 U. S. 179.199 Va. 797,102 S.E.2d 339, reversed. Page 359 U. S. 172

1990_89-1027

Justice KENNEDY delivered the opinion of the Court.The Interstate Commerce Commission has the authority to approve rail carrier consolidations under certain conditions. 49 U.S.C. § 11301 et seq. A carrier in an approved consolidation"is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let [it] carry out the transaction. . . ."49 U.S.C. § 11341(a). These cases require us to decide whether the carrier's exemption under § 11341(a) "from all other law" extends to its legal obligations under a collective bargaining agreement. We hold that it does.IA"Prior to 1920, competition was the desideratum of our railroad economy." St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U. S. 298, 347 U. S. 315 (1954). Following a period of government ownership during World War I, however, "many of the railroads were in very weak condition, and their continued survival was in jeopardy." Id. at 347 U. S. 315. At that time, the Nation made a commitment to railroad carrier consolidation as a means of promoting the health and efficiency of the railroad industry. Beginning with the Transportation Act, 1920, ch. 91, 41 Stat. 456,"consolidation of the railroads of the country, in the interest of economy and efficiency, became an established national policy . . . so intimately related to the maintenance of an adequate and efficient rail transportation system that the 'public interest' in the one cannot be dissociated from that in the other."United States v. Lowden, 308 U. S. 225, 308 U. S. 232 (1939). See generally St. Joe Paper v. Atlantic Coast Line R. Co., supra, 347 U.S. at 347 U. S. 315-321.Chapter 113 of the Interstate Commerce Act, recodified in 1978 at 49 U.S.C. § 11301 et seq., contains the current statement of this national policy. The Act grants the Interstate Commerce Commission exclusive authority to examine, condition, and approve proposed mergers and consolidations of Page 499 U. S. 120 transportation carriers within its jurisdiction. § 11343(a)(1). The Act requires the Commission to "approve and authorize" the transactions when they are "consistent with the public interest." § 11344(c). Among the factors the Commission must consider in making its public interest determination are "the interests of carrier employees affected by the proposed transaction." § 11344(b)(1)(D). [Footnote 1] In authorizing a merger or consolidation, the Commission "may impose conditions governing the transaction." § 11344(c). Once the Commission approves a transaction, a carrier is "exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let [it] carry out the transaction." § 11341(a).When a proposed merger involves rail carriers, the Act requires the Commission to impose labor-protective conditions on the transaction to safeguard the interests of adversely affected railroad employees. § 11347. In New York Dock Railway Control -- Brooklyn Eastern Dist. Terminal, 360 I.C.C. 60, 84-90, aff'd, sub nom. New York Dock Railway v. United States, 609 F.2d 83 (CA2 1979), the Commission announced a comprehensive set of conditions and procedures designed to meet its obligations under § 11347. Section 2 of the New York Dock conditions provides that the"rates of pay, rules, working conditions and all collective Page 499 U. S. 121 bargaining and other rights, privileges and benefits . . . under applicable laws and/or existing collective bargaining agreements . . . shall be preserved unless changed by future collective bargaining agreements."360 I.C.C. at 84. Section 4 sets forth negotiation and arbitration procedures for resolution of labor disputes arising from an approved railroad merger. Id. at 85. Under § 4, a merged or consolidated railroad which plans an operational change that may cause dismissal or displacement of any employee must provide the employee and his union 90 days' written notice. Ibid. If the carrier and union cannot agree on terms and conditions within 30 days, each party may submit the dispute for an expedited "final, binding and conclusive" determination by a neutral arbitrator. Ibid. Finally, the New York Dock conditions provide affected employees with up to six years of income protection, as well as reimbursements for moving costs and losses from the sale of a home. See id. at 86-89 (§§ 5-9, 12).BThe two cases before us today involve separate ICC orders exempting parties to approved railway mergers from the provisions of collective bargaining agreements.1. In No. 89-1027, the Commission approved an application by NWS Enterprises, Inc., to acquire control of two previously separate rail carriers, petitioners Norfolk and Western Railway Company (N & W) and Southern Railway Company (Southern). See Norfolk Southern Corp. -- Control -- Norfolk & W.R. Co. and Southern R. Co., 366 I.C.C. 173 (1982). In its order approving control, the Commission imposed the standard New York Dock labor-protective conditions, and noted the possibility that "further displacement [of employees] may arise as additional coordinations occur." 366 I.C.C. at 230-231.In September, 1986, this possibility became a reality. The carriers notified the American Train Dispatchers' Association, the bargaining representative for certain N & W employees, Page 499 U. S. 122 that they proposed to consolidate all "power distribution" -- the assignment of locomotives to particular trains and facilities -- for the Norfolk-Southern operation. To effect the efficiency move, the carriers informed the union that they would transfer work performed at the N & W power distribution center in Roanoke, Virginia, to the Southern center in Atlanta, Georgia. The carriers proposed an implementing agreement in which affected N & W employees would be made management supervisors in Atlanta, and would receive increases in wages and benefits in addition to the relocation expenses and wage protections guaranteed by the New York Dock conditions. The union contended that this proposal involved a change in the existing collective bargaining agreement that was subject to mandatory bargaining under the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq. The union also maintained that the carriers were required to preserve the affected employees' collective bargaining rights, as well as their right to union representation under the RLA.Pursuant to § 4 of the New York Dock procedures, the parties negotiated concerning the terms of the implementing agreement, but they failed to resolve their differences. As a result, the carriers invoked the New York Dock arbitration procedures. After a hearing, the arbitration committee ruled in the carriers' favor. The committee noted that the transfer of work to Atlanta was an incident of the control transaction approved by the ICC, and that it formed part of the "additional coordinations" the ICC predicted would be necessary to achieve "greater efficiencies." The committee also held it had the authority to abrogate the provisions of the collective bargaining agreement and of the RLA as necessary to implement the merger. Finally, it held that, because the application of the N & W bargaining agreement would impede the transfer, the transferred employees did not retain their collective bargaining rights. Page 499 U. S. 123The union appealed to the Commission, which affirmed by a divided vote. It explained that"[i]t has long been the Commission's view that private collective bargaining agreements and [Railway Labor Act] provisions must give way to the Commission-mandated procedures of section 4 [of the New York Dock conditions] when parties are unable to agree on changes in working conditions required to implement a transaction authorized by the Commission."App. to Pet. for Cert. in No. 89-1027, p. 33a. Accordingly, the Commission upheld the arbitration committee's determination that the"compulsory, binding arbitration required by Article I, section 4 of New York Dock took precedence over RLA procedures, whether asserted independently or based on existing collective bargaining agreements."Id. at 35a. The Commission also held that, because the work transfer was incident to the approved merger, it was "immunized from conflicting laws by section 11341(a)." Ibid. Noting that"[i]mposition of the collective bargaining agreement would jeopardize the transaction because the work rules it mandates are inconsistent with the carriers' underlying purpose of integrating the power distribution function,"the Commission upheld the decision to override the collective bargaining agreement and RLA provisions. Id. at 37a.2. In No. 89-1028, the Commission approved an application by CSX Corporation to acquire control of the Chessie System, Inc., and Seaboard Coastline Industries, Inc. CSX Corp -- Control -- Chessie System, Inc., and Seaboard Coastline Industries, Inc., 363 I.C.C. 521 (1980). Chessie was the parent of the Chesapeake and Ohio Railway Company and the Baltimore and Ohio Railway Company; Seaboard was the parent of the Seaboard Coast Line Railroad Company. In approving the control acquisition, the Commission imposed the New York Dock conditions and recognized that "additional coordinations may occur that could lead to further employee displacements." 363 I.C.C. at 589. Page 499 U. S. 124In August 1986, the consolidated carrier notified respondent Brotherhood of Railway Carmen that it planned to close Seaboard's heavy freight car repair shop at Waycross, Georgia, and transfer the Waycross employees to Chessie's similar shop in Raceland, Kentucky. The carrier informed the Brotherhood that the proposed transfer would result in a net decrease of jobs at the two shops. Pursuant to New York Dock, the carrier and the union negotiated concerning the terms of an agreement to implement the transfer. The sticking point in the negotiations involved a 1966 collective bargaining agreement between the union and Seaboard known as the "Orange Book." The Orange Book provided that the carrier would employ each covered employee and maintain each employee's work conditions and benefits for the remainder of the employee's working life. The Brotherhood contended that the Orange Book prevented CSX from moving work or covered employees from Waycross to Raceland.When negotiations broke down, both the union and the carrier invoked the arbitration procedures under § 4 of New York Dock. The arbitration committee ruled for the carrier. It agreed with the union that the Orange Book prohibited the proposed transfer of work and employees. It determined, however, that it could override any Orange Book or RLA provision that impeded an operational change authorized or required by the ICC's decision approving the original merger. The panel then held that the carrier could transfer the heavy repair work, which it found necessary to the original control acquisition, but could not transfer employees protected by the Orange Book, which it found would only slightly impair the original control acquisition. Both parties appealed the award to the Commission.A divided Commission affirmed in part and reversed in part. The Commission agreed the panel possessed authority to override collective bargaining rights and RLA rights that prevent implementation of a proposed Page 499 U. S. 125 transaction. It reasoned, however, that "[i]mposition of an Orange Book employee exception would effectively prevent implementation of the proposed transaction." CSX Corp. -- Control -- Chessie System, Inc. and Seaboard Coast Line Industries, Inc., 4 I.C.C.2d 641, 650 (1988). The agency thus affirmed the arbitration committee's order permitting the transfer of work, but reversed the holding that the carriers could not transfer Orange Book employees.3. The unions appealed both cases to the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals considered the cases together, and reversed and remanded to the agency. Brotherhood of Railway Carmen v. ICC, 279 U.S.App.D.C. 239, 880 F.2d 562 (1989). The court held that § 11341(a) does not authorize the Commission to relieve a party of collective bargaining agreement obligations that impede implementation of an approved transaction. The court stated various grounds for its conclusion. First, because the court did not read the phrase "all other law" in § 11341(a) to include "all legal obstacles," it found "no support in the language of the statute" to apply the statute to obligations imposed by collective bargaining agreements. Id. 808 F.2d at 567. Second, the court analyzed the Transportation Act, 1920, ch. 91, § 407, 41 Stat. 482, which contained a predecessor to § 11341(a), and found that Congress "did not intend, when it enacted the immunity provision, to override contracts." Id. at 570. The court noted that Congress had "focused nearly exclusively . . . on specific types of laws it intended to eliminate -- all of which were positive enactments, not common law rules of liability, as on a contract." Ibid. The court further noted that Congress had often revisited the immunity provision without making it clear that it included contracts or collective bargaining agreements. Ibid. Finally, the court did not defer to the ICC's interpretation of the Act, presumably because it determined that the Commission's interpretation was belied by the contrary "unambiguously Page 499 U. S. 126 expressed intent of Congress,'" id. at 567 (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 843 (1984)).In ruling that § 11341(a) did not apply to collective bargaining agreements, the court "decline[d] to address the question" whether the section could operate to override provisions of the RLA. Brotherhood of Railway Carmen, supra, at 247-250, 880 F.2d at 570-573. It also declined to consider whether the labor protective conditions required by § 11347 are exclusive, or whether § 4 of the New York Dock conditions gives an arbitration committee the right to override provisions of a collective bargaining agreement. 279 U.S.App.D.C. at 250, 880 F.2d at 573. The court remanded the case to the agency for a determination on these issues.After the Court of Appeals denied the carriers' petitions for rehearing, the carriers in the consolidated cases filed petitions for certiorari, which we granted on March 26, 1990. 494 U.S. 1055 (1990). [Footnote 2] We now reverse. Page 499 U. S. 127IITitle 49 U.S.C. § 11341(a) provides:". . . A carrier, corporation, or person participating in that approved or exempted transaction is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let that person carry out the transaction, hold, maintain, and operate property, and exercise control or franchises acquired through the transaction. . . ."We address the narrow question whether the exemption in § 11341(a) from "all other law" includes a carrier's legal obligations under a collective bargaining agreement.By its terms, the exemption applies only when necessary to carry out an approved transaction. These predicates, however, are not at issue here, for the Court of Appeals did not pass on them and the parties do not challenge them. For purposes of this decision, we assume, without deciding, that the Commission properly considered the public interest factors of § 11343(b)(1) in approving the original transaction, that its decision to override the carriers' obligations is consistent with the labor protective requirements of § 11347, and that the override was necessary to the implementation of the transaction within the meaning of § 11341(a). Under these Page 499 U. S. 128 assumptions, we hold that the exemption from "all other law" in § 11341(a) includes the obligations imposed by the terms of a collective bargaining agreement. [Footnote 3]As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us."If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."Chevron, supra, 467 U.S. at 467 U. S. 842-843. The contested language in § 11341(a), exempting carriers from "the antitrust laws and all other law, including State and municipal law," is clear, broad, and unqualified. It does not admit of the distinction the Court of Appeals drew, based on its analysis of legislative history, between positive enactments and common law rules of liability. Nor does it support the Court of Appeals' conclusion that Congress did not intend the immunity clause to apply to contractual obligations. Page 499 U. S. 129By itself, the phrase "all other law" indicates no limitation. The circumstance that the phrase "all other law" is in addition to coverage for "the antitrust laws" does not detract from this breadth. There is a canon of statutory construction which, on first impression, might seem to dictate a different result. Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration. See Arcadia v. Ohio Power Co., 498 U. S. 73, 498 U. S. 84-85 (1990). The canon does not control, however, when the whole context dictates a different conclusion. Here, there are several reasons the immunity provision cannot be interpreted to apply only to antitrust laws and similar statutes. First, because "[r]epeals of the antitrust laws by implication from a regulatory statute are strongly disfavored," United States v. Philadelphia Nat. Bank, 374 U. S. 321, 374 U. S. 350 (1963), Congress may have determined that it should make a clear and separate statement to include antitrust laws within the general exemption of § 11341(a). Second, the otherwise general term "all other law" "includ[es]" (but is not limited to) "State and municipal law." This shows that "all other law" refers to more than laws related to antitrust. Also, the fact that "all other law" entails more than "the antitrust laws," but is not limited to "State and municipal law," reinforces the conclusion, inherent in the word "all," that the phrase "all other law" includes federal law other than the antitrust laws. In short, the immunity provision in § 11341 means what it says: a carrier is exempt from all law as necessary to carry out an ICC-approved transaction.The exemption is broad enough to include laws that govern the obligations imposed by contract. "The obligation of a contract is the law which binds the parties to perform their agreement.'" Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 290 U. S. 429 (1934) (quoting Sturges v. Crowninshield, 17 U. S. 122, 17 U. S. 197 (1819)). A contract depends on a regime Page 499 U. S. 130 of common and statutory law for its effectiveness and enforcement."Laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as fully as if they had been expressly referred to or incorporated in its terms. This principle embraces alike those laws which affect its construction and those which affect its enforcement or discharge."Farmers and Merchants Bank of Monroe, N.C. v. Federal Reserve Bank of Richmond, Va., 262 U. S. 649, 262 U. S. 660 (1923). A contract has no legal force apart from the law that acknowledges its binding character. As a result, the exemption in § 11341(a) from "all other law" effects an override of contractual obligations, as necessary to carry out an approved transaction, by suspending application of the law which makes the contract binding.Schwabacher v. United States, 334 U. S. 182 (1948), which construed the immediate precursor of § 11341(a), § 5(11) of the Transportation Act of 1940, ch. 722, § 7, 54 Stat. 908-909, [Footnote 4] supports this conclusion. In Schwabacher, minority stockholders in a carrier involved in an ICC-approved merger complained that the terms of the merger diminished the value of their shares as guaranteed by the corporate charter, Page 499 U. S. 131 and thus "deprived [them] of contract rights under Michigan law. . . ." 334 U.S. at 334 U. S. 188. We explained that the Commission was charged under the Act with passing upon and approving all capital liabilities assumed or discharged by the merged company, and that once the Commission approved a merger in the public interest and on just and reasonable terms, the immunity provision relieved the parties to the merger of "restraints, limitations, and prohibitions of law, Federal, State, or municipal," as necessary to carry out the transaction. Id. at 334 U. S. 194-195, 334 U. S. 198. We noted that, before approving the merger, the Commission had a duty "to see that minority interests are protected," and emphasized that any such minority rights were,"as a matter of federal law, accorded recognition in the obligation of the Commission not to approve any plan which is not just and reasonable."Id. at 334 U. S. 201. Once these interests were accounted for, however,"[i]t would be inconsistent to allow state law to apply a liquidation basis [for valuation] to what federal law designates as a basis for continued public service."Id. at 334 U. S. 200. Relying in part on the immunity provision, we held the contract rights protected by state law did not survive the merger agreement found by the Commission to be in the public interest. Id. at 334 U. S. 194-195. Because the Commission had disclaimed jurisdiction to settle the shareholders' complaints, we remanded the case to the agency to ensure that the terms of the merger were just and reasonable. Id. at 334 U. S. 202.Just as the obligations imposed by state contract law did not survive the merger at issue in Schwabacher, the obligations imposed by the law that gives force to the carriers' collective bargaining agreements, the RLA, does not survive the merger in this case. The RLA governs the formation, construction, and enforcement of the labor-management contracts in issue here. It requires carriers and employees to make reasonable efforts "to make and maintain" collective bargaining agreements, 45 U.S.C. § 152 First, and to refrain from making changes in existing agreements except in Page 499 U. S. 132 accordance with RLA procedures, 45 U.S.C. §§ 152 Seventh, 156. The Act "extends both to disputes concerning the making of collective agreements and to grievances arising under existing agreements." Slocum v. Delaware, L. & W.R. Co., 339 U. S. 239, 339 U. S. 242 (1950). As the law which gives "legal and binding effect to collective agreements," Detroit & Toledo Shore Line R. Co. v. United Transportation Union, 396 U. S. 142, 396 U. S. 156 (1969), the RLA is the law that, under § 11341(a), is superseded when an ICC-approved transaction requires abrogation of collective bargaining obligations. See ICC v. Locomotive Engineers, 482 U. S. 270, 482 U. S. 287 (1987) (STEVENS, J., concurring in judgment); Brotherhood of Locomotive Engineers v. Boston & Maine Corp., 788 F.2d 794, 801 (CA1 1986); Missouri Pacific R. Co. v. United Transportation Union, 782 F.2d 107, 111 (CA8 1986); Burlington Northern, Inc. v. American Railway Supervisors Assn., 503 F.2d 58, 62-63 (CA7 1974); Bundy v. Penn Central Co., 455 F.2d 277, 279-280 (CA6 1972); Nemitz v. Norfolk & Western R. Co., 436 F.2d 841, 845 (CA6 1971), aff'd, 404 U. S. 37 (1971); Brotherhood of Locomotive Engineers v. Chicago & North Western R. Co., 314 F.2d 424 (CA8 1963); Texas & N. 0. R. Co. v. Brotherhood of Railroad Trainmen, 307 F.2d 151, 161-162 (CA5 1962); Railway Labor Executives Assn. v. Guilford Transp. Industries, Inc., 667 F. Supp. 29, 35 (Me.1987), aff'd, 843 F.2d 1383 (CA1 1988).Our determination that § 11341(a) supersedes collective bargaining obligations via the RLA as necessary to carry out an ICC-approved transaction makes sense of the consolidation provisions of the Act, which were designed to promote "economy and efficiency in interstate transportation by the removal of the burdens of excessive expenditure." Texas v. United States, 292 U. S. 522, 292 U. S. 534-535 (1934). The Act requires the Commission to approve consolidations in the public interest. 49 U.S.C. § 11343(a)(1). Recognizing that consolidations in the public interest will "result in wholesale dismissals and extensive transfers, involving expense to Page 499 U. S. 133 transferred employees" as well as "the loss of seniority rights," United States v. Lowden, 308 U. S. 225, 308 U. S. 233 (1939), the Act imposes a number of labor-protecting requirements to ensure that the Commission accommodates the interests of affected parties to the greatest extent possible. 49 U.S.C. §§ 11344(b)(1)(D), 11347; see also New York Dock Railway -- Control -- Brooklyn Eastern District Terminal, 360 I.C.C. 60 (1979). Section 11341(a) guarantees that, once these interests are accounted for and once the consolidation is approved, obligations imposed by laws such as the RLA will not prevent the efficiencies of consolidation from being achieved. If § 11341(a) did not apply to bargaining agreements enforceable under the RLA, rail carrier consolidations would be difficult, if not impossible, to achieve. The resolution process for major disputes under the RLA would so delay the proposed transfer of operations that any efficiencies the carriers sought would be defeated. See, e.g., Burlington Northern R. Co. v. Maintenance Employees, 481 U. S. 429, 481 U. S. 444 (1987) (resolution procedures for major disputes "virtually endless"); Detroit & T. S. L R. Co. v. Transportation Union, 396 U. S. 142, 396 U. S. 149 (1969) (dispute resolution under RLA involves "an almost interminable process"); Railway Clerks v. Florida East Coast R. Co., 384 U. S. 238, 384 U. S. 246 (1966) (RLA procedures are "purposely long and drawn out"). The immunity provision of § 11341(a) is designed to avoid this result.We hold that, as necessary to carry out a transaction approved by the Commission, the term "all other law" in § 11341(a) includes any obstacle imposed by law. In this case, the term "all other law" in § 11341(a) applies to the substantive and remedial laws respecting enforcement of collective bargaining agreements. Our construction of the clear statutory command confirms the interpretation of the agency charged with its administration and expert in the field of railroad mergers. We affirm the Commission's interpretation of § 11341(a), not out of deference in the face of an Page 499 U. S. 134 ambiguous statute, but rather because the Commission's interpretation is the correct one.This reading of § 11341(a) will not, as the Court of Appeals feared, lead to bizarre results. Brotherhood of Railway Carmen v. ICC, 279 U.S.App.D.C. at 244, 880 F.2d at 567. The immunity provision does not exempt carriers from all law, but rather from all law necessary to carry out an approved transaction. We reiterate that neither the conditions of approval nor the standard for necessity is before us today. It may be, as the Commission held on remand from the Court of Appeals, that the scope of the immunity provision is limited by § 11347, which conditions approval of a transaction on satisfaction of certain labor-protective conditions. See n 2, supra. It also might be true that "[t]he breadth of the exemption [in § 11341(a)] is defined by the scope of the approved transaction. . . . " ICC v. Locomotive Engineers, 482 U.S. at 482 U. S. 298 (STEVENS, J., concurring in judgment). We express no view on these matters, as they are not before us here.The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtN. & W. Ry. v. Train Dispatchers, 499 U.S. 117 (1991)Norfolk & Western Railway Company v.American Train Dispatchers AssociationNos. 89-1027, 89-1028Argued Dec. 3, 1990Decided March 19, 1991499 U.S. 117SyllabusOnce the Interstate Commerce Commission (ICC) has approved a rail carrier consolidation under the conditions set forth in Chapter 113 of the Interstate Commerce Act (Act), 49 U.S.C. § 11301 et seq., a carrier in such a consolidation"is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let [it] carry out the transaction. . . ."§ 11341(a). In these cases, the ICC issued orders exempting parties to approved railway mergers from the provisions of collective bargaining agreements. The Court of Appeals reversed and remanded, holding that § 11341(a) does not authorize the ICC to relieve a party of collectively bargained obligations that impede implementation of an approved transaction. Reasoning, inter alia, that the legislative history demonstrates a congressional intent that § 11341(a) apply to specific types of positive laws, and not to common law rules of liability such as those governing contracts, the court declined to decide whether the section could operate to override provisions of the Railway Labor Act (RLA) governing the formation, construction, and enforcement of the collective bargaining agreements at issue.Held: The § 11341(a) exemption "from all other law" includes a carrier's legal obligations under a collective bargaining agreement when necessary to carry out an ICC-approved transaction. The exemption's language, as correctly interpreted by the ICC, is clear, broad, and unqualified, bespeaking an unambiguous congressional intent to include any obstacle imposed by law. That language neither admits of a distinction between positive enactments and common law liability rules nor supports the exclusion of contractual obligations. Thus, the exemption effects an override of such obligations by superseding the law -- here, the RLA -- which makes the contract binding. Cf. Schwabacher v. United States, 334 U. S. 182, 334 U. S. 194-195, 334 U. S. 200-201. This determination makes sense of the Act's consolidation provisions, which were designed to promote economy and efficiency in interstate transportation by removing Page 499 U. S. 118 the burdens of excessive expenditure. Whereas § 11343(a)(1) requires the ICC to approve consolidations in the public interest, and § 11347 conditions such approval on satisfaction of certain labor-protective conditions, the § 11341(a) exemption guarantees that, once employee interests are accounted for and the consolidation is approved, the RLA -- whose major disputes resolution process is virtually interminable -- will not prevent the efficiencies of consolidation from being achieved. Moreover, this reading will not, as the lower court feared, lead to bizarre results, since § 11341(a) does not exempt carriers from all law, but rather from all law necessary to carry out an approved transaction. Although it might be true that § 11341(a)'s scope is limited by § 11347, and that the breadth of the exemption is defined by the scope of the approved transaction, the conditions of approval and the standard for necessity are not at issue, because the lower court did not pass on them and the parties do not challenge them here. Pp. 499 U. S. 127-134.279 U.S.App.D.C. 239, 880 F.2d 562, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 499 U. S. 134. Page 499 U. S. 119

1962_5

MR. JUSTICE BRENNAN delivered the opinion of the Court.This case originated in companion suits by the National Association for the Advancement of Colored People, Inc. (NAACP), and the NAACP Legal Defense and Educational Fund, Inc. (Defense Fund), brought in 1957 in the United States District Court for the Eastern District of Virginia. The suits sought to restrain the enforcement of Chapters 31, 32, 33, 35 and 36 of the Virginia Acts of Assembly, 1956 Extra Session, on the ground that the Page 371 U. S. 418 statutes, as applied to the activities of the plaintiffs, violated the Fourteenth Amendment. A three-judge court convened pursuant to 28 U.S.C. § 2281, after hearing evidence and making factfindings, struck down Chapters 31, 32 and 35 but abstained from passing upon the validity of Chapters 33 and 36 pending an authoritative interpretation of these statutes by the Virginia courts. [Footnote 1] The complainants thereupon petitioned in the Circuit Court of the City of Richmond to declare Chapters 33 and 36 inapplicable to their activities, or, if applicable, unconstitutional. The record in the Circuit Court was that made before the three-judge court supplemented by additional evidence. The Circuit Court held the chapters to be both applicable and constitutional. The holding was sustained by the Virginia Supreme Court of Appeals as to Chapter 33, but reversed as to Chapter 36, which was held unconstitutional under both state and federal law. [Footnote 2] Thereupon, the Defense Fund returned to the Federal District Court, where its case is presently pending, while the NAACP filed the instant petition. We granted certiorari. 365 U.S. 842. [Footnote 3] We heard argument in the 1961 Term, Page 371 U. S. 419 and ordered reargument this Term. 369 U.S. 833. Since no cross-petition was filed to review the Supreme Court of Appeals' disposition of Chapter 36, the only issue before us is the constitutionality of Chapter 33 as applied to the activities of the NAACP.There is no substantial dispute as to the facts; the dispute centers about the constitutionality under the Fourteenth Amendment of Chapter 33, as construed and applied by the Virginia Supreme Court of Appeals to include NAACP's activities within the statute's ban against "the improper solicitation of any legal or professional business."The NAACP was formed in 1909 and incorporated under New York law as a nonprofit membership corporation in 1911. It maintains its headquarters in New York, and presently has some 1,000 active unincorporated branches throughout the Nation. The corporation is licensed to do business in Virginia, and has 89 branches there. The Virginia branches are organized into the Virginia State Conference of NAACP Branches (the Conference), an unincorporated association, which, in 1957, had some 13,500 members. The activities of the Conference are financed jointly by the national organization and the local branches from contributions and membership dues. NAACP policy, binding upon local branches and conferences, is set by the annual national convention.The basic aims and purposes of NAACP are to secure the elimination of all racial barriers which deprive Negro citizens of the privileges and burdens of equal citizenship rights in the United States. To this end, the Association engages in extensive educational and lobbying activities. It also devotes much of its funds and energies to an extensive Page 371 U. S. 420 program of assisting certain kinds of litigation on behalf of its declared purposes. For more than 10 years, the Virginia Conference has concentrated upon financing litigation aimed at ending racial segregation in the public schools of the Commonwealth.The Conference ordinarily will finance only cases in which the assisted litigant retains an NAACP staff lawyer to represent him. [Footnote 4] The Conference maintains a legal staff of 15 attorneys, all of whom are Negroes and members of the NAACP. The staff is elected at the Conference's annual convention. Each legal staff member must agree to abide by the policies of the NAACP, which, insofar as they pertain to professional services, limit the kinds of litigation which the NAACP will assist. Thus, the NAACP will not underwrite ordinary damages actions, criminal actions in which the defendant raises no question of possible racial discrimination, or suits in which the plaintiff seeks separate but equal, rather than fully desegregated, public school facilities. The staff decides whether a litigant, who may or may not be an NAACP member, is entitled to NAACP assistance. The Conference defrays all expenses of litigation in an assisted case, and usually, although not always, pays each lawyer on the case a per diem fee not to exceed $60, plus out-of-pocket expenses. The assisted litigant receives no money from the Conference or the staff lawyers. The staff member may not accept, from the litigant or any other source, any other compensation for his services in an NAACP-assisted case. None of the staff receives a salary or retainer from the NAACP; the per diem fee is paid only for professional services in a particular case. This per diem payment is Page 371 U. S. 421 smaller than the compensation ordinarily received for equivalent private professional work. The actual conduct of assisted litigation is under the control of the attorney, although the NAACP continues to be concerned that the outcome of the lawsuit should be consistent with NAACP's policies already described. A client is free at any time to withdraw from an action.The members of the legal staff of the Virginia Conference and other NAACP or Defense Fund lawyers called in by the staff to assist are drawn into litigation in various ways. One is for an aggrieved Negro to apply directly to the Conference or the legal staff for assistance. His application is referred to the Chairman of the legal staff. The Chairman, with the concurrence of the President of the Conference, is authorized to agree to give legal assistance in an appropriate case. In litigation involving public school segregation, the procedure tends to be different. Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual, after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund. [Footnote 5] In effect, then, the prospective Page 371 U. S. 422 litigant retains not so much a particular attorney as the "firm" of NAACP and Defense Fund lawyers, which has a corporate reputation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litigation.These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to "go all the way" in any possible litigation that may ensue. While the Conference in these ways encourages the bringing of lawsuits, the plaintiffs in particular actions, so far as appears, make their own decisions to become such. [Footnote 6] Page 371 U. S. 423Statutory regulation of unethical and nonprofessional conduct by attorneys has been in force in Virginia since 1849. These provisions outlaw, inter alia, solicitation of legal business in the form of "running" or "capping." Prior to 1956, however, no attempt was made to proscribe under such regulations the activities of the NAACP, which had been carried on openly for many years in substantially the manner described. In 1956, however, the legislature amended, by the addition of Chapter 33, the provisions of the Virginia Code forbidding solicitation of legal business by a "runner" or "capper" to include, in the definition of "runner" or "capper," an agent for an individual or organization which retains a lawyer in connection with an action to which it is not a party and in which it has no pecuniary right or liability. [Footnote 7] Page 371 U. S. 424 The Virginia Supreme Court of Appeals held that the chapter's purpose "was to strengthen the existing statutes to further control the evils of solicitation of legal business. . . ." 202 Va. at 154, 116 S.E.2d at 65. The Page 371 U. S. 425 court held that the activities of NAACP, the Virginia Conference, the Defense Fund, and the lawyers furnished by them, fell within, and could constitutionally be proscribed by, the chapter's expanded definition of improper solicitation of legal business, and also violated Canons 35 and 47 of the American Bar Association's Canons of Professional Ethics, which the court had Page 371 U. S. 426 adopted in 1938. [Footnote 8] Specifically, the court held that, under the expanded definition, such activities on the part of NAACP, the Virginia Conference, and the Defense Fund constituted"fomenting and soliciting legal business in which they are not parties and have no pecuniary right or liability, and which they channel to the enrichment of certain lawyers employed by them, at no cost to the litigants and over which the litigants have no control."202 Va. at 155; 116 S.E.2d at 66. Finally, the court restated the decree of the Richmond Circuit Court. We have excerpted the pertinent portion of the court's holding in the margin. [Footnote 9] Page 371 U. S. 427IA jurisdictional question must first be resolved: whether the judgment below was "final" within the meaning of 28 U.S.C. § 1257. The three-judge Federal District Court retained jurisdiction of this case while an authoritative construction of Chapters 33 and 36 was being sought in the Virginia courts. Cf. Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168, 316 U. S. 173. The question of our jurisdiction arises because, when the case was last here, we observed that such abstention to secure state court interpretation "does not, of course, involve the abdication [by the District Court] of federal jurisdiction, but only the postponement of its exercise. . . ." Harrison v. NAACP, 360 U. S. 167, 360 U. S. 177. We meant simply that the District Court had properly retained jurisdiction, since a party has the right to return to the District Court, after obtaining the authoritative state court construction for which the court abstained, for a final determination of his claim. Where, however, the party remitted to the state courts elects to seek a complete and final adjudication of his rights in the state courts, the District Court's reservation of jurisdiction is purely formal, and does not impair our jurisdiction to review directly an otherwise final state court judgment. Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45. We think it clear that petitioner made such an Page 371 U. S. 428 election in the instant case, by seeking from the Richmond Circuit Court "a binding adjudication" of all its claims and a permanent injunction as well as declaratory relief, by making no reservation to the disposition of the entire case by the state courts, and by coming here directly on certiorari. Therefore, the judgment of the Virginia Supreme Court of Appeals was final, and the case is properly before us.IIPetitioner challenges the decision of the Supreme Court of Appeals on many grounds. But we reach only one: that Chapter 33, as construed and applied, abridges the freedoms of the First Amendment, protected against state action by the Fourteenth. [Footnote 10] More specifically, petitioner claims that the chapter infringes the right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights. We think petitioner may assert this right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail. Cf. Grosjean v. American Press Co., 297 U. S. 233. We also think petitioner has standing to assert the corresponding rights of its members. See NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 458-460; Bates v. City of Little Rock, 361 U. S. 516, 361 U. S. 523, n. 9; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, 366 U. S. 296.We reverse the judgment of the Virginia Supreme Court of Appeals. We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Page 371 U. S. 429 Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of Chapter 33 and the Canons of Professional Ethics. [Footnote 11]AWe meet at the outset the contention that "solicitation" is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas v. Collins, 323 U. S. 516, 323 U. S. 537; Herndon v. Lowry, 301 U. S. 242, 301 U. S. 259-264. Cf. Cantwell v. Connecticut, 310 U. S. 296; Stromberg v. California, 283 U. S. 359, 283 U. S. 369; Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4. In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts. [Footnote 12] Just as it was true of the Page 371 U. S. 430 opponents of New Deal legislation during the 1930's, [Footnote 13] for example, no less is it true of the Negro minority today. And under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Thus, we have affirmed the right "to engage in association for the advancement of beliefs and ideas." NAACP v. Alabama, supra, at 357 U. S. 460. We have deemed privileged, under certain circumstances, the efforts of a union official to organize workers. Thomas v. Collins,supra. We have said that the Sherman Act does not apply to certain concerted activities of railroads,"at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws,"because "such a construction of the Sherman Act would raise important constitutional questions," specifically, First Amendment questions. Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. Page 371 U. S. 431 127, 138. And we have refused to countenance compelled disclosure of a person's political associations in language closely applicable to the instant case:"Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups. . . ."Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 250-251 (plurality opinion). Cf. De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 364-366.The NAACP is not a conventional political party, but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association.BOur concern is with the impact of enforcement of Chapter 33 upon First Amendment freedoms. We start, of course, from the decree of the Supreme Court of Appeals. Although the action before it was one basically for declaratory relief, that court not only expounded the purpose and reach of the chapter, but held concretely that certain of petitioner's activities had, and certain others had not, Page 371 U. S. 432 violated the chapter. These activities had been explored in detail at the trial, and were spread out plainly on the record. We have no doubt that the opinion of the Supreme Court of Appeals in the instant case was intended as a full and authoritative construction of Chapter 33 as applied in a detailed factual context. That construction binds us. For us, the words of Virginia's highest court are the words of the statute. Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 317. We are not left to speculate at large upon the possible implications of bare statutory language.But it does not follow that this Court now has only a clear-cut task to decide whether the activities of the petitioner deemed unlawful by the Supreme Court of Appeals are constitutionally privileged. If the line drawn by the decree between the permitted and prohibited activities of the NAACP, its members and lawyers is an ambiguous one, we will not presume that the statute curtails constitutionally protected activity as little as possible. For standards of permissible statutory vagueness are strict in the area of free expression. See Smith v. California, 361 U. S. 147, 361 U. S. 151; Winters v. New York, 333 U. S. 507, 333 U. S. 509-510, 333 U. S. 517-518; Herndon v. Lowry, 301 U. S. 242; Stromberg v. California, 283 U. S. 359; United States v. C.I.O., 335 U. S. 106, 335 U. S. 142 (Rutledge, J., concurring). Furthermore, the instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For, in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98; Winters v. New York, supra, at 333 U. S. 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313. It makes no difference that the instant case was not a criminal prosecution, and not based on a refusal to comply with a licensing requirement. The Page 371 U. S. 433 objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. [Footnote 14] Cf. Marcus v. Search Warrant, 367 U. S. 717, 367 U. S. 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, supra, at 361 U. S. 151-154; Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296,3 310 U. S. 11.We read the decree of the Virginia Supreme Court of Appeals in the instant case as proscribing any arrangement by which prospective litigants are advised to seek the assistance of particular attorneys. No narrower reading is plausible. We cannot accept the reading suggested on behalf of the Attorney General of Virginia on the second oral argument that the Supreme Court of Appeals construed Chapter 33 as proscribing control only of the actual litigation by the NAACP after it is instituted. In the first place, upon a record devoid of any evidence of interference by the NAACP in the actual conduct of litigation, or neglect or harassment of clients, the court nevertheless held that petitioner, its members, agents and staff attorneys had practiced criminal solicitation. Thus, simple referral to or recommendation of a lawyer may be solicitation within the meaning of Chapter 33. In the second place, the decree does not seem to rest on the fact Page 371 U. S. 434 that the attorneys were organized as a staff and paid by petitioner. The decree expressly forbids solicitation on behalf of "any particular attorneys" in addition to attorneys retained or compensated by the NAACP. In the third place, although Chapter 33 purports to prohibit only solicitation by attorneys or their "agents," it defines agent broadly as anyone who "represents" another in his dealings with a third person. Since the statute appears to depart from the common law concept of the agency relationship, and since the Virginia court did not clarify the statutory definition, we cannot say that it will not be applied with the broad sweep which the statutory language imports.We conclude that, under Chapter 33, as authoritatively construed by the Supreme Court of Appeals, a person who advises another that his legal rights have been infringed and refers him to a particular attorney or group of attorneys (for example, to the Virginia Conference's legal staff) for assistance has committed a crime, as has the attorney who knowingly renders assistance under such circumstances. There thus inheres in the statute the gravest danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of members of an unpopular minority. Lawyers on the legal staff or even mere NAACP members or sympathizers would understandably hesitate, at an NAACP meeting or on any other occasion, to do what the decree purports to allow, namely, acquaint"persons with what they believe to be their legal rights and . . . [advise] them to assert their rights by commencing or further prosecuting a suit. . . ."For if the lawyers, members or sympathizers also appeared in or had any connection with any litigation supported with NAACP funds contributed under the provision of the decree by which the NAACP is not prohibited "from contributing money to persons to assist them in commencing or further prosecuting such Page 371 U. S. 435 suits," they plainly would risk (if lawyers) disbarment proceedings and, lawyers and nonlawyers alike, criminal prosecution for the offense of "solicitation," to which the Virginia court gave so broad and uncertain a meaning. It makes no difference whether such prosecutions or proceedings would actually be commenceed. It is enough that a vague and broad statute lends itself to selective enforcement against unpopular causes. We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community of Virginia; [Footnote 15] litigation assisted by the NAACP has been bitterly fought. [Footnote 16] In such circumstances, a statute Page 371 U. S. 436 broadly curtailing group activity leading to litigation may easily become a weapon of oppression, however evenhanded its terms appear. Its mere existence could well freeze out of existence all such activity on behalf of the civil rights of Negro citizens. Page 371 U. S. 437It is apparent, therefore, that Chapter 33, as construed, limits First Amendment freedoms. As this Court said in Thomas v. Collins, 323 U. S. 516, 323 U. S. 537, "Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts." Thomas was convicted for delivering a speech in connection with an impending union election under National Labor Relations Board auspices, without having first registered as a "labor organizer." He urged workers to exercise their rights under the National Labor Relations Act and join the union he represented. This Court held that the registration requirement as applied to his activities was constitutionally invalid. In the instant case, members of the NAACP urged Negroes aggrieved by the allegedly unconstitutional segregation of public schools in Virginia to exercise their legal rights and to retain members of the Association's legal staff. Like Thomas, the Association and its members were advocating lawful means of vindicating legal rights.We hold that Chapter 33, as construed, violates the Fourteenth Amendment by unduly inhibiting protected freedoms of expression and association. In so holding, we reject two further contentions of respondents. The first is that the Virginia Supreme Court of Appeals has guaranteed free expression by expressly confirming petitioner's right to continue its advocacy of civil rights litigation. But in light of the whole decree of the court, the guarantee is of purely speculative value. As construed by the Court, Chapter 33, at least potentially, prohibits every Page 371 U. S. 438 cooperative activity that would make advocacy of litigation meaningful. If there is an internal tension between proscription and protection in the statute, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights. Broad prophylactic rules in the area of free expression are suspect. See, e.g., Near v. Minnesota, 283 U. S. 697; Shelton v. Tucker, 364 U. S. 479; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293. Cf. Schneider v. Irvington, 308 U. S. 147, 308 U. S. 162. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.CThe second contention is that Virginia has a subordinating interest in the regulation of the legal profession, embodied in Chapter 33, which justifies limiting petitioner's First Amendment rights. Specifically, Virginia contends that the NAACP's activities in furtherance of litigation, being "improper solicitation" under the state statute, fall within the traditional purview of state regulation of professional conduct. However, the State's attempt to equate the activities of the NAACP and its lawyers with common law barratry, maintenance and champerty, [Footnote 17] and to outlaw them accordingly, cannot obscure the serious encroachment worked by Chapter 33 upon protected freedoms of expression. The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms. Thus, it is no answer to the constitutional claims asserted by petitioner to say, as the Virginia Supreme Court of Appeals has said, that the Page 371 U. S. 439 purpose of these regulations was merely to insure high professional standards and not to curtail free expression. For a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. See Schware v. Board of Bar Examiners, 353 U. S. 232; Konigsberg v. State Bar, 353 U. S. 252. Cf. In re Sawyer, 360 U. S. 622. In NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 461, we said,"In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action."Later, in Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524, we said,"[w]here there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling."Most recently, in Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, 366 U. S. 297, we reaffirmed this principle:". . . regulatory measures . . . no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights."However valid may be Virginia's interest in regulating the traditionally illegal practices of barratry, maintenance and champerty, that interest does not justify the prohibition of the NAACP activities disclosed by this record. Malicious intent was of the essence of the common law offenses of fomenting or stirring up litigation. [Footnote 18] And whatever may be or may have been true of suits against Page 371 U. S. 440 government in other countries, the exercise in our own, as in this case, of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious. Even more modern, subtler regulations of unprofessional conduct or interference with professional relations, not involving malice, would not touch the activities at bar; regulations which reflect hostility to stirring up litigation have been aimed chiefly at those who urge recourse to the courts for private gain, serving no public interest. [Footnote 19] Hostility still exists to stirring Page 371 U. S. 441 up private litigation where it promotes the use of legal machinery to oppress: as, for example, to so discord in a family; [Footnote 20] to expose infirmities in land titles, as by hunting up claims of adverse possession; [Footnote 21] to harass large companies through a multiplicity of small claims; [Footnote 22] or to oppress debtors as by seeking out unsatisfied judgments. [Footnote 23] For a member of the bar to participate, directly or through intermediaries, in such misuses of the legal process is conduct traditionally condemned as injurious to the public. And beyond this, for a lawyer to attempt to reap gain by urging another to engage in private litigation has also been condemned: that seems to be the import of Canon 28, which the Virginia Supreme Court of Appeals has adopted as one of its Rules. [Footnote 24]Objection to the intervention of a lay intermediary, who may control litigation or otherwise interfere with the rendering of legal services in a confidential relationship also derives from the element of pecuniary gain. Fearful of dangers thought to arise from that element, the courts of several States have sustained regulations aimed Page 371 U. S. 442 at these activities. [Footnote 25] We intimate no view one way or the other as to the merits of those decisions with respect to the particular arrangements against which they are directed. It is enough that the superficial resemblance in form between those arrangements and that at bar cannot obscure the vital fact that here the entire arrangement employs constitutionally privileged means of expression to secure constitutionally guaranteed civil rights. [Footnote 26] There Page 371 U. S. 443 has been no showing of a serious danger here of professionally reprehensible conflicts of interest which rules against solicitation frequently seek to prevent. This is so partly because no monetary stakes are involved, and so there is no danger that the attorney will desert or subvert the paramount interests of his client to enrich himself or an outside sponsor. And the aims and interests of NAACP have not been shown to conflict with those of its members and nonmember Negro litigants; compare NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 459, where we said:"[the NAACP] and its members are in every practical sense identical. The Association, which provides in its constitution that '[a]ny person who is in accordance with [its] principles and policies . . .' may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views."See also Harrison v. NAACP, 360 U. S. 167, 360 U. S. 177.Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; [Footnote 27] the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. There has been neither claim nor Page 371 U. S. 444 proof that any assisted Negro litigants have desired, but have been prevented from retaining, the services of other counsel. We realize that an NAACP lawyer must derive personal satisfaction from participation in litigation on behalf of Negro rights, else he would hardly be inclined to participate at the risk of financial sacrifice. But this would not seem to be the kind of interest or motive which induces criminal conduct.We conclude that, although the petitioner has amply shown that its activities fall within the First Amendment's protections, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner's activities, which can justify the broad prohibitions which it has imposed. Nothing that this record shows as to the nature and purpose of NAACP activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application of Chapter 33 to those activities. A fortiori, nothing in this record justifies the breadth and vagueness of the Virginia Supreme Court of Appeals' decree.A final observation is in order. Because our disposition is rested on the First Amendment as absorbed in the Fourteenth, we do not reach the considerations of race or racial discrimination which are the predicate of petitioner's challenge to the statute under the Equal Protection Clause. That the petitioner happens to be engaged in activities of expression and association on behalf of the rights of Negro children to equal opportunity is constitutionally irrelevant to the ground of our decision. The course of our decisions in the First Amendment area makes plain that its protections would apply as fully to those who would arouse our society against the objectives of the petitioner. See, e.g., Near v. Minnesota, 283 U. S. 697; Terminiello v. Chicago, 337 U. S. 1; Kunz v. New York, 340 U. S. 290. For the Constitution protects expression Page 371 U. S. 445 and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered.Reversed

U.S. Supreme CourtNAACP v. Button, 371 U.S. 415 (1963)National Association for the Advancementof Colored People v. ButtonNo. 5Argued November 8,1961Restored to the calendar for reargument April 2, 1962Reargued October 9, 1962Decided January 14, 1963371 U.S. 415Syllabus1. Petitioner sued in a Federal District Court to enjoin enforcement of a Virginia statute on the ground that, as applied to it, the statute violated the Fourteenth Amendment. The District Court abstained from passing on the validity of the statute pending an authoritative interpretation of it by the state courts, but it retained jurisdiction. Petitioner then applied to a state court for a binding adjudication of all of its claims and a permanent injunction and declaratory relief, and it made no reservation to the disposition of the entire case by the state courts. A state trial court held the statute to be both constitutional and applicable to petitioner, and this decision was affirmed by the Virginia Supreme Court of Appeals. Petitioner then petitioned this Court for a writ of certiorari to review the decision of the Virginia Supreme Court of Appeals, and this Court granted certiorari.Held: The District Court's reservation of jurisdiction was purely formal; it did not impair the jurisdiction of this Court to review an otherwise final state court judgment; the judgment below was "final," within the meaning of 28 U.S.C. § 1257, and the case is properly before this Court. Pp. 371 U. S. 427-428.2. Chapter 33 of the Virginia Acts of Assembly, Extra Sess. 1956, amended former statutes defining and punishing malpractice by attorneys so as to broaden the definition of solicitation of legal business to include acceptance of employment or compensation from any person or organization not a party to a judicial proceeding and having no pecuniary right or liability in it. It also made it an offense for any such person or organization to solicit business for any attorney. Petitioner, a corporation whose major purpose was the elimination of racial discrimination, sued in a state court to enjoin enforcement of this Chapter and for a declaratory judgment Page 371 U. S. 416 that, as applied to petitioner, its affiliates, officers, members, attorneys retained or paid by it, and litigants to whom it might give assistance in cases involving racial discrimination, the Chapter violated the Fourteenth Amendment. The Court found that petitioner, through its State Conference, had formed a legal staff to direct actions pertaining to racial discrimination; urged the institution of suits to challenge racial discrimination; offered the services of attorneys selected and paid by it and its affiliates; and, with its affiliates, controlled the conduct of such litigation.Held: The activities of petitioner, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of Chapter 33 and the Canons of Professional Ethics. Pp. 371 U. S. 417-445.(a) Although petitioner is a corporation, it may assert its right and that of its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringement of their constitutionally guaranteed rights. P. 371 U. S. 428.(b) Abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. P. 371 U. S. 429.(c) In the context of petitioner's objectives, litigation is not a means of resolving private differences; it is a form of political expression, and a means for achieving the lawful objectives of equality of treatment by all governments, federal, state and local, for the members of the Negro community. Pp. 371 U. S. 429-430.(d) In order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, it is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Pp. 371 U. S. 430-431.(e) Under Chapter 33, as authoritatively construed by the Virginia Supreme Court of Appeals, a person who advises another that his legal rights have been infringed and refers him to a particular attorney or group of attorneys for assistance has committed a crime, as has the attorney who knowingly renders assistance under such circumstances; there thus inheres in the statute the gravest danger of smothering all discussion looking to the eventual institution of Page 371 U. S. 417 litigation on behalf of the rights of Negroes; and, as so construed, Chapter 33 violates the Fourteenth Amendment by unduly inhibiting protected freedoms of expression and association. Pp. 371 U. S. 431-438.(f) It is no answer to the constitutional claims asserted by petitioner to say, as did the Virginia Supreme Court of Appeals, that the purpose of this statute was merely to insure high professional standards, and not to curtail freedom of expression, for a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. Pp. 371 U. S. 438-439.(g) However valid may be Virginia's interest in regulating the traditionally illegal practices of barratry, maintenance and champerty, that interest does not justify the prohibition of petitioner's activities disclosed by this record. Pp. 371 U. S. 439-443.(h) Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain. Pp. 371 U. S. 443-444.(i) Although petitioner has amply shown that its activities fall within the protection of the First Amendment, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner's activities, which can justify the broad prohibitions which. it has imposed. P. 371 U. S. 444.202 Va. 142, 116 S.E.2d 55, reversed.

1983_82-1095

JUSTICE WHITE delivered the opinion of the Court.Respondent Harris was convicted of a capital crime in a California court and was sentenced to death. [Footnote 1] Along with Page 465 U. S. 39 many other challenges to the conviction and sentence, Harris claimed on appeal that the California capital punishment statute was invalid under the United States Constitution because it failed to require the California Supreme Court to compare Harris' sentence with the sentences imposed in similar capital Page 465 U. S. 40 cases. and thereby to determine whether they were proportionate. [Footnote 2] Rejecting the constitutional claims by citation to earlier cases, the California Supreme Court affirmed. People v. Harris, 28 Cal. 3d 935, 623 P.2d 240 (1981). [Footnote 3] We denied certiorari. 454 U.S. 882 (1981).Harris then sought a writ of habeas corpus in the state courts. He again complained of the failure to provide him with comparative proportionality review. The writ was denied without opinion, and we denied certiorari. Harris v. California, 457 U.S. 1111 (1982). Harris next sought habeas corpus in the United States District Court for the Southern District of California, pressing the claim, among others, that he had been denied the comparative proportionality review assertedly required by the United States Constitution. The District Court denied the writ and refused to stay Harris' execution, but issued a certificate of probable cause. The Court of Appeals, after holding that the proportionality review demanded by Harris was constitutionally required, vacated the judgment of the District Court and ordered that the writ issue relieving Harris of the death sentence unless, within 120 days, the California Supreme Court undertook to determine whether the penalty imposed Page 465 U. S. 41 on Harris is proportionate to sentences imposed for similar crimes. [Footnote 4] 692 F.2d 1189 (1982). We granted the State's petition for certiorari presenting the question whether the proportionality review mandated by the Court of Appeals is required by the United States Constitution. 460 U.S. 1036 (1983).IHarris concedes that the Court of Appeals' judgment rested on a federal constitutional ground. He nonetheless contends that we should affirm the judgment, which has the effect of returning the case to the state courts, because state law may entitle him to the comparative proportionality review that he has unsuccessfully demanded. We are unimpressed with the submission. Under 28 U.S.C. § 2241, a writ of habeas corpus disturbing a state court judgment may issue only if it is found that a prisoner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court may not issue the writ on the basis of a perceived error of state law.Even if an error of state law could be sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment, Harris' submission is not persuasive. He relies on People v. Frerson, Page 465 U. S. 42 25 Cal. 3d 142, 599 P.2d 587 (1979), and People v. Jackson, 28 Cal. 3d 264, 618 P.2d 149 (1980), for the proposition that proportionality review should have been extended to him as a matter of state law. But since deciding those cases, the California Supreme Court has twice rejected Harris' demand for proportionality review without suggesting that it was in any way departing from precedent. Indeed, on direct review, it indicated that Harris' constitutional claims had been adversely decided in those very cases.Finally, if Harris' claim is that, because of an evolution of state law, he would now enjoy the kind of proportionality review that has so far been denied him, that claim, even if accurate, [Footnote 5] would not warrant issuing a writ of habeas corpus. Rather it would appear to be a matter that the state courts should consider, if they are so inclined, free of the constraints of the federal writ. Accordingly, we deem it necessary to reach the constitutional question on which certiorari was granted.IIAt the outset, we should more clearly identify the issue before us. Traditionally, "proportionality" has been used with reference to an abstract evaluation of the appropriateness of Page 465 U. S. 43 a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime. See, e.g., Solem v. Helm, 463 U. S. 277 (1983); Enmund v. Florida, 458 U. S. 782 (1982); Coker v. Georgia, 433 U. S. 584 (1977). The death penalty is not in all cases a disproportionate penalty in this sense. Gregg v. Georgia, 428 U. S. 153, 428 U. S. 187 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); id. at 428 U. S. 226 (WHITE, J., concurring in judgment).The proportionality review sought by Harris, required by the Court of Appeals, [Footnote 6] and provided for in numerous state statutes [Footnote 7] is of a different sort. This sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime. The issue in this case, therefore, is whether the Eighth Amendment, applicable to the States through the Fourteenth Page 465 U. S. 44 Amendment, requires a state appellate court, before it affirms a death sentence, to compare the sentence in the case before it with the penalties imposed in similar cases if requested to do so by the prisoner. Harris insists that it does, and that this is the invariable rule in every case. Apparently, the Court of Appeals was of the same view. We do not agree.IIIHarris' submission is rooted in Furman v. Georgia, 408 U. S. 238 (1972). In Furman, the Court concluded that capital punishment, as then administered under statutes vesting unguided sentencing discretion in juries and trial judges, had become unconstitutionally cruel and unusual punishment. The death penalty was being imposed so discriminatorily, id. at 428 U. S. 240 (Douglas, J., concurring), so wantonly and freakishly, id. at 428 U. S. 306 (Stewart, J., concurring), and so infrequently, id. at 428 U. S. 310 (WHITE, J., concurring), that any given death sentence was cruel and unusual. In response to that decision, roughly two-thirds of the States promptly redrafted their capital sentencing statutes in an effort to limit jury discretion and avoid arbitrary and inconsistent results. All of the new statutes provide for automatic appeal of death sentences. Most, such as Georgia's, require the reviewing court, to some extent at least, to determine whether, considering both the crime and the defendant, the sentence is disproportionate to that imposed in similar cases. Not every State has adopted such a procedure. In some States, such as Florida, the appellate court performs proportionality review despite the absence of a statutory requirement; in others, such as California and Texas, it does not.Four years after Furman, this Court examined several of the new state statutes. We upheld one of each of the three sorts mentioned above. See Gregg v. Georgia, supra; Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976). Needless to say, that some schemes providing Page 465 U. S. 45 proportionality review are constitutional does not mean that such review is indispensable. We take statutes as we find them. To endorse the statute as a whole is not to say that anything different is unacceptable. As was said in Gregg,"[w]e do not intend to suggest that only the above-described procedures would be permissible under Furman, or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis."428 U.S. at 195 (footnote omitted). Examination of our 1976 cases makes clear that they do not establish proportionality review as a constitutional requirement.In Gregg, six Justices concluded that the Georgia system adequately directed and limited the jury's discretion. The bifurcated proceedings, the limited number of capital crimes, the requirement that at least one aggravating circumstance be present, and the consideration of mitigating circumstances minimized the risk of wholly arbitrary, capricious, or freakish sentences. In the opinion announcing the judgment of the Court, three Justices concluded that sentencing discretion under the statute was sufficiently controlled by clear and objective standards. Id. at 428 U. S. 197-198. In a separate concurrence, three other Justices found sufficient reason to expect that the death penalty would not be imposed so wantonly, freakishly, or infrequently as to be invalid under Furman. 428 U.S. at 428 U. S. 222.Both opinions made much of the statutorily required comparative proportionality review. Id. at 428 U. S. 198, 428 U. S. 204-206, 428 U. S. 222-223. This was considered an additional safeguard against arbitrary or capricious sentencing. While the opinion of Justices Stewart, POWELL, and STEVENS suggested that some form of meaningful appellate review is required, id. at 428 U. S. 153, 428 U. S. 198, 428 U. S. 204-206, those Justices did not declare that comparative review was so critical that, without it, the Georgia statute would not have passed constitutional muster. Indeed, in Page 465 U. S. 46 summarizing the components of an adequate capital sentencing scheme, Justices Stewart, POWELL, and STEVENS did not mention comparative review:"[T]he concerns expressed in Furman . . . can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition, these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information."Id. at 428 U. S. 195. In short, the Court of Appeals erred in concluding that Gregg required proportionality review.There is even less basis for reliance on Proffitt v. Florida, supra. The Florida statute provides for a bifurcated procedure and forecloses the death penalty unless the sentencing authority finds that at least one of eight statutory aggravating circumstances is present and is not outweighed by any mitigating circumstances. The joint opinion of Justices Stewart, POWELL, and STEVENS observed that the Florida scheme, like its Georgia counterpart, requires the sentencer to focus on the individual circumstances of each homicide and each defendant. 428 U.S. at 428 U. S. 251. Also, by vesting ultimate sentencing authority in the judge, rather than the jury, the statute was expected to yield more consistent sentencing at the trial court level. Id. at 428 U. S. 252. Only after concluding that trial judges are given specific and detailed guidance to assist them in deciding whether to impose the death penalty did the opinion observe that death sentences are reviewed to ensure that they are consistent with the sentences imposed in similar cases. Id. at 428 U. S. 250-251. [Footnote 8] The opinion concurring in Page 465 U. S. 47 the judgment filed by three other Justices approved the Florida statute without even mentioning appellate review. Id. at 428 U. S. 260-261. Page 465 U. S. 48That Gregg and Proffitt did not establish a constitutional requirement of proportionality review is made clearer by Jurek v. Texas, 428 U. S. 262 (1976), decided the same day. In Jurek, we upheld a death sentence even though neither the statute, as in Georgia, nor state case law, as in Florida, provided for comparative proportionality review. Justices Stewart, POWELL, and STEVENS, after emphasizing the limits on the jury's discretion, [Footnote 9] concluded:"Texas' capital sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. 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. By providing Page 465 U. S. 49 prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be 'wantonly' or 'freakishly' imposed, it does not violate the Constitution."Id. at 428 U. S. 276.That the three Justices considered such appellate review as Texas provided "a means to promote the evenhanded, rational, and consistent imposition of death sentences," ibid., is revealing. First, it makes plain that, at least in light of the other safeguards in the Texas statute, proportionality review would have been constitutionally superfluous. Second, it suggests that the similarly worded references to appellate review in Gregg and Proffitt were focused not on proportionality review as such, but only on the provision of some sort of prompt and automatic appellate review. The concurrence expressing the views of three other Justices sustained the Texas statute by focusing solely on the limitations on the jury's discretion, without even mentioning appellate review. [Footnote 10] Page 465 U. S. 50 In view of Jurek, we are quite sure that, at that juncture, the Court had not mandated comparative proportionality review whenever a death sentence was imposed. [Footnote 11]Harris also relies on Zant v. Stephens, 462 U. S. 862 (1983), which was announced after the Court of Appeals' decision in this case. Zant did not depart from Gregg, and did not question Jurek. Indeed, Jurek was cited in support of the decision. 462 U.S. at 462 U. S. 875-876, n. 13. While emphasizing the importance of mandatory appellate review under the Georgia statute, id. at 462 U. S. 875 and 462 U. S. 876, we did not hold that, without comparative proportionality review, the statute would be unconstitutional. To the contrary, we relied on the jury's finding of aggravating circumstances, not the State Supreme Court's finding of proportionality, as rationalizing the sentence. [Footnote 12] Thus, the emphasis was on the constitutionally necessary narrowing function of statutory aggravating circumstances. Proportionality review was considered to be an additional safeguard against arbitrarily imposed death sentences, but we certainly did not hold that comparative review was constitutionally required.There is thus no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the Page 465 U. S. 51 defendant requests it. Indeed, to so hold would effectively overrule Jurek, and would substantially depart from the sense of Gregg and Proffitt. We are not persuaded that the Eighth Amendment requires us to take that course.IVAssuming that there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review, the 1977 California statute is not of that sort. Under this scheme, a person convicted of first-degree murder is sentenced to life imprisonment unless one or more "special circumstances" are found, in which case the punishment is either death or life imprisonment without parole. Cal.Penal Code Ann. §§ 190, 190.2 (West Supp.1978). [Footnote 13] Special circumstances are alleged in the charging paper and tried with the issue of guilt at the initial phase of the trial. At the close of evidence, the jury decides guilt or innocence and determines whether the special circumstances alleged are present. Each special circumstance must be proved beyond a reasonable doubt. § 190.4(a). If the jury finds the defendant guilty of first-degree murder and finds at least one special circumstance, the trial proceeds to a second phase to determine the appropriate penalty. Additional evidence may be offered and the jury is given a list of relevant factors. Page 465 U. S. 52 § 190.3. [Footnote 14]"After having heard and received all of the evidence, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall determine whether the penalty shall be death or life imprisonment without the possibility of parole."Ibid. If the jury returns a verdict of death, the defendant is deemed to move to modify the verdict. § 190.4(e). The trial judge then reviews the evidence and, in light of the statutory factors, makes an "independent determination as to whether the weight of the evidence supports the jury's findings and verdicts." Ibid. The judge is required to state on the record the reasons for his findings. Page 465 U. S. 53 Ibid. If the trial judge denies the motion for modification, there is an automatic appeal. §§ 190.4(e), 1239(b). The statute does not require comparative proportionality review or otherwise describe the nature of the appeal. [Footnote 15] It does state that the trial judge's refusal to modify the sentence "shall be reviewed." § 190.4(e). This would seem to include review of the evidence relied on by the judge. As the California Supreme Court has said,"the statutory requirements that the jury specify the special circumstances which permit imposition of the death penalty, and that the trial judge specify his reasons for denying modification of the death penalty, serve to assure thoughtful and effective appellate review, focusing upon the circumstances present in each particular case."People v. Frierson, 25 Cal. 3d at 179, 599 P.2d at 609. That court has reduced a death sentence to life imprisonment because the evidence did not support the findings of special circumstances. People v. Thompson, 27 Cal. 3d 303, 611 P.2d 883 (1980).By requiring the jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small subclass of capital-eligible cases. The statutory list of relevant factors, applied to defendants within this subclass, "provide[s] jury guidance and lessen[s] the chance of arbitrary application of the death penalty," 692 F.2d at 1194, "guarantee[ing] that the jury's discretion will be guided and its consideration deliberate," id. at 1195. The jury's "discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 428 U. S. 189. Its decision is reviewed by the trial judge and the State Supreme Court. On its face, this system, without any requirement or practice of comparative proportionality review, cannot be successfully challenged under Furman and our subsequent cases. Page 465 U. S. 54Any capital sentencing scheme may occasionally produce aberrational outcomes. Such inconsistencies are a far cry from the major systemic defects identified in Furman. As we have acknowledged in the past, "there can be no perfect procedure for deciding in which cases governmental authority should be used to impose death.'" Zant v. Stephens, 462 U.S. at 465 U. S. 884, quoting Lockett v. Ohio, 438 U. S. 586, 438 U. S. 605 (1978) (plurality opinion). As we are presently informed, we cannot say that the California procedures provided Harris inadequate protection against the evil identified in Furman. The Court of Appeals therefore erred in ordering the writ of habeas corpus to issue. Its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtPulley v. Harris, 465 U.S. 37 (1984)Pulley v. HarrisNo. 82-1095Argued November 7, 1983Decided January 23, 1984465 U.S. 37SyllabusRespondent was convicted of a capital crime in a California court and was sentenced to death, and the California Supreme Court affirmed, rejecting the claim that California's capital punishment statute was invalid under the Federal Constitution because it failed to require the California Supreme Court to compare respondent's sentence with sentences imposed in similar capital cases, and thereby to determine whether they were proportionate. After habeas corpus relief was denied by the state courts, respondent sought habeas corpus in Federal District Court, again contending that he had been denied the comparative proportionality review assertedly required by the Constitution. The District Court denied the writ, but the Court of Appeals held that comparative proportionality review was constitutionally required.Held:1. There is no merit to respondent's contention that the Court of Appeals' judgment should be affirmed solely on the ground that state decisional law entitles him to comparative proportionality review. Under 28 U.S.C. § 2241, a federal court may not issue a writ of habeas corpus on the basis of a perceived error of state law. In rejecting respondent's demand for proportionality review, the California Supreme Court did not suggest that it was in any way departing from state case law precedent. Moreover, if respondent's claim is that, because of an evolution of state law, he would now enjoy the kind of proportionality review that has so far been denied him, the state courts should consider the matter, if they are so inclined, free of the constraints of the federal writ of habeas corpus. Pp. 465 U. S. 41-42.2. The Eighth Amendment does not require, as an invariable rule in every case, that a state appellate court, before it affirms a death sentence, compare the sentence in the case before it with the penalties imposed in similar cases if requested to do so by the prisoner. Pp. 465 U. S. 44-54.(a) This Court's cases do not require comparative proportionality review by an appellate court in every capital case. The outcome in Gregg v. Georgia, 428 U. S. 153 (upholding Georgia's statutory scheme which required comparative proportionality review), and Proffitt v. Florida, 428 U. S. 242 (upholding Florida's scheme under which the appellate court performed proportionality review despite the absence of a Page 465 U. S. 38 statutory requirement), did not hinge on proportionality review. That some schemes providing proportionality review are constitutional does not mean that such review is indispensable. Moreover, Jurek v. Texas, 428 U. S. 262, upheld Texas' scheme even though neither the statute nor state case law provided for comparative proportionality review. Pp. 465 U. S. 44-51.(b) Assuming that there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review, the California statute involved here is not of that sort. Pp. 465 U. S. 51-54.692 F.2d 1189, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in all but Part III of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 465 U. S. 54. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 465 U. S. 59.

1971_70-5012

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted the writ of certiorari on claims under the Fifth and Sixth Amendments arising out of the use of one of a number of confessions, all of which were received in evidence over objection. The confession challenged here was obtained by a police officer posing as an accused person confined in the cell with petitioner. Page 407 U. S. 372Petitioner Milton is presently serving a life sentence imposed in 1958 upon his conviction of first-degree murder following a jury trial in Dade County, Florida. During that trial, the State called as a witness a police officer who, at a time when petitioner had already been indicted and was represented by counsel, posed as a fellow prisoner and spent almost two full days sharing a cell with petitioner. The officer testified to incriminating statements made to him by petitioner during this period. Contending that the statements he made to the officer were involuntary under Fifth Amendment standards and were obtained in violation of his Sixth Amendment rights as subsequently interpreted in Massiah v. United States, 377 U. S. 201 (1964), petitioner initiated the present habeas corpus proceeding in the United States District Court for the Southern District of Florida. The District Court, finding that petitioner had exhausted his state remedies in the course of several post-conviction proceedings in the Florida courts, ruled against petitioner on the merits of his claim, holding that his statements to the police officer were not inadmissible on Fifth Amendment grounds and that his Sixth Amendment claim could not prevail, since "[n]o Court has declared Massiah retroactive, and this Court will not be the first to do so." 306 F. Supp. 929, 933. The Court of Appeals affirmed the denial of relief to petitioner, 428 F.2d 463.On the basis of the argument in the case and our examination of the extensive record of petitioner's 1958 trial, we have concluded that the judgment under review must be affirmed without reaching the merits of petitioner's present claim. Assuming, arguendo, that the challenged testimony should have been excluded, the record clearly reveals that any error in its admission was harmless beyond a reasonable doubt. Harrington v. California, 395 U. S. 250 (1969); Chapman v. California, 386 U. S. 18 (1967). The jury, in addition to hearing the challenged Page 407 U. S. 373 testimony, was presented with overwhelming evidence of petitioner's guilt, including no less than three full confessions that were made by petitioner prior to his indictment. Those confessions have been found admissible in the course of previous post-conviction proceedings brought by petitioner in his attempts to have this conviction set aside, and they are not challenged here.The crime for which petitioner was convicted occurred in the early morning hours of June 1, 1958. The woman with whom petitioner had been living was asleep while riding as a passenger in the rear seat of an automobile driven by petitioner; she died by drowning when the car ran into the Miami River with its rear windows closed and its rear doors securely locked from the outside with safety devices designed to ensure against accidental opening of the doors. Petitioner, who jumped from the car shortly before it reached the water, was nevertheless propelled into the river by the car's momentum; he was recovered from the water when a seaman nearby heard his cries for help and found him clinging to a boat moored in the river near the point of the automobile's entry. A few hours later the car, with the victim's body still inside, was retrieved from the bottom of the river a short distance downstream from its point of entry.The following day, the Miami police arrested petitioner on manslaughter charges and placed him in the city jail. Ten days after the woman's death, petitioner, having been advised of his right to remain silent, confessed that he had deliberately killed the woman and that the accident was simulated. He first made an oral confession to a police officer during a question and answer exchange that was preserved on a wire-recording device. He then repeated his confession during another exchange, and these statements were taken down by a stenographer; after this stenographic recording was converted to a transcript, petitioner Page 407 U. S. 374 read it over in full and signed it at 11 p.m. on June 11. [Footnote 1]The following day, petitioner told a police officer that he would like to make some clarifying additions to the statements in the writing he had signed the previous night. The officer suggested that they first go with a photographer to the scene of the incident "and reconstruct how this thing . . . occurred." Petitioner agreed. He, the police officer, and a photographer then went to the scene of the crime where petitioner pointed out the route he had taken in driving the car to the river, the approximate point at which he had jumped out of the car, and the point of the car's entry into the river. Petitioner was then taken back to the police station, where he went over his statement of the night before and indicated to the officer the parts of that statement he wanted to clarify. Once again, a stenographer was summoned and a question and answer exchange was taken down and transcribed to a writing that petitioner read over and signed. [Footnote 2] Page 407 U. S. 375 Approximately one week after he had made these confessions, petitioner secured the services of an attorney, who advised him not to engage in any further discussions of his case with anyone else.Following this, and while petitioner was under indictment and confined in the Dade County jail awaiting trial, the State, for reasons that are not altogether clear, assigned a police officer named Langford the special detail of posing as a prisoner and sharing petitioner's cell in order to "seek information" from him.Langford entered the cell with petitioner late one Friday afternoon and presented himself as a fellow prisoner under investigation for murder; he assumed a friendly pose toward his cellmate, offering petitioner some of his prison food at their first breakfast together the next morning and telling petitioner something of his own fictitious "crime," which he described as a robbery committed with an accomplice who had used Langford's gun to kill the robbery victim. Finally, petitioner began to boast that he had not made Langford's mistake of having an accomplice who might later serve as a witness; instead, he said, he had committed the "perfect" crime with no surviving witnesses. By the time Langford left the cell on Sunday afternoon, petitioner had described his own crime in some detail, and had predicted with much assurance that he would soon be released, that he would collect a lot of insurance money, and that he would then flee the State with the insurance money without ever being brought to trial for his "perfect" crime. The incriminating statements made to Langford were essentially the Page 407 U. S. 376 same as those given in the prior confessions not challenged here.At petitioner's trial in state court, the, wire recording of his first confession was played back, first to the judge for a ruling on its admissibility, and then to the jury. Petitioner's two written confessions were also received in evidence, as were the photographs that were taken and the statements that were made by petitioner when he reconstructed the crime at the scene of its occurrence. In addition, Langford was permitted to testify to the statements made to him by petitioner while the two men were sharing the cell in the county jail. Other evidence, highly damaging to petitioner in its totality, was also presented to the jury. For example, there was testimony that petitioner had told an acquaintance a few months before the murder that he disliked Minnie Claybon (the murder victim) and was interested only in getting some money out of her. The terms of certain insurance policies purchased by petitioner about two months before the crime were described in testimony given by the selling insurance agents; the policies provided for the payment of $8,500 to petitioner upon the accidental death of Miss Claybon, and the agents testified that petitioner had faithfully maintained his weekly premium payments on the policies. Other testimony, however, indicated that petitioner was hard-pressed for money shortly before the murder, having fallen behind in his rent payments and having sold some of his personal clothing to raise small sums. There was testimony that petitioner had purchased the car in which Miss Claybon drowned on the very afternoon before the crime, making a cash down payment of $8; that the safety devices on the rear doors of the car had been left in the unlocked position by the car's former owner; that these devices could be put in the locked position only by loosening a screw, sliding the Page 407 U. S. 377 locking device into position, and then retightening the screw; and that these devices were found securely screwed in the locked position when the car, with the victim's body still inside, was recovered from the river. After hearing all the evidence, the jury found petitioner guilty of murder in the first degree, but recommended mercy; on that recommendation, the trial judge imposed the sentence of life imprisonment.The petitioner has made a number of collateral attacks on his conviction, primarily in the courts of Florida. In response to one of his applications for post-conviction relief, the Florida Supreme Court issued a writ of habeas corpus, heard oral argument on the voluntariness of petitioner's wire-recorded and written confessions, but thereafter discharged the writ in a reported decision upholding the voluntariness of those confessions, and their admissibility at trial. Milton v. Cochran, 147 So. 2d 137 (1962), cert. denied, 375 U.S. 869 (1963). The issues raised in that proceeding are not now before us, and must, for the purposes of the instant case, be treated as having been properly resolved by the Florida Supreme Court. Cf. Sup.Ct.Rule 23(1)(c).In initiating the present habeas corpus proceeding in the District Court, petitioner sought to have his conviction set aside on the ground that the statements he made to police officer Langford should not have been admitted against him. Our review of the record, however, leaves us with no reasonable doubt that the jury at petitioner's 1958 trial would have reached the same verdict without hearing Langford's testimony. The writ of habeas corpus has limited scope; the federal courts do not sit to retry state cases de novo, but, rather, to review for violation of federal constitutional standards. In that process, we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court 14 Page 407 U. S. 378 years ago by use of evidence not challenged here; the use of the additional evidence challenged in this proceeding and arguably open to challenge was, beyond reasonable doubt, harmless.Affirmed

U.S. Supreme CourtMilton v. Wainwright, 407 U.S. 371 (1972)Milton v. WainwrightNo. 70-5012Argued January 12, 1972Decided June 22, 1972407 U.S. 371SyllabusPetitioner in this habeas corpus proceeding challenged on Fifth and Sixth Amendment grounds the introduction at his trial of a post-indictment, pretrial confession he made to a police officer posing as a fellow prisoner. The denial of habeas corpus relief is affirmed without reaching the merits of petitioner's claims; any possible error in the admission of the challenged confession was harmless beyond a reasonable doubt in light of three other unchallenged confessions and strong corroborative evidence of petitioner's guilt. Harrington v. California, 395 U. S. 250; Chapman v. California, 386 U. S. 18. Pp. 407 U. S. 372-378.428 F.2d 463, affirmed.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined, post, p. 407 U. S. 378.

1996_95-928

legislative history, insofar as it is relevant, supports this conclusion. The petitioner's argument that § 1821(k) displaces federal common law by applying a uniform "gross negligence" standard for federally chartered, but not state-chartered, savings banks fails in light of the statute's language and history, this Court's conclusion that federal common law is inapplicable, and the fact that Congress did not separate its consideration of the two types of institutions. Pp. 226-231.57 F.3d 1231, vacated and remanded.BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined, and in which O'CONNOR, SCALIA, and THOMAS, JJ., joined, except to the extent the opinion relies on legislative history. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA and THOMAS, JJ., joined, post, p. 231.Ronald W Stevens argued the cause for petitioner. With him on the briefs were Gilbert C. Miller and Bruce H. Nielson.Richard P. Bress argued the cause for respondent. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Bender, Jack D. Smith, Ann S. DuRoss, and Jerome A. Madden. *JUSTICE BREYER delivered the opinion of the Court.The Resolution Trust Corporation (RTC) sued several officers and directors of City Federal Savings Bank, claiming that they had violated the legal standard of care they owed that federally chartered, federally insured institution. The case here focuses upon the legal standard for determining whether or not their behavior was improper. It asks where courts should look to find the standard of care to measure the legal propriety of the defendants' conduct-to state law,*Briefs of amici curiae urging reversal were filed for the American Bankers Association et al. by John J. Gill III, Michael F. Crotty, Richard M. Whiting, and Leonard J. Rubin; for the Washington Legal Foundation et al. by Reuben B. Robertson III, Daniel J. Popeo, and Paul D. Kamenar; and for Joseph laria et al. by Douglas S. Eakeley and Alan S. Naar.216to federal common law, or to a special federal statute (103 Stat. 243, 12 U. S. C. § 1821(k)) that speaks of "gross negligence"?We conclude that state law sets the standard of conduct as long as the state standard (such as simple negligence) is stricter than that of the federal statute. The federal statute nonetheless sets a "gross negligence" floor, which applies as a substitute for state standards that are more relaxed.IIn 1989, City Federal Savings Bank (City Federal), a federal savings association, went into receivership. The RTC, as receiver, brought this action in the bank's name against officers and directors. (Throughout this opinion, we use the more colloquial term "bank" to refer to a variety of institutions such as "federal savings associations.") The complaint said that the defendants had acted (or failed to act) in ways that led City Federal to make various bad development, construction, and business acquisition loans. It claimed that these actions (or omissions) were unlawful because they amounted to gross negligence, simple negligence, and breaches of fiduciary duty.The defendants moved to dismiss. They pointed to a federal statute, 12 U. S. C. § 1821(k), that says in part that a "director or officer" of a federally insured bank "may be held personally liable for monetary damages" in an RTC-initiated "civil action ... for gross negligence" or "similar conduct ... that demonstrates a greater disregard of a duty of care (than gross negligence) .... " (Emphasis added.) They argued that, by authorizing actions for gross negligence or more seriously culpable conduct, the statute intended to forbid actions based upon less seriously culpable conduct, such as conduct that rose only to the level of simple negligence. The District Court agreed and dismissed all but the gross negligence claims.217The Third Circuit, providing an interlocutory appeal, 28 U. S. C. § 1292(b), reversed. It interpreted the federal statute as simply offering a safeguard against state legislation that had watered down applicable state standards of carebelow a gross negligence benchmark. As so interpreted, the statute did not prohibit actions resting upon stricter standard of care rules-whether those stricter standard of care rules originated in state law (which the Circuit found applicable in the case of state-chartered banks) or in federal common law (which the Circuit found applicable in the case of federally chartered banks). Resolution Trust Corp. v. Cityfed Financial Corp., 57 F.3d 1231, 1243-1244, 1245-1249 (1995). Noting that City Federal is a federally chartered savings institution, the Circuit concluded that the RTC was free "to pursue any claims for negligence or breach of fiduciary duty available as a matter of federal common law." Id., at 1249.The defendants, pointing to variations in the Circuits' interpretations of the "gross negligence" statute, sought certiorari. Compare Resolution Trust Corp. v. Frates, 52 F.3d 295 (CAlO 1995) (§ 1821(k) prohibits federal common-law actions for simple negligence), with Cityfed, supra, at 12461249 (§ 1821(k) does not prohibit federal common-law actions for simple negligence). And we granted review.IIWe begin by temporarily setting the federal "gross negligence" statute to the side, and by asking whether, were there no such statute, federal common law would provide the applicable legal standard. We recognize, as did the Third Circuit, that this Court did once articulate federal commonlaw corporate governance standards, applicable to federally chartered banks. Briggs v. Spaulding, 141 U. S. 132 (1891). See also Martin v. Webb, 110 U. S. 7, 15 (1884) (directors must "use ordinary diligence ... and ... exercise reasonable218control"); Bowerman v. Hamner, 250 U. S. 504 (1919). But the Court found its rules of decision in federal common law long before it held, in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that "[t]here is no federal general common law." Id., at 78. The Third Circuit, while considering itself bound by Briggs, asked whether relevant federal common-law standards could have survived Erie. We conclude that they did not and that (except as modified in Part III, infra) state law, not federal common law, provides the applicable rules for decision.This Court has recently discussed what one might call "federal common law" in the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute or a properly promulgated administrative rule, but, rather, to the judicial "creation" of a special federal rule of decision. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640-643 (1981). The Court has said that "cases in which judicial creation of a special federal rule would be justified ... are ... 'few and restricted.'" O'Melveny & Myers v. FDIC, 512 U. S. 79, 87 (1994) (quoting Wheeldin v. Wheeler, 373 U. S. 647, 651 (1963)). "Whether latent federal power should be exercised to displace state law is primarily a decision for Congress," not the federal courts. Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 68 (1966). Nor does the existence of related federal statutes automatically show that Congress intended courts to create federal common-law rules, for "'Congress acts ... against the background of the total corpus juris of the states .... '" Id., at 68 (quoting H. Hart & H. Wechsler, The Federal Courts and the Federal System 435 (1953)). Thus, normally, when courts decide to fashion rules of federal common law, "the guiding principle is that a significant conflict between some federal policy or interest and the use of state law ... must first be specifically shown." 384 U. S., at 68. Indeed, such a "conflict" is normally a "precondition." O'Melveny, supra, at 87. See also United States v. Kimbell219Foods, Inc., 440 U. S. 715, 728 (1979); Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 98 (1991).No one doubts the power of Congress to legislate rules for deciding cases like the one before us. Indeed, Congress has enacted related legislation. Certain federal statutes specify, for example, how to form "national banks" (i. e., a federally chartered bank), how to amend the articles of association, how shareholders are to vote, directors' qualifications, the form of a bank's "organization certificate," minimum capital requirements, and a list of corporate powers. See 12 U. S. C. § 21 et seq. Other federal statutes regulate the activities of federally chartered savings associations in various ways. E. g., 12 U. S. C. § 1464(b) (various regulations on savings associations, such as interest rate on loans). No one argues, however, that either these statutes, or federal regulations validly promulgated pursuant to statute, set forth general corporate governance standards of the sort at issue applicable to a federally chartered savings association such as City Federal. Cf. 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (discussed infra, at 224) (describing governance procedures applicable to federally chartered national banks, but not federal savings associations). Consequently, we must decide whether the application of state-law standards of care to such banks would conflict with, and thereby significantly threaten, a federal policy or interest.We have examined each of the basic arguments that the respondent implicitly or explicitly raises. In our view, they do not point to a conflict or threat that is significant, and we shall explain why. (The respondent, by the way, is now the Federal Deposit Insurance Corporation-the FDIC-which has replaced the RTC pursuant to a new federal statute. 12 U. S. C. § 1441a(b)(4)(A).)First, the FDIC invokes the need for "uniformity." Federal common law, it says, will provide uniformity, but "[s]uperimposing state standards of fiduciary responsibility over standards developed by a federal chartering authority would220... 'upset the balance' that the federal chartering authority 'may strike .... '" Brief for Respondent 23 (quoting Kamen, supra, at 103). To invoke the concept of "uniformity," however, is not to prove its need. Cf. Kimbell Foods, supra, at 730 (rejecting "generalized pleas for uniformity"); O'Melveny, supra, at 88 (same).For one thing, the number of federally insured banks is about equally divided between federally chartered and state-chartered banks, Federal Deposit Insurance Corporation, 1 Statistics on Banking: A Statistical History of the United States Banking Industry, p. B-9 (Aug. 1995) (Table SI-9) (showing that, in 1989, there were 1,595 federally chartered institutions and 1,492 state-chartered ones); and a federal standard that increases uniformity among the former would increase disparity with the latter.For another, our Nation's banking system has thrived despite disparities in matters of corporate governance. Consider, for example, the divergent state-law governance standards applicable to banks chartered in different States, e. g., Ind. Code §23-1-35-1(e)(2) (1994) (directors not liable unless conduct constitutes at least "willful misconduct or recklessness"); Iowa Code § 524.605 (1995) (providing ordinary negligence standard), as well as the different ways in which lower courts since 1891 have interpreted Briggs' "federal common law" standard. Compare Federal Deposit Insurance Corporation v. Mason, 115 F.2d 548,551-552 (CA3 1940) (applying standard similar to simple negligence), with Washington Bancorporation v. Said, 812 F. Supp. 1256, 1266 (DC 1993) (Briggs did not apply "simple negligence" standard of care). See R. Stevens & B. Nielson, The Standard of Care for Directors and Officers of Federally Chartered Depository Institutions: It's Gross Negligence Regardless of Whether Section 1821(k) Preempts Federal Common Law, 13 Ann. Review Banking L. 169, 172 (1994) (in part because of "widely varying results, the federal common law standard of care is neither fully developed, nor well settled"). See221also infra, at 223 (citing cases in which state governance law has been applied to national banks). Indeed, the Comptroller of the Currency, acting through regulation, permits considerable disparity in the standard of care applicable to federally chartered banks other than savings banks (which are under the jurisdiction of the Office of Thrift Supervision (OTS), 12 U. S. C. §§ 1462a, 1463(a)). See 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (permitting banks, within broad limits, "to follow the corporate governance procedures of the law of the state in which the main office of the bank is located ... [or] the Delaware General Corporation Law ... or the [Model Business Corporation Act]").Second, the FDIC at times suggests that courts must apply a federal common-law standard of care simply because the banks in question are federally chartered. This argument, with little more, might have seemed a strong one during most of the first century of our Nation's history, for then state-chartered banks were the norm and federally chartered banks an exception-and federal banks often encountered hostility and deleterious state laws. See B. Klebaner, American Commercial Banking: A History 4-11 (1990) (tracing the origin of the dual banking system to the 1780 Philadelphia Bank and discussing proposals of a then-young Alexander Hamilton); B. Hammond, Banks and Politics in America: From the Revolution to the Civil War 41-66 (1957) (describing the controversial, but successful, Federalist proposals for the first and second federally chartered Bank of the United States).After President Madison helped to create the second Bank of the United States, for example, many States enacted laws that taxed the federal bank in an effort to weaken it. This Court held those taxes unconstitutional. McCulloch v. Maryland, 4 Wheat. 316, 431 (1819) ("[T]he power to tax involves the power to destroy"). See also Osborn v. Bank of United States, 9 Wheat. 738 (1824) (federal marshals acted lawfully in seizing funds from a state tax collector who had222hurdled the counter at the Chilicothe Branch of the Bank of the United States and taken $100,000 from the vault). Still, 10 years later President Andrew Jackson effectively killed the bank. His Secretary of the Treasury Roger Taney (later Chief Justice), believing state banks fully able to serve the Nation, took steps to "ushe[r] in the era of expansive state banking." A. Pollard, J. Passaic, K. Ellis, & J. Daly, Banking Law in the United States 16 (1988). See also Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837) (permitting state banks to issue paper money in certain circumstances).During and after the Civil War a federal banking system reemerged. Moved in part by war-related financing needs, Treasury Secretary (later Chief Justice) Salmon P. Chase proposed, and Congress enacted, laws providing for federally chartered banks, Act of Feb. 20, 1863, ch. 43, 12 Stat. 655, and encouraging state banks to obtain federal charters. Act of June 3, 1864, ch. 106, 13 Stat. 99 (only federally chartered banks can issue national currency). See also Veazie v. Fenno, 8 Wall. 533 (1869) (opinion of Chase, C. J.) (upholding constitutionality of federal taxation of state banks). Just before World War I, Congress created the federal reserve system. Act of Dec. 23, 1913, ch. 6, 38 Stat. 251. After that war, it created several federal banking agencies with regulatory authority over both federal and state banks. Act of June 16, 1933, ch. 89, 48 Stat. 162. And in 1933, it provided for the federal chartering of savings banks. Act of June 13, 1933, ch. 62, 48 Stat. 128.This latter history is relevant because in 1870 and thereafter this Court held that federally chartered banks are subject to state law. See National Bank v. Commonwealth, 9 Wall. 353, 361 (1870). In National Bank the Court distinguished McCulloch by recalling that Maryland's taxes were "used ... to destroy," and it added that federal banks"are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation. All their contracts are223governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional." 9 Wall., at 362.The Court subsequently found numerous state laws applicable to federally chartered banks. See, e. g., Davis v. Elmira Savings Bank, 161 U. S. 275, 290 (1896) ("Nothing, of course, in this opinion is intended to deny the operation of general and undiscriminating state laws on the contracts of national banks, so long as such laws do not conflict with the letter or the general objects and purposes of Congressional legislation"); First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 656 (1924) (national banks "are subject to the laws of a State in respect of their affairs unless such laws interfere with the purposes of their creation, tend to impair or destroy their efficiency as federal agencies or conflict with the paramount law of the United States"); Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U. S. 103 (1939) (applying state law to tort claim by depositor against directors of a national bank); Anderson Nat. Bank v. Luckett, 321 U. S. 233, 248 (1944) ("[N]ational banks are subject to state laws, unless those laws infringe the national banking laws or impose an undue burden on the performance of the banks' functions"); California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272 (1987) (applying state employment discrimination law to federally chartered savings and loan association).For present purposes, the consequence is the following: To point to a federal charter by itself shows no conflict, threat, or need for "federal common law." It does not answer the critical question.Third, the FDIC refers to a conflict of laws principle called the "internal affairs doctrine"-a doctrine that this Court has described as224"a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs-matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders-because otherwise a corporation could be faced with conflicting demands." Edgar v. MITE Corp., 457 U. S. 624, 645 (1982).States normally look to the State of a business' incorporation for the law that provides the relevant corporate governance general standard of care. Restatement (Second) Conflict of Laws § 309 (1971). And by analogy, it has been argued, courts should look to federal law to find the standard of care governing officers and directors of federally chartered banks. See Resolution Trust Corporation v. Chapman, 29 F.3d 1120, 1123-1124 (CA7 1994).To find a justification for federal common law in this argument, however, is to substitute analogy or formal symmetry for the controlling legal requirement, namely, the existence of a need to create federal common law arising out of a significant conflict or threat to a federal interest. O'Melveny, 512 U. S., at 85, 87. The internal affairs doctrine shows no such need, for it seeks only to avoid conflict by requiring that there be a single point of legal reference. Nothing in that doctrine suggests that the single source of law must be federal. See Chapman, supra, at 1126-1127 (Posner, C. J., dissenting). In the absence of a governing federal common law, courts applying the internal affairs doctrine could find (we do not say that they will find) that the State closest analogically to the State of incorporation of an ordinary business is the State in which the federally chartered bank has its main office or maintains its principal place of business. Cf. 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (federally chartered commercial banks may "follow the corporate governance procedures of the law of the state in which the main office of the bank is located"). So to apply state law,225as we have said, would tend to avoid disparity between federally chartered and state-chartered banks (that might be next door to each other). And, of course, if this approach proved problematic, Congress and federal agencies acting pursuant to congressionally delegated authority remain free to provide to the contrary.Fourth, the FDIC points to statutes that provide the OTS, a federal regulatory agency, with authority to fine, or to remove from office, savings bank officers and directors for certain breaches of fiduciary duty. The FDIC adds that in "the course of such proceedings, the OTS, applying the ordinarycare standard [of Briggs,] ... has spoken authoritatively respecting the duty of care owed by directors and officers to federal savings associations." Brief for Respondent 23-25 (citations omitted). The FDIC does not claim, however, that these OTS statements, interpreting a pre-existing judgemade federal common-law standard (i. e., that of Briggs) themselves amounted to an agency effort to promulgate a binding regulation pursuant to delegated congressional authority. Nor have we found, in our examination of the relevant OTS opinions, any convincing evidence of a relevant, significant conflict or threat to a federal interest.Finally, we note that here, as in O'Melveny, the FDIC is acting only as a receiver of a failed institution; it is not pursuing the interest of the Federal Government as a bank insurer-an interest likely present whether the insured institution is state, or federally, chartered.In sum, we can find no significant conflict with, or threat to, a federal interest. The federal need is far weaker than was present in what the Court has called the "'few and restricted' instances," Milwaukee v. Illinois, 451 U. S. 304, 313 (1981), in which this Court has created a federal common law. Consider, for example, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92 (1938) (controversy between two States regarding apportionment of streamwater); Boyle v. United Technologies Corp., 487 U. S. 500 (1988)226(Federal Government contractors and civil liability of federal officials); United States v. Standard Oil Co. of Cal., 332 U. S. 301, 305 (1947) (relationship between Federal Government and members of its Armed Forces); Howard v. Lyons, 360 U. S. 593, 597 (1959) ( liability of federal officers in the course of official duty); Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 425 (1964) (relationships with other countries). See also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641 (1981) ("[A]bsent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases"). Indeed, the interests in many of the cases where this Court has declined to recognize federal common law appear at least as strong as, if not stronger than, those present here. E. g., Wallis v. Pan American Petroleum Corp., 384 U. S. 63 (1966) (applying state law to claims for land owned and leased by the Federal Government); Kimbell Foods, 440 U. S., at 726, 732-738 (applying state law to priority of liens under federal lending programs).We conclude that the federal common-law standards enunciated in cases such as Briggs did not survive this Court's later decision in Erie v. Tompkins. There is no federal common law that would create a general standard of care applicable to this case.IIIWe now turn to a further question: Does federal statutory law (namely, the federal "gross negligence" statute) supplant any state-law standard of care? The relevant parts of that statute read as follows:"A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil action by, on behalf of, or at the request or227direction of the Corporation ... acting as conservator or receiver ... for gross negligence, including any similar conduct or conduct that demonstrates a greater disregard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applicable State law. Nothing in this paragraph shall impair or affect any right of the Corporation under other applicable law." 12 U. S. C. § 1821(k) (emphasis added).Lower courts have taken different positions about whether this statute, in stating that directors and officers "may be held personally liable" for conduct that amounts to "gross negligence" or worse, immunizes them from liability for conduct that is less culpable than gross negligence such as simple negligence. Federal Deposit Insurance Corporation v. McSweeney, 976 F.2d 532, 537, n. 5 (CA9 1992), cert. denied, 508 U. S. 950 (1993); Federal Deposit Insurance Corporation v. Canfield, 967 F.2d 443, 446, n. 3 (CAlO) (en bane), cert. dism'd, 506 U. S. 993 (1992); Federal Deposit Insurance Corporation v. Swager, 773 F. Supp. 1244 (Minn. 1991). See also Pet. for Cert. i ("The questions presented for review are: 1. Whether Section 1821(k) supplants 'federal common law' and constitutes the exclusive standard of liability in a civil damage action brought by the Resolution Trust Corporation ... "); Brief for American Bankers Association et al. as Amici Curiae 7-8.In our view, the statute's "gross negligence" standard provides only a fioor-a guarantee that officers and directors must meet at least a gross negligence standard. It does not stand in the way of a stricter standard that the laws of some States provide.For one thing, the language of the statute contains a saving clause that, read literally, preserves the applicability of stricter state standards. It says "[n]othing in this paragraph shall impair or affect any right of the Corporation under other applicable law." 12 U. S. C. § 1821(k) (emphasis228added). The petitioner, in contending that the statute displaces federal common law, says that "any right" means only a right created elsewhere in the same Act of Congress, for example, by various regulatory enforcement provisions. E. g., § 1818(b) (cease-and-desist provision). But that is not what the Act says nor does its language compel so restrictive a reading. That language, read naturally, suggests an interpretation broad enough to save rights provided by other state, or federal, law.For another thing, Congress enacted the statute against a background of failing savings associations, see 135 Congo Rec. 121 (1989) (statement of Rep. Roth); 135 Congo Rec. 1760 (1989) (statement of Sen. Graham), large federal payments to insured bank depositors, and recent changes in state law designed to limit pre-existing officer and director negligence liability. See, e. g., Fla. Stat. § 607.0831 (1993) ("recklessness or an act or omission ... committed in bad faith or with malicious purpose"); Ohio Rev. Code Ann. § 1701.59(D) (1994) ("deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation"). The state-law changes would have made it more difficult for the Federal Government to recover, from negligent officers and directors, federal funds spent to rescue failing savings banks and their depositors. And the background as a whole supports a reading of the statute as an effort to preserve the Federal Government's ability to recover funds by creating a standard of care floor.The legislative history, insofar as it is relevant, supports this conclusion. Members of Congress repeatedly referred to the harm that liability-relaxing changes in state law had caused the Federal Government, hence the taxpayer, as federal banking agencies tried to recover, from negligent officers and directors, some of the money that federal insurers had to pay to depositors in their failed banks. E. g., 135 Congo Rec. 7150-7151 (1989) (statement of Sen. Riegle) ("[T]he establishment of a Federal standard of care is based229on the overriding Federal interest in protecting the soundness of the Federal Deposit Insurance Corporation fund and is very limited in scope. It is not a wholesale preemption of longstanding principles of corporate governance ... "). To have pre-empted state law with a uniform federal "gross negligence" standard would have cured the problem in some instances (where state law was weaker) but would have aggravated it in others (where state law was stronger).In fact, the legislative history says more. The relevantSenate Report addresses the point specifically. It says:"This subsection does not prevent the FDIC from pursuing claims under State law or under other applicable Federal law, if such law permits the officers or directors of a financial institution to be sued (1) for violating a lower standard of care, such as simple negligence." S. Rep. No. 101-19, p. 318 (1989).This Report was not published until two weeks after Congress enacted the law. But, as petitioner elsewhere concedes, the Report was circulated within Congress several weeks before Congress voted. In fact Senator Riegle, the Banking Committee Chairman, read the statement, on his own behalf and that of Senator Garn, six weeks before Congress voted on the law. 135 Congo Rec. 12374 (1989). Contrast Clarke v. Securities Industry Assn., 479 U. S. 388,407 (1987) (refusing to "attach substantial weight" to a Representative's statement made 10 days after the enactment of the law).The history is not all on one side. The Congressional Record contains one statement that suggests a competing congressional purpose, namely, to protect bank officers and directors from too strict a liability standard. 135 Congo Rec. 7150 (1989) (statement of Sen. Sanford) (supporting "provisions relating to State laws affecting the liability of officers and directors of financial institutions" because "these changes are essential if we are to attract qualified officers230and directors to serve in our financial institutions"). But we have not found other such statements. And that statement is inconsistent with the language of the Senate Report. It suggests an interpretation of the statute largely rejected in the lower courts, namely, that it pre-empts stricter state law as applied to state-chartered, as well as to federally chartered, institutions. See, e. g., McSweeney, 976 F. 2d, at 540541 (rejecting the interpretation as applied to statechartered banks); Canfield, 967 F. 2d, at 448-449 (same).The petitioner, in the courts below and as an alternative ground in this Court, made a final complicated argument to explain why 12 U. S. C. § 1821(k) displaces federal common law. He points to the universally conceded fact that the "gross negligence" statute applies to federal, as well as to state, banks. He then assumes, for sake of the argument, that in the absence of the statute, federal common law would determine liability for federal banks. He then asks why Congress would have applied the "gross negligence" statute to federal banks unless it wanted that statute to set an absolute standard, not a floor. After all, on the assumption that, without the statute, federal common law would hold federal directors and officers to a standard as strict, or stricter, there would have been no need for the statute unless (as applied to federal banks) it intended to set a universal standard, freeing officers and directors from the potentially less strict standard of the common law, and not what, given the assumptions, would be a totally unnecessary floor. This argument, taken to its logical conclusion, would also suggest that state standards of simple negligence would be displaced by the federal gross negligence statute.One obvious short answer to this ingenious argument lies in the fact that our conclusion in Part II runs contrary to the argument's critical assumption, namely, that federal common law sets the standard of liability applicable to federal banks. State law applies. Without that assumption, the need for a "gross negligence" floor in the case of federally chartered banks is identical to the need in the case of state-chartered231banks. In both instances, the floor is needed to limit state efforts to weaken liability standards; in both instances a floor serves that purpose; and the reasons for believing the statute only sets such a floor are equally strong.A more thorough answer lies in the fact that Congress nowhere separated its consideration of federally chartered, from that of state-chartered, banks. Congress did not ask whether one looked to federal common law or to state law to find the liability standard applicable to federally chartered banks. Nor did it try to determine the content of federal common law. One can reconcile congressional silence on the matter with a "gross negligence" statute, the language of which brings all banks (federal- and state-chartered) within its scope, simply by assuming that Congress, when enacting the statute, wanted to leave other law, including the law applicable to federally chartered banks, exactly where Congress found it. That, after all, is what the statute says. And the saving clause language taken at face value permits Congress to achieve its basic objective (providing a "gross negligence" floor) without having to unravel the arcane intricacies of federal common law. In our view, this understanding of congressional intent better explains the statute's language and history than the petitioner's interpretation, imputing to Congress an intent to apply a uniform "gross negligence" standard to federally chartered, but not state chartered, institutions.For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1996SyllabusATHERTON v. FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR CITY SAVINGS, F. S. B.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 95-928. Argued November 4, 1996-Decided January 14, 1997After City Federal Savings Bank, a federally chartered, federally insured savings association, went into receivership, the Resolution Trust Corporation (RTC), which has since been replaced as receiver by respondent Federal Deposit Insurance Corporation (FDIC), brought this action in City Federal's name against several of its officers and directors, claiming that they had acted (or failed to act) in ways that led City Federal to make bad loans, and that these actions (or omissions) were unlawful because they amounted to gross negligence, simple negligence, and breaches of fiduciary duty. The defendants moved to dismiss under 12 U. S. C. § 1821(k), which states, in relevant part: "A director or officer of [a federally insured bank] may be held personally liable for monetary damages in any [RTC-initiated] civil action ... for gross negligence [or] similar conduct ... that demonstrates a greater disregard of a duty of care (than gross negligence) .... Nothing in this paragraph shall impair or affect any right of the [RTC] under other applicable law." (Emphasis added.) In dismissing all but the gross negligence claims, the District Court agreed with the defendants that, by authorizing actions for gross negligence or more seriously culpable conduct, the statute intended to forbid actions based upon less seriously culpable conduct, such as simple negligence. Reversing, the Third Circuit interpreted § 1821(k) as simply offering a safeguard against state legislation that had watered down applicable state standards of care-below a gross negligence benchmark. As so interpreted, the statute did not prohibit actions resting upon stricter standard of care rules-whether originating in state law (which the Circuit found applicable to state-chartered banks) or in federal common law (which the Circuit found applicable to federally chartered banks). Noting City Federal's federal charter, the Circuit concluded that the Government could pursue any claims for negligence or breach of fiduciary duty available as a matter of federal common law.Held: State law sets the standard of conduct for officers and directors of federally insured savings institutions as long as the state standard (such as simple negligence) is stricter than that of § 1821(k). The federal214Syllabusstatute nonetheless sets a "gross negligence" floor, which applies as a substitute for state standards that are more relaxed. pp. 217-231.(a) There is no federal common law that would create a general standard of care applicable to this case absent § 1821(k). The federal common-law corporate governance standard enunciated in cases such as Briggs v. Spaulding, 141 U. S. 132, applied to federally chartered banks, but does not survive this Court's later decision in Erie R. Co. v. Tompkins, 304 U. S. 64, 78. Normally, a federal court may fashion federal common-law rules only upon a specific showing that the use of state law will create a significant conflict with, or threat to, some federal policy or interest. See, e. g., O'Melveny & Myers v. FDIC, 512 U. S. 79, 87. The basic arguments that the FDIC implicitly or explicitly raises-(l) its invocation of the need for "uniformity" in fiduciary responsibility standards for federally chartered banks; (2) its suggestion that a federal common-law standard must be applied simply because the banks in question are federally chartered; (3) its analogy to the conflict of laws "internal affairs doctrine" to support its contention that courts should look to federal law to find the applicable standard of care; and (4) its reliance on federal Office of Thrift Supervision opinions applying the Briggs standard to federal savings bank directors and officers-do not point to a significant conflict with, or threat to, a federal interest that would be caused by the application of state-law standards of care. The Court notes that here, as in O'Melveny, the FDIC is acting only as a receiver of a failed institution; it is not pursuing the Government's interest as a bank insurer-an interest likely present whether the insured institution is state, or federally, chartered. The federal need here is far weaker than was present in the few and restricted instances in which this Court has created a federal common law. Thus, state law (except as modified by § 1821(k)) provides the applicable rules for decision. Pp. 217-226.(b) Section 1821(k)'s "gross negligence" standard provides only a floor; it does not stand in the way of a stricter state-law standard making directors and officers liable for conduct, such as simple negligence, that is less culpable than gross negligence. For one thing, the statutory saving clause's language, read literally, preserves the applicability of stricter state standards when it says that "[n]othing [here]in ... shall impair ... any [RTC] right ... under other applicable law." (Emphasis added.) For another, § 1821(k)'s background as a whole-its enactment at a time of failing savings associations, large federal payments to insured bank depositors, and recent state-law changes designed to limit pre-existing officer and director negligence liability-supports a reading of the statute as an effort to preserve the Government's ability to recover federal insurance funds by creating a standard of care floor. The215Full Text of Opinion

1977_77-747

MR. JUSTICE STEWART delivered the opinion of the Court.The issue in this case is whether the application of Minnesota's Private Pension Benefits Protection Act [Footnote 1] to the appellant violates the Contract Clause of the United States Constitution.IIn 1974, appellant Allied Structural Steel Co. (company), a corporation with its principal place of business in Illinois, maintained an office in Minnesota with 30 employees. Under the company's general pension plan, adopted in 1963 and qualified as a single-employer plan under § 401 of the Internal Revenue Code, 26 U.S.C. § 401 (1976 ed.), [Footnote 2] salaried employees were covered as follows: at age 65, an employee was entitled to retire and receive a monthly pension generally computed by multiplying 1% of his average monthly earnings by the total number of his years of employment with the company. [Footnote 3] Thus, an employee aged 65 or more could retire without satisfying any particular length-of-service requirement, but the size of his pension would reflect the length of his service with the company. [Footnote 4] An employee could also Page 438 U. S. 237 become entitled to receive a pension, payable in full at age 65, if he met any one of the following requirements: (1) he had worked 15 years for the company and reached the age of 60; or (2) he was at least 55 years old and the sum of his age and his years of service with the company was at least 75; or (3) he was less than 55 years old but the sum of his age and his years of service with the company was at least 80. Once an employee satisfied any one of these conditions, his pension right became vested in the sense that any subsequent termination of employment would not affect his right to receive a monthly pension when he reached 65. Those employees who quit or were discharged before age 65 without fulfilling one of the other three conditions did not acquire any pension rights.The company was the sole contributor to the pension trust fund, and each year it made contributions to the fund based on actuarial predictions of eventual payout needs. Although those contributions, once made, were irrevocable in the sense that they remained part of the pension trust fund, the plan neither required the company to make specific contributions nor imposed any sanction on it for failing to contribute adequately to the fund.The company not only retained a virtually unrestricted right to amend the plan in whole or in part, but was also free to terminate the plan and distribute the trust assets at any time and for any reason. In the event of a termination, the assets of the fund were to go, first, to meet the plan's obligation to those employees already retired and receiving pensions; second, to those eligible for retirement; and finally, if any balance remained, to the other employees covered under the plan whose pension rights had not yet vested. [Footnote 5] Employees within each of these categories were assured payment only to the extent of the pension assets. Page 438 U. S. 238The plan expressly stated:"No employee shall have any right to, or interest in, any part of the Trust's assets upon termination of his employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable to such employee out of the assets of the Trust. All payments of benefits as provided for in this Plan shall be made solely out of the assets of the Trust and neither the employer, the trustee, nor any member of the Committee shall be liable therefor in any manner."The plan also specifically advised employees that neither its existence nor any of its terms were to be understood as implying any assurance that employees could not be dismissed from their employment with the company at any time.In sum, an employee who did not die, did not quit, and was not discharged before meeting one of the requirements of the plan would receive a fixed pension at age 65 if the company remained in business and elected to continue the pension plan in essentially its existing form.On April 9, 1974, Minnesota enacted the law here in question, the Private Pension Benefits Protection Act, Minn.Stat. §§ 181B.01-181B.17. Under the Act, a private employer of 100 employees or more -- at least one of whom was a Minnesota resident -- who provided pension benefits under a plan meeting the qualifications of § 401 of the Internal Revenue Code, was subject to a "pension funding charge" if he either terminated the plan or closed a Minnesota office. [Footnote 6] The charge was assessed if the pension funds were not sufficient to cover full pensions for all employees who had worked at least 10 years. The Act required the employer to satisfy the deficiency by purchasing deferred annuities, payable to the employees at their normal retirement age. A separate provision Page 438 U. S. 239 specified that periods of employment prior to the effective date of the Act were to be included in the 10-year employment criterion. [Footnote 7]During the summer of 1974, the company began closing its Minnesota office. On July 31, it discharged 11 of its 30 Minnesota employees, and the following month it notified the Minnesota Commissioner of Labor and Industry, as required by the Act, that it was terminating an office in the State. [Footnote 8] At least nine of the discharged employees did not have any vested pension rights under the company's plan, but had worked for the company for 10 years or more, and thus qualified as pension obligees of the company under the law that Minnesota had enacted a few months earlier. On August 18, the State notified the company that it owed a pension funding charge of approximately $185,000 under the provisions of the Private Pension Benefits Protection Act.The company brought suit in a Federal District Court asking Page 438 U. S. 240 for injunctive and declaratory relief. It claimed that the Act unconstitutionally impaired its contractual obligations to its employees under its pension agreement. The three-judge court upheld the constitutional validity of the Act as applied to the company, Fleck v. Spannaus, 449 F. Supp. 644, and an appeal was brought to this Court under 28 U.S.C. § 1253 (1976 ed.). [Footnote 9] We noted probable jurisdiction. 434 U.S. 1045.IIAThere can be no question of the impact of the Minnesota Private Pension Benefits Protection Act upon the company' contractual relationships with its employees. T he Act substantially altered those relationships by superimposing pension obligations upon the company conspicuously beyond those that it had voluntarily agreed to undertake. But it does not inexorably follow that the Act, as applied to the company, violates the Contract Clause of the Constitution.The language of the Contract Clause appears unambiguously absolute: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts." U.S.Const., Art. I, § 10. The Clause is not, however, the Draconian provision that its words might seem to imply. As the Court has recognized,"literalism in the construction of the contract clause . . . would make it destructive of the public interest by depriving the State of its prerogative of self-protection."W. B. Worthen Co. v. Thomas, 292 U. S. 426, 292 U. S. 433. [Footnote 10] Page 438 U. S. 241Although it was perhaps the strongest single constitutional check on state legislation during our early years as a Nation, [Footnote 11] the Contract Clause receded into comparative desuetude with the adoption of the Fourteenth Amendment, and particularly with the development of the large body of jurisprudence under the Due Process Clause of that Amendment in modern constitutional history. [Footnote 12] Nonetheless, the Contract Clause remains part of the Constitution. It is not a dead letter. And its basic contours are brought into focus by several of this Court's 20th-century decisions.First of all, it is to be accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States."It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals."Manigault v. Springs, 199 U. S. 473, 199 U. S. 480. As Mr. Justice Holmes succinctly put the matter in his opinion for the Court in Hudson Water Co. v. McCarter, 209 U. S. 349, 209 U. S. 357:"One whose rights, such as they are, are subject to state restriction cannot remove them from the power of the State by making a contract Page 438 U. S. 242 about them. The contract will carry with it the infirmity of the subject matter."BIf the Contract Clause is to retain any meaning at all, however, it must be understood to impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power. The existence and nature of those limits were clearly indicated in a series of cases in this Court arising from the efforts of the States to deal with the unprecedented emergencies brought on by the severe economic depression of the early 1930's.In Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, the Court upheld against a Contract Clause attack a mortgage moratorium law that Minnesota had enacted to provide relief for homeowners threatened with foreclosure. Although the legislation conflicted directly with lenders' contractual foreclosure rights, the Court there acknowledged that, despite the Contract Clause, the States retain residual authority to enact laws "to safeguard the vital interests of [their] people." Id. at 290 U. S. 434. In upholding the state mortgage moratorium law, the Court found five factors significant. First, the state legislature had declared in the Act itself that an emergency need for the protection of homeowners existed. Id. at 290 U. S. 444. Second, the state law was enacted to protect a basic societal interest, not a favored group. Id. at 290 U. S. 445. Third, the relief was appropriately tailored to the emergency that it was designed to meet. Ibid. Fourth, the imposed conditions were reasonable. Id. at 290 U. S. 445-447. And, finally, the legislation was limited to the duration of the emergency. Id. at 290 U. S. 447.The Blaisdell opinion thus clearly implied that, if the Minnesota moratorium legislation had not possessed the characteristics attributed to it by the Court, it would have been invalid under the Contract Clause of the Constitution. [Footnote 13] Page 438 U. S. 243 These implications were given concrete force in three cases that followed closely in Blaisdell's wake.In W. B. Worthen Co. v. Thomas, 292 U. S. 426, the Court dealt with an Arkansas law that exempted the proceeds of a life insurance policy from collection by the beneficiary's judgment creditors. Stressing the retroactive effect of the state law, the Court held that it was invalid under the Contract Clause, since it was not precisely and reasonably designed to meet a grave temporary emergency in the interest of the general welfare. In W. B. Worthen Co. v. Kavanaugh, 295 U. S. 56, the Court was confronted with another Arkansas law that diluted the rights and remedies of mortgage bondholders. The Court held the law invalid under the Contract Clause. "Even when the public welfare is invoked as an excuse," Mr. Justice Cardozo wrote for the Court, the security of a mortgage cannot be cut down "without moderation or reason, or in a spirit of oppression." Id. at 295 U. S. 60. And finally, in Treigle v. Acme Homestead Assn., 297 U. S. 189, the Court held invalid under the Contract Clause a Louisiana law that modified the existing withdrawal rights of the members of a building and loan association. "Such an interference with the right of contract," said the Court,"cannot be justified by saying that in the public interest t.he operations of building associations may be controlled and regulated, or that, in the same interest, their charters may be amended."Id. at 297 U. S. 196.The most recent Contract Clause case in this Court was United States Trust Co. v. New Jersey, 431 U. S. 1. [Footnote 14] In Page 438 U. S. 244 that case, the Court again recognized that, although the absolute language of the Clause must leave room for "the essential attributes of sovereign power,' . . . necessarily reserved by the States to safeguard the welfare of their citizens," id. at 431 U. S. 21, that power has limits when its exercise effects substantial modifications of private contracts. Despite the customary deference courts give to state laws directed to social and economic problems,"[l]egislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption."Id. at 431 U. S. 22. Evaluating with particular scrutiny a modification of a contract to which the State itself was a party, the Court in that case held that legislative alteration of the rights and remedies of Port Authority bondholders violated the Contract Clause because the legislation was neither necessary nor reasonable. [Footnote 15]IIIIn applying these principles to the present case, the first inquiry must be whether the state law has, in fact, operated as a substantial impairment of a contractual relationship. [Footnote 16] Page 438 U. S. 245 The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first stage. [Footnote 17] Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation.The severity of an impairment of contractual obligations can be measured by the factors that reflect the high value the Framers placed on the protection of private contracts. Contracts enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them.Here, the company's contracts of employment with its employees included as a fringe benefit or additional form of compensation, the pension plan. The company's maximum obligation was to set aside each year an amount based on the plan's requirements for vesting. The plan satisfied the current federal income tax code and was subject to no other legislative requirements. And, of course, the company was free to amend or terminate the pension plan at any time. The company thus had no reason to anticipate that its employees' Page 438 U. S. 246 pension rights could become vested except in accordance with the terms of the plan. It relied heavily, and reasonably, on this legitimate contractual expectation in calculating its annual contributions to the pension fund.The effect of Minnesota's Private Pension Benefits Protection Act on this contractual obligation was severe. The company was required in 1974 to have made its contributions throughout the pre-1974 life of its plan as if employees' pension rights had vested after 10 years, instead of vesting in accord with the terms of the plan. Thus, a basic term of the pension contract -- one on which the company had relied for 10 years -- was substantially modified. The result was that, although the company's past contributions were adequate when made, they were not adequate when computed under the 10-year statutory vesting requirement. The Act thus forced a current recalculation of the past 10 years' contributions based on the new, unanticipated 10-year vesting requirement.Not only did the state law thus retroactively modify the compensation that the company had agreed to pay its employees from 1963 to 1974, but also it did so by changing the company's obligations in an area where the element of reliance was vital -- the funding of a pension plan. [Footnote 18] As the Court has recently recognized:"These [pension] plans, like other forms of insurance, depend on the accumulation of large sums to cover contingencies. The amounts set aside are determined by a painstaking assessment of the insurer's likely liability. Risks that the insurer foresees will be included in the Page 438 U. S. 247 calculation of liability, and the rates or contributions charged will reflect that calculation. The occurrence of major unforeseen contingencies, however, jeopardizes the insurer's solvency and, ultimately, the insureds' benefits. Drastic changes in the legal rules governing pension and insurance funds, like other unforeseen events, can have this effect."Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 721.Moreover, the retroactive state-imposed vesting requirement was applied only to those employers who terminated their pension plans or who, like the company, closed their Minnesota offices. The company was thus forced to make all the retroactive changes in its contractual obligations at one time. By simply proceeding to close its office in Minnesota, a move that had been planned before the passage of the Act, the company was assessed an immediate pension funding charge of approximately $185,000.Thus, the statute in question here nullifies express terms of the company's contractual obligations and imposes a completely unexpected liability in potentially disabling amounts. There is not even any provision for gradual applicability or grace periods. Cf. the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1061(b)(2), 1086(b), and 1144 (1976 ed.). See n 23, infra. Yet there is no showing in the record before us that this severe disruption of contractual expectations was necessary to meet an important general social problem. The presumption favoring "legislative judgment as to the necessity and reasonableness of a particular measure," United States Trust Co., 431 U.S. at 431 U. S. 23, simply cannot stand in this case.The only indication of legislative intent in the record before us is to be found in a statement in the District Court's opinion:"It seems clear that the problem of plant closure and pension plan termination was brought to the attention Page 438 U. S. 248 of the Minnesota legislature when the Minneapolis-Moline Division of White Motor Corporation closed one of its Minnesota plants and attempted to terminate its pension plan."449 F. Supp. at 651. [Footnote 19]But whether or not the legislation was aimed largely at a single employer, [Footnote 20] it clearly has an extremely narrow focus. It applies only to private employers who have at least 100 employees, at least one of whom works in Minnesota, and who have established voluntary private pension plans, qualified under 401 of the Internal Revenue Code. And it applies only when such an employer closes his Minnesota office or terminates his pension plan. [Footnote 21] Thus, this law can Page 438 U. S. 249 hardly be characterized, like the law at issue in the Blaisdell case, as one enacted to protect a broad societal interest, rather than a narrow class. [Footnote 22]Moreover, in at least one other important respect, the Act does not resemble the mortgage moratorium legislation whose constitutionality was upheld in the Blaisdell case. This legislation, imposing a sudden, totally unanticipated, and substantial retroactive obligation upon the company to its employees, [Footnote 23] was not enacted to deal with a situation remotely approaching the broad and desperate emergency economic conditions of the early 1930's -- conditions of which the Court in Blaisdell took judicial notice. [Footnote 24]Entering a field it had never before sought to regulate, the Minnesota Legislature grossly distorted the company's existing contractual relationships with its employees by superimposing retroactive obligations upon the company substantially Page 438 U. S. 250 beyond the terms of its employment contracts. And that burden was imposed upon the company only because it closed its office in the State.This Minnesota law simply does not possess the attributes of those state laws that, in the past, have survived challenge under the Contract Clause of the Constitution. The law was not even purportedly enacted to deal with a broad, generalized economic or social problem. Cf. Home Building & Loan Assn. v. Blaisdell, 290 U.S. at 290 U. S. 445. It did not operate in an area already subject to state regulation at the time the company's contractual obligations were originally undertaken, but invaded an area never before subject to regulation by the State. Cf. Veix v. Sixth Ward Building & Loan Assn., 310 U. S. 32, 310 U. S. 38. [Footnote 25] It did not effect simply a temporary alteration of the contractual relationships of those within its coverage, but worked a severe, permanent, and immediate change in those relationships -- irrevocably and retroactively. Cf. United States Trust Co. v. New Jersey, 431 U.S. at 431 U. S. 22. And its narrow aim was leveled not at every Minnesota employer, not even at every Minnesota employer who left the State, but only at those who had, in the past, been sufficiently enlightened as voluntarily to agree to establish pension plans for their employees."Not Blaisdell's case, but Worthen's (W. B. Worthen Co. v. Thomas, [292 U.S. 426]) supplies the applicable rule" here. W. B. Worthen Co. v. Kavanaugh, 295 U.S. at 295 U. S. 63. It is not necessary to hold that the Minnesota law impaired the obligation of the company's employment contracts "without moderation or reason or in a spirit of oppression." Id. at 295 U. S. 60. [Footnote 26] But we do hold that, if the Contract Clause means anything at Page 438 U. S. 251 all, it means that Minnesota could not constitutionally do what it tried to do to the company in this case.The judgment of the District Court is reversed.It is so ordered

U.S. Supreme CourtAllied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978)Allied Structural Steel Co. v. SpannausNo. 77-747Argued April 25, 1978Decided June 28, 1978438 U.S. 234SyllabusAppellant, an Illinois corporation, maintained an office in Minnesota with 30 employees. Under appellant's pension plan, adopted in 1963 and qualified under § 401 of the Internal Revenue Code, employees were entitled to retire and receive a pension at age 65 regardless of length of service, and an employee's pension right became vested if he satisfied certain conditions as to length of service and age. Appellant was the sole contributor to the pension trust fund, and each year made contributions to the fund based on actuarial predictions of eventual payout needs. But the plan neither required appellant to make specific contributions nor imposed any sanction on it for failing to make adequate contributions, and appellant retained a right not only to amend the plan, but also to terminate it at any time and for any reason. In 1974, Minnesota enacted the Private Pension Benefits Protection Act (Act), under which a private employer of 100 employees or more (at least one of whom was a Minnesota resident) who provided pension benefits under a plan meeting the qualifications of § 401 of the Internal Revenue Code, was subject to a "pension funding charge" if he terminated the plan or closed a Minnesota office. The charge was assessed if the pension funds were insufficient to cover full pensions for all employees who had worked at least 10 years, and periods of employment prior to the effective date of the Act were to be included in the 10-year employment criterion. Shortly thereafter, in a move planned before passage of the Act, appellant closed its Minnesota office, and several of its employees, who were then discharged, had no vested pension rights under appellant's plan, but had worked for appellant for 10 years or more, thus qualifying as pension obligees under the Act. Subsequently, the State notified appellant that it owed a pension funding charge of $185,000 under the Act. Appellant then brought suit in Federal District Court for injunctive and declaratory relief, claiming that the Act unconstitutionally impaired its contractual obligations to its employees under its pension plan, but the court upheld the Act as applied to appellant.Held: The application of the Act to appellant violates the Contract Clause of the Constitution, which provides that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts." Pp. 438 U. S. 240-251. Page 438 U. S. 235(a) While the Contract Clause does not operate to obliterate the police power of the States, it does impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power."Legislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption."United States Trust Co. v. New Jersey, 431 U. S. 1, 431 U. S. 22. Pp. 438 U. S. 242-244.(b) The impact of the Act upon appellant's contractual obligations was both substantial and severe. Not only did the Act retroactively modify the compensation that appellant had agreed to pay its employees from 1963 to 1974, but it did so by changing appellant's obligations in an area where the element of reliance was vital -- the funding of a pension plan. Moreover, the retroactive state-imposed vesting requirement was applied only to those employers who terminated their pension plans or who, like appellant, closed their Minnesota offices, thus forcing the employer to make all the retroactive changes in its contractual obligations at one time. Pp. 438 U. S. 244-247.(c) The Act does not possess the attributes of those state laws that have survived challenge under the Contract Clause. It was not even purportedly enacted to deal with a broad, generalized economic or social problem, cf. Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 290 U. S. 445, but has an extremely narrow focus and enters an area never before subject to regulation by the State. Pp. 438 U. S. 247-250.449 F. Supp. 644, reversed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 438 U. S. 251. BLACKMUN, J., took no part in the consideration or decision of the case. Page 438 U. S. 236

1959_22

MR. JUSTICE CLARK delivered the opinion of the Court.This direct appeal tests the constitutional validity of peacetime court-martial trials of civilian persons "accompanying the armed forces outside the United States" [Footnote 1] and charged with noncapital offenses under the Uniform Code of Military Justice, 10 U.S.C. § 802, 70A Stat. 37. Appellee contends that the dependent wife of a soldier can be tried only in a court that affords her the safeguards of Article III and of the Fifth and Sixth Amendments of the Constitution. The trial court held Article 2(11) of the Code unconstitutional as applied to civilian dependents accompanying the armed forces overseas and charged with noncapital offenses, 164 F. Supp. 707, and the Government appealed. We noted probable jurisdiction and permitted appellee to proceed in forma pauperis. 359 U.S. 903.The appellee is the mother of Mrs. Joanna S. Dial, the wife of a soldier who was assigned to a tank battalion of the United States Army. The Dials and their three children lived in government housing quarters at Baumholder, Germany. In consequence of the death of one of their children, both of the Dials were charged with Page 361 U. S. 236 unpremeditated murder, under Article 118(2) of the Uniform Code of Military Justice. Upon the Dials' offer to plead guilty to involuntary manslaughter under Article 119 of the Code, both charges were withdrawn and new ones charging them separately with the lesser offense were returned. They were then tried together before a general court-martial at Baumholder. Mrs. Dial challenged the jurisdiction of the court-martial over her but, upon denial of her motion, pleaded guilty, as did her husband. Each was sentenced to the maximum penalty permitted under the Code. Their convictions were upheld by the Court of Military Appeals, and Mrs. Dial was returned to the United States and placed in the Federal Reformatory for Women at Alderson, West Virginia. Thereafter, the appellee filed this petition for habeas corpus and obtained Mrs. Dial's discharge from custody. From this judgment, the warden has appealed.As has been noted, the jurisdiction of the court-martial was based upon the provisions of Article 2(11) of the Code. The Congress enacted that article in an effort to extend, for disciplinary reasons, the coverage of the Uniform Code of Military Justice to the classes of persons therein enumerated. The jurisdiction of the Code only attached, however, when and if its applicability in a given foreign territory was sanctioned under "any treaty or agreement to which the United States is or may be a party" with the foreign sovereignty, or under "any accepted rule of international law." The existence of such an agreement here is admitted. The constitutionality of Article 2(11), as it applies in time of peace to civilian dependents charged with noncapital offenses under the Code, is the sole issue to be decided.The question is not one of first impression, as we had before us in 1956 the constitutionality of the article as applied to civilian dependents charged with capital offenses in the companion cases of Kinsella v. Krueger, Page 361 U. S. 237 351 U. S. 470, and Reid v. Covert, 351 U. S. 487. At the original submission of those cases, we decided by a bare majority that the article was a valid exercise of the power of the Congress, under Art. IV, § 3, to "make all needful Rules and Regulations" for the "Territories" of the United States. We held further that the "procedure in such tribunals need not comply with the standards prescribed by the Constitution for Article III courts," 351 U.S. at 351 U. S. 475, and specifically upheld court-martial jurisdiction in such cases against the contention that its procedures did not provide for indictment by grand jury or trial by petit jury. In short, we said that the failure to provide such protections raised "no constitutional defect," citing In re Ross, 140 U. S. 453 (1891), and the Insular Cases, such as Balzac v. Porto Rico, 258 U. S. 298 (1922). After rehearing at the following Term, these opinions were withdrawn and judgments were entered declaring the article unconstitutional when applied to civilian dependents charged with capital offenses. Reid v. Covert, consolidated with Kinsella v. Krueger, 354 U. S. 1 (1957). The Court held [Footnote 2] that the power over "Territories," as applied by the In re Ross doctrine, was neither applicable nor controlling. It found that trial by court-martial was the exercise of an exceptional jurisdiction springing from the power granted the Congress in Art. I, § 8, cl. 14, "To make Rules for the Government and Regulation of the land and naval Forces," as supplemented by the Necessary and Proper Clause of Art. I, § 8 cl. 18. [Footnote 3] But, as applied to the Page 361 U. S. 238 civilian dependents there involved, it must be considered, the Court said, in relation to Article III and the Fifth and Sixth Amendments. The majority concluded that, in those capital cases, trial by court-martial as provided could not constitutionally be justified.The appellee contends that this result, declaring civilian dependents charged with capital offenses not to be subject to the provisions of the Code, bears directly on its applicability to the same class charged with noncapital crimes. She says that the test of whether civilian dependents come within the power of Congress as granted in Clause 14's limitation to the "land and naval Forces" is the status of the person involved. Her conclusion is that, if civilian dependents charged with capital offenses are not within that language, a fortiori persons in the same class charged with noncapital offenses cannot be included, since the clause draws no distinction as to offenses. The Government fully accepts the holding in the second Covert case, supra. It contends that the case is controlling only where civilian dependents are charged with capital offenses, and that, in fact, the concurrences indicate that considerations of a compelling necessity for prosecution by courts-martial of civilian dependents charged with noncapital offenses might permit with reason the inclusion of that limited category within court-martial jurisdiction. It submits that such necessities are controlling in the case of civilian dependents charged with noncapital crimes. It points out that such dependents affect the military community as a whole; that they have, in fact, been permitted to enjoy their residence in such communities on the representation that they are subject to military control, and that realistically they are a part of the military establishment. It argues that, from a morale standpoint, the present need for dependents to accompany American forces maintained abroad is a pressing one; Page 361 U. S. 239 that their special status as integral parts of the military community requires disciplinary control over them by the military commander; that the effectiveness of this control depends upon a readily available machinery affording a prompt sanction and resulting deterrent present only in court-martial jurisdiction, and that not only is court-martial procedure inherently fair, but there are no alternatives to it. The Government further contends that it has entered into international agreements with a large number of foreign governments permitting the exercise of military jurisdiction in the territory of the signatories, and, pursuant to the same, it has been utilizing court-martial procedures at various American installations abroad. Its legal theory is based on historical materials which it asserts indicate a well established practice of court-martial jurisdiction over civilians accompanying the armed forces, during Colonial days as well as the formative period of our Constitution. From this it concludes that civilian dependents may be included as a necessary and proper incident to the congressional power "To make Rules for the Government and Regulation of the land and naval Forces," as granted in Clause 14.In this field, Toth v. Quarles, 350 U. S. 11 (1955), cited with approval by a majority in the second Covert case, supra, is a landmark. Likewise, of course, we must consider the effect of the latter case on our problem. [Footnote 4] We therefore turn to their teachings. The Toth case involved a discharged soldier who was tried by court-martial after his discharge from the Army for an offense committed before his discharge. It was said there that the Clause 14 "provision itself does not empower Congress to deprive Page 361 U. S. 240 people of trials under Bill of Rights safeguards," 350 U.S. at 350 U. S. 21-22, and that military tribunals must be restricted "to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service," id. at 350 U. S. 22. We brushed aside the thought that "considerations of discipline" could provide an excuse for "new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury." Id. at 350 U. S. 22-23. (Italics supplied.) We were therefore "not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause." Id. at 350 U. S. 22. The holding of the case may be summed up in its own words, namely, that"the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces."Id. at 350 U. S. 15.It was with this gloss on Clause 14 that the Court reached the second Covert case, supra. There, as we have noted, the person involved was the civilian dependent of a soldier, who was accompanying him outside the United States when the capital offense complained of was committed. The majority concluded that"Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the 'land and naval Forces'. . . ."Concurring opinion, 354 U.S. at 354 U. S. 42. [Footnote 5] (Italics supplied.) The test Page 361 U. S. 241 for jurisdiction, it follows, is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term "land and naval Forces." The Court concluded that civilian dependents charged with capital offenses were not included within such authority, the concurring Justices expressing the view that they did not think"that the proximity, physical and social, of these women to the 'land and naval Forces' is, with due regard to all that has been put before us, so clearly demanded by the effective 'Government and Regulation' of those forces as reasonably to demonstrate a justification for court-martial jurisdiction over capital offenses."Concurring opinion, 354 U.S. at 354 U. S. 46-47. In the second Covert case, each opinion supporting the judgment struck down the article as it was applied to civilian dependents charged with capital crimes. The separate concurrences supported the judgment on the theory, that the crime being "in fact punishable by death," id. at 354 U. S. 45, the question to be decided is "analogous, ultimately, to issues of due process," id. at 354 U. S. 75. The Justices joining in the opinion announcing the judgment, however, did not join in this view, but held that the constitutional safeguards claimed applied in "all criminal trials" in Article III courts and applied "outside of the States," pointing out that both the Fifth and Sixth Amendments were "all-inclusive with their sweeping references to no person' and to `all criminal prosecutions.'" Id. at 354 U. S. 7-8. The two dissenters [Footnote 6] found "no distinction in the Constitution between capital and other cases," id. at 354 U. S. 89, but said that the constitutional safeguards claimed were not required under the power granted Congress in Art. IV, § 3, and the cases heretofore mentioned. The Page 361 U. S. 242 briefs and argument in Covert reveal that it was argued and submitted by the parties on the theory that no constitutional distinction could be drawn between capital and noncapital offenses for the purposes of Clause 14. Supplemental Brief for Government on Rehearing, Nos. 701 and 713, at pp. 16-20, 82-95.We have given careful study to the contentions of the Government. They add up to a reverse of form from the broad presentation in Covert, where it asserted that no distinction could be drawn between capital and noncapital offenses. But the same fittings are used here with only adaptation to noncapital crimes. The Government asserts that the second Covert case, rather than foreclosing the issue here, indicates that military tribunals would have jurisdiction over civilian dependents charged with offenses less than capital. It says that the trial of such a person for a noncapital crime is "significantly different" from his trial for a capital one, that the maintaining of different standards or considerations in capital cases is not a new concept, and that, therefore, there must be a fresh evaluation of the necessities for court-martial jurisdiction and a new balancing of the rights involved. As we have indicated, these necessities add up to about the same as those asserted in capital cases and which the concurrence in second Covert held as not of sufficient "proximity, physical and social . . . to the land and naval Forces' . . . as reasonably to demonstrate a justification" for court-martial prosecution. Likewise in the Government's historical material -- dealing with court-martial jurisdiction during peace -- which was found in Covert "too episodic, too meager . . . for constitutional adjudication," concurring opinion, 354 U.S. at 354 U. S. 64, it has been unable to point out one court-martial which drew any distinction, insofar as the grant of power to the Congress under Clause 14 was concerned, between Page 361 U. S. 243 capital and noncapital crimes. [Footnote 7] The Government makes no claim that historically there was ever any distinction made as to the jurisdiction of courts-martial to try civilian dependents on the basis of capital as against noncapital offenses. Without contradiction, the materials furnished show that military jurisdiction has always been based on the "status" of the accused, rather than on the nature of the offense. To say that military jurisdiction "defies definition in terms of military `status'" is to defy unambiguous language of Art. I, § 8, cl. 14, as well as the historical background thereof and the precedents with reference thereto. [Footnote 8]Furthermore, we are not convinced that a critical impact upon discipline will result, as claimed by the Government (even if anyone deemed this a relevant consideration), if noncapital offenses are given the same treatment as capital ones by virtue of the second Covert case. The same necessities claimed here were found Page 361 U. S. 244 present in the second Covert case (see the dissent there) and were rejected by the Court. Even if the necessity for court-martial jurisdiction be relevant in cases involving deprivation of the constitutional rights of civilian dependents, which we seriously question, we doubt that the existence of the small number of noncapital cases now admitted by the Government in its brief here, [Footnote 9] when spread over the worldwide coverage of military installations, would of itself bring on such a crisis. Moreover, in the critical areas of occupation, other legal grounds may exist for court-martial jurisdiction as claimed by the Government in No. 37, Wilson v. Bohlender, post, p. 361 U. S. 281. See Madsen v. Kinsella, 343 U. S. 341 (1952). Another serious obstacle to permitting prosecution of noncapital offenses while rejecting capital ones is that it would place in the hands of the military an unreviewable discretion to exercise jurisdiction over civilian dependents simply by downgrading the offense, thus stripping the accused of his constitutional rights and protections. By allowing this assumption of "the garb of mercy," [Footnote 10] we would be depriving a capital offender of his Page 361 U. S. 245 constitutional means of defense and, in effect, would nullify the second Covert case. This situation will be aggravated by the want of legislation providing for trials in capital cases in Article III courts sitting in the United States. At argument, the Government indicated that there had been no effort in the Congress to make any provision for the prosecution of such cases either in continental United States or in foreign lands. Still, we heard no claim that the total failure to prosecute capital cases against civilian dependents since the second Covert decision in 1957 had affected in the least the discipline at armed services installations. We do know that, in one case, Wilson v. Girard, 354 U. S. 524 (1957), the Government insisted and we agreed that it had the power to turn over an American soldier to Japanese civil authorities for trial for an offense committed while on duty. We have no information as to the impact of that trial on civilian dependents. Strangely, this itself might Page 361 U. S. 246 prove to be quite an effective deterrent. Moreover, the immediate return to the United States permanently of such civilian dependents, or their subsequent prosecution in the United States for the more serious offenses when authorized by the Congress, might well be the answer to the disciplinary problem. Certainly such trials would not involve as much expense, nor be as difficult of successful prosecution, as capital offenses.We now reach the Government's suggestion that, in the light of the noncapital nature of the offense here, as opposed to the capital one in the Covert case, we should make a "fresh evaluation and a new balancing." But the power to "make Rules for the Government and Regulation of the land and naval Forces" bears no limitation as to offenses. The power there granted includes not only the creation of offenses, but the fixing of the punishment therefor. If civilian dependents are included in the term "land and naval Forces" at all, they are subject to the full power granted the Congress therein to create capital as well as noncapital offenses. This Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the safeguards of Article III and the Fifth and Sixth Amendments. Due process cannot create or enlarge power. See Toth v. Quarles, supra. It has to do, as taught by the Government's own cases, [Footnote 11] with the denial of that "fundamental fairness, shocking to the universal sense of justice." Betts v. Brady, 316 U. S. 455, 316 U. S. 462 (1942). It deals neither with power nor with jurisdiction, but with their exercise. Obviously Fourteenth Amendment cases dealing with state action have no application here, but, if they did, we believe that, to deprive civilian dependents of the safeguards of a jury trial here, an Page 361 U. S. 247 infamous case by constitutional standards, would be as invalid under those cases as it would be in cases of a capital nature. Nor do we believe that due process considerations bring about an expansion of Clause 14 through the operation of the Necessary and Proper Clause. If the exercise of the power is valid, it is because it is granted in Clause 14, not because of the Necessary and Proper Clause. The latter clause is not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out the specifically granted "foregoing" powers of § 8 "and all other Powers vested by this Constitution. . . ." As James Madison explained, the Necessary and Proper Clause is"but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant."VI Writings of James Madison, edited by Gaillard Hunt, 383. There can be no question but that Clause 14 grants the Congress power to adopt the Uniform Code of Military Justice. Our initial inquiry is whether Congress can include civilian dependents within the term "land and naval Forces" as a proper incident to this power and necessary to its execution. If answered in the affirmative, then civilian dependents are amenable to the Code. In the second Covert case, supra, it was held they were not so amenable as to capital offenses. Our final inquiry, therefore, is narrowed to whether Clause 14, which under the second Covert case has been held not to include civilian dependents charged with capital offenses, may now be expanded to include civilian dependents who are charged with noncapital offenses. We again refer to James Madison:"When the Constitution was under the discussions which preceded its ratification, it is well known that great apprehensions were expressed by many lest the omission of some positive exception from the powers Page 361 U. S. 248 delegated of certain rights . . . might expose them to the danger of being drawn, by construction, within some of the powers vested in Congress, more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them; . . . ."Writings, supra, at 390. We are therefore constrained to say that, since this Court has said that the Necessary and Proper Clause cannot expand Clause 14 so as to include prosecution of civilian dependents for capital crimes, it cannot expand Clause 14 to include prosecution of them for noncapital offenses.Neither our history nor our decisions furnish a foothold for the application of such due process concept as the Government projects. Its application today in the light of the irreversibility of the death penalty would free from military prosecution a civilian accompanying or employed by the armed services who committed a capital offense, while the same civilian could be prosecuted by the military for a noncapital crime. It is illogical to say that"the power respecting the land and naval forces encompasses . . . all that Congress may appropriately deem 'necessary' for their good order"and still deny to Congress the means to exercise such power through the infliction of the death penalty. But that is proposed here. In our view, this would militate against our whole concept of power and jurisdiction. It would likewise be contrary to the entire history of the Articles of War. Even prior to the Constitutional Convention, the Articles of War included 17 capital offenses applicable to all persons whose status brought them within the term "land Page 361 U. S. 249 and naval Forces." There were not then, and never have been, any exceptions as to persons in the applicability of these capital offenses. In 1806, when the Articles of War were first revised, Congress retained therein 16 offenses that carried the death penalty, although there was complaint that "almost every article in the bill was stained with blood." 15 Annals of Cong. 326.Nor do we believe that the exclusion of noncapital offenses along with capital ones will cause any additional disturbance in our "delicate arrangements with many foreign countries." The Government has pointed to no disruption in such relations by reason of the second Covert decision. Certainly this case involves no more "important national concerns into which we should be reluctant to enter" than did Covert. In truth, the problems are identical, and are so intertwined that equal treatment of capital and noncapital cases would be a palliative to a troubled world.We therefore hold that Mrs. Dial is protected by the specific provisions of Article III and the Fifth and Sixth Amendments, and that her prosecution and conviction by court-martial are not constitutionally permissible. The judgment must therefore beAffirmed

U.S. Supreme CourtKinsella v. Singleton, 361 U.S. 234 (1960)Kinsella v. SingletonNo. 22Argued October 22, 1959Decided January 18, 1960361 U.S. 234SyllabusArticle 2(11) of the Uniform Code of Military Justice, providing for the trial by court-martial of "all persons . . . accompanying the armed forces" of the United States in foreign countries, cannot constitutionally be applied in peacetime to the trial of a civilian dependent accompanying a member of the armed forces overseas and charged with having committed a noncapital offense there. Reid v. Covert, 354 U. S. 1. Pp. 361 U. S. 235-249.(a) In providing for trials by courts-martial, Congress was exercising the power granted by Art. I, § 8, cl. 14 of the Constitution to "make Rules for the Government and Regulation of the land and naval Forces," and the test for court-martial jurisdiction is one of status -- i.e., whether the accused is a person who can be regarded as falling within the term "land and naval Forces." Toth v. Quarles, 350 U. S. 11; Reid v. Covert, 354 U. S. 1. Pp. 361 U. S. 236-241.(b) Under Art. I, § 8, cl. 14, no constitutional distinction can be drawn between capital and noncapital offenses; if a civilian cannot be tried by court-martial in peacetime for a capital offense, he cannot be tried by court-martial in peacetime for a noncapital offense. Pp. 361 U. S. 241-248.(c) The Necessary and Proper Clause, Art. I, § 8, cl. 18, does not enable Congress to broaden the term "land and naval Forces" in Clause 14 to include civilian dependents accompanying members of the armed forces overseas, even in providing for trials for noncapital offenses. Pp. 361 U. S. 247-248.(d) The dependent wife of a soldier here involved was entitled to the safeguards of Article III and the Fifth and Sixth Amendments of the Constitution, and her conviction by court-martial was not constitutionally permissible. P. 361 U. S. 249.164 F. Supp. 707 affirmed. Page 361 U. S. 235

1988_87-5677

JUSTICE BLACKMUN delivered the opinion of the Court.In this case, we consider whether the "plain statement' rule" of Michigan v. Long, 463 U. S. 1032, 463 U. S. 1042, and n. 7 (1983), applies in a case on federal habeas review as well as in a case on direct review in this Court. We hold that it does.IPetitioner Warren Lee Harris was convicted in the Circuit Court of Cook County, Ill., of murder. On direct appeal, petitioner challenged only the sufficiency of the evidence. The Appellate Court of Illinois, by an unpublished order, affirmed the conviction. App. 5; see 71 Ill.App.3d 1113, 392 N.E.2d 1386 (1979).Petitioner then returned to the Circuit Court of Cook County and filed a petition for postconviction relief, alleging that his trial counsel had rendered ineffective assistance in several respects, including his failure to call alibi witnesses. [Footnote 1] The court dismissed the petition without an evidentiary hearing. The Appellate Court of Illinois, in another unpublished order, again affirmed. App. 9. Page 489 U. S. 258In its order, the Appellate Court referred to the "well-settled" principle of Illinois law that "those [issues] which could have been presented [on direct appeal], but were not, are considered waived." Id. at 12. The court found that, "except for the alibi witnesses," petitioner's ineffective-assistance allegations "could have been raised in [his] direct appeal." Ibid. The court, however, went on to consider and reject petitioner's ineffective-assistance claim on its merits.Petitioner did not seek review in the Supreme Court of Illinois. Instead, he pursued his ineffective-assistance-of-counsel claim in federal court by a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The District Court recognized that, if the Illinois Appellate Court had held this claim to be waived under Illinois law, this Court's decision in Wainwright v. Sykes, 433 U. S. 72 (1977), would bar a federal court's consideration of the claim unless petitioner was able to show either "cause and prejudice" or a "miscarriage of justice." 608 F. Supp. 1369, 1377 (ND Ill.1985). [Footnote 2]The District Court, however, determined that the Illinois Appellate Court had not held any portion of the ineffective-assistance claim to have been waived. First, the District Court observed, the state court had "made clear" that the waiver did not apply to the issue of alibi witnesses. Id. at 1378. Second, the court never clearly held any other issue waived. The state court"did not appear to make two rulings in the alternative, but rather to note a procedural default and then ignore it, reaching the merits instead."Ibid. Based on this determination, the District Court concluded that it was permitted to consider the ineffective-assistance claim in its entirety, and ordered an evidentiary hearing. Id. at 1385. After that hearing, the court, in an unpublished Page 489 U. S. 259 memorandum and order, dismissed the claim on the merits, although it characterized the case as "a close and difficult" one. App. 45.The Court of Appeals affirmed the dismissal, 822 F.2d 684 (CA7 1987), but did not reach the merits, because, in disagreement with the District Court, it believed the ineffective-assistance claim to be procedurally barred. Considering the Illinois Appellate Court's order "ambiguous" because it contained "neither an explicit finding of waiver nor an expression of an intention to ignore waiver," the Court of Appeals nonetheless asserted that a reviewing court "should try to assess the state court's intention to the extent that this is possible." Id. at 687. Undertaking this effort, the Court of Appeals concluded that the order "suggest[ed]" an intention "to find all grounds waived except that pertaining to the alibi witnesses." Ibid. Based on this interpretation of the order, the Court of Appeals concluded that the merits of petitioner's federal claim had been reached only "as an alternate holding," ibid., and considered itself precluded from reviewing the merits of the claim. [Footnote 3]Concurring separately, Judge Cudahy stated:"Rather than attempting to divine the unspoken 'intent' of [the state] court, I think we should invoke a presumption that waiver not clearly found has been condoned."Ibid.The disagreement between the majority and the concurrence reflects a conflict among the Courts of Appeals over the standard for determining whether a state court's ambiguous invocation of a procedural default bars federal habeas review. [Footnote 4] Page 489 U. S. 260 We granted certiorari to resolve this conflict. 485 U.S. 934 (1988).IIThe confusion among the courts evidently stems from a failure to recognize that the procedural default rule of Wainwright v. Sykes has its historical and theoretical basis in the "adequate and independent state ground" doctrine. 433 U.S. at 433 U. S. 78-79, 433 U. S. 81-82, 433 U. S. 87. [Footnote 5] Once the lineage of the rule is clarified, the cure for the confusion becomes apparent.AThis Court long has held that it will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state law ground that is both "independent" of the merits of the federal claim and an "adequate" basis for the court's decision. See, e.g., Fox Film Corp. v. Muller, 296 U. S. 207, 296 U. S. 210 (1935); Murdock v. City of Memphis, 20 Wall. 590, 87 U. S. 635-636 (1875). Although this doctrine originated in the context of state court judgments Page 489 U. S. 261 for which the alternative state and federal grounds were both "substantive" in nature, the doctrine "has been applied routinely to state decisions forfeiting federal claims for violation of state procedural rules." Meltzer, State Court Forfeitures of Federal Rights, 99 Harv.L.Rev. 1128, 1134 (1986). [Footnote 6]The question whether a state court's reference to state law constitutes an adequate and independent state ground for its judgment may be rendered difficult by ambiguity in the state court's opinion. In Michigan v. Long, 463 U. S. 1032 (1983), this Court laid down a rule to avoid the difficulties associated with such ambiguity. Under Long, if "it fairly appears that the state court rested its decision primarily on federal law," this Court may reach the federal question on review unless the state court's opinion contains a "plain statement' that [its] decision rests upon adequate and independent state grounds." Id. at 1042. [Footnote 7]The Long "plain statement" rule applies regardless of whether the disputed state law ground is substantive (as it was in Long) or procedural, as in Caldwell v. Mississippi, 472 U. S. 320, 472 U. S. 327 (1985). Thus, the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: "[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the Page 489 U. S. 262 case." Ibid. Furthermore, ambiguities in that regard must be resolved by application of the Long standard. Id. at 472 U. S. 328.The adequate and independent state ground doctrine, and the problem of ambiguity resolved by Long, are of concern not only in cases on direct review pursuant to 28 U.S.C. § 1257, but also in federal habeas corpus proceedings pursuant to 28 U.S.C. § 2254.Wainwright v. Sykes made clear that the adequate and independent state ground doctrine applies on federal habeas. 433 U.S. at 433 U. S. 81, 433 U. S. 87. See also Ulster County Court v. Allen, 442 U. S. 140, 442 U. S. 148 (1979). Under Sykes and its progeny, an adequate and independent finding of procedural default will bar federal habeas review of the federal claim unless the habeas petitioner can show "cause" for the default and "prejudice attributable thereto," Murray v. Carrier, 477 U. S. 478, 477 U. S. 485 (1986), or demonstrate that failure to consider the federal claim will result in a "fundamental miscarriage of justice.'" Id. at 477 U. S. 495, quoting Engle v. Isaac, 456 U. S. 107, 456 U. S. 135 (1982). See also Smith v. Murray, 477 U. S. 527, 477 U. S. 537 (1986).Conversely, a federal claimant's procedural default precludes federal habeas review, like direct review, only if the last state court rendering a judgment in the case rests its judgment on the procedural default. See Caldwell v. Mississippi, 472 U.S. at 472 U. S. 327; Ulster County Court v. Allen, 442 U.S. at 442 U. S. 152-154. Moreover, the question whether the state court indeed has done so is sometimes as difficult to answer on habeas review as on direct review. Just as this Court under § 1257 encounters state court opinions that are unclear on this point, so too do the federal courts under § 2254. [Footnote 8]Habeas review thus presents the same problem of ambiguity that this Court resolved in Michigan v. Long. We held in Page 489 U. S. 263 Long that, unless the state court clearly expressed its reliance on an adequate and independent state law ground, this Court may address a federal issue considered by the state court. We applied that rule in Caldwell v. Mississippi, 472 U.S. at 472 U. S. 327, to a "somewhat cryptic" reference to procedural default in a state court opinion.Although Long and Caldwell arose on direct review, the principles underlying those decisions are not limited to direct review. Indeed, our opinion in Caldwell relied heavily upon our earlier application of the adequate and independent state ground doctrine to habeas review in Ulster County. See Caldwell, 472 U.S. at 472 U. S. 327-328. Caldwell thus indicates that the problem of ambiguous state court references to state law, which led to the adoption of the Long "plain statement" rule, is common to both direct and habeas review. Faced with a common problem, we adopt a common solution: a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case "clearly and expressly'" states that its judgment rests on a state procedural bar. Caldwell, 472 U.S. at 472 U. S. 327, quoting Long, 463 U.S. at 463 U. S. 1041. [Footnote 9]CRespondents, however, urge us to adopt a different rule for habeas cases, arguing that, if a state court decision is ambiguous as to whether the judgment rests on a procedural Page 489 U. S. 264 bar, the federal court should presume that it does. Respondents claim that applying the Long "plain statement" requirement to habeas cases would harm the interests of finality, federalism, and comity. This Court has been alert in recognizing that federal habeas review touches upon these significant state interests. Wainwright v. Sykes itself reveals this. See 433 U.S. at 433 U. S. 90-91. We believe, however, that applying Long to habeas burdens those interests only minimally, if at all. The benefits, in contrast, are substantial.A state court remains free under the Long rule to rely on a state procedural bar, and thereby to foreclose federal habeas review to the extent permitted by Sykes. [Footnote 10] Requiring a state court to be explicit in its reliance on a procedural default does not interfere unduly with state judicial decisionmaking. As Long itself recognized, it would be more intrusive for a federal court to second-guess a state court's determination of state law. 463 U.S. at 463 U. S. 1041. Moreover, state courts have become familiar with the "plain statement" requirement under Long and Caldwell. Under our decision today, a state court need do nothing more to preclude habeas review than it must do to preclude direct review.In contrast, respondents' proposed rule would impose substantial burdens on the federal courts. At oral argument, counsel for respondents conceded that, in some circumstances, under their proposal, the federal habeas court would be forced to examine the state court record to determine Page 489 U. S. 265 whether procedural default was argued to the state court, or would be required to undertake an extensive analysis of state law to determine whether a procedural bar was potentially applicable to the particular case. See Tr. of Oral Arg. 28-29. Much time would be lost in reviewing legal and factual issues that the state court, familiar with state law and the record before it, is better suited to address expeditiously. The "plain statement" requirement achieves the important objective of permitting the federal court rapidly to identify whether federal issues are properly presented before it. Respondents' proposed rule would not do that. [Footnote 11]Thus, we are not persuaded that we should depart from Long and Caldwell simply because this is a habeas case. Having extended the adequate and independent state ground doctrine to habeas cases, we now extend to habeas review the "plain statement" rule for determining whether a state court has relied on an adequate and independent state ground. [Footnote 12] Page 489 U. S. 266IIIApplying the "plain statement" requirement in this case, we conclude that the Illinois Appellate Court did not "clearly and expressly" rely on waiver as a ground for rejecting any aspect of petitioner's ineffective-assistance-of-counsel claim. Michigan v. Long, 463 U.S. at 463 U. S. 1041. To be sure, the state court perhaps laid the foundation for such a holding by stating that most of petitioner's allegations "could have been raised [on] direct appeal." App. 12. Nonetheless, as the Court of Appeals recognized, this statement falls short of an explicit reliance on a state law ground. [Footnote 13] Accordingly, this reference to state law would not have precluded our addressing petitioner's claim had it arisen on direct review. As is now established, it also does not preclude habeas review by the District Court.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

U.S. Supreme CourtHarris v. Reed, 489 U.S. 255 (1989)Harris v. ReedNo. 87-5677Argued October 12, 1988Decided February 22, 1989489 U.S. 255SyllabusPetitioner's state court murder conviction was affirmed by the Appellate Court of Illinois on direct appeal, where petitioner challenged only the sufficiency of the evidence. The trial court then dismissed his petition for postconviction relief -- which alleged ineffective assistance by his trial counsel in several respects, including the failure to call alibi witnesses -- and the Appellate Court again affirmed. Although referring to the "well-settled" Illinois principle that issues that could have been, but were not, presented on direct appeal are considered waived, and finding that, "except for the alibi witnesses," petitioner's ineffective-assistance claim "could have been raised [on] direct appeal," the court nevertheless went on to consider and reject that claim on its merits. Petitioner then pursued the claim by filing a habeas corpus petition in the Federal District Court under 28 U.S.C. § 2254. While recognizing that, absent a showing either of "cause and prejudice" or a "miscarriage of justice," Wainwright v. Sykes, 433 U. S. 72, would have barred its consideration of the claim had the State Appellate Court held the claim waived under state law, the federal court determined that there had been no waiver holding, and went on to consider the claim in its entirety, and to dismiss it on its merits. In affirming the dismissal, the Court of Appeals ruled that it was precluded from reviewing the claim's merits because it believed the claim to be procedurally barred. Finding the State Appellate Court's order to be "ambiguous" on the waiver question, the court nevertheless concluded that it was bound by the order's "suggest[ed]" intention "to find all grounds waived except that pertaining to the alibi witnesses."Held:1. The "plain statement' rule" of Michigan v. Long, 463 U. S. 1032, 463 U. S. 1042, and n. 7, is not limited to cases on direct review in this Court, but extends as well to cases on federal habeas review. Pp. 489 U. S. 260-265.(a) Sykes' procedural default rule is based on this Court's longstanding "adequate and independent state ground" doctrine, whereby the Court will not consider a federal law issue on direct review from a state court judgment if that judgment rests on a state law ground that is both "independent" of the federal claim's merits and an "adequate" basis for the court's decision. The Long rule avoids the difficulties that arise Page 489 U. S. 256 under the doctrine when the state court's reference to state law is ambiguous, by permitting the Court to reach the federal question on direct review unless the state court's opinion contains "a plain statement" that its decision rests upon adequate and independent state grounds, whether substantive or procedural. Pp. 489 U. S. 260-262.(b) Since, as Sykes made clear, the adequate and independent state ground doctrine applies on federal habeas, and since federal courts on habeas review commonly face the same problem of ambiguity that was resolved by Long, the "plain statement" rule is adopted for habeas cases. Thus, a procedural default will not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar. Pp. 489 U. S. 262-263.(c) Respondents' claim is not persuasive that the federal court in a habeas case should presume that the state court judgment rests on a procedural bar whenever the state court decision is ambiguous on that point. Applying the Long rule to habeas barely burdens the interests of finality, federalism, and comity, since the state court remains free under the rule to foreclose federal habeas review to the extent permitted by Sykes simply by explicitly relying on a state law procedural default. Conversely, respondents' proposed rule would impose substantial burdens on the federal courts, which would lose much time in reviewing legal and factual issues that the state court, familiar with state law and the record before it, is better suited to address expeditiously. Pp. 489 U. S. 263-265.2. The State Appellate Court's statement that most of petitioner's ineffective-assistance-of-counsel allegations "could have been raised [on] direct appeal" does not satisfy the "plain statement" requirement, since it falls short of an explicit reliance on state law waiver as a ground for rejecting any aspect of petitioner's claim. Accordingly, the statement does not preclude habeas review by the District Court. P. 489 U. S. 266.822 F.2d 684, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, STEVENS, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a concurring opinion. O'CONNOR, J., filed a concurring opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 489 U. S. 268. KENNEDY, J., filed a dissenting opinion, post, p. 489 U. S. 271. Page 489 U. S. 257

1961_66

MR. JUSTICE BLACK delivered the opinion of the Court.The petitioner Blau, a stockholder in Tide Water Associated Oil Company, brought this action in a United States District Court on behalf of the company under § 16(b) [Footnote 1] of the Securities Exchange Act of 1934 to Page 368 U. S. 405 recover with interest "short swing" profits, that is, profits earned within a six months' period by the purchase and sale of securities, alleged to have been "realized" by respondents in Tide Water securities dealings. Respondents are Lehman Brothers, a partnership engaged in investment banking, the securities brokerage and in securities trading for its own account, and Joseph A. Thomas, a member of Lehman Brothers and a director of Tide Water. The complaint alleged that Lehman Brothers "deputed . . . Thomas, to represent its interests as a director on the Tide Water Board of Directors," and that, within a period of six months in 1954, and 1955 Thomas, while representing the interests of Lehman Brothers as a director of Tide Water and"by reason of his special and inside knowledge of the affairs of Tide Water, advised and caused the defendants, Lehman Brothers, to purchase and sell 50,000 shares of . . . stock of Tide Water, realizing profits thereon which did not inure to and [were] not recovered by Tide Water."The case was tried before a district judge without a jury. The evidence showed that Lehman Brothers had in Page 368 U. S. 406 fact earned profits out of short-swing transactions in Tide Water securities while Thomas was a director of that company. But, as to the charges of deputization and wrongful use of "inside" information by Lehman Brothers, the evidence was in conflict.First, there was testimony that respondent Thomas had succeeded Hertz, another Lehman partner, on the board of Tide Water; that Hertz had "joined Tidewater Company thinking it was going to be in the interests of Lehman Brothers"; and that he had suggested Thomas as his successor partly because it was in the interest of Lehman. There was also testimony, however, that Thomas, aside from having mentioned from time to time to some of his partners and other people that he thought Tide Water was "an attractive investment" and under "good" management, had never discussed the operating details of Tide Water affairs with any member of Lehman Brothers; [Footnote 2] that Lehman had bought the Tide Water securities without consulting Thomas, and wholly on the basis of public announcements by Tide Water that common shareholders could thereafter convert their shares to a new cumulative preferred issue; that Thomas did not know of Lehman's intent to buy Tide Water stock until after the initial purchases had been made; that, upon learning about the purchases, he immediately notified Lehman that he must be excluded from "any risk of the purchase or any profit or loss from the subsequent sale"; and that this disclaimer was accepted by the firm. [Footnote 3] Page 368 U. S. 407From the foregoing and other testimony, the District Court found that "there was no evidence that the firm of Lehman Brothers deputed Thomas to represent its interests as director on the board of Tide Water," and that there had been no actual use of inside information, Lehman Brothers having bought its Tide Water stock "solely on the basis of Tide Water's public announcements, and without consulting Thomas."On the basis of these findings, the District Court refused to render a judgment, either against the partnership or against Thomas individually, for the $98,686.77 profits which it determined that Lehman Brothers had realized, [Footnote 4] holding:"The law is now well settled that the mere fact that a partner in Lehman Brothers was a director of Tide Water at the time that Lehman Brothers had this short swing transaction in the stock of Tide Water is not sufficient to make the partnership liable for the profits thereon, and that Thomas could not be held liable for the profits realized by the other partners from the firm's short-swing transactions. Rattner v. Lehman, 2 Cir., 1952, 193 F.2d 564, 565, 567. This precise question was passed upon in the Rattner decision."173 F. Supp. 590, 593. Despite its recognition that Thomas had specifically waived his share of the Tide Water transaction profits, the trial court nevertheless held that, within the meaning of § 16(b), Thomas had "realized" $3,893.41, his proportionate share of the profits of Lehman Brothers. The court consequently entered judgment against Thomas for that amount, but refused to allow interest against him. Page 368 U. S. 408 On appeal, taken by both sides, the Court of Appeals for the Second Circuit adhered to the view it had taken in Rattner v. Lehman, 193 F.2d 564, and affirmed the District Court's judgment in all respects, Judge Clark dissenting. 286 F.2d 786. The Securities and Exchange Commission then sought leave from the Court of Appeals en banc to file an amicus curiae petition for rehearing urging the overruling of the Rattner case. The Commission's motion was denied, Judges Clark and Smith dissenting. We granted certiorari on the petition of Blau, filed on behalf of himself, other stockholders and Tide Water, and supported by the Commission. 366 U.S. 902. The questions presented by the petition are whether the courts below erred: (1) in refusing to render a judgment against the Lehman partnership for the $98,686.77 profits they were found to have "realized" from their "short-swing" transactions in Tide Water stock, (2) in refusing to render judgment against Thomas for the full $98,686.77 profits, and (3) in refusing to allow interest on the $3,893.41 recovery allowed against Thomas. [Footnote 5]Petitioner apparently seeks to have us decide the questions presented as though he had proven the allegations of his complaint that Lehman Brothers actually deputized Thomas to represent its interests as a director of Tide Water, and that it was his advice and counsel based on his special and inside knowledge of Tide Water's affairs that caused Lehman Brothers to buy and sell Tide Water's stock. But the trial court found otherwise, and the Court of Appeals affirmed these findings. Inferences could perhaps Page 368 U. S. 409 have been drawn from the evidence to support petitioner's charges, but examination of the record makes it clear to us that the findings of the two courts below were not clearly erroneous. Moreover, we cannot agree with the Commission that the courts' determinations of the disputed factual issues wee conclusions of law, rather than findings of fact. We must therefore decide whether Lehman Brothers, Thomas, or both have an absolute liability under § 16(b) to pay over all profits made on Lehman's Tide Water stock dealings even though Thomas was not sitting on Tide Water's board to represent Lehman and even though the profits made by the partnership were on its own initiative, independently of any advice or "inside" knowledge given it by director Thomas.First. The language of § 16 does not purport to impose its extraordinary liability on any "person," "fiduciary" or not, unless he or it is a "director," "officer" or "beneficial owner of more than 10 per centum of any class of any equity security . . . which is registered on a national securities exchange." [Footnote 6] Lehman Brothers was neither an officer nor a 10% stockholder of Tide Water, but petitioner and the Commission contend that the Lehman partnership is or should be treated as a director under § 16(b).(a) Although admittedly not "literally designated" as one, it is contended that Lehman is a director. No doubt Lehman Brothers, though a partnership, could, for purposes of § 16, be a "director" of Tide Water and function through a deputy, since § 3(a)(9) of the Act [Footnote 7] provides that "person' means . . . partnership" and § 3(a)(7) [Footnote 8] that"'director' means any direct or of a corporation or any person performing similar functions with respect to any organization, whether incorporated or unincorporated. "Page 368 U. S. 410Consequently, Lehman Brothers would be a "director" of Tide Water, if, as petitioner's complaint charged, Lehman actually functioned as a director through Thomas, who had been deputized by Lehman to perform a director's duties not for himself, but for Lehman. But the findings of the two courts below, which we have accepted, preclude such a holding. It was Thomas, not Lehman Brothers as an entity, that was the director of Tide Water.(b) It is next argued that the intent of § 3(a)(9), in defining "person" as including a partnership, is to treat a partnership as an inseparable entity. [Footnote 9] Because Thomas, one member of this inseparable entity, is an "insider," [Footnote 10] it is contended that the whole partnership should be considered the "insider." But the obvious intent of § 3(a)(9), as the Commission apparently realizes, is merely to make it clear that a partnership can be treated as an entity under the statute, not that it must be. This affords no reason at all for construing the word "director" in § 16(b) as though it read "partnership of which the director is a member." And the fact that Congress provided in § 3(a)(9) for a partnership to be treated as an entity in its own right likewise offers no support for the argument that Congress wanted a partnership to be subject to all the responsibilities and financial burdens of its members in carrying on their other individual business activities.(c) Both the petitioner and the Commission contend on policy grounds that the Lehman partnership should be held liable even though it is neither a director, officer, nor Page 368 U. S. 411 a 10% stockholder. Conceding that such an interpretation is not justified by the literal language of § 16(b), which plainly limits liability to directors, officers, and 10% stockholders, it is argued that we should expand § 16(b) to cover partnerships of which a director is a member in order to carry out the congressionally declared purpose"of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer. . . ."Failure to do so, it is argued, will leave a large and unintended loophole in the statute -- one "substantially eliminating the great Wall Street trading firms from the statute's operation." 286 F.2d at 799. These firms, it is claimed, will be able to evade the Act and take advantage of the "inside" information available to their members as insiders of countless corporations merely by trading "inside" information among the various partners.The argument of petitioner and the Commission seems to go so far as to suggest that § 16(b)'s forfeiture of profits should be extended to include all persons realizing "short-swing" profits who either act on the basis of "inside" information or have the possibility of "inside" information. One may agree that petitioner and the Commission present persuasive policy arguments that the Act should be broadened in this way to prevent "the unfair use of information" more effectively than can be accomplished by leaving the Act so as to require forfeiture of profits only by those specifically designated by Congress to suffer those losses. [Footnote 11] But this very broadening of the categories of persons on whom these liabilities are imposed by the Page 368 U. S. 412 language of § 16(b) was considered and rejected by Congress when it passed the Act. Drafts of provisions that eventually became § 16(b) not only would have made it unlawful for any director, officer, or 10% stockholder to disclose any confidential information regarding registered securities, but also would have made all profits received by anyone, "insider" or not, "to whom such unlawful disclosure" had been made recoverable by the company. [Footnote 12]Not only did Congress refuse to give § 16(b) the content we are now urged to put into it by interpretation, but, with knowledge that in 1952 the Second Circuit Court of Appeals refused, in the Rattner case, to apply § 16(b) to Lehman Brothers in circumstances substantially like Page 368 U. S. 413 those here, Congress has left the Act as it was. [Footnote 13] And so far as the record shows, this interpretation of § 16(b) was the view of the Commission until it intervened last year in this case. Indeed, in the Rattner case, the Court of Appeals relied in part on Commission Rule X-16A-3(b) which required insider partners to report only the amount of their own holdings, and not the amount of holdings by the partnership. While the Commission has since changed this rule to require disclosure of partnership holdings too, its official release explaining the change stated that the new rule was"not intended as a modification of the principles governing liability for short-swing transactions under Section 16(b) as set forth in the case of Rattner v. Lehman. . . . [Footnote 14]"Congress can and might amend § 16(b) if the Commission would present to it the policy arguments it has presented to us, but we think that Congress is the proper agency to change an interpretation of the Act unbroken since its passage, if the change is to be made.Second. The petitioner and the Commission contend that Thomas should be required individually to pay to Tide Water the entire $98,686.77 profit Lehman Brothers realized on the ground that, under partnership law, he is co-owner of the entire undivided amount, and has therefore "realized" it all. "[O]nly by holding the partner director liable for the entire short-swing profits realized by his firm," it is urged, can "an effective prophylactic to the stated statutory policy . . . be fully enforced." But Page 368 U. S. 414 liability under § 16(b) is to be determined neither by general partnership law nor by adding to the "prophylactic" effect Congress itself clearly prescribed in § 16(b). That section leaves no room for judicial doubt that a director is to pay to his company only "any profit realized by him" from short-swing transactions. (Emphasis added.) It would be nothing but a fiction to say that Thomas "realized" all the profits earned by the partnership of which he was a member. It was not error to refuse to hold Thomas liable for profits he did not make.Third. It is contended that both courts below erred in failing to allow interest on the recovery of Thomas' share of the partnership profits. Section 16(b) says nothing about interest one way or the other. This Court has said in a kindred situation that"interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable."Board of Commissioners v. United States, 308 U. S. 343, 308 U. S. 352. Both courts below denied interest here, and we cannot say that the denial was either so unfair or so inequitable as to require us to upset it.Affirmed

U.S. Supreme CourtBlau v. Lehman, 368 U.S. 403 (1962)Blau v. LehmanNo. 66Argued December 12-13, 1961Decided January 22, 1962368 U.S. 403SyllabusPetitioner, a stockholder in a corporation with stock registered on a national securities exchange, sued under § 16(b) of the Securities Exchange Act of 1934 to recover on behalf of the corporation from one of its directors and a partnership of which he was a member "short-swing" profits realized by them on the purchase and sale by the partnership of stock of the corporation within a period of less than six months. Petitioner alleged that the partnership had "deputed" the director to represent its interests on the corporation's board of directors and that, by reason of his inside information, he had caused the partnership to purchase the stock of the corporation. The District Court found that these allegations were not supported by the evidence, and that the partnership had bought the stock solely on the basis of the corporation's public announcements, and without consulting the director. Accordingly, it denied a judgment against the partnership and the director for the full amount of the resulting profits and awarded a judgment against the director for only his proportionate share of the partnership's profits on these transactions, without interest. The Court of Appeals affirmed in all respects.Held: the judgment is affirmed. Pp. 368 U. S. 404-414.(1) The findings of the courts below on the disputed factual issues were not clearly erroneous; they were not conclusions of law; and they are sustained. Pp. 368 U. S. 408-409.(2) The partnership was neither an officer nor a 10% stockholder of the corporation, and it cannot be held liable as a director under § 16(b). Pp. 368 U. S. 409-413.(a) The findings of the courts below, which are accepted by this Court, preclude a finding that the partnership actually functioned as a director of the corporation through a partner who had been deputized by the partnership to perform a director's duties, not for himself, but for the partnership. Pp. 368 U. S. 409-410.(b) The fact that § 3(a)(9) defines "person" as including a partnership does not require that the entire partnership be held liable as an "insider" under § 16(b) merely because one of its members was a director of the corporation. P. 368 U. S. 410. Page 368 U. S. 404(c) This Court cannot extend the coverage of § 16(b) so as to include a partnership of which a director is a member. Pp. 368 U. S. 410-413.(3) The courts below properly held that the director was liable only for any profit realized by himself, and not for all the profits earned by the partnership on these transactions. Pp. 368 U. S. 413-414.(4) Denial by the two courts below of interest on the amount for which the director was held liable was neither so unfair nor so inequitable as to require this Court to upset it. P. 368 U. S. 414.286 F.2d 786, affirmed.

1967_38

MR. JUSTICE WHITE delivered the opinion of the Court.This case involves a corporate reorganization under Chapter X of the Bankruptcy Act, 52 Stat. 883, 11 U.S.C. §§ 501-676. In the most recent proceedings, [Footnote 1] the District Court approved an amended plan of reorganization and discharged the petitioner Committee. [Footnote 2] The Court of Appeals for the Fifth Circuit affirmed, 364 F.2d 936 (1966). We granted certiorari, 387 U.S. 929 (1967), because this case presents important questions under the bankruptcy laws. Since we believe the Court of Appeals erred in affirming the decision of the District Court, we reverse the judgment and remand for further proceedings consistent with the views expressed below. Page 390 U. S. 419IThe debtor, TMT Trailer Ferry, Inc., was incorporated in 1954. Its principal business is transporting freight between Florida and Puerto Rico. It pioneered "fishyback" transport, the ocean-going equivalent of "piggyback" transport. Freight loaded into highway trailers is rolled on and off sea-going barges without rehandling. In its original operations, TMT used rented tugs to tow converted Navy LST's loaded with such trailers and other freight. Later it undertook to convert a self-propelled Navy LSD for use in its business. Substantial debts and losses arose from the unsuccessful conversion and consequent failure in service of this ship, dubbed the Carib Queen.In addition, between 1954 and 1957, more than 4,000,000 shares of TMT common stock were issued, many of them acquired at low prices by persons close to the company and disposed of to the public at relatively high prices. As a result of these transactions and others, TMT became unable to meet its obligations, and a reorganization proceeding was initiated against it by involuntary petition in June, 1957. The debtor consented to reorganization, and C. Gordon Anderson was appointed trustee. The motion of the holders of preferred ship mortgages on the debtor's vessels (the Caplan mortgage) to foreclose their liens was denied by the trial court. On appeal from this order, it was pointed out that no plan of reorganization had yet been proposed, that the possibility of successful reorganization had not been explored, and that no evidence had been received to support any of the court's orders. The Court of Appeals reversed and remanded with instructions that the holders of the Caplan mortgage be permitted to foreclose unless adequate provision was made to protect their interests or unless they would not be prejudiced by further delay. Page 390 U. S. 420Upon remand, the trial court held appropriate hearings. It was determined that the debtor was being operated in a manner which would produce substantial profits. A plan of reorganization was proposed which would have given the Caplan mortgage group all the common stock in the reorganized company, a substantial portion of the preferred stock, and control of the board of directors. In February, 1959, without a hearing called for that purpose and solely on the basis of documents and records, the trial court declared the debtor insolvent and held that the original stockholders had no further interest in the reorganized corporation. In March, 1959, the plan of reorganization was confirmed, and Anderson resigned as trustee to become president of the reorganized company. A new trustee was appointed, and he sought in effect to vacate the order confirming the plan. His petition alleged that the holders of the Caplan mortgage and Merrill-Stevens Dry Dock & Repair Co. (M-S), another substantial creditor, had entered into an undisclosed agreement in violation of § 221 of Chapter X, 52 Stat. 897, 11 U.S.C. § 621, an agreement according to which the Caplan mortgage group would pay M-S in order to procure its consent to the plan of reorganization. This petition was denied, the successor trustee was removed, and Anderson was reinstated as trustee.The petitioner Committee appealed from the order confirming the reorganization plan. Objection was made to the failure of the trial court to order an investigation into the claims of certain creditors and to the failure to conduct a hearing on insolvency. While that appeal was pending, the Caplan group, supported by Anderson, petitioned the trial court to consummate the confirmed plan. The Securities and Exchange Commission, however, filed a petition in the trial court seeking an investigation. [Footnote 3] It Page 390 U. S. 421 alleged that an investigation would disclose that the plan was unfair because it turned the corporation over to persons who had dealt extensively in the stock of the debtor in transactions which were probably illegal. It was agreed among the parties that an investigation should be made.Anderson, in his reestablished role as trustee, conducted the investigation. Fourteen days of hearings were held, 2,200 pages of testimony transcribed, and some 60 exhibits collected. Anderson's report from this investigation covers 40 pages in the original record. He concluded that the debtor's business had been"wrecked by gross mismanagement, by unwise and unsound expansion financed primarily through the sale of securities in disregard of the protective provisions of the Securities Act of 1933,"and that the debtor had substantial causes of action against holders of the Caplan mortgage. Upon the recommendation of Anderson, the trial court vacated its order confirming the 1959 plan, and the Court of Appeals affirmed. [Footnote 4]Early in 1962, two new plans of reorganization were proposed. The "internal plan," recommended by Anderson, provided for reorganizing the debtor by issuing new common stock to creditors, and involved "compromises" of the Caplan mortgage and M-S claims. The "cash plan" entailed similar "compromises," as well as selling the debtor's assets for cash to persons unconnected with the company and distributing the cash Page 390 U. S. 422 to creditors. Neither plan provided for any participation by stockholders. The Committee, supported by the SEC, objected to the exclusion of stockholders from both plans, and opposed the internal plan because it contemplated that Anderson would become president of the reorganized company. After hearings on valuation, the District Court found the debtor insolvent and approved both plans as fair, equitable, and feasible. A majority of all classes of creditors other than the United States accepted the internal plan, and the District Court confirmed it in February, 1963. The Committee appealed, supported by the SEC, arguing that the plan wrongly excluded stockholders and improperly contemplated that Anderson would become president. The Court of Appeals ruled, without reaching the other contentions, that it was permissible for the plan to contemplate that Anderson would become president, [Footnote 5] but it held in a separate appeal that the plan was defective for not giving priority to the Government's nontax claims. [Footnote 6] The case was accordingly remanded to the District Court for determination of whether the plan would be feasible if the Government's claims were given full priority.On remand, further hearings were held, the District Court found that, if the Government's nontax claims were given priority, the plan would be feasible, and amendments were authorized which provided for immediate cash payment to the Government. The court regarded the failure of the Court of Appeals to reverse its other orders as, in effect, an affirmance of them, and it refused to consider again the contentions of the Committee and the SEC. The creditors accepted the amended plan and, over the objections of the Committee and the SEC that the plan was not fair or equitable, the District Page 390 U. S. 423 Court affirmed it. The Committee again appealed, and the Court of Appeals ruled that its earlier decision had left open all issues not in terms discussed and decided. [Footnote 7] Passing over the fact that the District Court had considered the case in erroneous legal perspective, and emphasizing that its obligation was to determine whether the trial judge had "abused his discretion" or reached conclusions which were "clearly erroneous," the Court of Appeals refused to remand the case. Stating that "[t]his . . . litigation must at long last be brought to an end," the Court of Appeals affirmed all judgments and orders of the District Court. The Committee, again supported by the SEC, has presented a number of questions on certiorari to this Court. [Footnote 8] Because of the view we take of this case, it is necessary to consider only the questions of whether it was error to affirm the District Court's approval of compromises of substantial claims against the debtor, and whether it was error to affirm the District Court's judgment that the debtor was insolvent, when that judgment was rendered without considering the future estimated earnings of the reorganized company. Page 390 U. S. 424IICompromises are "a normal part of the process of reorganization." Case v. Los Angeles Lumber Prods. Co., 308 U. S. 106, 308 U. S. 130 (1939). In administering reorganization proceedings in an economical and practical manner, it will often be wise to arrange the settlement of claims as to which there are substantial and reasonable doubts. At the same time, however, it is essential that every important determination in reorganization proceedings receive the "informed, independent judgment" of the bankruptcy court. National Surety Co. v. Coriell, 289 U. S. 426, 289 U. S. 436 (1933). The requirements of §§ 174 and 221(2) of Chapter X, 52 Stat. 891, 897, 11 U.S.C. §§ 574, 621(2), that plans of reorganization be both "fair and equitable," apply to compromises just as to other aspects of reorganizations. Ashbach v. Kirtley, 289 F.2d 159 (C.A. 8th Cir.1961); Conway v. Silesian-American Corp., 186 F.2d 201 (C.A.2d Cir.1950). The fact that courts do not ordinarily scrutinize the merits of compromises involved in suits between individual litigants cannot affect the duty of a bankruptcy court to determine that a proposed compromise forming part of a reorganization plan is fair and equitable. In re Chicago Rapid Transit Co., 196 F.2d 484 (C.A. 7th Cir.1952). There can be no informed and independent judgment as to whether a proposed compromise is fair and equitable until the bankruptcy judge has apprised himself of all facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated. Further, the judge should form an educated estimate of the complexity, expense, and likely duration of such litigation, the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise. Basic to this process in every Page 390 U. S. 425 instance, of course, is the need to compare the terms of the compromise with the likely rewards of litigation. It is here that we must start in the present case.The Caplan mortgage, consisting of preferred ship mortgages on the debtor's vessels, bears a face amount of $330,000. The holders paid $280,500 for it. Under the proposed compromise, the holders would receive $280,500 paid in five annual cash installments, plus interest from the original due date. [Footnote 9] The claims filed against the debtor's estate by M-S totaled $1,628,284, of which $574,580 was said to be secured by maritime liens on the debtor's vessels. Under the terms of the compromise, these claims are to be allowed in full, after reducing them all to the status of unsecured claims. As with other unsecured claims, they would be paid for by issuing common stock in the reorganized company. M-S would wind up holding approximately 40% of the stock in the new company. [Footnote 10] A glance at these terms makes it clear that the compromises involve substantial recognition of the claims filed by the Caplan group and M-S against the debtor. Whether compromising on these terms was fair and equitable to the debtor, the other creditors, and the stockholders depends upon the proper assessment of the claims which the debtor allegedly had against both the Caplan group and M-S.The Caplan mortgage was the focal point of the 1960 investigation conducted by the trustee, Anderson. The Page 390 U. S. 426 mortgage was entered into shortly before the petition in bankruptcy was filed. It was needed to raise cash to meet payments due on the Carib Queen. After an extensive investigation, Anderson concluded that the mortgage was a fraudulent transfer not given for fair consideration. Anderson's report succinctly stated the unfairness of the terms of the mortgage:"The Caplan Group paid $280,500 cash for the mortgage to TMT, which paid all of the expenses of the transaction. The mortgage was for $330,000, payable in seven months, and is convertible into common stock at the option of the holders, one share of common for each $1.25 of principal amount of the mortgage. This gave the Caplan Group an effective interest rate of 30% per annum prior to maturity, and an opportunity to straddle because of the conversion feature. If TMT prospered, they could convert the mortgage into common stock for which they would have paid little more than $1.00 per share; if TMT did not, the Caplan Mortgage was in a senior position and constituted a lien on TMT's prime assets, absolutely necessary to the Company's operation. Since the Carib Queen had broken down, the vessels encumbered by the mortgage were the main producers of income for the company."Anderson found that there was "ample evidence" to support this view of the mortgage, and that, therefore, the mortgage should be treated as null and void. So treating it would not release TMT from the obligation to repay the money received, but, in claiming that amount, the holders of the mortgage would have no higher status than general unsecured creditors. [Footnote 11] Page 390 U. S. 427In addition, Anderson's report concluded that the principal holders of the Caplan mortgage, Abrams, Shaffer, and Erdman, had diverted corporate opportunities through the flagrant abuse of their control, fiduciary or inside positions, and should be made to account for the profits they had made. Nearly half of the roughly 4,000,000 shares of outstanding TMT common stock reached the public via purported private offerings through Abrams and Shaffer. These two men exercised a high degree of control over the affairs of the company, and Erdman went along with them and participated in many of their transactions. Anderson found that these three occupied a fiduciary relationship with TMT, at least insofar as issuance of capital stock to them was concerned."They took advantage of their inside position to obtain stock for less than the market price which they sold to the public without any registration under the Securities Act and in apparent violation of the private offering exemption under which all of the stock was issued."The activities of these three men substantially lessened TMT's chances of obtaining financing from reputable financial institutions, "and, by the time the Caplan mortgage was executed, they were in a position to dictate terms which TMT would be forced to accept." Anderson's report continued:"It is the opinion of the trustee that persons such as Abrams, Shaffer and Erdman, who come in as creditors of TMT under the Caplan Mortgage . . . , should be barred in this equity proceeding from profiting at TMT's expense. Their claims should be reduced by the profits they have made on sales of TMT stock which they acquired for private investment Page 390 U. S. 428 purposes, but which they sold in violation of the law at great profit to themselves. These profits are either admitted or readily ascertainable, and should be returned to the company."Characterizing the conduct of Abrams, Shaffer, and Erdman in acquiring unregistered TMT stock with no intention of holding it for investment as a "fraud," Anderson indicated the possibility of liability under the SEC's Rule 10b-5. [Footnote 12] Anderson said that, at a minimum, their claims should be subordinated to those of innocent creditors. [Footnote 13]As a result of the report filed by trustee Anderson, the order confirming the 1959 plan of reorganization was vacated. Both the trustee and the SEC filed objections to the Caplan mortgage claim, grounded on the reasons presented in the report of the investigation. The District Court never held hearings on these objections. The mortgage was not set aside as a fraudulent transfer, nor was it decided to use the claims against Abrams, Shaffer, and Erdman as setoffs or as a means of subordinating the mortgage claims. Rather, the internal plan of reorganization was approved by the District Court, providing for a "compromise" of the Caplan mortgage along the lines already indicated. The holders of the mortgage were to receive in cash what they had put up for the mortgage, plus interest on the principal from the original due date. [Footnote 14]Separate from the Caplan mortgage claims were the claims filed by M-S, the company in charge of converting Page 390 U. S. 429 the Navy LSD into the self-propelled trailership which TMT christened the Carib Queen. These claims totaled $1,628,284, of which over $1,000,000 was for the unpaid balance due for converting the Carib Queen. Maritime liens on other vessels owned by TMT allegedly secured $574,580 worth of these claims. The United States, in its position as a substantial creditor of TMT, filed objections to M-S claims, stating that none of them were entitled to status as secured claims "for the reason that they arose more than one year prior to the commencement of the reorganization proceedings herein." It also contended that the claims had no status as secured lien claims, for"it is a recognized principle of Admiralty and Maritime law that claims for the construction or reconstruction of vessels do not give rise to Maritime liens."Whether the portion of the claims for which M-S asserts secured status is actually entitled to that status has never been determined. The "compromise" of the M-S claims amounted to allowing them in their entirety as unsecured claims.On the maiden voyage of the Carib Queen, a series of boiler failures caused the vessel to break down and necessitated extensive repairs. In November, 1958, the petitioner Committee notified the District Court that, in its opinion, the "series of catastrophes" which had befallen the Carib Queen was due to"faulty design, inadequate inspection, defective work on the remodeling and later repair of the ship, hasty and improper preparations for a hazardous sea voyage, and utilization of the ship in a service for which she was not fitted and in an unseaworthy condition."The Committee thought that TMT had causes of action which could lead to the recovery of substantial sums of money. Although Anderson's report on his subsequent investigation of the affairs of TMT dealt with causes of action other than those associated Page 390 U. S. 430 with the Caplan mortgage, it made no mention of any claims TMT might have against M-S. The SEC objected to the M-S claims, stating that there were grounds for disallowing them and that the matter should be referred to a special master for investigation. Trustee Anderson also sought reference of these claims to a special master. On September 1, 1961, the SEC filed detailed specifications of its objections to the M-S claims, based on its own investigation into them. The SEC stated that the debtor"has meritorious defenses and an offset or counterclaim because M-S (a) did not properly convert the vessel; (b) did not comply with the terms of the contract; (c) did not properly repair the vessel, and (d) performed certain work for and furnished certain materials to TMT, with no agreement as to price; M-S has failed to establish the value of such work and materials."The SEC described with some particularity the facts which had led it to this conclusion. The most important of these related to the boiler failure which occurred shortly after M-S delivered the Carib Queen for its maiden voyage. Within 48 hours of sailing from Jacksonville, Florida, bound for San Juan, Puerto Rico, it was discovered that a boiler and several tubes were leaking. Tubes overheated, ruptured, and were distorted as a result of scale which had formed on their inner surfaces. The SEC attributed the scale to M-S' negligence in running the boilers with raw water. The SEC also stated that the improper priming of the boilers that occurred on the first trip was due to installation of incorrect baffles by M-S. M-S had undertaken to make the required repairs, and the SEC stated that this repair work was performed negligently, leading to further tube failures. Page 390 U. S. 431 Part of the M-S claims was for unpaid charges for this repair work. M-S filed an answer on September 1 which admitted that, when the Carib Queen was delivered, it was suffering from "certain construction deficiencies," but denied any liability. It contended that its asserted lien claims were secured, and that it had performed the repair work in a proper manner.Although the SEC and the trustee had sought reference of the M-S claims to a special master for a hearing, no such hearing was ever held. Instead, the trustee subsequently moved for the summary allowance of the claims on the ground that there was only a "remote" possibility of materially reducing them by litigating the objections filed against them, and that such litigation would cause "unnecessary delay." [Footnote 15] At the hearing during which the trustee presented his motion for allowing the M-S claims in full, no further explanation of this recommendation was provided. Counsel for the Committee protested that "this is not a report, this is a bare statement of conclusion." The trial judge himself recognized the importance of the question. He said:"I am concerned myself. I do know that whoever turned that vessel [the Carib Queen] loose with the Page 390 U. S. 432 boilers in it, somebody made a bad mistake. I don't know who it was."The matter was put over, and subsequently the Committee, supported by the Commission, the Department of Justice, and the Caplan mortgage group, filed objections. Notwithstanding these objections, and the doubts that he had earlier expressed, the trial judge confirmed the claims in full as unsecured claims without further investigation of them. M-S, under the confirmed plan, is to receive 40% of the common stock of the reorganized company.On July 11, 1962, the trial court filed its opinion and order approving both the internal and the cash plans of reorganization. The internal plan contained the provisions for "compromising" the Caplan mortgage and M-S claims. With regard to these sets of claims, the trial court stated that "it was apparent" that successful litigation of the claims TMT had against the holders of these claims "would take possibly years to conclude. . . ." The court continued:"It is the opinion of the court that these compromises are fair and equitable under the circumstances, and they are hereby approved for inclusion in the Internal Plan. The court approves the opinion expressed by the attorney for the trustee that no better compromises can be obtained for the debtor, that the prospect of material reduction in the amount of these claims does not warrant the extensive litigation that would otherwise be required, and that the prospect of recoveries beyond the amount of the claims as urged by the Securities and Exchange Commission and the Stockholders' Committee is too remote for serious consideration. . . . The alternative to approval of these compromises is extensive litigation at heavy expense to the debtor and unnecessary Page 390 U. S. 414 delay in reorganization contrary to the intent and purpose of Chapter X of the Bankruptcy Act."This statement constitutes the only, and the last [Footnote 16] word that the trial court said on the merits of the compromises of the Caplan mortgage and M-S claims. Without reference to any of the objections that had been filed or to the substantial facts in the record tending to cast doubt upon the Caplan mortgage and M-S claims, the court accepted the bald conclusions of the trustee. This despite the fact that the trustee had once concluded that the Caplan mortgage was null and void and that TMT had sizeable setoffs against its holders. This despite the fact that the trustee had once sought reference of the M-S claims to a special master for investigation. This despite the fact that the trustee had never placed on the record any of the facts of his subsequent investigation Page 390 U. S. 434 and had never provided any explanation of why he had completely reversed his field on these claims. Although, at this point in the proceedings, it was clear that Anderson was to become president of the reorganized company, and though the trial court was understandably eager to wind up these protracted proceedings, there nowhere appears an adequate explanation for the trustee's cursory, conclusory recommendation of these "compromises," or the perfunctory, almost off-hand, manner in which the court accepted that recommendation.If the quoted statement of the trial court had been the result of an adequate and intelligent consideration of the merits of the claims, the difficulties of pursuing them, the potential harm to the debtor's estate caused by delay, and the fairness of the terms of settlement, then it would without question have been justifiable to approve the proposed compromises. It is essential, however, that a reviewing court have some basis for distinguishing between well reasoned conclusions, arrived at after a comprehensive consideration of all relevant factors, and mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law. Here there is no explanation of how the strengths and weaknesses of the debtor's causes of action were evaluated or upon what grounds it was concluded that a settlement which allowed the creditor's claims in major part was "fair and equitable." Although we are told that the alternative to settlement was "extensive litigation at heavy expense" and "unnecessary delay," there is no evidence that this conclusion was based upon an educated estimate of the complexity, expense, and likely duration of the litigation. Litigation and delay are always the alternative to settlement, and whether that alternative is worth pursuing necessarily depends upon a reasoned judgment as to the probable outcome of litigation. The complaint voiced by Page 390 U. S. 435 counsel for the petitioner Committee to the trustee's report on the compromises, that "this is a bare statement of conclusion," seems equally applicable to the trial court's statement approving those compromises. In these circumstances, it was error to affirm that aspect of the District Court's judgment approving inclusion of the proposed compromises in the internal plan of reorganization.The Court of Appeals dealt with the District Court's approval of the compromises in five sentences. Noting that it was only the Committee and the SEC that were complaining, and remarking that it was unlikely that disallowance of the compromises would result in solvency, it felt that it was "significant that not a single creditor has ever complained of either compromise." 364 F.2d 936, 941. The question of insolvency will be returned to shortly. The argument that the compromises were properly approved because no creditors objected to them seems doubly dubious. When a bankruptcy court either fails adequately to investigate potential legal claims held by the debtor or refuses to provide an adequate explanation of the basis for approving compromises, it is scarcely surprising that creditors fail to come forward with objections to the compromises. Moreover, this Court has held that a plan of reorganization which is unfair to some persons may not be approved by the court even though the vast majority of creditors have approved it. [Footnote 17] Page 390 U. S. 436The principal argument of the respondent supporting affirmance of the order approving the compromises is that"the district court had before it a thorough record concerning the facts and issues with respect to the compromises of these two claims."Respondent's Brief 38. With regard to the Caplan mortgage claim, respondent points out that the facts and circumstances surrounding it were thoroughly documented in Anderson's report of his investigation. It is difficult to see how this strengthens respondent's position, however, for the report carefully documented the conclusion that the Caplan mortgage was a fraudulent transfer, and that claims against the individual holders of the mortgage could be used as setoffs. The District Court's approval of the proposed compromise in the face of the facts and conclusions contained in the trustee's report is more difficult to understand than would be approval entered on a blank slate. Respondent also points out that the trial court had before it an answer to Anderson's report, the various objections filed to the mortgage claim, the claim itself, and the recommendations of the Creditors' Committee, the trustee and the trustee's counsel favoring the proposed settlement. The objections filed to the claim militate against the advisability of compromise, however, and the other matters referred to consist either of conclusory denials of liability or conclusory statements that the claims should be compromised. There is nothing in all these documents which could provide a sound basis for concluding that the claims against the mortgage and its holders were unmeritorious. [Footnote 18] If the Page 390 U. S. 437 trial court ever had before it facts which showed the claims against the Caplan mortgage and its holders to be without merit, or if the court ever discovered sound grounds for thinking that the delay incident to litigation or the unlikelihood of obtaining an adequate recovery, made compromise advisable, nothing in this record indicates it.With regard to the M-S claims, respondent contends that the record contains "an abundance of pleadings and allegations" respecting them. Respondent's Brief 33. To make an informed and independent judgment, however, the court needs facts, not allegations. Respondent also contends that there were sufficient facts in the record, and provides a long list of references to the places in the record where these facts can be found. If, indeed, the record contained adequate facts to support the decision of the trial court to approve the proposed compromises, a reviewing court would be properly reluctant to attack that action solely because the court failed adequately to set forth its reasons or the evidence on which they were based. The deficiency in this case, however, is not a merely formal one. The evidence referred to by respondent is analyzed at greater length in the margin. [Footnote 19] Page 390 U. S. 438 Here it is enough to say that, to the extent that the record contains solid facts of the sort necessary for appraising the merits of the claims against M-S, virtually all of them point to the probable existence of valid Page 390 U. S. 439 and valuable causes of action. Balancing these facts are nothing but bald assertions to the contrary and general conclusions for which foundations nowhere appear. Particularly noteworthy is the fact that, despite frequent Page 390 U. S. 440 requests for an investigation, and notwithstanding the fact that the available evidence pointed to probably valid claims against M-S, no investigation of these matters was ever undertaken or ordered by the trial court. It is difficult to imagine how an informed and independent decision in favor of compromising the M-S claims in the full amount as unsecured claims could have been reached on the present state of the record.The record before us leaves us completely uninformed as to whether the trial court ever evaluated the merits of the causes of actions held by the debtor, the prospects and problems of litigating those claims, or the fairness of the terms of compromise. More than this, the record is devoid of facts which would have permitted a reasoned Page 390 U. S. 441 judgment that the claims of actions should be settled in this fashion. In reaching this conclusion, however, it is necessary to emphasize that we intimate no opinion as to the merits of the debtor's causes of action or as to the actual fairness of the proposed compromises. To the contrary, it is clear that the present record is inadequate for assessing either, and that a remand is necessary to permit further hearings to be held. Only after further investigation can it be determined whether, and on what terms, these claims should be compromised.IIIUnder §§ 174, 221(2), of Chapter X, 52 Stat. 891, 897, 11 U.S.C. §§ 574, 621(2), a bankruptcy court is not to approve or confirm a plan of reorganization unless it is found to be "fair and equitable." This standard incorporates the absolute priority doctrine under which creditors and stockholders may participate only in accordance with their respective priorities and, "in any plan of corporate reorganization, unsecured creditors are entitled to priority over stockholders to the full extent of their debts. . . ." SEC v. United States Realty Improvement Co., 310 U. S. 434, 310 U. S. 452 (1940). Since participation by junior interests depends upon the claims of senior interests being fully satisfied, whether a plan of reorganization excluding junior interests is fair and equitable depends upon the value of the reorganized company. In the present case, the District Court excluded the stockholders from participation because of its finding that the debtor was insolvent. Since the determination of insolvency was not made in accordance with the proper standards of valuation, neither the approval nor the confirmation of the plan can stand.The appropriate standard for valuing a company undergoing reorganization was set out at length in Consolidated Page 390 U. S. 442 Rock Products Co. v. Du Bois, 312 U. S. 510, 312 U. S. 526 (1941):"As Mr. Justice Holmes said in Galveston, H. & S.A. Ry. Co. v. Texas, 210 U. S. 217, 210 U. S. 226, 'the commercial value of property consists in the expectation of income from it.' . . . Such criterion is the appropriate one here, since we are dealing with the issue of solvency arising in connection with reorganization plans involving productive properties. . . . The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. . . . Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity, and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance. [Footnote 20]"In the present case, the book value of the debtor's assets on May 31, 1962, was $1,887,185.77. Claims against the Page 390 U. S. 443 debtor totaled $5,477,370.05. The actual fair value of the debtor's total assets was $2,238,387.62, and their net value was $1,978,481.73. Although these figures show that liabilities far exceeded assets, they are not of controlling importance. The District Court recognized that going concern value, not book or appraisal value, must govern determination of the fairness of the plans of reorganization, and respondent concedes that the value of TMT's business depended "not on the inherent value of its assets, but primarily on maintaining a high level of earnings." Brief for Respondent 42.At the valuation hearings, the trustee stated that his analysis of the financial structure and business of the debtor resulted in a going concern value of $2,031,403.72. A valuation expert presented by the trustee estimated the going concern value at between $1,607,692 and $1,800,000. He arrived at his conclusion by multiplying his estimate of the future earnings of the company by 7.7, a figure based on the assumption that earnings would be 13% of value. The valuation expert presented by the Committee concluded that estimated future earnings after taxes would be $327,500, and, multiplying this by a price-earnings ratio of 13.8, arrived at the conclusion that TMT had a value of $4,519,500. The trial judge took an intermediate position. By projecting current earnings of the debtor for the first five months of 1962 over the remainder of the year, he concluded that pre-tax earnings would be $568,000. Reduced by estimated income taxes and capitalized at 10%, this yielded a going concern value of $2,780,000. Since this figure fell well below the $5,477,370.05 of outstanding claims, he concluded that the debtor was insolvent. On this basis, the plan was approved and confirmed.When the Court of Appeals remanded to the District Court for determination of the feasibility of the reorganization plan after giving full priority to the Government's Page 390 U. S. 444 claims, the District Court concluded that TMT was "more insolvent now than it was in 1962," for earnings had declined from the high point of 1962, and the Court's initial determination had been based on the projected earnings for that year. The decline in earnings had occurred even though the volume of business had grown substantially, for increased competition from large steamship lines serving Puerto Rico had forced TMT to lower its rates, and thus its margin of profit. The District Court reaffirmed its finding of insolvency. On appeal, the Court of Appeals stated that it did not have to determine whether or not the District Court's finding of insolvency was accurately computed, but merely whether it was "clearly erroneous." On this basis, the conclusion of insolvency was affirmed.In a complex case of this nature it is not the province of this Court to attempt to retry issues of fact which have been fully litigated below. Indeed, as the Court of Appeals stated, much weight must be given to the long familiarity of the District Judge with the debtor and to his evaluation of the witnesses who testified in his presence. In the face of conflicting expert testimony as to the going concern value of the debtor based on current earnings, the trial judge adopted a position in between. We are not disposed to dispute the conclusion of the Court of Appeals that this determination by the trial judge was not "clearly erroneous." However, examination of the facts of this case demonstrates that the District Court did not have before it all of the evidence and testimony relating to the future problems and prospects of the company which were necessary to assess its value as a going concern. Indeed, the trial judge steadfastly refused to consider the value of the company once it was out of the reorganization proceedings. In this there was error, and it was an error which infected the conclusions of the trial court that the debtor was insolvent. Page 390 U. S. 445 Evaluations of evidence reached by the accurate application of erroneous legal standards are erroneous evaluations.TMT plays a minor but unique role in carrying goods between Puerto Rico and the United States. This domestic offshore trade is highly competitive and generally unprofitable. The high density, high volume, and high operating cost trade with Puerto Rico flows in and through the North Atlantic ports. TMT, operating in a triangle between San Juan, Miami, and Jacksonville, is confined to the low density, low investment South Atlantic trade. TMT carries only about 2% of the total trade with Puerto Rico, and the dominant carrier in the market is in direct competition with it in its home port of Jacksonville. When TMT entered the market with its novel idea of carrying roll-on and roll-off freight in towed vessels, the market was ripe for an innovation of this sort. However, the ills which plagued its early years threw TMT into bankruptcy in 1957. Prevented by the exigencies of the bankruptcy proceeding from capitalizing on the novel idea it had introduced, TMT has watched the development of container shipping, which has taken over a large share of the United States-Puerto Rico trade for which it might otherwise have hoped to compete. Nonetheless, TMT remains the only roll-on and roll-off carrier in the trade, and it has seen its own business rise 10% to 20% a year due to the increased frequency of direct interchange with piggyback rail transport. Despite the inability of TMT to capitalize on its novel idea, it has remained in a strong competitive position. Trade with Puerto Rico has increased steadily and rapidly, and TMT's business has grown commensurately. Despite a destructive rate war which markedly lowered the revenues earned per voyage, TMT increased its revenue from $3,801,000 in 1962, when the first insolvency hearing Page 390 U. S. 446 was held, to $4,779,000 in 1964, the latest year in the record. Between the 1962 and the 1965 hearings, the fleet of vessels was increased from three to five, and the number of truck trailers from 350 to 670. Moreover, in the 1965 hearing. the business manager could report that, after it paid the forthcoming installment for the reconversion of one of its vessels, the company would have no further significant outstanding indebtedness. TMT has continued to be the only unsubsidized carrier in the South Atlantic trade, the only one that makes money. Despite the increase in volume and revenue, however, the rate war and other factors such as rising costs caused net earnings to drop after 1962, and they have not yet regained the level established that year. TMT's tax loss carry-over has expired, with the result that earnings are now substantially reduced by federal taxes. The general trade picture between Puerto Rico and the United States is in flux, and the rates applicable to the trade are undergoing continuing revision and investigation. The vessels TMT uses are old, and in need of replacement. The supply of LST's has nearly dried up, and it seems to be understood that the replacement vessels will have to be built from scratch.In short, TMT would seem to be a company which has established, preserved, and increased its share of a highly competitive market despite intense competition and major internal crises. It operates in a market undergoing substantial change, and is itself faced with the imminent need to reequip its fleet. In these circumstances, an adequate notion of the going concern value of TMT could be obtained only by looking to the future, as well as the past. Against this background, we must examine the information which the trial court had before it for assessing the future prospects of TMT. The basic source for information on these matters was, of course, the trustee and his business manager. A short summary of Page 390 U. S. 447 the highlights of their testimony as it related to the future prospects of TMT will demonstrate the inadequacy of the information provided the trial judge for making this crucial determination.At the first insolvency hearing, the business manager attempted to estimate the earnings of the company for the next four years, but he made his projections solely on the business as it then was. Although TMT had attained the maximum number of voyages possible with the fleet it then had, the business manager had not looked into the possibility of chartering additional vessels. The trustee testified that several vessels would have to be replaced in the next two years, but admitted that he was unable to predict what such vessels would cost. When the trustee was asked if there was foreseeable room for expansion of TMT's business, the Court agreed with an objection that this was beyond the scope of the valuation hearing. The trustee's expert on valuation gave his opinion as to going concern value solely on the basis of the trustee's projection of earnings, which, in turn, was based wholly on past earnings. Those earnings figures had been drawn up some time prior to the hearing, and it was conceded that they might have come out differently if the projection had been made at the time of the valuation hearing. When asked if he would attempt to predict whether the company would be able to pay dividends once it was out of reorganization, or whether large capital investments would soak up all earnings, the trustee's expert replied that he had not been asked to consider that question, and did not think it legitimate. Although he agreed that reasonably foreseeable changes and improvements should be taken into account in valuing the company, he stated that he had been given no information on which to make such predictions. Page 390 U. S. 448At the second hearing on the value of the company, the business manager admitted that he had made no new projection of future expenses, revenue, or income, even though three years had passed and the business outlook of the firm was markedly different. Although TMT's fleet had grown in the interim from three to five vessels, and there was an imminent need for replacement of the older ships, the business manager was unable to predict the likely impact on earnings of the acquisition of newer vessels. He stated that the new vessels would be towed craft that loaded from the stern, and that they were apt to cost between $1,250,000 and $1,500,000 each. However, though some studies and inquiries had been conducted, there were no final or definite plans or drawings for the new ships. Although new, better, and more efficient vessels were needed soon to improve the company's competitive situation, in the present state of planning, it would be two years after the company was out of reorganization before new vessels would be obtained. At the second hearing, as at the first, the business manager could give no estimate of what portion of the administration costs of running TMT was due to the reorganization proceedings. Although he thought that trade between the United States and Puerto Rico was increasing, he did not know how much or in what ways. Though he thought that TMT's share of the Puerto Rican trade was remaining comparatively constant, he did not know for certain. He also did not know what portion of TMT's present volume of business was attributable to direct piggyback interchange. The data which the trustee and his business manager had submitted with regard to past income and expenses undoubtedly provided a clear picture of what the company had been experiencing in the past. Given, however, that it was a relatively small and young company Page 390 U. S. 449 much in need of internal rebuilding and operating in a market undergoing important economic and technological change, it was essential that some clear idea be gained of its future prospects. It seems perfectly obvious that the information introduced at the two hearings was inadequate for gaining even a rough idea of TMT's future prospects.The fundamental reason that there was insufficient evidence concerning the future prospects of TMT was that the trial court showed itself unalterably hostile to inquiries directed to TMT's future. During the first hearing, the following interchange took place when the court cut off a question aimed at determining whether the volume of TMT's south-bound traffic could be increased during the off-peak season:"Q. But if this enterprise were out from under the proceedings, would it?""The COURT. Well, we are dealing with an organization that is in. Let's assume that it will stay right there and try to get the value. It is not going to get out until it is reorganized.""Mr. MASON. We are trying to get the value when reorganized.""The COURT. That is of no importance to me. Let's value it as it now exists to determine what should be done in these proceedings."At a later time, when counsel again sought to establish that the proper way to value the company was to try to determine foreseeable factors which would affect future earnings, the court preempted the answer by remarking, "Mr. Witness, we do not want possibilities." Still later, the judge said:"All these projections into the future are not going to bother the Court. These creditors have waited Page 390 U. S. 450 too long to get their money. We have had this thing for years and years. I imagine most of them long since have gone to the poorhouse or given up."One can easily sympathize with the desire of a court to terminate bankruptcy reorganization proceedings, for they are frequently protracted. The need for expedition, however, is not a justification for abandoning proper standards. It is also easy to share the court's concern that creditors receive their money as promptly as possible. However, the right of stockholders to participate at all hung on the result of the valuation proceedings; sedulously eliminating all inquiry into the future may, in this context, have caused the rights of the stockholders to have been relinquished by default.Although three years elapsed before the next hearing, the judge displayed the same unwillingness to permit inquiry into the future prospects of TMT. When counsel for the SEC tried to open up the subject, the following dialogue occurred:"Mr. GONSEN. We have no startling figures, but a series of questions relating to the possible future prospects of this company.""The COURT. There is no possible future prospects other than what is going on. It is possible it will become the greatest fleet in the world, and it is possible to go bankrupt in a few months. As a matter of fact, if the competition had succeeded in their plans, you would have no problem here, they would have been sold.""Mr. GONSEN. Do I understand Your Honor does not desire me to examine as to evaluation?""The COURT. YOU do."Perhaps the proper reading of the reluctance of the judge to go into future prospects at the second hearing was that, in his view, the issue of insolvency was no longer in Page 390 U. S. 451 the case. The Court of Appeals had ruled on the question of whether the trustee could be the president of the reorganized company and whether the Government's nontax claims should be allowed in full without discussing the other issues. In the trial judge's view, the Court of Appeals' failure to speak on other issues constituted affirmance. On the appeal from the second hearing, however, the Court of Appeals took pains to point out the error in this conclusion. The result of the trial court's ruling was to exclude from the hearing the general issue of insolvency and to limit the hearing to the question of whether developments between the first and second hearings had rendered the plan unfeasible in light of the necessity of giving full priority to the Government's nontax claims. In such circumstances, it might be expected that the Court of Appeals would have examined the record to see if the facts supported the conclusion which the trial judge had felt foreclosed from having to make again, but which was, in fact, still in the case. Instead, however, the Court of Appeals merely quoted at length from the trial court's conclusions that the plan was feasible and stated that the ruling that the company was still insolvent was not clearly erroneous.At the close of the second hearing, the SEC and the Committee argued vigorously that the issue of valuation was still open, and that future prospects should have been considered by the judge. Although its view of the effect of the appeal from the first hearing did not require it to do so, the court addressed itself to the merits of this contention in its opinion and order approving the amended plan of reorganization:"The SEC and the Stockholders Committee insist, as they did during the valuation hearings in 1962, that the court should have required evidence of future earnings, subsequent to reorganization, based upon estimates of revenues and expenses after substantial Page 390 U. S. 452 changes in operations and acquisition and substitution of new-type vessels and other equipment, and based upon expanded operations expected to take place under private management. However, neither the trustee [n]or the court can anticipate what the reorganized company will do, and any estimates of future earnings under different circumstances of operation would be speculative and unreliable."This was not a correct statement or application of the law. This Court has declared that, in every case, it is incumbent upon the reorganization court to consider"all facts relevant to future earning capacity . . . , including . . . all circumstances which indicate whether or not [the past earnings] record is a reliable criterion of future performance."Consolidated Rock Products Co. v. Du Bois, supra. If it is shown that the record of past earnings is not a reliable criterion of future performance, the court must form an estimate of future performance by inquiring into all foreseeable factors which may affect future prospects. In forming this estimate, "mathematical certitude" is neither expected nor required.In this case, we have a company engaged in a hotly competitive market, a market experiencing a severe rate war which would probably alter the relative standings of the competitors. The market as a whole was witnessing substantial technological change, and TMT itself was one of the prime innovators. TMT's principal market, Puerto Rico, was undergoing considerable expansion. It was shown without contradiction that TMT needed to replace its present fleet with new and different ships. It should have been clear to the trial court that the circumstances brought out at the two hearings showed that the past earnings record was not a reliable criterion of future performance, and that sound evaluation of the Page 390 U. S. 453 company as a going concern required examination of the future prospects of the company. The court was not dealing with an established company in a static market, nor was it being asked to value the company's future prospects by hypothesizing unforeseeable changes in operations or market structure. It was evident that certain specific and predictable alterations would have to be made in the equipment and operations of the company in order to meet foreseeable alterations in the market. The trial court shut its eyes to these important developments, and, in so doing, ignored a cardinal principle of proper evaluation.IVBecause only past earnings were relied upon in this case in determining the value of the debtor as a going concern, we reverse and remand to the Court of Appeals with directions to remand to the District Court to hold new hearings on valuation. Without in any way prejudging the issue, it is possible that, when the compromises discussed in 390 U. S. and when the company is properly valued by taking into account its future prospects, the company will be found not to be insolvent. Such a finding would permit stockholders to participate. There is, therefore, no point in considering at this juncture the question presented by the petitioner concerning the stockholders' claims under the federal securities laws. Since the Committee will, of course, be entitled to participate in the new hearings on valuation and insolvency, the order of the District Court discharging it is vacated. So doing, however, reflects no opinion on the merits of the arguments presented in this Court by petitioner as to why it should not have been discharged. Finally, there is no necessity to determine whether it was improper to contemplate making the trustee president of the reorganized company. A great deal of time has passed since that was deemed Page 390 U. S. 454 an advisable plan, and intervening circumstances may well have altered the views of the participants. Since new hearings on valuation and insolvency will further protract these proceedings, it seems advisable to put that question aside.For the reasons stated in this opinion, we reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtProtective Committee v. Anderson, 390 U.S. 414 (1968)Protective Committee for Independent Stockholdersof TMT Trailer Ferry, Inc. v. AndersonNo. 38Argued November 7-8, 1967Decided March 25, 1968390 U.S. 414SyllabusTMT Trailer Ferry, Inc. (TMT), the debtor in this protracted reorganization proceeding, was incorporated in 1954, and engages in transporting loaded truck trailers and other freight between Florida and Puerto Rico on sea-going barges. TMT incurred substantial debts and losses from the unsuccessful conversion of a Navy LSD by a drydock and repair company (M-S). Between 1954 and 1957, TMT issued more than 4,000,000 shares of common stock, many of which were acquired by insiders at low prices and disposed of to the public in alleged violation of the Securities Act of 1933 at relatively high prices. As a result of these and other transactions, TMT became unable to meet its obligations, and a reorganization proceeding was started by an involuntary petition filed against TMT in June, 1957. In 1959, the District Court, solely on the basis of documents and records and without a hearing, declared TMT insolvent. It held that the original stockholders had no further interest in the reorganized company, and confirmed a reorganization plan which would have given control of TMT to the holders of preferred ship mortgages on TMT's vessels (the "Caplan mortgage") even though the District Court had questioned, and the trustee (respondent Anderson) had objected to, the validity of the claims. A successor trustee thereafter petitioned, in effect, that the order confirming the plan be vacated because of an allegedly illegal agreement between the Caplan mortgage holders and M-S. The petitioner Committee appealed, objecting to the trial court's failure to make an investigation and to conduct a hearing on insolvency. The SEC then petitioned the trial court to investigate its claims that the plan was unfair. The parties agreed on an investigation, which respondent Anderson as reinstated trustee conducted. Anderson's investigation concluded that TMT's business had been "wrecked by gross mismanagement" and "unsound expansion," that TMT Page 390 U. S. 415 had substantial causes of action against the principal Caplan mortgage holders for diverting corporate opportunities through flagrant abuse of their control and inside positions, and that the mortgage was "a fraudulent transfer not given for fair consideration." Thereafter, the trial court vacated its order confirming the 1959 plan, and the Court of Appeals affirmed. After the trial court set aside the 1959 plan, no hearings were held on the trustee's and the SEC's objections to the Caplan mortgage claim. The mortgage was not set aside as a fraudulent transfer, nor was it decided to use the claims against the Caplan mortgage holders as setoffs. The SEC, which contended after its own investigation that there were grounds for disallowing the M-S claims, filed detailed specifications of its objections to those claims based upon M-S' alleged negligence and other factors. The SEC and trustee sought reference of the M-S claims to a master, but later the trustee moved for the allowance of the claims on the ground that there was only a "remote" possibility of materially reducing them. Despite his own doubts, and without further investigation, the trial judge ultimately confirmed the M-S claims in full as unsecured claims. In 1962, two new reorganization plans were proposed: the "internal plan," recommended by Anderson, involving issuance of new common stock to creditors and "compromises" of (1) the Caplan mortgage, whereby the mortgage holders were to receive in cash what they had put up for the mortgage, plus interest on the principal from the original due date, and (2) the M-S claims, whereby they were also allowed in their full amount as unsecured claims, under an arrangement whereby M-S would receive 40% of the reorganized company's common stock, and the "cash plan" involving similar "compromises" and selling the debtor's assets for cash to persons unconnected with the company, the cash to be distributed to creditors. The Committee and the SEC objected, inter alia, that TMT's stockholders were excluded from both plans. Following valuation hearings which did not include full testimony about the company's future prospects, the District Court concluded that its going concern value, based on current earnings, was $2,780,000. Since creditors' claims were almost twice that much, the court found the debtor to be insolvent, and excluded TMT's stockholders from participation in the reorganized company. The District Court approved both plans, observing in connection with "compromising" the Caplan mortgage and M-S claims that successful litigation against the claimants "would take possibly years to conclude," and holding the compromises Page 390 U. S. 416 "fair and equitable" under the circumstances. A majority of all classes of creditors accepted the internal plan, which that court confirmed in February, 1963. The Court of Appeals remanded the case to the District Court to determine the feasibility of the plan if the Government's nontax claims were given priority, which it held was required. The District Court, after hearings, approved the plan as amended to include an immediate cash payment to the Government, and assumed that the Court of Appeals had, in effect, affirmed its other orders, and, refusing to reconsider the Committee's and SEC's contentions with regard to the Caplan mortgage and M-S claims, affirmed the plan, which the creditors had accepted. The Committee again appealed. The Court of Appeals ruled that its earlier decision left open all issues not previously discussed or decided, but, finding no abuse of discretion or clear error, refused to remand the case, and affirmed all judgments and orders of the District Court, stating that "[t]his . . . litigation must at long last be brought to an end." Dealing with the District Court's approval of the compromises in five sentences, the Court of Appeals noted that "not a single creditor has ever complained of either compromise."Held:1. The Court of Appeals erred in affirming the District Court's approval of compromises involving substantial recognition of the claims against the debtor filed by the Caplan group and M-S in view of the inadequacy of the record for assessing the fairness of the proposed compromises. Pp. 390 U. S. 424-441.(a) A bankruptcy judge has the duty of determining that a proposed compromise forming part of a reorganization plan is fair and equitable; he must ascertain all facts necessary to determine the probabilities of success should claims be litigated. P. 390 U. S. 424.(b) The record here provides a reviewing court with no basis for distinguishing between well reasoned conclusions of the trial court and mere conclusory language unsupported by evaluation of the facts or analysis of law. P. 390 U. S. 434.(c) An unfair reorganization plan may not be approved by a bankruptcy court even though the vast majority of creditors have approved it. P. 390 U. S. 435.(d) Approval of compromises is more questionable when the available facts indicate the inadvisability of compromise than when there are no facts pointing either way. P. 390 U. S. 436.(e) The facts in the record indicate the probable existence of valid and valuable causes of action, and since there were no Page 390 U. S. 417 facts permitting a reasoned judgment that these claims should be compromised as the plan provides, approval of the compromises was not justified. Pp. 390 U. S. 438-441.2. The District Court erred in relying upon only the debtor's past earnings in determining its value as a going concern. Without having evidence relating to the debtor's future prospects, the court could not assess its going concern value or properly determine that the debtor was insolvent. Pp. 390 U. S. 441-453.(a) Whether a reorganization plan excluding junior interests (here stockholders) meets the statutory requirement that the plan be "fair and equitable" depends upon the value of the reorganized company. Since the District Court did not apply the proper valuation standards, its determination of insolvency was improper, and the reorganization plan cannot stand. P. 390 U. S. 441.(b) The valuation of a company undergoing reorganization must include an estimate based on an informed judgment embracing all facts relevant to future earning capacity. P. 390 U.S. 442.(c) The value of the debtor's business depended "not on the inherent value of its assets, but primarily on maintaining a high level of earnings." P. 390 U. S. 443.(d) The trial judge's steadfast refusal to consider the company's value once it was out of the reorganization proceedings constituted an error which infected his conclusion that the debtor was insolvent. P. 390 U. S. 444.(e) In the circumstances of this case, which involve a company which had established and increased its share of a highly competitive market despite intense competition and major internal crises, an adequate notion of its going concern value required looking to the future, as well as the past. P. 390 U. S. 446.(f) The information introduced at the two insolvency hearings was inadequate for even a rough evaluation of TMT's future prospects, a situation which resulted from the trial judge's hostility to evidence concerning the company's future. Pp. 390 U. S. 447-451.364 F.2d 936, reversed and remanded. Page 390 U. S. 418

1985_85-246

JUSTICE MARSHALL delivered the opinion of the Court.Respondent Dwight Dion, Sr., a member of the Yankton Sioux Tribe, was convicted of shooting four bald eagles on the Yankton Sioux Reservation in South Dakota in violation of the Endangered Species Act, 87 Stat. 884, as amended, 16 U.S.C. § 1531 et seq. (1982 ed. and Supp II). [Footnote 1] The District Court dismissed before trial a charge of shooting a golden eagle in violation of the Bald Eagle Protection Act, 54 Stat. 250, 16 U.S.C. § 668 et seq. (Eagle Protection Act). Dion was also convicted of selling carcasses and parts of eagles and other birds in violation of the Eagle Protection Act and the Migratory Bird Treaty Act, 40 Stat. 755, as amended, 16 U.S.C. § 703 et seq. The Court of Appeals for the Eighth Circuit affirmed all of Dion's convictions except those for Page 476 U. S. 736 shooting bald eagles in violation of the Endangered Species Act. 752 F.2d 1261, 1270 (1985) (en banc); 762 F.2d 674, 694 (1985) (panel opinion). As to those, it stated that Dion could be convicted only upon a jury determination that the birds were killed for commercial purposes. 752 F.2d at 1270. It also affirmed the District Court's dismissal of the charge of shooting a golden eagle in violation of the Eagle Protection Act. Ibid. We granted certiorari, 474 U.S. 900 (1985), and we now reverse the judgment of the Court of Appeals insofar as it reversed Dion's convictions under the Endangered Species Act and affirmed the dismissal of the charge against him under the Eagle Protection Act.IThe Eagle Protection Act, by its terms, prohibits the hunting of the bald or golden eagle anywhere within the United States, except pursuant to a permit issued by the Secretary of the Interior. The Endangered Species Act imposes an equally stringent ban on the hunting of the bald eagle. The Court of Appeals for the Eighth Circuit, however, sitting en banc, held that members of the Yankton Sioux Tribe have a treaty right to hunt bald and golden eagles within the Yankton Reservation for noncommercial purposes. [Footnote 2] It further held that the Eagle Protection Act and Endangered Species Act did not abrogate this treaty right. It therefore directed that Dion's convictions for shooting bald eagles be vacated, since neither the District Court nor the jury made any explicit finding whether the killings were for commercial or noncommercial purposes. [Footnote 3] Page 476 U. S. 737The Court of Appeals relied on an 1858 treaty signed by the United States and by representatives of the Yankton Tribe. Treaty with the Yancton (1858 spelling) Sioux, Apr.19, 1858, 11 Stat. 743. Under that treaty, the Yankton ceded to the United States all but 400,000 acres of the land then held by the Tribe. The treaty bound the Yanktons to remove to, and settle on, their reserved land within one year. The United States, in turn, agreed to guarantee the Yanktons quiet and undisturbed possession of their reserved land, and to pay to the Yanktons, or expend for their benefit, various moneys in the years to come. The area thus reserved for the Tribe was a legally constituted Indian reservation, see Minnesota v. Hitchcock, 185 U. S. 373, 185 U. S. 389-390 (1902); Wood v. Jameson, 130 N.W.2d 95 (S.D.1964). The treaty did not place any restriction on the Yanktons' hunting rights on their reserved land.All parties to this litigation agree that the treaty rights reserved by the Yankton included the exclusive right to hunt and fish on their land. See Brief for United States 19; Brief Page 476 U. S. 738 for Respondent 7. [Footnote 4] As a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them unless such rights were clearly relinquished by treaty or have been modified by Congress. F. Cohen, Handbook of Federal Indian Law 449 (1982) (hereinafter Cohen). These rights need not be expressly mentioned in the treaty. See Menominee Tribe v. United States, 391 U. S. 404 (1968); Alaska Pacific Fisheries v. United States, 248 U. S. 78 (1918). Those treaty rights, however, little avail Dion if, as the Solicitor General argues, they were subsequently abrogated by Congress. We find that they were. [Footnote 5]IIIt is long settled that"the provisions of an act of Congress, passed in the exercise of its constitutional authority, . . . if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty"with a foreign power. Fong Yue Ting v. United States, 149 U. S. 698, 149 U. S. 720 (1893); cf. Goldwater v. Carter, 444 U. S. 996 (1979). This Court applied that rule to congressional abrogation of Indian treaties in Lone Wolf v. Hitchcock, 187 U. S. 553, 187 U. S. 566 (1903). Congress, the Court concluded, has the power"to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so."Ibid.We have required that Congress' intention to abrogate Indian treaty rights be clear and plain. Cohen 223; see also Page 476 U. S. 739 United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 314 U. S. 353 (1941). "Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights. . . ." Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 443 U. S. 690 (1979). We do not construe statutes as abrogating treaty rights in "a backhanded way," Menominee Tribe v. United States, 391 U.S. at 391 U. S. 412; in the absence of explicit statement, "the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.'" Id. at 391 U. S. 413, quoting Pigeon River Co. v. Cox Co., 291 U. S. 138, 291 U. S. 160 (1934). Indian treaty rights are too fundamental to be easily cast aside. [Footnote 6]We have enunciated, however, different standards over the years for determining how such a clear and plain intent must be demonstrated. In some cases, we have required that Congress make "express declaration" of its intent to abrogate treaty rights. See Leavenworth, L., & G. R. Co. v. United States, 92 U. S. 733, 92 U. S. 741-742 (1876); see also Wilkinson & Volkman 627-630, 645-659. In other cases, we have looked to the statute's "legislative history'" and "`surrounding circumstances,'" as well as to "`the face of the Act.'" Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 430 U. S. 587 (1977), quoting Mattz v. Arnett, 412 U. S. 481, 412 U. S. 505 (1973). Explicit statement by Congress is preferable for the purpose of ensuring legislative accountability for the abrogation of treaty rights, cf. Seminole Nation v. United States, 316 U. S. 286, 316 U. S. 296-297 (1942). We have not rigidly interpreted that preference, however, as a per se rule; where the evidence of congressional intent to abrogate is sufficiently compelling,"the weight of authority indicates that such an intent can also be found by a reviewing court from clear and reliable evidence in the legislative history of a statute."Cohen 223. What is Page 476 U. S. 740 essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.AThe Eagle Protection Act renders it a federal crime to"take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner any bald eagle commonly known as the American eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof."16 U.S.C. § 668(a). The prohibition is "sweepingly framed"; the enumeration of forbidden acts is "exhaustive and careful." Andrus v. Allard, 444 U. S. 51, 444 U. S. 56 (1979). The Act, however, authorizes the Secretary of the Interior to permit the taking, possession, and transportation of eagles "for the religious purposes of Indian tribes," and for certain other narrow purposes, upon a determination that such taking, possession, or transportation is compatible with the preservation of the bald eagle or the golden eagle. 16 U.S.C. § 668a.Congressional intent to abrogate Indian treaty rights to hunt bald and golden eagles is certainly strongly suggested on the face of the Eagle Protection Act. The provision allowing taking of eagles under permit for the religious purposes of Indian tribes is difficult to explain except as a reflection of an understanding that the statute otherwise bans the taking of eagles by Indians, a recognition that such a prohibition would cause hardship for the Indians, and a decision that that problem should be solved not by exempting Indians from the coverage of the statute, but by authorizing the Secretary to issue permits to Indians where appropriate.The legislative history of the statute supports that view. The Eagle Protection Act was originally passed in 1940, and did not contain any explicit reference to Indians. Its prohibitions related only to bald eagles; it cast no shadow on hunting Page 476 U. S. 741 of the more plentiful golden eagle. In 1962, however, Congress considered amendments to the Eagle Protection Act extending its ban to the golden eagle as well. As originally drafted by the staff of the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, the amendments simply would have added the words "or any golden eagle" at two places in the Act where prohibitions relating to the bald eagle were described. Miscellaneous Fish and Wildlife Legislation: Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 87th Cong., 2d Sess., 1 (1962) (hereinafter House Hearings).Before the start of hearings on the bill, however, the Subcommittee received a letter from Assistant Secretary of the Interior Frank Briggs on behalf of the Interior Department. The Interior Department supported the proposed bill. It noted, however, the following concern:"The golden eagle is important in enabling many Indian tribes, particularly those in the Southwest, to continue ancient customs and ceremonies that are of deep religious or emotional significance to them. We note that the Handbook of American Indians (Smithsonian Institution, 1912) volume I, page 409, states in part, as follows:"" Among the many birds held in superstitious and appreciative regard by the aborigines of North America, the eagle, by reason of its majestic, solitary, and mysterious nature, became an especial object of worship. This is expressed in the employment of the eagle by the Indian for religious and esthetic purposes only.""* * * *" "There are frequent reports of the continued veneration of eagles and of the use of eagle feathers in religious ceremonies of tribal rites. The Hopi, Zuni, and several of the Pueblo groups of Indians in the Southwest have Page 476 U. S. 742 great interest in and strong feelings concerning eagles. In the circumstances, it is evident that the Indians are deeply interested in the preservation of both the golden and the bald eagle. If enacted, the bill should therefore permit the Secretary of the Interior, by regulation, to allow the use of eagles for religious purposes by Indian tribes."House Hearings 2-3.The House Committee reported out the bill. [Footnote 7] In setting out the need for the legislation, it explained in part:"Certain feathers of the golden eagle are important in religious ceremonies of some Indian tribes, and a large number of the birds are killed to obtain these feathers, as well as to provide souvenirs for tourists in the Indian country. In addition, they are actively hunted by bounty hunters in Texas and some other States. As a result of these activities, if steps are not taken as contemplated in this legislation, there is grave danger that the golden eagle will completely disappear."H.R.Rep. No. 1450, 87th Cong., 2d Sess., 2 (1962).The Committee also reprinted Assistant Secretary Briggs' letter in its Report, id. at 3-5, and adopted an exception for Indian religious use drafted by the Interior Department. The bill as reported out of the House Committee thus made three major changes in the law, along with other more technical ones. It extended the law's ban to golden eagles. It provided that the Secretary may exempt, by permit, takings of bald or golden eagles "for the religious purposes of Indian tribes." And it added a final proviso:"Provided, That bald eagles may not be taken for any purpose unless, prior to such taking, a permit to do so is procured from the Secretary of the Interior."Id. at 7. The bill, as amended, passed the Page 476 U. S. 743 House and was reported to the Senate Committee on Commerce.At the Senate hearings, representatives of the Interior Department reiterated their position that, because "the golden eagle is an important part of the ceremonies and religion of many Indian tribes," the Secretary should be authorized to allow the use of eagles for religious purposes by Indian tribes. Protection for the Golden Eagle: Hearings before a Subcommittee of the Senate Committee on Commerce, 87th Cong., 2d Sess., 23 (1962). The Senate Committee agreed, and passed the House bill with an additional amendment allowing the Secretary to authorize permits for the taking of golden eagles that were preying on livestock. That Committee again reprinted Assistant Secretary Briggs' letter, S.Rep. No.1986, 87th Cong., 2d Sess., 5-7 (1962), and summarized the bill as follows:"The resolution as hereby reported would bring the golden eagle under the 1940 act, allow their taking under permit for the religious use of the various Indian tribes (their feathers are an important part of Indian religious rituals) and upon request of a Governor of any State, be taken for the protection of livestock and game."Id. at 3-4. The bill passed the Senate, and was concurred in by the House, with little further discussion.It seems plain to us, upon reading the legislative history as a whole, that Congress in 1962 believed that it was abrogating the rights of Indians to take eagles. Indeed, the House Report cited the demand for eagle feathers for Indian religious ceremonies as one of the threats to the continued survival of the golden eagle that necessitated passage of the bill. See supra at 742. Congress expressly chose to set in place a regime in which the Secretary of the Interior had control over Indian hunting, rather than one in which Indian on-reservation hunting was unrestricted. Congress thus considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception Page 476 U. S. 744 that delineated the extent to which Indians would be permitted to hunt the bald and golden eagle.Respondent argues that the 1962 Congress did not in fact view the Eagle Protection Act as restricting Indian on-reservation hunting. He points to an internal Interior Department memorandum circulated in 1962 stating, with little analysis, that the Eagle Protection Act did not apply within Indian reservations. Memorandum from Assistant Solicitor Vaughn, Branch of Fish and Wildlife, Office of the Solicitor to the Director, Bureau of Sport Fisheries and Wildlife, Apr. 26, 1962. We have no reason to believe that Congress was aware of the contents of the Vaughn memorandum. More importantly, however, we find respondent's contention that the 1962 Congress did not understand the Act to ban all Indian hunting of eagles simply irreconcilable with the statute on its face.Respondent argues, and the Eighth Circuit agreed, that the provision of the statute granting permit authority is not necessarily inconsistent with an intention that Indians would have unrestricted ability to hunt eagles while on reservations. Respondent construes that provision to allow the Secretary to issue permits to non-Indians to hunt eagles "for Indian religious purposes," and supports this interpretation by pointing out testimony during the hearings to the effect that large-scale eagle bounty hunters sometimes sold eagle feathers to Indian tribes. We do not find respondent's argument credible. Congress could have felt such a provision necessary only if it believed that Indians, if left free to hunt eagles on reservations, would nonetheless be unable to satisfy their own needs and would be forced to call on non-Indians to hunt on their behalf. Yet there is nothing in the legislative history that even remotely supports that patronizing and strained view. Indeed, the Interior Department, immediately after the passage of the 1962 amendments, adopted regulations authorizing permits only to "individual Indians who are authentic, Page 476 U. S. 745 bona fide practitioners of such religion." 28 Fed.Reg. 976 (1963). [Footnote 8]Congress' 1962 action, we conclude, reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle, except pursuant to permit, is inconsistent with the need to preserve those species. We therefore read the statute as having abrogated that treaty right.BDion also asserts a treaty right to take bald eagles as a defense to his Endangered Species Act prosecution. He argues that the evidence that Congress intended to abrogate treaty rights when it passed the Endangered Species Act is considerably more slim than that relating to the Eagle Protection Act. The Endangered Species Act and its legislative history, he points out, are to a great extent silent regarding Indian hunting rights. In this case, however, we need not resolve the question of whether the Congress in the Endangered Species Act abrogated Indian treaty rights. We conclude that Dion's asserted treaty defense is barred in any event.Dion asserts that he is immune from Endangered Species Act prosecution because he possesses a treaty right to hunt and kill bald eagles. We have held, however, that Congress, in passing and amending the Eagle Protection Act, divested Dion of his treaty right to hunt bald eagles. He therefore has no treaty right to hunt bald eagles that he can assert as a defense to an Endangered Species Act charge.We do not hold that, when Congress passed and amended the Eagle Protection Act, it stripped away Indian treaty protection for conduct not expressly prohibited by that statute. Page 476 U. S. 746But the Eagle Protection Act and the Endangered Species Act, in relevant part, prohibit exactly the same conduct, and for the same reasons. Dion here asserts a treaty right to engage in precisely the conduct that Congress, overriding Indian treaty rights, made criminal in the Eagle Protection Act. Dion's treaty shield for that conduct, we hold, was removed by that statute, and Congress' failure to discuss that shield in the context of the Endangered Species Act did not revive that treaty right.It would not promote sensible law to hold that, while Dion possesses no rights derived from the 1858 treaty that bar his prosecution under the Eagle Protection Act for killing bald eagles, he nonetheless possesses a right to hunt bald eagles, derived from that same treaty, that bars his Endangered Species Act prosecution for the same conduct. Even if Congress did not address Indian treaty rights in the Endangered Species Act sufficiently expressly to effect a valid abrogation, therefore, respondent can assert no treaty defense to a prosecution under that Act for a taking already explicitly prohibited under the Eagle Protection Act.IIIWe hold that the Court of Appeals erred in recognizing Dion's treaty defense to his Eagle Protection Act and Endangered Species Act prosecutions. For the reasons stated in n 3, supra, we do not pass on the claim raised by amici that the Eagle Protection Act, if read to abrogate Indian treaty rights, invades religious freedom. Cf. United States v. Abeyta, 632 F. Supp. 1301 (NM 1986). Nor do we address respondent's argument, raised for the first time in this Court, that the statutes under which he was convicted do not authorize separate convictions for taking and for selling the same birds. The judgment of the Court of Appeals is reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Dion, 476 U.S. 734 (1986)United States v. DionNo. 85-246Argued March 25, 1986Decided June 11, 1986476 U.S. 734SyllabusThe Bald Eagle Protection Act (Eagle Protection Act) makes it a federal crime to hunt the bald eagle or the golden eagle, except that such hunting may be authorized, pursuant to a permit issued by the Secretary of the Interior, "for the religious purposes of Indian tribes" or for certain other narrow purposes compatible with preservation of those species. The Endangered Species Act imposes a similar ban on the hunting of the bald eagle. Respondent, a member of the Yankton Sioux Tribe, was convicted after a jury trial in Federal District Court of, inter alia, the shooting of four bald eagles in violation of the Endangered Species Act, but the court before trial dismissed a charge of shooting a golden eagle in violation of the Eagle Protection Act. The Court of Appeals reversed the convictions and affirmed the dismissal of the other charge, holding that members of the Tribe have a right under an 1858 treaty to hunt bald and golden eagles within the Yankton Reservation for noncommercial purposes, and that neither of the Acts in question abrogated this treaty right.Held: The Court of Appeals erred in recognizing respondent's treaty defense to the prosecutions. Pp. 476 U. S. 738-746.(a) The Eagle Protection Act abrogated the rights of members of the Yankton Sioux Tribe under the 1858 treaty to hunt the bald or golden eagle on the Yankton Reservation. Congress' intention to abrogate Indian treaty rights must be clear and plain. Here, such intention is strongly suggested on the face of the Eagle Protection Act, and this view is supported by the legislative history. More particularly, Congress' action in 1962 in amending the Act to extend its ban to the golden eagle and authorizing the Secretary to issue permits for Indian hunting reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle, except pursuant to permit, is inconsistent with the need to preserve those species. Pp. 476 U. S. 738-745.(b) Since the Eagle Protection Act divested respondent of his treaty right to hunt bald eagles, he had no such right to hunt bald eagles that he could assert as a defense to the Endangered Species Act charge. Pp. 476 U. S. 745-746.762 F.2d 674, reversed in part and remanded.MARSHALL, J., delivered the opinion for a unanimous Court. Page 476 U. S. 735

1985_85-521

JUSTICE POWELL delivered the opinion of the Court.On this appeal, we review a decision of the District Court for the Eastern District of California that § 103 of the Social Security Amendments Act of 1983, 97 Stat. 71, 42 U.S.C. § 418(g) (1982 ed., Supp. II), effected a taking of property within the meaning of the Fifth Amendment by preventing States from withdrawing state and local government employees from the Social Security System.IAThe Social Security Act of 1935, 49 Stat. 620, as amended, 42 U.S.C. § 301 et seq. (1982 ed. and Supp. II), established an insurance program for "persons working in industry and commerce as a long-run safeguard against the occurrence of old-age dependency." H.R.Rep. No. 1300, 81st Cong., 1st Sess., 3 (1949). From that relatively humble beginning, the coverage of the Act has been expanded to provide benefits not only to the "insured worker in his old age," ibid., but also to "individuals and families when workers retire, become disabled, or die." S.Rep. No. 98-13, vol. 2, p. 78 (1983). [Footnote 1] The "basic idea" of Social Security"is that, while they are working, employees and their employers pay earmarked social security contributions (FICA taxes). . . . Then, when earnings stop, or are reduced because of retirement in old-age, Page 477 U. S. 44 death, or disability, cash benefits are paid to partially replace the earnings that were lost."Ibid. The System operates on a "pay as you go" basis, with current contributions "largely paid out in current benefits," ibid. In the words of Congress, the System now functions "as the Nation's basic social insurance program." H.R.Rep. No. 98-25, p.19 (1983). To ensure that this important program could evolve as economic and social conditions changed, Congress expressly reserved to itself "[t]he right to alter, amend, or repeal any provision of" the Act. 42 U.S.C. § 1304. [Footnote 2]As of 1983, more than 90% of the Nation's paid employees, a total of more than 115 million people, participated in the Social Security System. H.R.Rep. No. 98-25, at 13. [Footnote 3] Participation in the System is, and has been since its inception, "basically mandatory." Id. at 19. Therefore, most workers covered by the System and their employers have no choice whether or not to participate. In 1935, when the Act was adopted, Congress faced questions as to whether it could compel the States and their political subdivisions to include their employees in the System. [Footnote 4] Therefore, the Act at that time excluded such employees from its coverage. See 42 U.S.C. § 410(a)(7). Responding to subsequent pressure Page 477 U. S. 45 from States that sought Social Security coverage for their employees, in 1950 Congress enacted § 418, the provision at the heart of the controversy in this case.Section 418 authorizes voluntary participation by States in the Social Security System. [Footnote 5] Under § 418(a), States may obtain coverage for their employees and employees of their political subdivisions, enrolling all or only specified "coverage groups" of workers. 42 U.S.C. § 418(a)(1) (1982 ed., Supp. II); see § 418(b)(5) (defining coverage group) [Footnote 6] States enter the System by executing "an agreement" (§ 418 Agreement) with the Secretary of Health and Human Services (Secretary). [Footnote 7] While § 418 gives States some authority over the content of the Agreements, i.e., States may identify the covered employees, the provisions of a § 418 Agreement are required to be "not inconsistent with the provisions of" § 418. § 418(a)(1). From its enactment in 1950 through 1983, § 418 permitted States to terminate their § 418 Agreements "[u]pon giving at least two years' advance notice in writing to the [Secretary]." § 418(g)(1). Once a State exercised its option to withdraw, it could not thereafter reenter the System. § 418(g)(3)Following adoption of § 418, all 50 States entered into § 418 Agreements with respect to their own employees, local government Page 477 U. S. 46 employees, or both. [Footnote 8] "By the early 1960's most States had made coverage agreements," H.R.Rep. No. 9825, at 18, and the percentage of state and local employees enrolled in the System increased from 11% in 1951 to 70% in 1970, H.R.Comm.Print 97-34, at 25. Since 1970, "[c]overage of State and local employees has remained fairly constant at 70-72 percent." H.R.Rep. No. 98-25, at 18. As of 1983, "some 9.4 million out of the approximately 13.2 million State and local employees" participated in the Social Security System. Id. at 17.For the first 20 years of their participation, "very few" States exercised their option under § 418(g) to withdraw from the System. Id. at 18. Until the mid-1970's, the number of state and local employees "leaving the system was always greatly exceeded by the number of newly-covered employees -- in most years, by 50,000 or more." Ibid. [Footnote 9] Starting in 1976, however, this trend reversed, and the "numbers of positions being terminated from coverage" began to exceed "the numbers of newly-covered positions." Ibid. From 1977 through 1981, "termination activity was greater than in the previous ten years," with coverage "terminated for 96,000 State and local government employees." Ibid. As of 1982, coverage was "terminated for 595 State entities employing 190,000 workers." Ibid. Finally, "for the two-year period of 1983-84, terminations [were] pending for 634 State and local entities employing 227,000 workers." Ibid.After studying the trend towards termination of § 418 Agreements and the reasons for it, [Footnote 10] Congress determined Page 477 U. S. 47 that the increasing rate of withdrawals was threatening the integrity of the System in a number of important respects. As an initial matter, Congress observed that the current rate of withdrawals would cost the System between $500 million and $1 billion annually. H.R.Comm.Print 97-34, at 13-14. Congress further concluded that States' ability to withdraw was"inequitable both for the employees who lose coverage and for the vast majority of the nation's workforce who continue to pay into the system."H.R.Rep. No. 98-25, at 18-19. While States terminating § 418 Agreements often did so in the course of designing benefit packages that would attract long-term workers, Congress believed that sound social policy also required protection of employees who move from job to job. Id. at 19. Moreover,"the shifting of the tax burden of social security from those workers who withdraw, but who remain entitled to future benefits based on their past earnings,"created resentment on the part of workers whose participation in the System was mandatory. [Footnote 11] Ibid. Page 477 U. S. 48Accordingly, Congress decided to amend § 418(g) by repealing the termination provision. As amended, § 418(g) provides that no § 418 Agreement "may be terminated, either in its entirety or with respect to any coverage group, on or after April 20, 1983." The amendment expressly prevents States from withdrawing employees from the System even if a termination notice had been filed prior to enactment of the amendment. [Footnote 12]BOn March 9, 1951, California and the Secretary entered into a § 418 Agreement, effective as of January 1, 1951, under which the parties agreed to extend Social Security coverage to employees of the State and its political subdivisions. The Agreement recited that its provisions were "in conformity with" § 418, and authorized the State to modify the Agreement to include additional groups of employees, "such modification to be consistent with the provisions of" § 418. The Agreement also included a clause that permitted the State to terminate the Agreement either in its entirety or with respect to particular coverage groups. The terms of the clause Page 477 U. S. 49 exactly mirrored the statutory termination provision embodied in § 418(g). [Footnote 13]When Congress amended § 418(g) in 1983, California had filed termination notices on behalf of 71 of its political subdivisions, employing approximately 34,000 persons. [Footnote 14] When the amendment prevented the termination notices from taking effect, appellees commenced the lawsuits underlying this appeal, naming as defendants the United States and the Secretary and Undersecretary of the Department of Health and Human Services. The first lawsuit was brought by several public agencies of California, their employees and taxpayers, and by an organization calling itself Public Agencies Opposed to Social Security Entrapment. These parties alleged, among other claims, that amended § 418(g) had deprived them of their "contract rights" without just compensation in violation of the Fifth Amendment. [Footnote 15] In the second lawsuit, the State of California sought to enjoin enforcement of § 418(g) as well as a declaration that the section was unconstitutional. Page 477 U. S. 50 The State claimed that the federal defendants had acted in excess of their constitutional authority and had violated the Tenth Amendment by breaching their contract with the State and by impairing the State's "ability . . . to structure its relationships with its employees." [Footnote 16] App. 26-27.Ruling on cross-motions for summary judgment, the District Court held that § 418(g) was unconstitutional. Public Agencies Opposed to Social Security Entrapment v. Heckler, 613 F. Supp. 558 (ED Cal.1985). [Footnote 17] The court decided that the § 418 Agreement created a "contractual right" to withdraw from the Social Security System that ran in favor of both the State and its public agencies. This contractual right existed independently of the statutory termination provision, Page 477 U. S. 51 and Congress derived no authority from § 1304 [Footnote 18] to amend the § 418 Agreement, as opposed to § 418.The contractual right to withdraw, reasoned the District Court, constituted "private property" within the meaning of the Just Compensation Clause of the Fifth Amendment. Amended § 418(g) effected a taking of that property without providing the requisite just compensation. In the court's view, the"only rational compensation would be reimbursement by the United States to the State or public agencies, of the amount of money they currently pay to the United States for their participation"in the Social Security Program. 613 F. Supp. at 575. Since amended § 418(g) was enacted to solve the Social Security "financial crisis," however, the District Court concluded that an order awarding this measure of damages would be "simply and clearly contrary to the will of Congress." Ibid. Accordingly, the District Court simply declared § 418(g) unconstitutional. Ibid. We noted probable jurisdiction, 474 U.S. 1004 (1985), and now reverse.IIACongress' decision that American workers need a federal program of social insurance protecting them in old age and disability "has of necessity called forth a highly complicated and interrelated statutory structure." Flemming v. Nestor, 363 U. S. 603, 363 U. S. 610 (1960). Since the Act was designed to protect future, as well as present, generations of workers, it was inevitable that amendment of its provisions would be necessary in response to evolving social and economic conditions unforeseeable in 1935. Ibid. Congress anticipated that it would be necessary to respond to "ever-changing conditions" with "flexibility and boldness," ibid., and therefore included in the Act"a clause expressly reserving to it '[t]he Page 477 U. S. 52 right to alter, amend, or repeal any provision' of the Act. § 1104, 49 Stat. 648, 42 U.S.C. § 1304. That provision makes express what is implicit in the institutional needs of the program."Id. at 363 U. S. 611. As appellees must concede, the Act itself, including the original version of § 418(g), created no contractual rights. Cf. Flemming v. Nestor, supra, at 363 U. S. 608-611; see also National Railroad Passenger Corporation v. Atchison, T & S. F. R. Co., 470 U. S. 451, 470 U. S. 465-470 (1985). Therefore, there is no doubt that Congress had the power to amend the section.In view of the purpose and structure of the Act, and of Congress' express reservation of authority to alter its provisions, courts should be extremely reluctant to construe § 418 Agreements in a manner that forecloses Congress' exercise of that authority. While the Federal Government, as sovereign, has the power to enter contracts that confer vested rights, and the concomitant duty to honor those rights, see Perry v. United States, 294 U. S. 330, 294 U. S. 350-354 (1935); Lynch v. United States, 292 U. S. 571 (1934), we have declined in the context of commercial contracts to find that a"sovereign forever waives the right to exercise one of its sovereign powers unless it expressly reserves the right to exercise that power in"the contract. Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 455 U. S. 148 (1982). Rather, we have emphasized that,"[w]ithout regard to its source, sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms."Ibid. Therefore, contractual arrangements, including those to which a sovereign itself is party, "remain subject to subsequent legislation" by the sovereign. Id. at 455 U. S. 147.These principles form the backdrop against which we must consider the District Court's decision effectively to forbid Congress to amend a provision of the Social Security Act. That decision heeded none of this Court's often-repeated admonitions that contracts should be construed, if possible, Page 477 U. S. 53 to avoid foreclosing exercise of sovereign authority. Those admonitions take on added force when the arrangement pursuant to which the Government is claimed to have surrendered a sovereign power is one that serves to implement a comprehensive social welfare program affecting millions of individuals throughout our Nation.BVenerable precedent supports our conclusion that Congress reserved the authority to amend not only § 418 but also Agreements entered into "in conformity with" that section. Just last Term, we considered a statute in which Congress had "expressly reserved' its right to `repeal, alter, or amend' the Act at any time," National Railroad Passenger Corporation, supra, at 470 U. S. 456, and we noted that the "effect of these few simple words" has been settled since the Sinking-Fund Cases, 99 U. S. 700 (1879). 470 U.S. at 470 U. S. 467-468, n. 22. The Sinking-Fund Cases involved federal statutes that governed railroads' obligations to the United States on subsidy bonds. The statutes in question expressly reserved Congress' authority to repeal, alter, or amend them, and Congress exercised that power by requiring the railroads to set aside part of their current income as a sinking fund to meet their debts to the Government as those debts came due. The railroads claimed that this amendment deprived them of property without due process and improperly interfered with their vested rights. 99 U.S. at 99 U. S. 719. In rejecting those arguments, the Court explained that, through the language of reservation,"Congress not only retains, but has given special notice of its intention to retain, full and complete power to make such alterations and amendments as come within the just scope of legislative power."Id. at 99 U. S. 720. The effect of the Court's construction of the reservation was to authorize Congress not only to amend the statute granting the railroads' corporate charter but also to change the stipulations of a contract made under that charter subsequently to and Page 477 U. S. 54 independently of the original statute. Whatever the limits of the reserved power, it was "safe to say" that Congress had the authority to provide by amendment whatever rules it might "have prescribed in the original charter" and terms governing the "performance of contracts already entered into." Id. at 99 U. S. 721.This reasoning disposes of appellees' contention that Congress lacked authority to amend California's § 418 Agreement. The State accepted the Agreement under an Act that contained the language of reservation. That language expressly notified the State that Congress retained the power to amend the law under which the Agreement was executed and, by amending that law, to alter the Agreement itself. [Footnote 19] We have no doubt that, in 1950, Congress could have provided that States electing to enter the Social Security System would not have authority to terminate their participation. Therefore, amended § 418(g) falls well within the limits of Congress' reserved power to alter the law governing performance of § 418 Agreements.CThe § 418 Agreement provided that its terms were "in conformity with" § 418. Therefore, the Agreement expressly incorporated § 418, which of course was fully subject to Congress' reserved power of amendment. Appellees nonetheless insist that the termination provision embodied in the Page 477 U. S. 55 Agreement constituted a valuable property right that was "taken" when Congress enacted amended § 418(g). In the Sinking-Fund Cases, the Court did observe that Congress' exercise of the reserved power "has a limit," in that Congress could not rely on that power to"take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to possession of contracts lawfully made."99 U.S. at 99 U. S. 720. Similarly, other decisions have held that Congress does not have the power to repudiate its own debts, which constitute "property" to the lender, simply in order to save money. Perry v. United States, 294 U.S. at 294 U. S. 350-351; see Lynch v. United States, 292 U.S. at 292 U. S. 576-577.But the "contractual right" at issue in this case bears little, if any, resemblance to rights held to constitute "property" within the meaning of the Fifth Amendment. The termination provision in the Agreement exactly tracked the language of the statute, conferring no right on the State beyond that contained in § 418 itself. The provision constituted neither a debt of the United States, see Perry v. United States, supra, nor an obligation of the United States to provide benefits under a contract for which the obligee paid a monetary premium, see Lynch v. United States, supra. The termination clause was not unique to this Agreement; nor was it a term over which the State had any bargaining power or for which the State provided independent consideration. Rather, the provision simply was part of a regulatory program over which Congress retained authority to amend in the exercise of its power to provide for the general welfare. Under these circumstances, we conclude that the termination provision in California's § 418 Agreement did not rise to the level of "property." The provision simply cannot be viewed as conferring any sort of "vested right" in the face of precedent concerning the effect of Congress' reserved power on agreements entered into under a statute containing the language of reservation. Since appellees had no property right in Page 477 U. S. 56 the termination clause, amended § 418 did not effect a taking within the meaning of the Fifth Amendment.IIIThe judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this decision.It is so ordered

U.S. Supreme CourtBowen v. PAOSSE, 477 U.S. 41 (1986)Bowen v. Public Agencies Opposed to Social Security EntrapmentNo. 85-521Argued April 28, 1986Decided June 19, 1986477 U.S. 41SyllabusIn 1950, Congress amended the Social Security Act to authorize voluntary participation by States in the Social Security System with respect to old age, disability, and death benefits. Under 42 U.S.C. § 418(a) (1982 ed. and Supp. II), States may obtain coverage for employees of the State and its political subdivisions by executing an agreement (§ 418 Agreement) with the Secretary of Health and Human Services (Secretary) that is required to be "not inconsistent with the provisions of" § 418. As originally enacted, § 418(g) permitted States to terminate their § 418 Agreements upon giving at least two years' advance notice in writing to the Secretary. However, because the increasing rate of state withdrawals was threatening the integrity of the System, Congress amended § 418(g) in 1983 to provide that no § 418 Agreement "may be terminated, either in its entirety or with respect to any coverage group, on or after April 20, 1983." The amendment expressly prevents States from withdrawing employees from the System even if a termination notice had been filed prior to the amendment's enactment. In 1951, California and the Secretary entered into a § 418 Agreement that covered employees of the State and its political subdivisions. The Agreement recited that its provisions were "in conformity with" § 418, and included a termination clause mirroring the provisions of § 418(g) then in effect. When the 1983 amendment of § 418(g) prevented termination notices that California previously had filed from taking effect, proceedings were instituted in the Federal District Court attacking the validity of amended § 418(g). The court held that § 418(g) was unconstitutional, reasoning that the § 418 Agreement created a "contractual right" in favor of the State and its subdivisions to withdraw from the Social Security System, and that such right constituted "private property" within the meaning of the Just Compensation Clause of the Fifth Amendment. Although the court concluded that amended § 418(g) effected a taking of that property without providing the requisite just compensation, it held that a damages award would be contrary to Congress' will, and accordingly simply declared § 418(g) unconstitutional. Page 477 U. S. 42Held: Amended § 418(g) does not effect a taking of property within the meaning of the Fifth Amendment. Pp. 477 U. S. 51-56.(a) In enacting the Social Security Act in 1935, Congress anticipated the need to respond to changing conditions, and therefore included § 1304, which expressly reserves to it "[t]he right to alter, amend, or repeal any provision" of the Act. The Act itself, including the original version of § 418(g), created no contractual rights, and therefore Congress had the power to amend that section. In view of the Act's purpose and structure, and of Congress' express reservation of authority to alter its provisions, courts should be extremely reluctant to construe § 418 Agreements in a manner that forecloses Congress' exercise of that authority. Pp. 477 U. S. 61-53.(b) The conclusion that Congress reserved the authority to amend not only § 418 but also § 418 Agreements entered into "in conformity with" § 418 is supported by precedent. Cf. Sinking-Fund Cases, 99 U. S. 700; National Railroad Passenger Corp. v. Atchison, T. & S. F. R. Co., 470 U. S. 451. The language of § 1304's reservation expressly notified California that Congress retained the power to amend the law under which the Agreement was executed and, by amending that law, to alter the Agreement itself. Pp. 477 U. S. 53-54.(c) The "contractual right" at issue in this case bears little, if any, resemblance to rights held to constitute "property" within the meaning of the Fifth Amendment. The termination provision in the § 418 Agreement exactly tracked the language of the statute, conferring no right on California beyond that contained in § 418 itself. The termination provision in California's § 418 Agreement did not rise to the level of "property," and thus amended § 418 did not effect a taking within the meaning of the Fifth Amendment. Pp. 477 U. S. 54-56.613 F. Supp. 558, reversed and remanded.POWELL, J., delivered the opinion for a unanimous Court. Page 477 U. S. 43

1989_88-2031

Justice O'CONNOR announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA join.We are called upon in this case to determine whether a United States Postal Service regulation that prohibits Page 497 U. S. 723 "[s]oliciting alms and contributions" on postal premises violates the First Amendment. We hold the regulation valid as applied.IThe respondents in this case, Marsha B. Kokinda and Kevin E. Pearl, were volunteers for the National Democratic Policy Committee, who set up a table on the sidewalk near the entrance of the Bowie, Maryland, post office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature addressing a variety of political issues. The postal sidewalk provides the sole means by which customers of the post office may travel from the parking lot to the post office building, and lies entirely on Postal Service property. The District Court for the District of Maryland described the layout of the post office as follows:"[T]he Bowie post office is a freestanding building, with its own sidewalk and parking lot. It is located on a major highway, Route 197. A sidewalk runs along the edge of the highway, separating the post office property from the street. To enter the post office, cars enter a driveway that traverses the public sidewalk and enter a parking lot that surrounds the post office building. Another sidewalk runs adjacent to the building itself, separating the parking lot from the building. Postal patrons must use the sidewalk to enter the post office. The sidewalk belongs to the post office and is used for no other purpose."App. to Pet. for Cert. 24a.During the several hours that respondents were at the post office, postal employees received between 40 and 50 complaints regarding their presence. The record does not indicate the substance of the complaints, with one exception. One individual complained "because she knew the Girl Scouts were not allowed to sell cookies on federal property." 866 F.2d 699, 705 (CA4 1989). The Bowie postmaster asked respondents to leave, which they refused to do. Postal inspectors Page 497 U. S. 724 arrested respondents, seizing their table as well as their literature and other belongings.Respondents were tried before a United States Magistrate in the District of Maryland and convicted of violating 39 CFR § 232.1(h)(1) (1989), which provides in relevant part:"Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending, and displaying or distributing commercial advertising on postal premises are prohibited."Respondent Kokinda was fined $50 and sentenced to 10 days' imprisonment; respondent Pearl was fined $100 and received a 30-day suspended sentence under that provision.Respondents appealed their convictions to the District Court, asserting that application of § 232.1(h)(1) violated the First Amendment. The District Court affirmed their convictions, holding that the postal sidewalk was not a public forum and that the Postal Service's ban on solicitation is reasonable.A divided panel of the United States Court of Appeals for the Fourth Circuit reversed. 866 F.2d 699 (1989). The Court of Appeals held that the postal sidewalk is a traditional public forum and analyzed the regulation as a time, place, and manner regulation. The Court determined that the Government has no significant interest in banning solicitation, and that the regulation is not narrowly tailored to accomplish the asserted governmental interest.Respondents' petition for rehearing and a suggestion for rehearing en banc were denied. Because the decision below conflicts with other decisions by the Courts of Appeals, see United States v. Belsky, 799 F.2d 1485 (CA11 1986); United States v. Bjerke, 796 F.2d 643 (CA3 1986), we granted certiorari. 493 U.S. 807 (1989). Page 497 U. S. 725IISolicitation is a recognized form of speech protected by the First Amendment. See Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 629 (1980); Riley v. National Federation of Blind of N.C., Inc., 487 U. S. 781, 487 U. S. 788-789 (1988). Under our First Amendment jurisprudence, we must determine the level of scrutiny that applies to the regulation of protected speech at issue.The Government's ownership of property does not automatically open that property to the public. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 453 U. S. 129 (1981). It is a long-settled principle that governmental actions are subject to a lower level of First Amendment scrutiny when"the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, . . . but, rather, as proprietor, to manage [its] internal operation[s]. . . ."Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 367 U. S. 896 (1961). That distinction was reflected in the plurality opinion in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974), which upheld a ban on political advertisements in city transit vehicles:"Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. . . . The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles."Id. at 418 U. S. 303.The Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints, as does a private business, but its action Page 497 U. S. 726 is valid in these circumstances unless it is unreasonable, or, as was said in Lehman, "arbitrary, capricious, or invidious." Ibid. In Lehman, the plurality concluded that the ban on political advertisements (combined with the allowance of other advertisements) was permissible under this standard:"Users [of the transit system] would be subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require."Id. at 418 U. S. 304.Since Lehman,"the Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum."Cornelius v. NAACP Legal Defense and Educational Fund, 473 U. S. 788, 473 U. S. 800 (1985). In Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37 (1983), the Court announced a tripartite framework for determining how First Amendment interests are to be analyzed with respect to Government property. Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Id. at 460 U. S. 45. Regulation of speech on property that the Government has expressly dedicated to speech activity is also Page 497 U. S. 727 examined under strict scrutiny. Ibid. But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness. Id. at 460 U. S. 46.Respondents contend that, although the sidewalk is on postal service property, because it is not distinguishable from the municipal sidewalk across the parking lot from the post office's entrance, it must be a traditional public forum and therefore subject to strict scrutiny. This argument is unpersuasive. The mere physical characteristics of the property cannot dictate forum analysis. If they did, then Greer v. Spock, 424 U. S. 828 (1976), would have been decided differently. In that case, we held that, even though a military base permitted free civilian access to certain unrestricted areas, the base was a nonpublic forum. The presence of sidewalks and streets within the base did not require a finding that it was a public forum. Id. at 424 U. S. 835-837.The postal sidewalk at issue does not have the characteristics of public sidewalks traditionally open to expressive activity. The municipal sidewalk that runs parallel to the road in this case is a public passageway. The Postal Service's sidewalk is not such a thoroughfare. Rather, it leads only from the parking area to the front door of the post office. Unlike the public street described in Heffron v. Int'l Soc. for Krishna Consciousness, Inc., 452 U. S. 640 (1981), which was"continually open, often uncongested, and constitute[d] not only a necessary conduit in the daily affairs of a locality's citizens but also a place where people [could] enjoy the open air or the company of friends and neighbors in a relaxed environment,"id. at 452 U. S. 651, the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business. The sidewalk leading to the entry of the post office is not the traditional public forum sidewalk referred to in Perry.Nor is the right of access under consideration in this case the quintessential public sidewalk which we addressed in Page 497 U. S. 728 Frisby v. Schultz, 487 U. S. 474 (1988) (residential sidewalk). The postal sidewalk was constructed solely to assist postal patrons to negotiate the space between the parking lot and the front door of the post office, not to facilitate the daily commerce and life of the neighborhood or city. The dissent would designate all sidewalks open to the public as public fora. See post at 497 U. S. 745 ("[T]hat the walkway at issue is a public sidewalk is alone sufficient to identify it as a public forum"). That, however, is not our settled doctrine. In United States v. Grace, 461 U. S. 171 (1983), we did not merely identify the area of land covered by the regulation as a sidewalk open to the public and therefore conclude that it was a public forum:"The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities, and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property. In this respect, the present case differs from Greer v. Spock. . . . In Greer, the streets and sidewalks at issue were located within an enclosed military reservation, Fort Dix, N.J., and were thus separated from the streets and sidewalks of any municipality. That is not true of the sidewalks surrounding the Court. There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave."Id. at 461 U. S. 179-180 (footnote omitted).Grace instructs that the dissent is simply incorrect in asserting that every "public sidewalk" is a public forum. Post at 497 U. S. 745. As we recognized in Grace, the location and purpose Page 497 U. S. 729 of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.The dissent's attempt to distinguish Greer is also unpersuasive. The dissent finds Greer "readily distinguishable, because the sidewalk in that case was not truly open' to the public." Post at 497 U. S. 748, n. 5. This assertion is surprising in light of Justice BRENNAN's description of the public access permitted in Greer:"No entrance to the Fort is manned by a sentry or blocked by any barrier. The reservation is crossed by 10 paved roads, including a major state highway. Civilians without any prior authorization are regular visitors to unrestricted areas of the Fort or regular pass through it, either by foot or by auto, at all times of the day and night. Civilians are welcome to visit soldiers, and are welcome to visit the Fort as tourists. They eat at the base and freely talk with recruits in unrestricted areas. Public service buses, carrying both civilian and military passengers, regularly serve the base. A 1970 traffic survey indicated that 66,000 civilian and military vehicles per day entered and exited the Fort. Indeed, the reservation is so open as to create a danger of muggings after payday and a problem with prostitution."424 U.S. at 424 U. S. 851 (dissenting opinion).In Greer, we held that the power of the Fort's commanding officer summarily to exclude civilians from the area of his command demonstrated that"[t]he notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is . . . historically and constitutionally false."Id. at 424 U. S. 838. It is the latter inquiry that has animated our traditional public forum analysis, and that we apply today. Postal entryways, like the walkways at issue in Greer, may be open to the public, but that fact alone does not establish that such areas must be treated as traditional public fora under the First Amendment. Page 497 U. S. 730The Postal Service has not expressly dedicated its sidewalks to any expressive activity. Indeed, postal property is expressly dedicated to only one means of communication: the posting of public notices on designated bulletin boards. See 39 CFR § 232.1(o) (1989). No postal service regulation opens postal sidewalks to any First Amendment activity. To be sure, individuals or groups have been permitted to leaflet, speak, and picket on postal premises, see Reply Brief for United States 12; 43 Fed.Reg. 38824 (1978), but a regulation prohibiting disruption, 39 CFR § 232(1)(e) (1989), and a practice of allowing some speech activities on postal property do not add up to the dedication of postal property to speech activities. We have held that"[t]he government does not create a public forum by . . . permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse."Cornelius, supra, 473 U.S. at 473 U. S. 802 (emphasis added); see also Perry, supra, 460 U.S. at 460 U. S. 47 ("[S]elective access does not transform government property into a public forum"). Even conceding that the forum here has been dedicated to some First Amendment uses, and thus is not a purely non-public forum, under Perry, regulation of the reserved nonpublic uses would still require application of the reasonableness test. See Cornelius, supra, 473 U.S. at 473 U. S. 804-806.Thus, the regulation at issue must be analyzed under the standards set forth for nonpublic fora: it must be reasonable and "not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, supra, 460 U.S. at 460 U. S. 46. Indeed,"[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity, so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral."Cornelius, supra, 473 U.S. at 473 U. S. 806."The Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation."473 U.S. at 473 U. S. 808. Page 497 U. S. 731IIIThe history of regulation of solicitation in post offices demonstrates the reasonableness of the provision here at issue. The Postal Service has been regulating solicitation at least since 1958. Before enactment of the 1970 Postal Reorganization Act, Pub.L. 91-375, 84 Stat. 720, 39 U.S.C. § 201 et seq., the Post Office Department's internal guidelines "strictly prohibited" the"[s]oliciting [of] subscriptions, canvassing for the sale of any article, or making collections . . . in buildings operated by the Post Office Department, or on the grounds or sidewalks within the lot lines"of postal premises. Postal Service Manual, Facilities Transmittal Letter 8, Buildings Operation: Buildings Operated by the Post Office Department § 622.8 (July 1958). The Service prohibited all forms of solicitation until 1963, at which time it created an exception to its categorical ban on solicitation to enable certain "established national health, welfare, and veterans' organizations" to conduct fund drives "at or within" postal premises with the local postmaster's permission, and at his discretion. See Facilities Transmittal Letter 53, Buildings Operation: Buildings Operated by the Post Office Department § 622.8 (July 1963). The general prohibition on solicitation was enlarged in 1972 to include "[s]oliciting alms and contributions or collecting private debts on postal premises." 37 Fed.Reg. 24347 (1972), codified at 39 CFR 232.6(h)(1) (1973).Soon after the 1972 amendment to the regulation, the Service expanded the exemption to encompass "[n]ational organizations which are wholly nonprofit in nature and which are devoted to charitable or philanthropic purposes" and "[l]ocal charitable and other nonprofit organizations," 39 CFR § 232.6(h)(2), (3) (1974), and to permit these organizations to"request use of lobby space for annual or special fund-raising campaigns, providing they do not interfere with the transaction of postal business or require expenditures by the Postal Services or the use of its employees or equipment. "Page 497 U. S. 73238 Fed.Reg. 27824-27825 (1973), codified at 39 CFR § 232.16(h)(2) (1974). Finally, in 1978, the Service promulgated the regulation at issue here. After 15 years of providing various exceptions to its rule against solicitation, the Service concluded that a categorical ban on solicitation was necessary because the"Postal Service lacks the resources to enforce such regulation in the tens of thousands of post offices throughout the nation. In addition, such regulation would be, of necessity, so restrictive as to be tantamount to prohibition, and so complex as to be unadministrable."43 Fed.Reg. 38824 (1978)."[C]onsideration of a forum's special attributes is relevant to the constitutionality of a regulation, since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved."Heffron, supra, 452 U.S. at 452 U. S. 650-651. The purpose of the forum in this case is to accomplish the most efficient and effective postal delivery system. See 39 U.S.C. § 403(a); § 403(b)(1); H.R.Rep. No. 91-1104, pp. 1, 5, 11-12, 17, 19 (1970) U.S.Code Cong. & Admin.News 1970, p. 3649. Congress has made clear that "it wished.the Postal Service to be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of California v. United States Postal Service, 467 U. S. 512, 467 U. S. 519-520, and n. 13 (1984). Congress has directed the Service to become a self-sustaining service industry and to "seek out the needs and desires of its present and potential customers -- the American public" and to provide services in a manner "responsive" to the "needs of the American people." H.R.Rep. No. 91-1104, supra, at 19-20. The Postal Service has been entrusted with this mission at a time when the mail service market is becoming much more competitive. It is with this mission in mind that we must examine the regulation at issue.The Government asserts that it is reasonable to restrict access of postal premises to solicitation, because solicitation is inherently disruptive of the postal service's business. We Page 497 U. S. 733 agree."Since the act of soliciting alms or contributions usually has as its objective an immediate act of charity, it has the potentiality for evoking highly personal and subjective reactions. Reflection usually is not encouraged, and the person solicited often must make a hasty decision whether to share his resources with an unfamiliar organization while under the eager gaze of the solicitor."43 Fed.Reg. 38824 (1978).The dissent avoids determining whether the sidewalk is a public forum because it believes the regulation, 39 CFR § 232.1(h) (1989), does not pass muster even under the reasonableness standard applicable to nonpublic fora. In concluding that § 232.1(h) is unreasonable, the dissent relies heavily on the fact that the Service permits other types of potentially disruptive speech on a case-by-case basis. The dissent's criticism in this regard seems to be that solicitation is not receiving the same treatment by the Postal Service that other forms of speech receive. See post at 497 U. S. 760 (criticizing "inconsistent treatment"). That claim, however, is more properly addressed under the equal protection component of the Fifth Amendment. In any event, it is anomalous that the Service's allowance of some avenues of speech would be relied upon as evidence that it is impermissibly suppressing other speech. If anything, the Service's generous accommodation of some types of speech testifies to its willingness to provide as broad a forum as possible, consistent with its postal mission. The dissent would create, in the name of the First Amendment, a disincentive for the Government to dedicate its property to any speech activities at all. In the end, its approach permits it to sidestep the single issue before us: Is the Government's prohibition of solicitation on postal sidewalks unreasonable?Whether or not the Service permits other forms of speech, which may or may not be disruptive, it is not unreasonable to prohibit solicitation on the ground that it is unquestionably a particular form of speech that is disruptive of business. Solicitation Page 497 U. S. 734 impedes the normal flow of traffic. See Heffron, 452 U.S. at 452 U. S. 653. Solicitation requires action by those who would respond: the individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card. See Record, Exh. 5 (credit card receipt); see also United States v. Belsky, 799 F.2d 1485 (CA11 1986) ("Soliciting funds is an inherently more intrusive and complicated activity than is distributing literature"). As residents of metropolitan areas know from daily experience, confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. One need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand, but one must listen, comprehend, decide and act in order to respond to a solicitation. Solicitors can achieve their goal only by "stopping [passersby] momentarily or for longer periods as money is given or exchanged for literature" or other items. Heffron, supra, 452 U.S. at 452 U. S. 653 (upholding stringent restrictions on the location of sales and solicitation activity). Justice BLACKMUN noted this distinction in his opinion concurring in part and dissenting in part to Heffron:"The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead, the recipient is free to read the message at a later time. . . . [S]ales and the collection of solicited funds not only require the fair-goer to stop, but also engender additional confusion . . . because they involve acts of exchanging articles for money, fumbling for and dropping money, making change, etc."452 U.S. at 452 U. S. 665 (citation omitted). This description of the disruption and delay caused by solicitation rings of "common-sense," ibid., which is sufficient Page 497 U. S. 735 in this Court to uphold a regulation under reasonableness review.The Postal Service's judgment is based on its long experience with solicitation. It has learned from this experience that, because of a continual demand from a wide range of groups for permission to conduct fund-raising or vending on postal premises, postal facility managers were distracted from their primary jobs by the need to expend considerable time and energy fielding competing demands for space and administering a program of permits and approvals. See Tr. of Oral Arg. 9 ("The Postal Service concluded after an experience with limited solicitation that there wasn't enough room for everybody who wanted to solicit on postal property and further concluded that allowing limited solicitation carried with it more problems than it was worth"). Thus, the Service found that "even the limited activities permitted by [its] program . . . produced highly unsatisfactory results." 42 Fed.Reg. 63911 (1977). It is on the basis of this real-world experience that the Postal Service enacted the regulation at issue in this case. The Service also enacted regulations barring deposit or display of written materials except on authorized bulletin boards"to regain space for the effective display of postal materials and the efficient transaction of postal business, eliminate safety hazards, reduce maintenance costs, and improve the appearance of exterior and public-use areas on postal premises."43 Fed. Reg. 38824 (1978); see 39 CFR § 232.1(o) (1989). In short, the Postal Service has prohibited the use of its property and resources where the intrusion creates significant interference with Congress' mandate to ensure the most effective and efficient distribution of the mails. This is hardly unreasonable.The dissent concludes that the Service's administrative concerns are unreasonable, largely because of the existence of less restrictive alternatives to the regulations at issue. See post at 497 U. S. 761-763. Even if more narrowly tailored regulations could be promulgated, however, the Postal Service is Page 497 U. S. 736 only required to adopt reasonable regulations, not "the most reasonable or the only reasonable" regulation possible. Cornelius, 473 U.S. at 473 U. S. 808.The dissent also would strike the regulation on the ground that the Postal Service enacted it because solicitation "would be likely to produce hostile reactions and to cause people to avoid post offices." 43 Fed.Reg. 38824 (1978). The dissent reads into the Postal Service's realistic concern with losing postal business because of the uncomfortable atmosphere created by aggressive solicitation an intent to suppress certain views. See post at 497 U. S. 754. But the Postal Service has never intimated that it intends to suppress the views of any "disfavored or unpopular political advocacy group." Ibid. It is the inherent nature of solicitation itself, a content-neutral ground, that the Service justifiably relies upon when it concludes that solicitation is disruptive of its business. The regulation is premised on the Service's long experience, on the fact that solicitation is inherently more disruptive than the other speech activities it permits, and on the Service's empirically based conclusion that a case-by-case approach to regulation of solicitation is unworkable.Clearly, the regulation does not discriminate on the basis of content or viewpoint. Indeed,"[n]othing suggests the Postal Service intended to discourage one viewpoint and advance another. . . . By excluding all . . . groups from engaging in [solicitation], the Postal Service is not granting to 'one side of a debatable public question . . . a monopoly in expressing its views.'"Monterey County Democratic Central Committee v. United States Postal Service, 812 F.2d 1194, 1198-1199 (CA9 1987) (citation omitted). The Service's concern about losing customers because of the potentially unpleasant situation created by solicitation per se does not reveal "an effort to suppress expression merely because public officials oppose the speaker's view." Perry, 460 U.S. at 460 U. S. 45-46. Page 497 U. S. 737It is clear that this regulation passes constitutional muster under the Court's usual test for reasonableness. See Lehman, 418 U.S. at 418 U. S. 303; Cornelius, 473 U.S. at 473 U. S. 808. Accordingly, we conclude, as have the Courts of Appeals for the Third and Eleventh Circuits, that the Postal Service's regulation of solicitation is reasonable as applied. See United States v. Belsky, 799 F.2d 1485 (CA11 1986); United States v. Bjerke, 796 F.2d 643 (CA3 1986).The judgment of the court of appeals isReversed

U.S. Supreme CourtUnited States v. Kokinda, 497 U.S. 720 (1990)United States v. KokindaNo. 88-2031Argued Feb. 26, 1990Decided June 27, 1990497 U.S. 720SyllabusRespondents, members of a political advocacy group, set up a table on a sidewalk near the entrance to a United States Post Office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature on a variety of political issues. The sidewalk is the sole means by which customers may travel from the parking lot to the post office building and lies entirely on Postal Service property. When respondents refused to leave the premises, they were arrested and subsequently convicted by a Federal Magistrate of violating, inter alia, 39 CFR § 232.1(h)(1), which prohibits solicitation on postal premises. The District Court affirmed the convictions. It rejected respondents' argument that § 232.1(h)(1) violated the First Amendment, holding that the postal sidewalk was not a public forum and that the ban on solicitation is reasonable. The Court of Appeals reversed. Finding that the sidewalk is a public forum and analyzing the regulation as a time, place, and manner restriction, it determined that the Government has no significant interest in banning solicitation and that the regulation is not narrowly tailored to accomplish the asserted governmental interest.Held: The judgment is reversed.866 F.2d 699, (CA4 1989) reversed.Justice O'CONNOR, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA, concluded that the regulation, as applied, does not violate the First Amendment.(a) Although solicitation is a recognized form of speech protected by the First Amendment, the Government may regulate such activity on its property to an extent determined by the nature of the relevant forum. Speech activity on governmental property that has been traditionally open to the public for expressive activity or has been expressly dedicated by the Government to speech activity is subject to strict scrutiny. Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45. However, where the property is not a traditional public forum and the Government has not dedicated its property to First Amendment activity, such regulation is examined only for reasonableness. Id. at 460 U. S. 46. Pp. 497 U. S. 725-727. Page 497 U. S. 721(b) Section 232.1(h)(1) must be analyzed under the standards applicable to nonpublic fora: it must be reasonable and "not an effort to suppress expression merely because public officials oppose the speaker's view." Ibid. The postal sidewalk is not a traditional public forum. The fact that the sidewalk resembles the municipal sidewalk across the parking lot from the post office is irrelevant to forum analysis. See Greer v. Spock, 424 U. S. 828. The sidewalk was constructed solely to provide for the passage of individuals engaged in postal business, not as a public passageway. Nor has the Postal Service expressly dedicated its sidewalk to any expressive activity. Postal property has only been dedicated to the posting of public notices on designated bulletin boards. A practice of allowing individuals and groups to leaflet, speak, and picket on postal premises and a regulation prohibiting disruptive conduct do not add up to such dedication. Even conceding that the forum has been dedicated to some First Amendment uses, and thus is not a purely nonpublic forum, regulation of the reserved nonpublic uses would still require application of the reasonableness test. Pp. 497 U. S. 727-730.(c) It is reasonable for the Postal Service to prohibit solicitation where it has determined that the intrusion creates significant interference with Congress' mandate to ensure the most effective and efficient distribution of the mails. The categorical ban is based on the Service's long, real-world experience with solicitation, which has shown that, because of continual demands from a wide variety of groups, administering a program of permits and approvals had distracted postal facility managers from their primary jobs. Whether or not the Service permits other forms of speech, it is not unreasonable for it to prohibit solicitation on the ground that it inherently disrupts business by impeding the normal flow of traffic. See Heffron v. ISKCON, 452 U. S. 640, 452 U. S. 653. Confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. Even if more narrowly tailored regulations could be promulgated, the Service is only required to promulgate reasonable regulations, not the most reasonable or the only reasonable regulation possible. Clearly, the regulation does not discriminate on the basis of content or viewpoint. The Service's concern about losing customers because of the potentially unpleasant situation created by solicitation per se does not reveal an effort to discourage one viewpoint and advance another. Pp. 497 U. S. 731-737.Justice KENNEDY, agreeing that the regulation does not violate the First Amendment, concluded that it is unnecessary to determine whether the sidewalk is a nonpublic forum, since the regulation meets the traditional standards applied to time, place, and manner restrictions of protected expression. See Clark v. Community for Creative Non-Violence, Page 497 U. S. 722 468 U. S. 288, 468 U. S. 293. The regulation expressly permits respondents and all others to engage in political speech on topics of their choice and to distribute literature soliciting support, including money contributions, provided there is no in-person solicitation for immediate payments on the premises. The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated its property, that is, facilitating its customers' postal transactions. Given the Postal Service's past experience with expressive activity on its property, its judgment that in-person solicitation should be treated differently from alternative forms of solicitation and expression should not be rejected. 497 U. S. 738-739.O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 497 U. S. 737. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, and in which BLACKMUN, J., joined as to Part I, post, p. 497 U. S. 740.

1980_79-1764

JUSTICE POWELL delivered the opinion of the Court.This case requires us to address again the nature of the evidentiary burden placed upon the defendant in an employment Page 450 U. S. 250 discrimination 450 U. S. 42 U.S.C. § 2000e et seq. The narrow question presented is whether, after the plaintiff has proved a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed.IPetitioner, the Texas Department of Community Affairs (TDCA), hired respondent, a female, in January, 1972, for the position of accounting clerk in the Public Service Careers Division (PSC). PSC provided training and employment opportunities in the public sector for unskilled workers. When hired, respondent possessed several years' experience in employment training. She was promoted to Field Services Coordinator in July, 1972. Her supervisor resigned in November of that year, and respondent was assigned additional duties. Although she applied for the supervisor's position of Project Director, the position remained vacant for six months.PSC was funded completely by the United States Department of Labor. The Department was seriously concerned about inefficiencies at PSC. [Footnote 1] In February, 1973, the Department notified the Executive Director of TDCA, B.R. Fuller, that it would terminate PSC the following month. TDCA officials, assisted by respondent, persuaded the Department to continue funding the program, conditioned upon PSC's reforming its operations. Among the agreed conditions were the appointment of a permanent Project Director and a complete reorganization of the PSC staff. [Footnote 2]After consulting with personnel within TDCA, Fuller hired Page 450 U. S. 251 a male from another division of the agency as Project Director. In reducing the PSC staff, he fired respondent, along with two other employees, and retained another male, Walz, as the only professional employee in the division. It is undisputed that respondent had maintained her application for the position of Project Director and had requested to remain with TDCA. Respondent soon was rehired by TDCA and assigned to another division of the agency. She received the exact salary paid to the Project Director at PSC, and the subsequent promotions she has received have kept her salary and responsibility commensurate with what she would have received had she been appointed Project Director.Respondent filed this suit in the United States District Court for the Western District of Texas. She alleged that the failure to promote and the subsequent decision to terminate her had been predicated on gender discrimination in violation of Title VII. After a bench trial, the District Court held that neither decision was based on gender discrimination. The court relied on the testimony of Fuller that the employment decisions necessitated by the commands of the Department of Labor were based on consultation among trusted advisers and a nondiscriminatory evaluation of the relative qualifications of the individuals involved. He testified that the three individuals terminated did not work well together, and that TDCA thought that eliminating this problem would improve PSC's efficiency. The court accepted this explanation as rational and, in effect, found no evidence that the decisions not to promote and to terminate respondent were prompted by gender discrimination.The Court of Appeals for the Fifth Circuit reversed in part. 608 F.2d 563 (1979). The court held that the District Court's "implicit evidentiary finding" that the male hired as Project Director was better qualified for that position than respondent was not clearly erroneous. Accordingly, the court affirmed the District Court's finding that respondent was not discriminated against when she was not promoted. The Page 450 U. S. 252 Court of Appeals, however, reversed the District Court's finding that Fuller's testimony sufficiently had rebutted respondent's prima facie case of gender discrimination in the decision to terminate her employment at PSC. The court reaffirmed its previously announced views that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate nondiscriminatory reasons for the employment action, and that the defendant also must prove by objective evidence that those hired or promoted were better qualified than the plaintiff. The court found that Fuller's testimony did not carry either of these evidentiary burdens. It, therefore, reversed the judgment of the District Court and remanded the case for computation of backpay. [Footnote 3] Because the decision of the Court of Appeals as to the burden of proof borne by the defendant conflicts with interpretations of our precedents adopted by other Courts of Appeals, [Footnote 4] we granted certiorari. 447 U.S. 920 (1980). We now vacate the Fifth Circuit's decision and remand for application of the correct standard.IIIn McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. [Footnote 5] First, the plaintiff has the burden of proving by Page 450 U. S. 253 the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 411 U. S. 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 411 U. S. 804.The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U. S. 24, 439 U. S. 25, n. 2 (1978); id. at 439 U. S. 29 (STEVENS, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed.1940) (the burden of persuasion "never shifts"). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. [Footnote 6] The prima facie case serves an important Page 450 U. S. 254 function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection. See Teamsters v. United States, 431 U. S. 324, 431 U. S. 358, and n. 44 (1977). As the Court explained in Furnco Construction Corp. v. Waters, 438 U. S. 567, 438 U. S. 577 (1978), the prima facie case"raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors."Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case. [Footnote 7]The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra at 439 U. S. 25. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. [Footnote 8] Page 450 U. S. 255 To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. [Footnote 9] The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, [Footnote 10] and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the Page 450 U. S. 256 plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions.The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 411 U. S. 804-805.IIIIn reversing the Judgment of the District Court that the discharge of respondent from PSC was unrelated to her sex, the Court of Appeals adhered to two rules it had developed to elaborate the defendant's burden of proof. First, the defendant must prove by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the discharge existed. 608 F.2d at 567. See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1255 (CA5 1977). Second, to satisfy this burden, the defendant "must prove that those he hired . . . were somehow better qualified than was plaintiff; in other words, comparative evidence is needed." 608 F.2d at 567 (emphasis in original). See East v. Romine, Inc., 518 F.2d 332, 339-340 (CA5 1975).AThe Court of Appeals has misconstrued the nature of the burden that McDonnell Douglas and its progeny place on the defendant. See 450 U. S. supra. We stated in Sweeney that "the employer's burden is satisfied if he simply explains what he has done' or `produc[es] evidence of legitimate nondiscriminatory reasons.'" 439 U.S. at 439 U. S. 25, n. 2, quoting id. at 439 U. S. 28, 439 U. S. 29 (STEVENS, J., dissenting). It is plain that the Court Page 450 U. S. 257 of Appeals required much more: it placed on the defendant the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the plaintiff. [Footnote 11]The Court of Appeals distinguished Sweeney on the ground that the case held only that the defendant did not have the burden of proving the absence of discriminatory intent. But this distinction slights the rationale of Sweeney and of our other cases. We have stated consistently that the employee's prima facie case of discrimination will he rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. The Court of Appeals would require the defendant to introduce evidence which, in the absence of any evidence of pretext, would persuade the trier of fact that the employment action was lawful. This exceeds what properly can be demanded to satisfy a burden of production.The court placed the burden of persuasion on the defendant apparently because it feared that,"[i]f an employer need Page 450 U. S. 258 only articulate -- not prove -- a legitimate, nondiscriminatory reason for his action, he may compose fictitious, but legitimate, reasons for his actions."Turner v. Texas Instruments, Inc., supra at 1255 (emphasis in original). We do not believe, however, that limiting the defendant's evidentiary obligation to a burden of production will unduly hinder the plaintiff. First, as noted above, the defendant's explanation of its legitimate reasons must be clear and reasonably specific. Supra at 450 U. S. 255. See Loeb v. Textron, Inc., 600 F.2d 1003, 1011-1012, n. 5 (CA1 1979). This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded "a full and fair opportunity" to demonstrate pretext. Second, although the defendant does not bear a formal burden of persuasion, the defendant nevertheless retains an incentive to persuade the trier of fact that the employment decision was lawful. Thus, the defendant normally will attempt to prove the factual basis for its explanation. Third, the liberal discovery rules applicable to any civil suit in federal court are supplemented in a Title VII suit by the plaintiff's access to the Equal Employment Opportunity Commission's investigatory files concerning her complaint. See EEOC v. Associated Dry Goods Corp., 449 U. S. 590 (1981). Given these factors, we are unpersuaded that the plaintiff will find it particularly difficult to prove that a proffered explanation lacking a factual basis is a pretext. We remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination.BThe Court of Appeals also erred in requiring the defendant to prove by objective evidence that the person hired or promoted was more qualified than the plaintiff. McDonnell Douglas teaches that it is the plaintiff's task to demonstrate that similarly situated employees were not treated equally. 411 U.S. at 411 U. S. 804. The Court of Appeals' rule would require Page 450 U. S. 259 the employer to show that the plaintiff's objective qualifications were inferior to those of the person selected. If it cannot, a court would, in effect, conclude that it has discriminated.The court's procedural rule harbors a substantive error. Title VII prohibits all discrimination in employment based upon race, sex, and national origin."The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and . . . neutral employment and personnel decisions."McDonnell Douglas, supra at 411 U. S. 801. Title VII, however, does not demand that an employer give preferential treatment to minorities or women. 42 U.S.C. § 2000e-2(j). See Steelworkers v. Weber, 443 U. S. 193, 443 U. S. 205-206 (1979). The statute was not intended to "diminish traditional management prerogatives." Id. at 443 U. S. 207. It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. Furnco Construction Corp. v. Waters, 438 U. S. 567, 438 U. S. 577-578 (1978).The views of the Court of Appeals can be read, we think, as requiring the employer to hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not, in itself, expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination. Loeb v. Textron, Inc., supra at 1012, n. 6; see Lieberman v. Gant, 630 F.2d 60, 65 (CA2 1980).IVIn summary, the Court of Appeals erred by requiring the defendant to prove by a preponderance of the evidence the Page 450 U. S. 260 existence of nondiscriminatory reasons for terminating the respondent, and that the person retained in her stead had superior objective qualifications for the position. [Footnote 12] When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTexas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981)Texas Department of Community Affairs v. BurdineNo. 79-1764Argued December 9, 1980Decided March 4, 1981450 U.S. 248SyllabusRespondent filed suit in Federal District Court, alleging, inter alia, that her termination of employment with petitioner was predicated on gender discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court found that the testimony for petitioner sufficiently had rebutted respondent's allegation of gender discrimination in the decision to terminate her employment. The Court of Appeals reversed this finding, holding that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate, nondiscriminatory reasons for the employment action, and also must prove by objective evidence that those hired were better qualified than the plaintiff, and that the testimony for petitioner did not carry either of these burdens.Held: When the plaintiff in a Title VII case has proved a prima facie case of employment discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. Pp. 450 U. S. 252-260.(a) As set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, the basic allocation of burdens and order of presentation of proof in a Title VII case, is as follows. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 411 U. S. 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. The defendant need not persuade the court that it was actually motivated by the proffered reasons, but it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. Pp. 450 U. S. 252-256. Page 450 U. S. 249(b) The Court of Appeals erred by requiring petitioner to prove by a preponderance of the evidence the existence of nondiscriminatory reasons for terminating respondent. By doing this, the court required much more than is required by McDonnell Douglas, supra. and its progeny: it placed on petitioner the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the respondent. Limiting the defendant's evidentiary obligation to a burden of production will not unduly hinder the plaintiff. Pp. 450 U. S. 256-258.(c) The Court of Appeals also erred in requiring petitioner to prove by objective evidence that the person hired was more qualified than respondent. It is the plaintiff's task to demonstrate that similarly situated employees were not treated equally, but the Court of Appeals' rule would require the employer to show that the plaintiff's objective qualifications were inferior to those of the person selected, and, if it cannot, a court would, in effect, conclude that it has discriminated. The Court of Appeals' views can also be read as requiring the employer to hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. Pp. 450 U. S. 258-259.608 F.2d 563, vacated and remanded.POWELL, J., delivered the opinion for a unanimous Court.

1989_88-7194

Justice BLACKMUN delivered the opinion of the Court. *In this case, we are called upon to determine the meaning of the word "burglary" as it is used in § 1402 of Subtitle I (the Career Criminals Amendment Act of 1986) of the Anti-Drug Abuse Act of 1986, 18 U.S.C. § 924(e). This statute provides a sentence enhancement for a defendant who is convicted under 18 U.S.C. § 922(g) (unlawful possession of a Page 495 U. S. 578 firearm) and who has three prior convictions for specified types of offenses, including "burglary."IUnder 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted previously for a felony to possess a firearm. A defendant convicted for a violation of § 922(g)(1) is subject to the sentence-enhancement provision at issue, § 924(e):"(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both . . . such person shall be fined not more than $25,000 and imprisoned not less than fifteen years. . . .""(2) As used in this subsection -- ""* * * *" "(B) The term 'violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that -- ""(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or""(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."In January, 1988, in the United States District Court for the Eastern District of Missouri, petitioner Arthur Lajuane Taylor pleaded guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At the time of his plea, Taylor had four prior convictions. One was for robbery, one was for assault, and the other two were for second-degree burglary under Missouri law. [Footnote 1] Page 495 U. S. 579The Government sought sentence enhancement under § 924(e). Taylor conceded that his robbery and assault convictions properly could be counted as two of the three prior convictions required for enhancement, because they involved the use of physical force against persons under § 924(e)(2)(B)(i). Taylor contended, however, that his burglary convictions should not count for enhancement, because they did not involve "conduct that presents a serious potential risk of physical injury to another" under § 924(e)(2)(B)(ii). His guilty plea was conditioned on the right to appeal this issue. The District Court, pursuant to § 924(e)(1), sentenced Taylor to 15 years' imprisonment without possibility of parole.The United States Court of Appeals for the Eighth Circuit, by a divided vote, affirmed Taylor's sentence. It ruled that, because the word "burglary" in § 924(e)(2)(B)(ii) "means burglary' however a state chooses to define it," the District Court did not err in using Taylor's Missouri convictions for second-degree burglary to enhance his sentence. 864 F.2d 625, 627 (1989). The majority relied on their court's earlier decision in United States v. Portwood, 857 F.2d 1221 (1988), cert. denied, 490 U.S. 1069 (1989). We granted certiorari, 493 U.S. 889 (1989), to resolve a conflict among the Courts of Page 495 U. S. 580 Appeals concerning the definition of burglary for purposes of § 924(e). [Footnote 2]The word "burglary" has not been given a single accepted meaning by the state courts; the criminal codes of the States define burglary in many different ways. See United States v. Hill, 863 F.2d 1575, 1582, and n. 5 (CA11 1989) (surveying a number of burglary statutes). On the face of the federal enhancement provision, it is not readily apparent whether Congress intended "burglary" to mean whatever the State of the defendant's prior conviction defines as burglary, or whether it intended that some uniform definition of burglary be applied to all cases in which the Government seeks a § 924(e) enhancement. And if Congress intended that a uniform definition of burglary be applied, was that definition to be the traditional common law definition, [Footnote 3] or one of the broader "generic" definitions articulated in the Model Penal Code and in a predecessor statute to § 924(e), or some other definition specifically tailored to the purposes of the enhancement statute? Page 495 U. S. 581IIBefore examining these possibilities, we think it helpful to review the background of § 924(e). Six years ago, Congress enacted the first version of the sentence-enhancement provision. Under the Armed Career Criminal Act of 1984, Pub.L. 98473, ch. 18, 98 Stat. 2185, 18 U.S.C.App. § 1202(a) (1982 ed. Supp. III) (repealed in 1986 by Pub.L. 99-308, § 104(b), 100 Stat. 459), any convicted felon found guilty of possession of a firearm, who had three previous convictions "for robbery or burglary," was to receive a mandatory minimum sentence of imprisonment for 15 years. Burglary was defined in the statute itself as"any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense."§ 1202(c)(9).The Act was intended to supplement the States' law enforcement efforts against "career" criminals. The House Report accompanying the Act explained that a "large percentage" of crimes of theft and violence "are committed by a very small percentage of repeat offenders," and that robbery and burglary are the crimes most frequently committed by these career criminals. H.R. Rep. No. 98-1073, pp. 1, 3 (1984) (H.Rep.); see also S.Rep. No. 98-190, p. 5 (1983) (S.Rep.), U.S.Code Cong. & Admin.News 1984, p. 3182. The House Report quoted the sponsor of the legislation, Sen. Specter, who found burglary one of the "most damaging crimes to society" because it involves"invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions."H.Rep., at 3, U.S.Code Cong. & Admin.News 1984, p. 3663. Similarly, the Senate Report stated that burglary was included because it is one of "the most common violent street crimes," and"[w]hile burglary is sometimes viewed as a nonviolent crime, its character can change rapidly, depending on the fortuitous presence of the occupants of the home when the burglar enters, or their arrival while he is still on the premises."S.Rep., at 4-5. Page 495 U. S. 582The only explanation of why Congress chose the specific definition of burglary included in § 1202 appears in the Senate Report:"Because of the wide variation among states and localities in the ways that offenses are labeled, the absence of definitions raised the possibility that culpable offenders might escape punishment on a technicality. For instance, the common law definition of burglary includes a requirement that the offense be committed during the nighttime and with respect to a dwelling. However, for purposes of this Act, such limitations are not appropriate. Furthermore, in terms of fundamental fairness, the Act should ensure, to the extent that it is consistent with the prerogatives of the States in defining their own offenses, that the same type of conduct is punishable on the Federal level in all cases."S.Rep. at 20.In 1986, § 1202 was recodified as 18 U.S.C. § 924(e) by the Firearms Owners' Protection Act, Pub.L. 99-308, § 104, 100 Stat. 458. The definition of burglary was amended slightly, by replacing the words "any felony" with "any crime punishable by a term of imprisonment exceeding one year and. . . ."Only five months later, § 924(e) again was amended, into its present form, by § 1402 of Subtitle I (the Career Criminals Amendment Act) of the Anti-Drug Abuse Act of 1986, 100 Stat. 3207-39. This amendment effected three changes that, taken together, give rise to the problem presented in this case. It expanded the predicate offenses triggering the sentence enhancement from "robbery or burglary" to "a violent felony or a serious drug offense"; it defined the term "violent felony" to include "burglary"; and it deleted the preexisting definition of burglary.The legislative history is silent as to Congress' reason for deleting the definition of burglary. It does reveal, however, the general purpose and approach of the Career Criminals Amendment Act of 1986. Two bills were proposed; from Page 495 U. S. 583 these, the current statutory language emerged as a compromise. The first bill, introduced in the Senate by Sen. Specter and in the House by Rep. Wyden, provided that any "crime of violence" would count towards the three prior convictions required for a sentence enhancement, and defined "crime of violence" as"an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,"or any felony"that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."S. 2312, 99th Cong., 2d Sess. (1986); H.R. 4639, 99th Cong., 2d Sess. (1986). The second bill, introduced in the House by Reps. Hughes and McCollum, took a narrower approach, restricting the crimes that would count towards enhancement to"any State or Federal felony that has as an element the use, attempted use, or threatened use of physical force against the person of another."H.R. 4768, 99th Cong., 2d Sess. (1986).When Sen. Specter introduced S. 2312 in the Senate, he stated that since the enhancement provision had been in effect for a year and a half, and"has been successful with the basic classification of robberies and burglaries as the definition for 'career criminal,' the time has come to broaden that definition so that we may have a greater sweep and more effective use of this important statute."132 Cong.Rec. 7697 (1986). Similarly, during the House and Senate hearings on the bills, the witnesses reiterated the concerns that prompted the original enactment of the enhancement provision in 1984: the large proportion of crimes committed by a small number of career offenders, and the inadequacy of state prosecutorial resources to address this problem. See Armed Career Criminal Legislation: Hearing on H.R. 4639 and H.R. 4768 before the Subcomm. on Crime of the Comm. on the Judiciary, 99th Cong., 2d Sess. (1986) (House Hearing); Armed Career Criminal Act Amendments: Page 495 U. S. 584 Hearing on S. 2312 before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary, 99th Cong., 2d Sess. (1986) (Senate Hearing). The issue under consideration was uniformly referred to as "expanding" the range of predicate offenses. House Hearing, at 8 ("all of us want to see the legislation expanded to other violent offenders and career drug dealers") (statement of Rep. Wyden); id. at 11 ("I think we can all agree that we should expand the predicate offenses") (statement of Rep. Hughes); id. at 14 (statement of Deputy Assistant Attorney General James Knapp); id. at 32-33 (statement of Bruce Lyons, President-elect of National Association of Criminal Defense Lawyers); id. at 44 (statement of Sen. Specter); Senate Hearing, at 1 ("The time seems ripe in many quarters, including the Department of Justice, to expand the armed career criminal bill to include other offenses") (statement of Sen. Specter); id. at 15 (statement of United States Attorney Edward S. G. Dennis, Jr.); id. at 20 (statement of David Dart Queen of the Department of the Treasury); id. at 49 and 55 (statement of Ronald D. Castille, District Attorney, Philadelphia).Witnesses criticized the narrower bill, H.R. 4768, for excluding property crimes, pointing out that some such crimes present a serious risk of harm to persons, and that the career offenders at whom the enhancement provision is aimed often specialize in property crimes, especially burglary. See House Hearing, at 9 and 12 ("I would hope . . . that at least some violent felonies against property could be included"; "people . . . make a full-time career and commit hundreds of burglaries") (statements of Rep. Wyden); id. at 49-53 (statement of Mr. Castille). The testimony of Mr. Knapp focused specifically on whether the enhancement provision should include burglary as a predicate offense. He criticized H.R. 4768 for excluding "such serious felonies against property as most burglary offenses" and thus "inadvertently narrow[ing] the scope of the present Armed Career Criminal Act," and went on to say: Page 495 U. S. 585"Now the question has been raised, well, what crimes against property should be included? We think burglary, of course; arson; extortion; and various explosives offenses. . . . ""The one problem I see in using a specific generic term like burglary or arson -- that's fine for those statutes -- but a lot of these newer explosives offenses don't have a single generic term that covers them, and that is something that the committee may want to be very careful about in coming up with the final statutory language.""It is these crimes against property -- which are inherently dangerous -- that we think should be considered as predicate offenses."House Hearing, at 15. In response to a question by Rep. Hughes as to the justification for retaining burglary as a predicate offense, Mr. Knapp explained that "your typical career criminal is most likely to be a burglar," and that"even though injury is not an element of the offense, it is a potentially very dangerous offense, because when you take your very typical residential burglary or even your professional commercial burglary, there is a very serious danger to people who might be inadvertently found on the premises."Id. at 26. He qualified his remarks, however, by saying:"Obviously, we would not consider, as prior convictions, what I would call misdemeanor burglaries, or your technical burglaries, or anything like that."Ibid.Rep. Hughes put the same question to the next witness, Mr. Lyons. The witness replied:"When you use burglary, burglary is going back to really what the original legislative history and intent was, to get ahold of the profit motive and to the recidivist armed career criminal. The NACDL really has no problem with burglary as a predicate offense."Id. at 38. In his prepared statement for the Subcommittee, the witness had noted that H.R. 4768 "would not appear to encompass Page 495 U. S. 586 . . . burglary," and that"[i]f the Subcommittee concludes that it can accept no retreat from current law, we would suggest that the preservation of burglary as a prior offense be accomplished simply by retaining 'burglary' . . . rather than by substituting for it the all-inclusive 'crime of violence' definition proposed in H.R. 4639."House Hearing, at 34.H.R. 4639, on the other hand, was seen as too broad. See id. at 11 ("it is important to prioritize offenses") (statement of Rep. Hughes); id. at 16 ("the answer probably lies somewhere between the two bills") (statement of Mr. Knapp). The hearing concluded with a statement by Rep. Hughes, a sponsor of the narrower bill, H.R. 4768:"Frankly, I think on the question of burglaries, I can see the arguments both ways. We have already included burglaries.""My leanings would be to leave it alone; it is in the existing law; it was the existing statute. We can still be specific enough. We are talking about burglaries that probably are being carried out by an armed criminal, because the triggering mechanism is that they possess a weapon. . . . So we are not talking about the average run-of-the-mill burglar necessarily, we are talking about somebody who also illegally possesses or has been transferred a firearm."House Hearing, at 41.After the House hearing, the Subcommittee drafted a compromise bill, H.R. 4885. This bill included "violent felony" as a predicate offense, and provided that"the term 'violent felony' means any crime punishable by imprisonment for a term exceeding one year that -- ""(i) has as an element the use, attempted use, or threatened use of force against the person of another; or""(ii) involves conduct that presents a serious potential risk of physical injury to another. Page 495 U. S. 587 "H.R. 4885 was favorably reported by the House Committee on the Judiciary. H.R. Rep. No. 99-849 (1986). The Report explained:"The Subcommittee on Crime held a hearing . . . to consider whether it should expand the predicate offenses (robbery and burglary) in existing law in order to add to its effectiveness. At this hearing, a consensus developed in support of an expansion of the predicate offenses to include serious drug trafficking offenses . . . and violent felonies generally. This concept was encompassed in H.R. 4885 by deleting the specific predicate offenses for robbery and burglary and adding as predicate offenses [certain drug offenses] and violent felonies. . . . ""The other major question involved in these hearings was as to what violent felonies involving physical force against property should be included in the definition of 'violent' felony. The Subcommittee agreed to add the crimes punishable for a term exceeding one year that involve conduct that presents a serious potential risk of physical injury to others. This will add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involves presents a serious risk of injury to a person."(Emphasis in original). Id. at 3. The provision as finally enacted, however, added to the above-quoted subsection (ii) the phrase that is critical in this case:". . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."18 U.S.C. § 924(e)(2)(B)(ii).Some useful observations may be drawn. First, throughout the history of the enhancement provision, Congress focused its efforts on career offenders -- those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at Page 495 U. S. 588 least a potential threat of harm to persons. This concern was not limited to offenders who had actually been convicted of crimes of violence against persons. (Only H.R. 4768, rejected by the House Subcommittee, would have restricted the predicate offenses to crimes actually involving violence against persons.)The legislative history also indicates that Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense, both in 1984 and in 1986, because of its inherent potential for harm to persons. The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate. And the offender's own awareness of this possibility may mean that he is prepared to use violence if necessary to carry out his plans or to escape. Congress apparently thought that all burglaries serious enough to be punishable by imprisonment for more than a year constituted a category of crimes that shared this potential for violence, and that were likely to be committed by career criminals. There never was any proposal to limit the predicate offense to some special subclass of burglaries that might be especially dangerous, such as those where the offender is armed, or the building is occupied, or the crime occurs at night. [Footnote 4]Second, the enhancement provision always has embodied a categorical approach to the designation of predicate offenses. In the 1984 statute, "robbery" and "burglary" were defined in the statute itself, not left to the vagaries of state law. See 18 U.S.C.App. §§ 1202(c)(8) and (9) (1982 ed. Supp. III). Thus, Congress intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled "robbery" or "burglary" Page 495 U. S. 589 by the laws of the State of conviction. Each of the proposed versions of the 1986 amendment carried forward this categorical approach, extending the range of predicate offenses to all crimes having certain common characteristics -- the use or threatened use of force, or the risk that force would be used -- regardless of how they were labeled by state law.Third, the 1984 definition of burglary shows that Congress, at least at that time, had in mind a modern "generic" view of burglary, roughly corresponding to the definitions of burglary in a majority of the States' criminal codes. See United States v. Hill, 863 F.2d at 1582, n. 5. In adopting this definition, Congress both prevented offenders from invoking the arcane technicalities of the common law definition of burglary to evade the sentence-enhancement provision, and protected offenders from the unfairness of having enhancement depend upon the label employed by the State of conviction. See S.Rep. No. 98-190, at 20.Nothing in the legislative history of the 1986 amendment shows that Congress was dissatisfied with the 1984 definition. All the testimony and reports read as if the meaning of burglary was undisputed. The debate at the 1986 hearings centered upon whether any property crimes should be included as predicate offenses, and if so, which ones. At the House hearing, the Subcommittee reached a consensus that at least some property crimes, including burglary, should be included, but again there was no debate over the proper definition of burglary. The compromise bill, H.R. 4885, apparently was intended to include burglary, among other serious property offenses, by implication, as a crime that "involves conduct that presents a serious potential risk of physical injury to another." The language added to H.R. 4885 before its enactment seemingly was meant simply to make explicit the provision's implied coverage of crimes such as burglary.The legislative history as a whole suggests that the deletion of the 1984 definition of burglary may have been an inadvertent Page 495 U. S. 590 casualty of a complex drafting process. [Footnote 5] In any event, there is nothing in the history to show that Congress intended in 1986 to replace the 1984 "generic" definition of burglary with something entirely different. Although the omission of a preexisting definition of a term often indicates Congress' intent to reject that definition, see INS v. Cardoza-Fonseca, 480 U. S. 421, 480 U. S. 432 (1987); Russello v. United States, 464 U. S. 16, 23 (1983), we draw no such inference hereNor is there any indication that Congress ever abandoned its general approach, in designating predicate offenses, of using uniform, categorical definitions to capture all offenses of a certain level of seriousness that involve violence or an inherent risk thereof, and that are likely to be committed by career offenders, regardless of technical definitions and labels under stateIIIThese observations about the purpose and general approach of the enhancement provision enable us to narrow the range of possible meanings of the term "burglary."AFirst, we are led to reject the view of the Court of Appeals in this case. It seems to us to be implausible that Congress intended the meaning of "burglary" for purposes of § 924(e) to depend on the definition adopted by the State of conviction. That would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement Page 495 U. S. 591 based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct "burglary."For example, Michigan has no offense formally labeled "burglary." It classifies burglaries into several grades of "breaking and entering." See Mich.Comp.Laws § 750.110 (1979). In contrast, California defines "burglary" so broadly as to include shoplifting and theft of goods from a "locked" but unoccupied automobile. See Cal.Penal Code Ann. § 459 (West Supp. 1990); United States v. Chatman, 869 F.2d 525, 528-529, and n. 2 (CA9 1989) (entry through unsecured window of an unoccupied auto, and entry of a store open to the public with intent to commit theft, are "burglary" under California law); see also Tex.Penal Code Ann. §§ 30.01-30.05 (1989 and Supp.1990) (defining burglary to include theft from coin-operated vending machine or automobile); United States v. Leonard, 868 F.2d 1393, 1395, n. 2 (CA5 1989), cert. pending, No. 88-1885.Thus, a person imprudent enough to shoplift or steal from an automobile in California would be found, under the Ninth Circuit's view, to have committed a burglary constituting a "violent felony" for enhancement purposes -- yet a person who did so in Michigan might not. Without a clear indication that, with the 1986 amendment, Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses, we do not interpret Congress' omission of a definition of "burglary" in a way that leads to odd results of this kind. See Dickerson v. New Banner Institute, Inc., 460 U. S. 103, 460 U. S. 119-120 (1983) (absent plain indication to the contrary, federal laws are not to be construed so that their application is dependent on state law, "because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control"); United States v. Turley, 352 U. S. 407, 352 U. S. 411 (1957) ("[I]n the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, Page 495 U. S. 592 the meaning of the federal statute should not be dependent on state law").This Court's response to the similar problem of interpreting the term "extortion" in the Travel Act, 18 U.S.C. § 1952, is instructive:"Appellees argue that Congress' decision not to define extortion combined with its decision to prohibit only extortion in violation of state law compels the conclusion that peculiar variations of state terminology are controlling. . . . The fallacy of this contention lies in its assumption that, by defining extortion with reference to state law, Congress also incorporated state labels for particular offenses. Congress' intent was to aid local law enforcement officials, not to eradicate only those extortionate activities which any given State denominated extortion. . . . Giving controlling effect to state classifications would result in coverage under § 1952 if appellees' activities were centered in Massachusetts, Michigan, or Oregon, but would deny coverage in Indiana, Kansas, Minnesota, or Wisconsin, although each of these States prohibits identical criminal activities."United States v. Nardello, 393 U. S. 286, 393 U. S. 293-294 (1969).We think that "burglary" in § 924(e) must have some uniform definition independent of the labels employed by the various States' criminal codes.BSome Courts of Appeals, see n 2, supra, have ruled that § 924(e) incorporates the common law definition of burglary, relying on the maxim that a statutory term is generally presumed to have its common law meaning. See Morissette v. United States, 342 U. S. 246, 342 U. S. 263 (1952). This view has some appeal, in that common law burglary is the core, or common denominator, of the contemporary usage of the term. Almost all States include a breaking and entering of a dwelling at night, with intent to commit a felony, among their Page 495 U. S. 593 definitions of burglary. Whatever else the Members of Congress might have been thinking of, they presumably had in mind at least the "classic" common law definition when they considered the inclusion of burglary as a predicate offense.The problem with this view is that the contemporary understanding of "burglary" has diverged a long way from its common law roots. Only a few States retain the common law definition, or something closely resembling it. [Footnote 6] Most other States have expanded this definition to include entry without a "breaking," structures other than dwellings, offenses committed in the daytime, entry with intent to commit a crime other than a felony, etc. See W. LaFave & A. Scott, Substantive Criminal Law §§ 8.13(a) through (f), pp. 464-475. This statutory development,"when viewed in totality, has resulted in a modern crime which has little in common with its common law ancestor except for the title of burglary."Id. at § 8.13(g), p. 476.Also, interpreting "burglary" in § 924(e) to mean common law burglary would not comport with the purposes of the enhancement statute. The arcane distinctions embedded, in the common law definition have little relevance to modern law enforcement concerns. [Footnote 7] It seems unlikely that the Page 495 U. S. 594 Members of Congress, immersed in the intensely practical concerns of controlling violent crime, would have decided to abandon their modern, generic 1984 definition of burglary and revert to a definition developed in the ancient English law -- a definition mentioned nowhere in the legislative history. Moreover, construing "burglary" to mean common law burglary would come close to nullifying that term's effect in the statute, because few of the crimes now generally recognized as burglaries would fall within the common law definition.It could be argued, of course, that common law burglary, by and large, involves a greater "potential risk of physical injury to another." § 924(e)(2)(B)(ii). But, even assuming that Congress intended to restrict the predicate offense to some especially dangerous subclass of burglaries, restricting it to common law burglary would not be a rational way of doing so. The common law definition does not require that the offender be armed, or that the dwelling be occupied at the time of the crime. An armed burglary of an occupied commercial building, in the daytime, would seem to pose a far greater risk of harm to persons than an unarmed nocturnal breaking and entering of an unoccupied house. It seems unlikely that Congress would have considered the latter, but not the former, to be a "violent felony" counting towards a sentence enhancement. In the absence of any specific indication that Congress meant to incorporate the common law meaning of burglary, we shall not read into the statute a definition of "burglary" so obviously ill-suited to its purposes.This Court has declined to follow any rule that a statutory term is to be given its common-law meaning, when that meaning is obsolete or inconsistent with the statute's purpose. Page 495 U. S. 595 In Perrin v. United States, 444 U. S. 37 (1979), this Court rejected the argument that the Travel Act incorporated the common law definition of "bribery" because, by 1961 when the Act was passed,"the common understanding and meaning of 'bribery' had extended beyond its early common law definitions. In 42 States and in federal legislation, 'bribery' included the bribery of individuals acting in a private capacity. It was against this background that the Travel Act was passed.""* * * *" ". . . The record of the hearings and floor debates discloses that Congress made no attempt to define the statutory term 'bribery,' but relied on the accepted contemporary meaning."(Footnote omitted). Id. at 45. For this reason, the Court concluded that "the generic definition of bribery, rather than a narrow common law definition, was intended by Congress." Id. at 49. Similarly, in United States v. Nardello, supra, this Court held that the Travel Act did not incorporate the common law definition of "extortion," because that definition had been expanded in many States by the time the Act was passed, 393 U.S. at 393 U. S. 289, and because such an interpretation would conflict with the Act's purpose to curb the activities of organized crime. Id. at 393 U. S. 293. The Court therefore declined the give the term an "unnaturally narrow reading," and concluded that the defendants' acts fell within "the generic term extortion as used in the Travel Act." Id. at 393 U. S. 296. See also Bell v. United States, 462 U. S. 356, 462 U. S. 362 (1983) (common law limitation on meaning of "larceny" not incorporated in Bank Robbery Act because "[t]he congressional goal of protecting bank assets is entirely independent of the traditional distinction on which [the defendant] relies"); United States v. Turley, 352 U.S. at 352 U. S. 416-417 (application of National Motor Vehicle Theft Act not limited to "situations which at common law would be considered larceny" because "[p]rofessional thieves resort to innumerable Page 495 U. S. 596 forms of theft, and Congress presumably sought to meet the need for federal action effectively rather than to leave loopholes for wholesale evasion").Petitioner argues that the narrow common law definition of burglary would comport with the rule of lenity -- that criminal statutes, including sentencing provisions, are to be construed in favor of the accused. See Bifulco v. United States, 447 U. S. 381, 447 U. S. 387 (1980); Simpson v. United States, 435 U. S. 6, 435 U. S. 14-15 (1978). This maxim of statutory construction, however, cannot dictate an implausible interpretation of a statute, nor one at odds with the generally accepted contemporary meaning of a term. See Perrin v. United States, 444 U.S. at 444 U. S. 49, n. 13.CPetitioner suggests another narrowing construction of the term "burglary," more suited to the purpose of the enhancement statute:"Burglary is any crime punishable by a term of imprisonment exceeding one year and consisting of entering or remaining within a building that is the property of another with intent to engage in conduct constituting a Federal or State offense that has as an element necessary for conviction conduct that presents a serious risk of physical injury to another."Brief for Petitioner 29. As examples of burglary statutes that would fit this definition, petitioner points to first-degree or aggravated burglary statutes having elements such as entering an occupied building; being armed with a deadly weapon; or causing or threatening physical injury to a person. See n 4, supra. This definition has some appeal, because it avoids the arbitrariness of the state law approach by restricting the predicate offense in a manner congruent with the general purpose of the enhancement statute.We do not accept petitioner's proposal, however, for two reasons. First, it is not supported by the language of the Page 495 U. S. 597 statute or the legislative history. Petitioner essentially asserts that Congress meant to include as predicate offenses only a subclass of burglaries whose elements include "conduct that presents a serious risk of physical injury to another," over and above the risk inherent in ordinary burglaries. But if this were Congress' intent, there would have been no reason to add the word "burglary" to § 924(e)(2)(B)(ii), since that provision already includes any crime that "involves conduct that presents a serious potential risk of physical injury to another." We must assume that Congress had a purpose in adding the word "burglary" to H.R. 4885 before enacting it into law. The most likely explanation, in view of the legislative history, is that Congress thought that certain general categories of property crimes -- namely burglary, arson, extortion, and use of explosives -- so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person.Second, if Congress had meant to include only an especially dangerous subclass of burglaries as predicate offenses, it is unlikely that it would have used the unqualified language "is burglary . . . or otherwise involves conduct that presents a serious potential risk" in § 924(e)(2)(B)(ii). Congress presumably realized that the word "burglary" is commonly understood to include not only aggravated burglaries but also run-of-the-mill burglaries involving an unarmed offender, an unoccupied building, and no use or threat of force. This choice of language indicates that Congress thought ordinary burglaries, as well as burglaries involving some element making them especially dangerous, presented a sufficiently "serious potential risk" to count towards enhancement. Page 495 U. S. 598DWe therefore reject petitioner's view that Congress meant to include only a special subclass of burglaries, either those that would have been burglaries at common law or those that involve especially dangerous conduct. These limiting constructions are not dictated by the rule of lenity. See supra, at 495 U. S. 596. We believe that Congress meant, by "burglary," the generic sense in which the term is now used in the criminal codes of most States. See Perrin, 444 U.S. at 444 U. S. 45; Nardello, 393 U.S. at 393 U. S. 289.Although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into or remaining in a building or other structure, with intent to commit a crime. [Footnote 8] See LaFave & Scott, at § 8.13(a), p. 466 (modern statutes "generally require that the entry be unprivileged"); at § 8.13(c), p. 471 (modern statutes "typically describe the place as a building' or `structure'"); at § 8.13(e), p. 474 ("the prevailing view in the modern codes is that an intent to commit any offense will do").This generic meaning, of course, is practically identical to the 1984 definition that, in 1986, was omitted from the enhancement provision. The 1984 definition, however, was not explicitly replaced with a different or narrower one; the legislative history discloses that no alternative definition of burglary was ever discussed. As we have seen, there simply is no plausible alternative that Congress could have had in mind. The omission of a definition of burglary in the 1986 Page 495 U. S. 599 Act therefore implies, at most, that Congress did not wish to specify an exact formulation that an offense must meet in order to count as "burglary" for enhancement purposes.We conclude that a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.IVThere remains the problem of applying this conclusion to cases in which the state statute under which a defendant is convicted varies from the generic definition of "burglary." If the state statute is narrower than the generic view, e.g., in cases of burglary convictions in common law States or convictions of first-degree or aggravated burglary, there is no problem, because the conviction necessarily implies that the defendant has been found guilty of all the elements of generic burglary. And if the defendant was convicted of burglary in a State where the generic definition has been adopted, with minor variations in terminology, then the trial court need find only that the state statute corresponds in substance to the generic meaning of burglary.A few States' burglary statutes, however, as has been noted above, define burglary more broadly, e.g., by eliminating the requirement that the entry be unlawful, or by including places, such as automobiles and vending machines, other than buildings. One of Missouri's second-degree burglary statutes in effect at the times of petitioner Taylor's convictions included breaking and entering "any booth or tent, or any boat or vessel, or railroad car." Mo.Rev.Stat. § 560.070 (1969) (repealed). Also, there may be offenses under some States' laws that, while not called "burglary," correspond in substantial part to generic burglary. We therefore must address the question whether, in the case of a defendant who has been convicted under a nongeneric Page 495 U. S. 600 burglary statute, the Government may seek enhancement on the grounds that he actually committed a generic burglary. [Footnote 9]This question requires us to address a more general issue -- whether the sentencing court in applying § 924(e) must look only to the statutory definitions of the prior offenses, or whether the court may consider other evidence concerning the defendant's prior crimes. The Courts of Appeals uniformly have held that § 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions. See United States v. Chatman, 869 F.2d 525, 529 (CA9 1989); United States v. Headspeth, 852 F.2d 753, 758-759 (CA4 1988); United States v. Vidaure, 861 F.2d 1337, 1340 (CA5 1988), cert. denied, 489 U.S. 1088 (1989); United States v. Sherbondy, 865 F.2d 996, 1006-1010 (CA9 1988). We find the reasoning of these cases persuasive.First, the language of § 924(e) generally supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions. Section 924(e)(1) refers to "a person who . . . has three previous convictions" for -- not a person who has committed -- three previous violent felonies or drug offenses. Section 924(e)(2)(B)(i) defines "violent felony" as any crime punishable by imprisonment for more than a year that "has as an element" -- not any crime that, in a particular case, involves -- the use or threat of force. Read in this context, the phrase "is burglary" in § 924(e)(2)(B)(ii) Page 495 U. S. 601 most likely refers to the elements of the statute of conviction, not to the facts of each defendant's conduct.Second, as we have said, the legislative history of the enhancement statute shows that Congress generally took a categorical approach to predicate offenses. There was considerable debate over what kinds of offenses to include and how to define them, but no one suggested that a particular crime might sometimes count towards enhancement and sometimes not, depending on the facts of the case. If Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant's prior offenses, surely this would have been mentioned somewhere in the legislative history.Third, the practical difficulties and potential unfairness of a factual approach are daunting. In all cases where the Government alleges that the defendant's actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was. In some cases, the indictment or other charging paper might reveal the theory or theories of the case presented to the jury. In other cases, however, only the Government's actual proof at trial would indicate whether the defendant's conduct constituted generic burglary. Would the Government be permitted to introduce the trial transcript before the sentencing court, or if no transcript is available, present the testimony of witnesses? Could the defense present witnesses of its own, and argue that the jury might have returned a guilty verdict on some theory that did not require a finding that the defendant committed generic burglary? If the sentencing court were to conclude, from its own review of the record, that the defendant actually committed a generic burglary, could the defendant challenge this conclusion as abridging his right to a jury trial? Also, in cases where the defendant pleaded guilty, there often is no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, Page 495 U. S. 602 it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.We think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense. [Footnote 10] This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.We therefore hold that an offense constitutes "burglary" for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to "generic" burglary or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.In Taylor's case, most but not all the former Missouri statutes defining second-degree burglary include all the elements of generic burglary. See n 1, supra. Despite the Government's argument to the contrary, it is not apparent to us from the sparse record before us which of those statutes were the bases for Taylor's prior convictions. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTaylor v. United States, 495 U.S. 575 (1990)Taylor v. United StatesNo. 88-7194Argued Feb. 28, 1990Decided May 29, 1990495 U.S. 575SyllabusWhen respondent Taylor pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g)(1), he had four prior convictions, including two for second-degree burglary under Missouri law. The Government sought to apply § 924(e), which, inter alia, (1) provides a sentence enhancement for a "person" convicted under § 922(g) who "has three previous convictions . . . for a violent felony," and (2) defines "violent felony" as "(B) . . . any crime punishable by imprisonment for a term exceeding one year" that "(i) has as an element the use, attempted use, or threatened use of physical force against [another's] person," or"(ii) is burglary [or other specified offenses] or otherwise involves conduct that presents a serious potential risk of physical injury to another."In imposing an enhanced sentence upon Taylor, the District Court rejected his contention that, because his burglary convictions did not present a risk of physical injury under § 924(e)(2)(B)(ii), they should not count. The Court of Appeals affirmed, ruling that the word "burglary" in § 924(e)(2)(B)(ii) "means burglary' however a state chooses to define it."Held: An offense constitutes "burglary" under § 924(e) if, regardless of its exact definition or label, it has the basic elements of a "generic" burglary -- i.e., an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime -- or if the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant. Pp. 495 U. S. 581-602.(a) The convicting State's definition of "burglary" cannot control the word's meaning under § 924(e), since that would allow sentence enhancement for identical conduct in different States to turn upon whether the particular States happened to call the conduct "burglary." That result is not required by § 924(e)'s omission of a "burglary" definition contained in a prior version of the statute, absent a clear indication that Congress intended by the deletion, to abandon its general approach of using uniform categorical definitions for predicate offenses. "Burglary" in § 924(e) must have some uniform definition independent of the labels used by the various States' criminal codes. Cf. United States v. Nardello, 393 U. S. 286, 393 U. S. 293-294. Pp. 495 U. S. 590-592. Page 495 U. S. 576(b) Nor is § 924(e) limited to the common law definition of "burglary" -- i.e., a breaking and entering of a dwelling at night with intent to commit a felony. Since that definition has been expanded in most States to include entry without a "breaking," structures other than dwellings, daytime offenses, intent to commit crimes other than felonies, etc., the modern crime has little in common with its common law ancestor. Moreover, absent a specific indication of congressional intent, a definition so obviously ill-suited to the statutory purpose of controlling violent crimes by career offenders cannot be read into § 924(e). The definition's arcane distinctions have little relevance to modern law enforcement concerns, and, because few of the crimes now recognized as burglaries would fall within the definition, its adoption would come close to nullifying the effect of the statutory term "burglary." Under these circumstances, the general rule of lenity does not require adoption of the common law definition. Pp. 495 U. S. 592-596.(c) Section 924(e) is not limited to those burglaries that involve especially dangerous conduct, such as first-degree or aggravated burglaries. If that were Congress' intent, there would have been no reason to add the word "burglary" to § 924(e)(2)(B)(ii), since that provision already includes any crime that "involves conduct that presents a serious potential risk" of harm to persons. It is more likely that Congress thought that burglary and the other specified offenses so often presented a risk of personal injury or were committed by career criminals that they should be included even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person. Moreover, the choice of the unqualified language "is burglary . . . or otherwise involves" dangerous conduct indicates that Congress thought that ordinary burglaries, as well as those involving especially dangerous elements, should be included. Pp. 495 U. S. 596-597.(d) There thus being no plausible alternative, Congress meant by "burglary" the generic sense in which the term is now used in most States' criminal codes. The fact that this meaning is practically identical to the omitted statutory definition is irrelevant. That definition was not explicitly replaced with a different or narrower one, and the legislative history discloses that no alternative was ever discussed. The omission therefore implies, at most, that Congress simply did not wish to specify an exact formulation. Pp. 495 U. S. 598-599.(e) The sentencing court must generally adopt a formal categorical approach in applying the enhancement provision, looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the particular underlying facts. That approach is required, since, when read in context, § 924(e)(2)(B)(ii)'s "is burglary" phrase most likely refers to the statutory elements of the offense rather than to the Page 495 U. S. 577 facts of the defendant's conduct; since the legislative history reveals a general categorical approach to predicate offenses; and since an elaborate factfinding process regarding the defendant's prior offenses would be impracticable and unfair. The categorical approach, however, would still permit the sentencing court to go beyond the mere fact of conviction in the narrow range of cases in which the indictment or information and the jury instructions actually required the jury to find all of the elements of generic burglary even though the defendant was convicted under a statute defining burglary in broader terms. Pp. 495 U. S. 599-602.(f) The judgment must be vacated and the case remanded for further proceedings, since, at the time of Taylor's convictions, most but not all of the Missouri second-degree burglary statutes included all the elements of generic burglary, and it is not apparent from the sparse record which of those statutes were the bases for the convictions. P. 495 U. S. 602.864 F.2d 625, (CA 8 1989) vacated and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in all but Part II of which SCALIA, J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 495 U. S. 603.

1982_81-1487

CHIEF JUSTICE BURGER delivered the opinion of the Court:The question presented is whether § 8 of the Clayton Act bars interlocking directorates between a bank and a competing insurance company. Page 462 U. S. 124IIn 1975, the United States brought these companion test cases (now consolidated) against 10 corporations and 5 individuals. The corporations were three banks and their three respective holding companies, and four mutual life insurance companies. The five individuals each served on the board of directors of one of the banks or bank holding companies and one of the insurance companies. It was stipulated that the interlocked banks and insurance companies compete in the interstate market for mortgage and real estate loans.The Government asserts that interlocking directorates between banks and insurance companies violate § 8 of the Clayton Act, 38 Stat. 732, as amended, 15 U.S.C. § 19. The fourth paragraph of § 8, on which the Government relies, provides:"No person at the same time shall be a director in any two or more corporations, any one of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in commerce, other than banks, banking associations, trust companies, and common carriers subject to the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, if such corporations are or shall have been theretofore, by virtue of their business and location of operation, competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the provisions of any of the antitrust laws."(Emphasis added.) In short, this statute forbids a person to serve simultaneously on the boards of directors of two or more corporations that meet certain specifications, namely, that the corporations be engaged in commerce, at least one of them having capital, surplus, and undivided profits worth more than $1 million, that they be competitors, and that they be Page 462 U. S. 125 "other than banks, banking associations, trust companies, and common carriers. . . ."According to the Government, the language "[n]o person at the same time shall be a director in any two or more corporations . . . other than banks" prohibits interlocking directorates between any two or more competing corporations, but excludes from this general prohibition interlocking directorates between banks. The Government argues that the purpose of the "other than banks" clause was simply to prevent overlapping regulation of interlocks between banks, which are separately regulated in the first three paragraphs of § 8. Thus, it interprets the fourth paragraph of § 8 to reach interlocks between banks and nonbanks, which interlocks are otherwise unregulated. Petitioners respond that the "other than banks" clause expressly excludes interlocking directorates involving banks from the scope of the fourth paragraph of § 8.On cross-motions for summary judgment, the United States District Court for the Northern District of California granted summary judgment for petitioners and dismissed the Government's suits. United States v. Crocker National Corp., 422 F. Supp. 686 (1976). The District Court held:"[A] normal reading of the statutory language 'two . . . corporations . . . other than banks' compels the conclusion that the statute applies only to two corporations, neither of which is a bank."* * * *"[A]n ordinary reading of the statutory prohibition '[n]o person . . . shall [serve as] a director in any two or more corporations . . . other than banks' means that banks were not to be subject to this prohibition."Id. at 689-690. Although the District Court saw no need for further factual inquiry in light of the "clear statutory language," id. at 690, it observed that this interpretation of the statute was"confirmed by 60 years of administrative and Congressional interpretation, Page 462 U. S. 126 as well as by the legislative history underlying section 8."Id. at 703.A divided Court of Appeals reversed. United States v. Crocker National Corp., 656 F.2d 428 (CA9 1981). Unlike the District Court, the majority viewed the statutory language as ambiguous. It stated that the "other than banks" clause could be interpreted equally plausibly to mean either "two or more corporations [none of which are] banks," or "two or more corporations [not all of which are] banks." Id. at 434 (emphasis deleted). Relying chiefly on its view of the underlying policy of the Clayton Act, the Court of Appeals held that the fourth paragraph of § 8 should be interpreted to bar all interlocking directorates between banks and competing nonbanking corporations.In the view of the Court of Appeals, petitioners' position left a "gap" in the coverage of § 8. Discerning nothing in the legislative history directly bearing on the applicability of § 8 to interlocking directorates between banks and nonbanking corporations, the Court of Appeals relied on the broad purpose of Congress to condemn "interlocking directorates between large competing corporations," id. at 439, as support for an interpretation of § 8 leaving no "loopholes." It thus interpreted the "other than banks" language to refer back to the interlocks between banks regulated in the preceding paragraphs of § 8; this interpretation left interlocking directorates between banks and nonbanks subject to the general bar of the fourth paragraph of § 8. [Footnote 1]We granted certiorari, 456 U.S. 1005 (1982), and we reverse.IIThe Clayton Act of 1914 was passed in a period when Congress was focusing on the perceived evils of corporate Page 462 U. S. 127 bigness and monopoly. President Wilson, for example, had made the "trusts" a core issue of his 1912 campaign; Congress followed up with the Pujo Committee investigation into the investment banking trust. See generally Travers, Interlocks in Corporate Management and the Antitrust Laws, 46 Texas L.Rev. 819, 824-829 (1968). Interlocks between large corporations were seen in the public debate as per se antagonistic to the public interest; many, including President Wilson, called for legislation that would, among other things, ban all kinds of interlocks. Interlocks were condemned regardless of whether the relationship between the corporations was horizontal or vertical; whether it was accomplished through the sharing of personnel, including directors and officers; or whether it was achieved through interlocking stock holdings or other indirect forms of domination. See, e.g., S.Rep. No. 698, 63d Cong., 2d Sess., 15 (1914); Hearings on Trust Legislation before the House Committee on the Judiciary, 63d Cong., 2d Sess., 816, 818-820, 823, 925 (1914) (hereafter Trust Hearings). Plainly, these were policy matters appropriate for Congress to resolve.However, when the Clayton Act was enacted, its scope was considerably less comprehensive than many of the proposals pressed upon Congress. Rather than enacting a broad scheme to ban all interlocks between potential competitors, Congress approached the problem of interlocks selectively, limiting both the classes of corporations and the kinds of interlocks subject to regulation.Three classes of business organizations are regulated by the Clayton Act's provisions concerning corporate interlocks, and each class is subject to different restraints. Clayton Act §§ 8 and 10, 15 U.S.C. §§ 19 and 20. Section 10 regulates, but does not prohibit, certain types of interlocks between common carriers and various other corporations with which the carrier has a supplier or customer relationship; it does not regulate horizontal interlocks between competing common carriers. The first three paragraphs of § 8 regulate interlocks Page 462 U. S. 128 between banks and trust companies that meet certain geographic and other requirements. These provisions bar a wide range of personnel interlocks, including common directors, officers, and employees. The fourth paragraph of § 8 concerns the class of competing corporations "other than banks, banking associations, trust companies, and common carriers"; it prohibits only shared directors between competing corporations, and does not bar any other kind of personnel interlock or any kind of vertical interlock. It is against this pattern of specific and limited regulation of corporate interlocks that we approach the narrow statutory question presented.The starting point, as always, is the language of the statute. The narrow question here is whether the fourth paragraph of § 8 of the Clayton Act bars interlocking directorates involving a bank and a nonbanking corporation with which it competes. The language of the statute is unambiguous in prohibiting interlocking directorates between "two or more corporations . . . other than banks." The most natural reading of this language is that the interlocked corporations must all be corporations "other than banks." It is self-evident that a bank and a nonbanking corporation are not both corporations "other than banks." Thus, the fourth paragraph of § 8, by its express terms, does not prohibit interlocking directorates between a bank and a competing nonbanking corporation. This reading of the statute is reinforced both by the structure of the Clayton Act and by the structure of the fourth paragraph of § 8.The Clayton Act selectively regulates interlocks with respect to three different classes of business organizations: those interlocks between banks are covered in the first three paragraphs of § 8 and those interlocks involving common carriers are covered by § 10. Viewed in this framework, the purpose of the "other than" clause in the fourth paragraph of § 8 was to exclude altogether interlocking directorates involving either banks or common carriers. Moreover, this interpretation Page 462 U. S. 129 is the only one consistent with the treatment of "common carriers" in the "other than" clause.The Government does not dispute that the language "two or more corporations . . . other than banks [or] common carriers" completely excludes from the fourth paragraph any interlocking directorates in which any of the corporations involved is a common carrier; it should follow, logically, that it also excludes interlocking directorates involving banks. Put another way, the language "two or more corporations . . . other than banks [or] common carriers" means "two or more corporations none of which is a common carrier." To be consistent, that language must also be interpreted to mean "two or more corporations none of which is a bank."In our view, it strains the meaning of ordinary words to read "two or more corporations other than common carriers" to mean something completely different from "two or more corporations other than banks," as the Court of Appeals did. 656 F.2d at 442-443. In Mohasco Corp. v. Silver, 447 U. S. 807, 447 U. S. 826 (1980), for example, we rejected as unreasonable the claim that the word "filed" could have two different meanings in two separate subsections of the same statute. Similarly, we reject as unreasonable the contention that Congress intended the phrase "other than" to mean one thing when applied to "banks" and another thing as applied to "common carriers," where the phrase "other than" modifies both words in the same clause.The language of the fourth paragraph of § 8 supports this interpretation. The fourth paragraph begins with a general bar against interlocking directorates: "No person at the same time shall be a director in any two or more corporations." This general bar is limited by four separate clauses, each of which modifies the phrase "two or more corporations." That is, the statute applies only to "two or more corporations" which satisfy these four additional requirements. Clearly, the first clause need be satisfied by only one of the interlocked corporations. By its own terms, it applies to "any Page 462 U. S. 130 one" of the "two or more corporations." None of the other clauses contain similar language. Rather, they are all written in general language that applies to all the interlocked corporations. Had Congress wished the "other than banks" clause to apply to only one of the interlocked corporations, it would not have presented any difficulty to have said so explicitly as in the first clause.In rejecting the Government's present interpretation of § 8, we by no means depart from our long-held policy of giving great weight to the contemporaneous interpretation of a challenged statute by an agency charged with its enforcement, e.g., 25 U. S. Darby, 12 Wheat. 206, 25 U. S. 210 (1827). But the Government does not come to this case with a consistent history of enforcing or attempting to enforce § 8 in accord with what it urges now. On the contrary, for over 60 years, the Government made no attempt, either by filing suit or by seeking voluntary resignations, to apply § 8 to interlocks between banks and nonbanking corporations, even though interlocking directorates between banks and insurance companies were widespread and a matter of public record throughout the period. [Footnote 2] We find it difficult to believe that the Department of Justice and the Federal Trade Commission, which share authority for enforcement of the Clayton Act, and the Congress, which oversees those agencies, would have overlooked or ignored the pervasive and open Page 462 U. S. 131 practice of interlocking directorates between banks and insurance companies had it been thought contrary to the law. [Footnote 3]It is true, of course, that "[a]uthority actually granted by Congress . . . cannot evaporate through lack of administrative exercise," FTC v. Bunte Brothers, Inc., 312 U. S. 349, 312 U. S. 352 (1941); the mere failure of administrative agencies to act is in no sense "a binding administrative interpretation" that the Government lacks the authority to act. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 590 (1957). However,"just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it is equally significant in determining whether such power was actually conferred."FTC v. Bunte Brothers, Inc., supra, at 312 U. S. 352. Similarly, in FPC v. Panhandle Eastern Pipe Line Co., 337 U. S. 498, 337 U. S. 513 (1949), this Court held that "[f]ailure to use such an important power for so long a time indicates to us that the Commission did not believe the power existed." In the circumstances of this case, the Government's failure for over 60 years to exercise the power it now claims under § 8 strongly suggests that it did not read the statute as granting such power.When a court reaches the same reading of the statute as the practical construction given it by the enforcing agencies Page 462 U. S. 132 over a 60-year span, that is a powerful weight supporting such reading. Here, moreover, the business community directly affected and the enforcing agencies and the Congress have read this statute the same way for 60 years. It is not wholly without significance that Members of Congress and their staffs who have written about this issue have stated that § 8"does not apply to interlocks between commercial banks and competing financial institutions, such as mutual savings banks, insurance companies, and small loan companies."Letter from Rep. Wright Patman to Hon. Arthur F. Burns, Chairman of the Federal Reserve Board (June 1, 1970), reprinted in The Banking Reform Act of 1971: Hearings on H.R. 5700 before the House Committee on Banking and Currency, 92d Cong., 1st Sess., 271 (1971). [Footnote 4] While these views are not binding on this Court, the weight of informed opinion [Footnote 5] over the years strongly supports the District Court holding that Congress intended the statute to be interpreted according to its plain meaning.It is not surprising that, for more than a half century, literally thousands of citizens in the business world have served as directors of both banks and insurance companies in reliance Page 462 U. S. 133 on what was universally perceived as plain statutory language. These citizens were reassured that the Government's reading of that language indicated that their conduct was lawful. The Government brushes this aside, saying in effect that it will not bring suits against those directors who resign within a reasonable time. Tr. of Oral Arg. 30-31. However, those who elect to resign under this "amnesty" would nonetheless carry a stigma of sorts as violators of federal laws. Equally, and perhaps more, important, such persons face possible civil liability in unknown amounts, liability against which the Government cannot, and does not purport to, render them immune. See id. at 30. While it is arguable that wise antitrust policy counsels against permitting interlocking directorates between banks and competing insurance companies, that policy must be implemented by Congress, and not by a crabbed interpretation of the words of a statute which so many in authority have interpreted in accordance with its plain meaning for so long. If changes in economic factors or considerations of public policy counsel the extension of the Clayton Act to the categories of interlocking directorates implicated here, it is a simple matter for Congress to say so clearly.If any doubt remains as to the meaning of the statute, that doubt is removed by the legislative history. The relevant provisions of the Clayton Act went through four legislative stages: (1) the initial "tentative bill," (2) the House bill introduced by Representative Clayton, (3) the Senate amendments, and (4) the final bill of the Joint Conference Committee which was enacted into law as the Clayton Act. The evolution of the bill, along with the remarks in Committee and on the floor, rebuts the Government's claim that Congress intended to reach bank-nonbank interlocks in the fourth paragraph of § 8.The tentative bill proposed by Representative Clayton had three sections dealing with director interlocks. Reprinted in Trust Hearings, at 1577-1579. Section 1 prohibited certain Page 462 U. S. 134 director and officer interlocks between railroads and specified other corporations, including banks. Section 2 prohibited certain interlocks between banks. Section 4, the precursor to the current paragraph 4 of § 8, presumed a violation of the Sherman Act from the existence of a director interlock. It provided, in pertinent part:"That if . . . any two or more corporations, engaged in whole or in part in interstate or foreign commerce, have a common director or directors, the fact of such common director or directors shall be conclusive evidence that there exists no real competition between such corporations; and if such corporations shall have been theretofore, or are, or shall have been . . . natural competitors, such elimination of competition thus conclusively presumed shall constitute a combination between the said corporations in restraint of interstate or foreign commerce. . . ."Id. at 1579.Extensive hearings were held on this "tentative bill." Louis D. Brandeis, then an adviser to President Wilson, testified that the tentative bill was inadequate to meet what he saw as the need for a broad prohibition against vertical as well as horizontal interlocks. See generally id. at 681-688. Representative Carlin objected:"We attempted to do that by section 4 of the bill. Section 1 deals with the railroads, section 2 with the banks, and section 4 with industrials."Id. at 681. Brandeis responded that "as you have section 4 there, your clause is limited to a linking together of two industrial corporations who are competitors. . . ." Ibid.Brandeis also testified to the need to prohibit interlocking directorates between all large banks. Id. at 921-925. He argued that Congress had the power to do this, since "banking is interstate commerce." Id. at 923-924. He then turned from the banks to the "other financial concern doing business Page 462 U. S. 135 in the same place" with which the interlocking directorates should be, but were not under the tentative bill, prohibited:"Mr. BRANDEIS: . . . Now what is a financial concern as I have used that term? I should say that term 'financial concern' includes not only a bank which is a member of a national reserve system but any other bank.""Mr. VOLSTEAD: Would you include an insurance company?""Mr. BRANDEIS: And an insurance company also. It seems to me that both banks and insurance companies, which have a usual place of business in the same place, . . . ought to be included in that prohibition."Id. at 925 (emphasis added). Two facts emerge from this exchange. First, the tentative bill dealt with the different classes of corporations (banks, railroads, and industrials) separately and in different ways. Section 2 dealt exclusively with banks, and § 4 exclusively with industrial corporations. Second, the tentative bill was not understood as prohibiting interlocking directorates between banks and "other financial concern[s] doing business in the same place" such as insurance companies.At the conclusion of the hearings, Representative Clayton introduced H.R. 15657, 63d Cong., 2d Sess. (May 2, 1914), reprinted in Trust Hearings, at 1931-1952, which eventually was enacted as the Clayton Act. Section 9 of that bill generally paralleled the structure of the current § 8. The third paragraph of § 9 (which became the fourth paragraph of the present § 8) provided in pertinent part:"[N]o person at the same time shall be a director in any two or more corporations, either of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in commerce, other than common carriers subject to [the Interstate Commerce Act]. . . ."(Emphasis added.) Page 462 U. S. 136 The Committee Report on this bill stated that"[t]his section is divided into three paragraphs, each of which relates to the particular class of corporations described, and the provisions of each paragraph are limited in their application to the corporations belonging to the class named herein."H.R.Rep. No. 627, 63d Cong., 2d Sess., 18 (1914), reprinted in Trust Hearings at 1970. The first paragraph related solely to the "eligibility of directors in interstate railroad corporations," ibid.; the second paragraph dealt with the "eligibility of directors, officers, and employees of banks, banking associations, and trust companies," id. at 1971; and the third, "industrial corporations" paragraph concerned "the eligibility of directors in industrial corporations engaged in commerce," ibid. Nothing in this Report suggests that the third paragraph was intended to deal with directors in banks who also serve as directors in industrial corporations.The House debates on § 9 of H.R. 15657 confirm that Congress intended to deal separately with banks, railroads, and industrial corporations, and did not intend the third paragraph of § 9 to regulate or prohibit interlocks between these different classes of corporations. During a debate over the banking provisions of § 9, Representative Cullop explained the relationship of the industrial corporations paragraph to the banking paragraphs:"That [industrial corporations paragraph] refers to some other corporation than a bank. That does not apply to a bank."* * * *"This has no reference to the banking business.""Mr. CARLIN: That relates to industrial commerce.""Mr. CULLOP: Yes. That does not relate to banking. That relates to industrial and commercial corporations, or institutions of that kind, but has no reference whatsoever to the banking business."51 Cong.Rec. 9604 (1914) (emphasis added).The House passed H.R. 15657 with changes not relevant here and sent the bill to the Senate. There, the provisions Page 462 U. S. 137 regulating bank interlocks met with considerable opposition and were ultimately eliminated by the Senate Committee on the Judiciary. The Senate Report explained:"A Senate amendment to this section strikes out the entire paragraph which relates to interlocking directorates of banks and trust companies [the first three paragraphs of the current § 8]. In proposing this amendment, a majority of the Committee believed that such legislation as this more properly belongs to the domain of banking, rather than of commerce, and such additional regulation of bank directorates as may be wise and just should be made by amendments to the national bank acts, and the enforcement of it given to the Comptroller of the Currency and the Federal Reserve Board."S.Rep. No. 698, 63d Cong., 2d Sess., 48 (1914). However, the Senate Committee did not change the industrial corporations paragraph at all:"The House provision in this section relating to interlocking directorates of industrial corporations is not proposed to be changed or amended in any respect."Ibid. The Senate passed the bill as reported out by the Senate Committee.Given the Senate's expressed intent not to regulate bank interlocks, it is not reasonable to believe that the Senate understood the third paragraph of § 9, which it left untouched, to bar interlocking directorates involving banks. When the Conference Committee met to iron out differences between the House and Senate bills, it restored the banking provisions but added the words "other than banks, banking associations, trust companies" to the "other than common carriers" clause in the industrial corporations paragraph (which became the fourth paragraph of the current § 8). The most reasonable explanation for this addition is that it clarified what the Senate already understood to be the case: the industrial corporations paragraph did not reach interlocking directorates involving banks.This interpretation is supported by the floor debate in the House on the Conference bill. Of those who spoke on the Page 462 U. S. 138 House floor, only Representative Mann thought that the original House version of the industrial corporations paragraph (§ 9, paragraph 3, of H.R. 15657) applied to interlocking directorates with banks. He objected that the amendment adding "banks" to the "other than common carriers" clause therefore materially changed the meaning of the fourth paragraph:"I know of nothing more vital which was before the House than the power and the right to prevent interlocking directorates of banks. . . . That was one of the basic things that the committee made findings on, and when this bill was prepared, it provided a prohibition against interlocking directorates of banks. The House passed it in that shape. The Senate passed it in that shape. But the House conferees, without authority . . . have provided that banks shall no longer be controlled by this prohibition of interlocking directorates where banks are in competition."51 Cong.Rec. 16270 (1914).In response, Representatives Sherley and Webb both argued that Representative Mann had misconstrued the bill as it had originally been passed by the House. Representative Webb explained:"[T]he third paragraph of section 9 as the bill passed the House was never intended to apply to banks, because we had an express paragraph in section 9 which took care of interlocking directorates in banks."". . . Now it would be idiotic to say that we included also banks and banking associations in the paragraph referring to industrial corporations; and in order to make the paragraph perfectly plain, we inserted 'other than banks and banks [sic] associations' and common carriers, which had no effect upon the meaning of that section."Id. at 16271. Representative Sherley echoed Representative Webb's argument that at no time in its evolution did the industrial corporations Page 462 U. S. 139 paragraph ever prohibit interlocking directorates involving banks. Id. at 16271-16272. He concluded:"To say that it was not within the province of the conference to make it clear that only certain banks should be within the provision touching certain interlocking directorates, and that the provision touching industrial corporations [the present fourth paragraph of § 8] was confined to such industrial corporations, and should not by any stretch of construction be held to include banks, is to say what seems to be contrary . . . to the plain common sense of the situation."Id. at 16272.In reviewing this colloquy, it should be remembered that Representatives Webb and Sherley voted for the Clayton Act as it originally passed the House, while Representative Mann voted against it. Id. at 9911. Thus, greater weight is to be accorded the views of Representatives Webb and Sherley concerning the proper interpretation of the original bill than to the views of Representative Mann. See NLRB v. Fruit & Vegetable Packers, 377 U. S. 58, 377 U. S. 66 (1964). Moreover, the fact that the Speaker of the House overruled Representative Mann's point of order suggests that he accepted Representatives Webb's and Sherley's interpretation. Finally, regardless of which Member correctly interpreted the original House bill, the fact remains that they all agreed that, under the Conference bill, interlocking directorates involving banks were not covered by the industrial corporations paragraph.The dissent argues that the"sole purpose of the ['other than banks' amendment] was to make clear that bank-bank interlocks would be governed exclusively by the preceding paragraphs, rather than by the competing corporations paragraph."Post at 462 U. S. 145. This interpretation ignores the fact that the minimum size requirements in the banking and industrial corporations provisions were not comparable. As the Clayton Act was originally enacted, the banking provisions measured size on the basis of "deposits, capital, surplus, and undivided profits" aggregating $5 million or more; the industrial corporations paragraph measured size on the Page 462 U. S. 140 basis of "capital, surplus, and undivided profits" aggregating $1 million or more without regard to "deposits." Clayton Antitrust Act of 1914, § 8, 38 Stat. 732-733. There is no reason to assume that a bank with "deposits, capital, surplus, and undivided profits" of $5 million is comparable to a bank with "capital, surplus, and undivided profits" of $1 million. Thus, the provisions do not dovetail in the manner suggested by the dissent.It may well be, as the dissent speculates, post at 462 U. S. 146-147, that a number of Congressmen mistakenly thought that banking was not interstate commerce. Nonetheless, Congress chose to deal with the problems of industrial and financial concentration according to the class of corporations involved. It chose to regulate banks in what are now the first three paragraphs of § 8; to regulate common carriers in what is now § 10; and to regulate industrial and commercial corporations in the fourth paragraph of § 8. We are bound to respect that choice; we are not to rewrite the statute based on our notions of appropriate policy.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtBankamerica Corp. v. United States, 462 U.S. 122 (1983)Bankamerica Corp. v. United StatesNo. 81-1487Argued January 19, 1983Decided June 8, 1983462 U.S. 122SyllabusThe fourth paragraph of § 8 of the Clayton Act provides that"[n]o person at the same time shall be a director in any two or more corporations, any one of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in commerce, other than banks, banking associations, trust companies, and common carriers,"if such corporations are competitors. The United States brought test cases, consolidated in Federal District Court, against petitioners, certain banks, bank holding companies, mutual life insurance companies, and individuals who each served on the board of directors of one of the banks or bank holding companies and one of the insurance companies. It was stipulated that the interlocked banks and insurance companies compete in the interstate market for mortgage and real estate loans. The Government asserted that the interlocking directorates violated the fourth paragraph of § 8, arguing that the "other than banks" clause simply prevented overlapping regulation of interlocks between banks, which are separately regulated in the first three paragraphs of § 8. The District Court entered summary judgment for petitioners, holding that the statutory proscription applies only to two corporations, neither of which is a bank. The Court of Appeals reversed.Held: The fourth paragraph of § 8 does not bar interlocking directorates between a bank and a competing insurance company. Pp. 462 U. S. 126-140.(a) The most natural reading of the language of the statute is that the interlocked corporations must all be corporations "other than banks," and that thus the fourth paragraph of § 8 does not, by its express terms, prohibit interlocking directorates between a bank and a competing nonbanking corporation. This reading of the statute is reinforced both by the structure of the Clayton Act and by the structure of the fourth paragraph of § 8. Pp. 462 U. S. 128-130.(b) Great weight is to be given to the contemporaneous interpretation of a challenged statute by an agency charged with its enforcement, but, for over 60 years prior to its present interpretation of § 8, the Government made no attempt to apply the statute to interlocks between banks and insurance companies, even though such interlocks were widespread and a matter of public record throughout the period. Mere failure of administrative agencies to act is in no sense a binding administrative Page 462 U. S. 123 interpretation that the Government lacks the authority to act, but, in the circumstances of this case, the Government's failure for over 60 years to exercise the power it now claims strongly suggests that it did not read § 8 as granting such power. Moreover, the business community directly affected, the enforcing agencies, and the Congress all have read the statute the same way for 60 years, thus strongly supporting the conclusion that Congress intended § 8 to be interpreted according to its plain meaning. Pp. 462 U. S. 130-133.(c) If any doubt remains as to the meaning of the statute, that doubt is removed by the legislative history. The evolution of the bill, along with the remarks in committee and on the floor, rebuts the Government's claim that Congress intended to reach bank-nonbank interlocks in the fourth paragraph of § 8. Pp. 462 U. S. 133-140.656 F.2d 428, reversed.BURGER, C.J., delivered the opinion of the Court, in which BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 462 U. S. 140. POWELL, J., took no part in the decision of the case.

1983_83-245

JUSTICE BRENNAN delivered the opinion of the Court.The question presented by these cases is whether application of the withdrawal liability provisions of the Multi-employer Page 467 U. S. 720 Pension Plan Amendments Act of 1980 to employers withdrawing from pension plans during a 5-month period prior to the statute's enactment violates the Due Process Clause of the Fifth Amendment. We hold that it does not.IAIn 1974, after careful study of private retirement pension plans, Congress enacted the Employee Retirement Income Security Act (ERISA), 88 Stat. 829, 29 U.S.C. § 1001 et seq. Among the principal purposes of this "comprehensive and reticulated statute" was to ensure that employees and their beneficiaries would not be deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the plans. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S. 359, 446 U. S. 361-362, 446 U. S. 374-375 (1980). See Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 451 U. S. 510-511 (1981). Congress wanted to guarantee 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."Nachman, supra, at 446 U. S. 375; Alessi, supra, at 451 U. S. 510.Toward this end, Title IV of ERISA, 29 U.S.C. § 1301 et seq., created a plan termination insurance program, administered by the Pension Benefit Guaranty Corporation (PBGC), a wholly owned Government corporation within the Department of Labor, § 1302. The PBGC collects insurance premiums from covered pension plans and provides benefits to participants in those plans if their plan terminates with insufficient assets to support its guaranteed benefits. See §§ 1322, 1361. For pension plans maintained by single employers, the PBGC's obligation to pay benefits took effect immediately upon enactment of ERISA in 1974. §§ 1381(a), (b). For multiemployer pension plans, however, the payment of guaranteed benefits by the PBGC was not to become mandatory until January 1, 1978. § 1381(c)(1). Page 467 U. S. 721During the intervening period, the PBGC had discretionary authority to pay benefits upon the termination of multiemployer pension plans. §§ 1381(c)(2)-(4). If the PBGC exercised its discretion to pay such benefits, employers who had contributed to the plan during the five years preceding its termination were liable to the PBGC in amounts proportional to their share of the plan's contributions during that period. § 1364. In other words, any employer withdrawing from a multiemployer plan was subject to a contingent liability that was dependent upon the plan's termination in the next five years and the PBGC's decision to exercise its discretion and pay guaranteed benefits. In addition, any individual employer's liability was not to exceed 30% of the employer's net worth. § 1362(b)(2).As the date for mandatory coverage of multiemployer pension plans approached, Congress became concerned that a significant number of plans were experiencing extreme financial hardship. This, in turn, could have resulted in the termination of numerous plans, forcing the PBGC to assume obligations in excess of its capacity. To avoid this potential collapse of the plan termination insurance program, Congress deferred mandatory insurance coverage for multiemployer plans for 18 months -- until July 1, 1979 -- extending the PBGC's discretionary authority to insure plans terminating during the interim. Pub.L. 95-214, 91 Stat. 1501. [Footnote 1] The PBGC was also directed to prepare a comprehensive report analyzing the problems faced by multiemployer plans and recommending appropriate legislative action. See S.Rep. No. 95-570, pp. 1-4 (1977); H.R.Rep. No. 95-706, p. 1 Page 467 U. S. 722 (1977). In this way, Congress created "time to legislate, if necessary, before the mandatory coverage comes into effect." 123 Cong.Rec. 36800 (1977) (statement of Sen. Williams); id. at 36800-36802.The PBGC issued its report on July 1, 1978. Pension Benefit Guaranty Corporation, Multiemployer Study Required by P.L. 95-214 (1978). Among its principal findings was that ERISA did not adequately protect plans from the adverse consequences that resulted when individual employers terminate their participation in, or withdraw from, multiemployer plans. As the report summarized:"The basic problem with the withdrawal rules is that they are designed primarily to protect PBGC. They do not provide an efficient mechanism for reducing the burden of withdrawal on the plan and remaining employers. They may even encourage withdrawals in some instances (e.g., where termination may be imminent). Changes in the withdrawal rules should be considered:""(1) to provide relief to plans without increasing the burden on the insurance system,""(2) to provide a disincentive to voluntary employer withdrawals,""(3) to reduce or remove disincentives to plan entry, and""(4) to work with, instead of against, the termination liability provisions."Id. at 96-97. [Footnote 2] Page 467 U. S. 723To alleviate the problem of employer withdrawals, the PBGC suggested new rules under which a withdrawing employer would be required to pay whatever share of the plan's unfunded vested liabilities was attributable to that employer's participation. Id. at 97-114. [Footnote 3] These tentative proposals were included in policy recommendations submitted to Congress on February 27, 1979, and were incorporated in proposed legislation that the Executive Branch formally sent to Congress three months later, S. 1076, 96th Cong., 1st Sess. (1979). Most significantly for present purposes, the bill included an effective date for withdrawal liability of February 27, 1979 -- the date on which the PBGC had initially submitted its recommendations to Congress. Id. § 108. This date was chosen to prevent employers from avoiding the adverse consequences of withdrawal liability by withdrawing from plans while such liability was being considered by Congress. As one Senator noted, the retroactive effective date was designed "to prevent . . . the withdrawal of these opportunistic employers without imposition of liability" and was to Page 467 U. S. 724 serve "as a deterrent to hasty employer withdrawal." 126 Cong.Rec. 20234 (1980) (remarks of Sen. Matsunaga).Congress debated the issue of withdrawal liability for the remainder of 1979 and much of 1980. By April, 1980, two Committees in the House and one in the Senate had approved substantially similar versions of the bill, each containing the February 27, 1979, effective date for withdrawal liability. The Senate Finance Committee had not yet completed its work on the bill, however, and sought more time for consideration of the legislation. See supra at 467 U. S. 721, and n. 1. At the same time, the Senate advanced the effective date for imposing withdrawal liability to April 29, 1980. As Senator Javits later explained:"The committees decided in part to move up the date from February 27, 1979, the date contained in earlier versions of the bill, because the original purpose of a retroactive effective date -- namely, to avoid encouragement of employer withdrawals while the bill was being considered -- has been achieved. It should also be noted that the April 29 effective date is the product of strong political pressures by certain withdrawing employers who were caught by the earlier date. I realize that permitting these employers to avoid liability only increases the burdens of those employers remaining with the plans in question, but it appears necessary to accept the April 29 date in order to enact the bill before the August 1 deadline for action."126 Cong.Rec. 20179 (1980) (statement of Sen. Javits). See also id. at 9236-9237 (statement of Sen. Bentsen).The House unanimously passed its version of the bill, including the February 27, 1979, effective date, in May, 1980. Id. at 12233. The Senate version, adopting an effective date of April 29, 1980, was endorsed by a vote of 85-1. Id. at 20247. The Conference Committee accepted the Senate's effective date, and the legislation was signed into law by Page 467 U. S. 725 the President on September 26, 1980. Multiemployer Pension Plan Amendments Act of 1980 (MPPAA or Act), Pub.L. 96-364, 94 Stat. 1208. As enacted, the Act requires that an employer withdrawing from a multiemployer pension plan pay a fixed and certain debt to the pension plan. This withdrawal liability is the employer's proportionate share of the plan's "unfunded vested benefits," calculated as the difference between the present value of vested benefits and the current value of the plan's assets. 29 U.S.C. §§ 1381, 1391. Pursuant to 29 U.S.C. § 1461(e), these withdrawal liability provisions took effect on April 29, 1980, approximately five months before the statute was enacted into law.BAppellee R. A. Gray & Co. (Gray) is a building and construction firm doing business in Oregon. Under a series of collective bargaining agreements with the Oregon State Council of Carpenters (Council), Gray contributed to the Oregon-Washington Carpenters-Employers Pension Trust Fund (Pension Plan), a multiemployer pension plan under 29 U.S.C. § 1301(a)(3). During February, 1980, Gray advised the Council that it would be terminating their collective bargaining agreement when it expired on June 1, 1980. Gray continued to engage in the building and construction industry, however, and therefore was deemed to have completely withdrawn from the Pension Plan pursuant to § 1383(b).The Pension Plan subsequently notified Gray that, by completely withdrawing from the plan on June 1, 1980, it had incurred a withdrawal liability of $201,359. The notice set forth a schedule of quarterly payments, and demanded payment in accordance with that schedule. After some preliminary correspondence between Gray and the plan's trustees, the Pension Plan informed Gray that it was delinquent in its payments. Gray thereafter filed suit in the United States District Court for the District of Oregon, seeking Page 467 U. S. 726 declaratory and injunctive relief against the Pension Plan and the PBGC. [Footnote 4]Gray's complaint raised several constitutional claims, including a challenge to the retroactive application of the MPPAA under the Due Process Clause of the Fifth Amendment. [Footnote 5] In particular, Gray noted that its June 1, 1980, withdrawal from the Pension Plan occurred during the 5-month period preceding enactment of the MPPAA, and therefore was directly affected by the retroactivity provision included in the Act. Moreover, Gray contended, retroactive application of withdrawal liability could not be sustained under the Due Process Clause because it was arbitrary and irrational, and because it impaired the collective bargaining agreements that Gray had signed with the Council. Page 467 U. S. 727The District Court rejected Gray's due process claim, and granted summary judgment in favor of the Pension Plan and the PBGC. 549 F. Supp. 531 (1982). Specifically, the court analyzed the constitutionality of retroactively imposing withdrawal liability on employers by applying a four-part test established by the Court of Appeals for the Seventh Circuit in Nachman Corp. v. Pension Benefit Guaranty Corp., 592 F.2d 947 (1979), aff'd on statutory grounds, 446 U. S. 359 (1980). As that test requires, the court examined (1) the reliance interest of the affected parties, (2) whether the interest impaired is in an area previously subjected to regulatory control, (3) the equities of imposing the legislative burdens, and (4) the statutory provisions that limit and moderate the impact of the burdens imposed. [Footnote 6] Under these criteria, the court concluded that Gray had not satisfied the heavy burden faced by parties attempting to demonstrate that Congress has acted arbitrarily and irrationally when enacting socioeconomic legislation.The Court of Appeals for the Ninth Circuit reversed, although it too believed that the four-factor Nachman test was the appropriate standard to use when analyzing the constitutionality of retroactive legislation enacted by Congress. Shelter Framing Corp. v. Pension Benefit Guaranty Corp., Page 467 U. S. 728 705 F.2d 1502 (1983). In particular, the court concluded that retroactive application of withdrawal liability violated the Due Process Clause because employers had reasonably relied on the contingent withdrawal liability provisions included in ERISA prior to passage of the MPPAA, id. at 1511-1512, and because the equities in this action generally favored Gray over the Pension Plan, id. at 1512-1514Both the Pension Plan and the PBGC invoked the appellate jurisdiction of this Court under 28 U.S.C. § 1252. We noted probable jurisdiction, 464 U.S. 912 (1983), [Footnote 7] and now reverse.IIThe starting point for analysis is our decision in Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 (1976). In Turner Elkhorn, we considered a constitutional challenge to the retroactive effects of the Federal Coal Mine Health and Safety Act of 1969 as amended by the Black Lung Benefits Act of 1972. Under Title IV of that Act, coal mine operators were required to compensate former employees disabled by pneumoconiosis Page 467 U. S. 729 even though those employees had terminated their work in the industry before the statute was enacted. We nonetheless had little difficulty in upholding the statute against constitutional attack under the Due Process Clause. As we initially noted:"It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. See, e.g., Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 487-488 (1955)."428 U.S. at 428 U. S. 15.We further explained that the strong deference accorded legislation in the field of national economic policy is no less applicable when that legislation is applied retroactively. Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches:"[I]nsofar as the Act requires compensation for disabilities bred during employment terminated before the date of enactment, the Act has some retrospective effect -- although, as we have noted, the Act imposed no liability on operators until [after its enactment]. And it may be that the liability imposed by the Act for disabilities suffered by former employees was not anticipated at the time of actual employment. But our cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. See Fleming v. Rhodes, 331 U. S. 100 (1947); Carpenter v. Wabash R. Co., 309 U. S. 23 (1940); Norman v. Baltimore & Ohio R. Co., 294 U. S. 240 (1935); Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934); Louisville Page 467 U. S. 730 & Nashville R. Co. v. Mottley, 219 U. S. 467 (1911). This is true even though the effect of the legislation is to impose a new duty or liability based on past acts. See Lichter v. United States, 334 U. S. 742 (1948); Welch v. Henry, 305 U. S. 134 (1938); Funkhouser v. Preston Co., 290 U. S. 163 (1933)."Id. at 428 U. S. 15-16 (footnotes omitted).To be sure, we went on to recognize that retroactive legislation does have to meet a burden not faced by legislation that has only future effects."It does not follow . . . that what Congress can legislate prospectively it can legislate retrospectively. The retroactive aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former."Id. at 428 U. S. 16-17. But that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.For example, in Turner Elkhorn, we found that"the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees' disabilities to those who have profited from the fruits of their labor -- the operators and the coal consumers."Id. at 428 U. S. 18. Similarly, in these cases, a rational legislative purpose supporting the retroactive application of the MPPAA's withdrawal liability provisions is easily identified. Indeed, Congress was quite explicit when explaining the reason for the statute's retroactivity.In particular, we believe it was eminently rational for Congress to conclude that the purposes of the MPPAA could be more fully effectuated if its withdrawal liability provisions were applied retroactively. One of the primary problems Congress identified under ERISA was that the statute encouraged employer withdrawals from multiemployer plans. And Congress was properly concerned that employers would have an even greater incentive to withdraw if they knew that legislation to impose more burdensome liability on withdrawing Page 467 U. S. 731 employers was being considered. See 126 Cong.Rec. 20179 (1980) (statement of Sen. Javits); id. at 20244 (remarks of Sen. Matsunaga). See also supra at 467 U. S. 723-724. Withdrawals occurring during the legislative process not only would have required that remaining employers increase their contributions to existing pension plans, but also could have ultimately affected the stability of the plans themselves. Congress therefore utilized retroactive application of the statute to prevent employers from taking advantage of a lengthy legislative process and withdrawing while Congress debated necessary revisions in the statute. Indeed, as the amendments progressed through the legislative process, Congress advanced the effective date chosen so that it would encompass only that retroactive time period that Congress believed would be necessary to accomplish its purposes. As we recently noted when upholding the retroactive application of an income tax statute in United States v. Darusmont, 449 U. S. 292, 449 U. S. 296-297 (1981) (per curiam), the enactment of retroactive statutes"confined to short and limited periods required by the practicalities of producing national legislation . . . is a customary congressional practice."We are loathe to reject such a common practice when conducting the limited judicial review accorded economic legislation under the Fifth Amendment's Due Process Clause.IIIGray and its supporting amici offer several reasons for subjecting the retroactive application of the MPPAA to some form of heightened judicial scrutiny. We are not persuaded, however, by any of their arguments.First, Gray contends that retroactive legislation does not satisfy due process requirements unless persons affected by the legislation had "notice" of changing legal circumstances and "an opportunity to conform their conduct to the requirements of [the] new legislation." Brief for Appellee 20. We have doubts, however, that retroactive application of the Page 467 U. S. 732 MPPAA would be invalid under the Due Process Clause for lack of notice even if it was suddenly enacted by Congress without any period of deliberate consideration, as often occurs with floor amendments or "riders" added at the last minute to pending legislation. But even assuming that advance notice of legislative action with retrospective effects is constitutionally compelled, cf. Darusmont, supra, at 449 U. S. 299 (similarly assuming that notice is a relevant consideration), we believe that employers had ample notice of the withdrawal liability imposed by the MPPAA. Not only did ERISA itself impose contingent liability on withdrawing employers, but the various legislative proposals debated by Congress before enactment of the MPPAA uniformly included retroactive effective dates among their provisions. See supra at 467 U. S. 723-725. [Footnote 8]Second, it is suggested that we apply constitutional principles that have been developed under the Contract Clause, Art. I, § 10, cl. 1 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . ."), when reviewing this federal legislation. [Footnote 9] See, e.g., 459 U. S. S. 733� Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 (1983); Allied Structural Steel Co. v. Spannaus, 438 U. S. 234 (1978). We have never held, however, that the principles embodied in the Fifth Amendment's Due Process Clause are coextensive with prohibitions existing against state impairments of preexisting contracts. See, e.g., Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603 (1912). Indeed, to the extent that recent decisions of the Court have addressed the issue, we have contrasted the limitations imposed on States by the Contract Clause with the less searching standards imposed on economic legislation by the Due Process Clauses. See United States Trust Co. v. New Jersey, 431 U. S. 1, 431 U. S. 17, n. 13 (1977). And, although we have noted that retrospective civil legislation may offend due process if it is "particularly harsh and oppressive,'" ibid. (quoting Welch v. Henry, 305 U. S. 134, 305 U. S. 147 (1938), and citing Turner Elkhorn, 428 U.S. at 428 U. S. 14-20), that standard does not differ from the prohibition against arbitrary and irrational legislation that we clearly enunciated in Turner Elkhorn.Finally, Gray urges that we resuscitate the Court's 1935 decision in Railroad Retirement Board v. Alton R. Co., 295 U. S. 330, which invalidated provisions of the Railroad Retirement Act of 1934 that required employers to finance pensions for former railroad employees. Assuming, as we did in Turner Elkhorn, supra, at 428 U. S. 19, that this aspect of Alton "retains vitality" despite the changes in judicial review of economic legislation that have occurred in the ensuing years, we again find it distinguishable from the present litigation. Unlike the statute in Alton, which created pensions for employees who had been fully compensated while working for Page 467 U. S. 734 the railroads, the MPPAA merely requires a withdrawing employer to compensate a pension plan for benefits that have already vested with the employees at the time of the employer's withdrawal.IVWe conclude that Congress' decision to apply the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act to employers withdrawing from pension plans during the 5-month period preceding enactment of the Act is supported by a rational legislative purpose, and therefore withstands attack under the Due Process Clause of the Fifth Amendment. Accordingly, the judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtPBGC v. R. A. Gray & Co., 467 U.S. 717 (1984)PBGC v. R. A. Gray & Co.No. 83-245Argued April 16, 1984Decided June 18, 1984*467 U.S. 717SyllabusThe Employee Retirement Income Security Act (ERISA), enacted in 1974, created a pension plan termination insurance program whereby the Pension Benefit Guaranty Corporation (PBGC), a wholly owned Government corporation, collects insurance premiums from covered private retirement pension plans and provides benefits to participants if their plan terminates with insufficient assets to support its guaranteed benefits. For multiemployer pension plans, the PBGC's payment of guaranteed benefits was not to become mandatory until January 1, 1978. During the intervening period, the PBGC had discretionary authority to pay benefits upon the termination of such plans. If the PBGC exercised its discretion to pay such benefits, employers who had contributed to the plan during the five years preceding its termination were liable to PBGC in amounts proportional to their share of the plan's contributions during that period. As the mandatory coverage date approached, Congress became concerned that a significant number of multiemployer pension plans were experiencing extreme financial hardship that would result in termination of numerous plans, forcing the PBGC to assume obligations in excess of its capacity. Ultimately, after deferring the mandatory coverage until August 1, 1980, and extensively debating the issue of withdrawal liability in 1979 and 1980, Congress enacted the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), requiring an employer withdrawing from a multiemployer pension plan to pay a fixed and certain debt to the plan amounting to the employer's proportionate share of the plan's "unfunded vested benefits." These withdrawal liability provisions were made to take effect approximately five months before the statute was enacted into law. When appellee building and construction firm, within this 5-month period, withdrew from a multiemployer pension plan that it had been contributing to under collective bargaining agreements with a labor union, the pension plan notified appellee that it had incurred a withdrawal liability and demanded Page 467 U. S. 718 payment. Appellee then filed suit in Federal District Court, seeking declaratory and injunctive relief against the pension plan and the PBGC and claiming, inter alia, that the retroactive application of the MPPAA violated the Due Process Clause of the Fifth Amendment. The District Court rejected this claim and granted summary judgment in favor of the pension plan and the PBGC. The Court of Appeals reversed, holding that retroactive application of withdrawal liability violated the Due Process Clause because employers had reasonably relied on the contingent withdrawal liability provisions included in ERISA prior to passage of the MPPAA, and because the equities generally favored appellee over the pension plan.Held: Application of the withdrawal liability provisions of the MPPAA during the 5-month period prior to the statute's enactment does not violate the Due Process Clause of the Fifth Amendment. Pp. 467 U. S. 728-734.(a) The burden of showing that retroactive legislation complies with due process is met by showing that retroactive application of the legislation is justified by a rational legislative purpose. Here, it was rational for Congress to conclude that the MPPAA's purposes could be more fully effectuated if its withdrawal liability provisions were applied retroactively. One of the primary problems that Congress identified under ERISA was that the statute encouraged employer withdrawals from multiemployer pension plans, and Congress was properly concerned that employers would have an even greater incentive to withdraw if they knew that legislation to impose more burdensome liability on withdrawing employers was being considered. Congress therefore utilized retroactive application of the statute to prevent employers from taking advantage of the lengthy legislative process and withdrawing while Congress debated necessary revisions in the statute. Pp. 467 U. S. 728-731.(b) It is doubtful that retroactive application of the MPPAA would be invalid under the Due Process Clause even if it was suddenly enacted without any period of deliberate consideration. But even assuming that advance notice of retroactive legislation is constitutionally compelled, employers had ample notice of the withdrawal liability imposed by the MPPAA. Not only did ERISA impose contingent liability, but the various legislative proposals debated by Congress before the MPPAA was enacted uniformly included retroactive effective dates. Pp. 467 U. S. 731-732.(c) The principles embodied in the Fifth Amendment's Due Process Clause have never been held coextensive with prohibitions existing against state impairments of preexisting contracts. Rather, the limitations imposed on States by the Contract Clause have been contrasted with the less searching standards imposed on economic legislation by the Due Process Clauses. Pp. 467 U. S. 732-733. Page 467 U. S. 719(d) Unlike the statute invalidated in Railroad Retirement Board v. Alton R. Co., 295 U. S. 330, which required employers to finance pensions for former employees who had already been fully compensated while employed, the MPPAA merely requires a withdrawing employer to compensate a pension plan for benefits that have already vested with the employees at the time of the employer's withdrawal. Pp. 467 U.S. 733-734.705 F.2d 1502, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court.

1958_471

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Petitioner was convicted of knowingly and willfully evading the payment of income taxes for the years 1950, 1951, and 1952. A substantial part of the alleged evasion was failure to report income from dividends. Among the Government's exhibits at trial was a record, presumably Page 360 U. S. 344 contemporaneous and in the petitioner's handwriting, of dividends received during 1951 and 1952. This record reflected an amount of dividend income for 1951 substantially larger than that reported on the 1951 return. Petitioner contended that this record had been turned over to the accounting firm which regularly prepared his return, Arthur R. Sanfilippo & Co., in early 1952 for use in preparing his 1951 return, but that the figures had not been accurately entered on the return by the accountants. The Government's contention was that the record had not been given to the accounting firm until early 1953, subsequent to the initiation of the investigation of petitioner's tax affairs and long after the filing of the 1951 return. The time at which the record had been given to the accountants thus became directly relevant to the issue of criminal intent in the charge against the petitioner. Arthur R. Sanfilippo, an important government witness and the principal partner in the accounting firm, testified that his firm had not received the handwritten record of dividend income until early 1953.Prior to the trial, on July 16, 1956, during the course of an interrogation by agents of the Internal Revenue Service, Sanfilippo had been unable to recall when the dividend record had been received. More than a month later, August 23, 1956, Sanfilippo had met with revenue agents to verify and sign the transcript of his earlier testimony. At this meeting, he executed a supplementary affidavit reciting that he wished to clarify his original answers and that he remembered that his firm had not received the dividend record until after revenue agents had begun their investigation of petitioner's tax returns. A memorandum of the conference at which this affidavit was executed was made by one of the agents present. On cross-examination of Sanfilippo, the defense demanded and received various documents, including the transcript of the July 16 interrogation and the August 23 Page 360 U. S. 345 affidavit. The defense also requested production of any memoranda, or of any part thereof summarizing what Sanfilippo had said, which had been made of the August 23 conference. The trial judge denied this request on the ground that the Act of September 2, 1957, 71 Stat. 595, 18 U.S.C. § 3500 -- the so-called "Jencks" Act -- governing the production of statements made to government agents by government witnesses, precluded production of the requested memorandum, since it was not within the definition of "statement" in (e) of the Act. [Footnote 1] The Court of Appeals for the Second Circuit affirmed. 258 F.2d 397. Together with several other cases raising Jencks Act problems, we granted certiorari, 358 U.S. 905, to determine the scope and meaning of this new statute.Accurate analysis of these problems as a basis of their appropriate solution requires due appreciation of the background against which the statutory terms must be projected.Exercising our power, in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts, this Court, on June 3, 1957, in Jencks v. United States, 353 U. S. 657, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. These statements were therefore to be turned over to the defense at the time of cross-examination if their contents related to the subject matter of the witness' direct testimony, and if a demand had been made for specific statements which had been written by the witness or, if orally made, as recorded by Page 360 U. S. 346 agents of the Government. We also held that the trial judge was not to examine the statements to determine if they contained material inconsistent with the testimony of the witness before deciding whether he would turn them over to the defense. Once the statements had been shown to contain related material, only the defense was adequately equipped to decide whether they had value for impeachment. This decision only concerned production, and therefore did not purport to modify the laws of evidence governing the admissibility of prior statements of a witness.The decision promptly gave rise to sharp controversy and concern. The day following our opinion, the House of Representatives was told that the decision in Jencks posed a serious problem of national security, and that legislation would be introduced. 103 Cong.Rec. 8290. The same day, H.R. 7915, the first of eleven House bills dealing with what became the Jencks problem, was introduced in the House. [Footnote 2] Defendants' counsel began to invoke the Jencks decision to justify demands for production far more sweeping than that involved in Jencks, and under circumstances for removed from those of that case, and some federal trial judges acceded to those excessive demands. [Footnote 3] The Department of Justice, concerned over these rapid intrusions of Jencks into often totally unrelated Page 360 U. S. 347 areas, drafted legislation to clarify and delimit the reach of Jencks. See 103 Cong.Rec. 15781. On June 24, 1957, this legislation was introduced into the Senate by Senator O'Mahoney acting for himself and several other Senators. 103 Cong.Rec. 10057. After study by a subcommittee of the Judiciary Committee, the bill was reported out, 103 Cong.Rec. 10601, then withdrawn, and a completely new measure substituted. 103 Cong.Rec. 14913. When the bill reached the floor for debate, Senator O'Mahoney proposed an amendment in the nature of a substitute, which was adopted, 103 Cong.Rec. 15938, and the bill passed the Senate on August 26. Ibid. In the House, the original H.R. 7915, after being amended in Committee, see 103 Cong.Rec. 10925, was passed on August 27, 103 Cong.Rec. 16130, and then substituted for the text of the Senate bill. 103 Cong.Rec. 16131. The two versions went to Conference. The Conference Report was agreed to by the Senate on August 29, 103 Cong.Rec. 16490, and by the House the next day. 103 Cong.Rec. 16742. The Act was approved on September 2, and became law as § 3500 of the Criminal Code, 18 U.S.C. § 3500. [Footnote 4] Congress Page 360 U. S. 348 had determined to exercise its power to define the rules that should govern in this particular area in the trial of criminal cases instead of leaving the matter to the lawmaking of the courts. Page 360 U. S. 349In almost every enactment, there are gaps to be filled and ambiguities to be resolved by judicial construction. This statute is not free from them. Here, however, the detailed particularity with which Congress has spoken has narrowed the scope for needful judicial interpretation to an unusual degree. The statute clearly defines procedures and plainly indicates the circumstances for their application. Since this case is the first calling for authoritative exposition of an Act that frequently comes into use in federal criminal prosecutions we deem it appropriate to explicate the construction of the statute required by the circumstances of this case.1. Subsection (a) requires that no statement of a government witness made to an agent of the Government and in the Government's possession shall be turned over to the defense until the witness has testified on direct examination. This section manifests the general statutory aim to restrict the use of such statements to impeachment. Subsections (b), (c), and (d) provide procedures for the production of "statements," and for the consequences to the Government of failure to produce. Subsection (e) restrictively defines with particularity the term "statement" as used in the three preceding sections. The suggestion that the detailed statutory procedures restrict only the production of the type of statement described in subsection (e), leaving all other statements, e.g., non-verbatim, non-contemporaneous records of oral statements, to be produced under preexisting rules of procedure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious and less Page 360 U. S. 350 reliable documents a more favored legal status, free from safeguards in the tournament of trials. To state such a construction demonstrates its irrationality; the authoritative legislative history precludes its acceptance.To be sure, the statute does not, in so many words, state that it is the exclusive, limiting means of compelling for cross-examination purposes the production of statements of a government witness to an agent of the Government. But some things too clearly evince a legislative enactment to call for a redundancy of utterance. One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent's summaries of interviews, regardless of their character or completeness. Not only was it strongly feared that disclosure of memoranda containing the investigative agent's interpretations and impressions might reveal the inner workings of the investigative process, and thereby injure the national interest, but it was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness' own, rather than the product of the investigator's selections, interpretations, and interpolations. The committee reports of both Houses and the floor debates clearly manifest the intention to avoid these dangers by restricting production to those statements specifically defined in the bill. [Footnote 5] Indeed, both the House Page 360 U. S. 351 and Senate bills as they went to Conference explicitly so stated. See 103 Cong.Rec. 16130; 103 Cong.Rec. 16125. Nothing in the Conference Reports or the limited debate following Conference intimated the slightest intention to change the exclusive nature of the measure. Indeed, the reports and debate proceeded on the explicit assumption that the bill retained as a major purpose the barring of all statements not specifically defined. [Footnote 6] The purpose of the Act, its fair reading, and its overwhelming legislative history compel us to hold that statements of a government witness made to an agent of the Government which cannot be produced under the terms of 18 U.S.C. § 3500 cannot be produced at all.2. Since the statutory procedures are exclusive, they constitute the rule of law governing the production of the statement at issue in this case, and it becomes necessary to determine the scope and meaning of the statutory definition of "statement" contained in (e). Clause (1) of (e) permits the production of "a written statement made by said witness and signed or otherwise adopted or approved by him. . . ." Although some situations may arise creating peripheral problems of construction, its import is clear. Clause (2) widens the definition of "statement" to include"a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the marking of such oral statement."Clearly this provision allows with the making of such oral stenographic recordings of oral statements, Page 360 U. S. 352 even though later transcribed. A preliminary problem for determining that the statement now before us may be produced is whether the statutory phrase "other recording" allows an even wider scope for production. We find the legislative history persuasive that the statute was meant to encompass more than mere automatic reproductions of oral statements. [Footnote 7]However, such a finding is only the beginning of the task of construction. It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to the defense for purposes of impeachment. [Footnote 8] It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity, as well as the conscious or inadvertent infusion of the recorder's opinions or impressions. It is clear from the continuous congressional emphasis on "substantially verbatim recital," and "continuous, narrative statements made by the witness recorded verbatim, or nearly so . . . ," see Appendix B, post, p. 360 U. S. 358, that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history, [Footnote 9] and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial Page 360 U. S. 353 selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpretations or impressions. In expounding this standard, we do not wish to create the impression of a "delusive exactness." The possible permutations of fact and circumstance are myriad. Trial courts will be guided by the indicated standard, informed by fidelity to the congressional purposes we have outlined. There is nothing impalpable about these provisions. Since we feel the statutory standard had guiding definiteness, it would be idle to attempt a minute enumeration of particular situations to which it is to be applied. Such a vain attempt at forecasting myriad diversities with minor variance is as futile and uncalled for in this as in so many other areas of the law. That is what the judicial process is for -- to follow a generally clear direction in dealing with a new diversity as it may occasionally arise. Final decision as to production must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge guided by the standards we have outlined, [Footnote 10] and subject to the appropriately limited review of appellate courts. [Footnote 11] Page 360 U. S. 3543. The statute itself provides no procedure for making a determination whether a particular statement comes within the terms of (e), and thus may be produced if related to the subject matter of the witness' testimony. Ordinarily, the defense demand will be only for those statements which satisfy the statutory limitations. Thus, the Government will not produce documents clearly beyond the reach of the statute, for to do so would not be responsive to the order of the court. However, when it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. Indeed, any other procedure would be destructive of the statutory purpose. The statute governs the production of documents; it does not purport to affect or modify the rules of evidence regarding admissibility and use of statements once produced. The Act's major concern is with limiting and regulating defense access to government papers, and it is designed to deny such access to those statements which do not satisfy the requirements of (e), or do not relate to the subject matter of the witness' testimony. It would indeed defeat this design to hold that the defense may see statements in order to argue whether it should be allowed to see them.It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence Page 360 U. S. 355 extrinsic to the statement itself may or must be offered to prove the nature of the statement. In most cases, the answer will be plain from the statement itself. In others, further information might be deemed relevant to assist the court's determination. This is a problem of the sound and fair administration of a criminal prosecution, and its solution must be guided by the need, reflected in so much of our law of evidence, to avoid needless trial of collateral and confusing issues while assuring the utmost fairness to a criminal defendant. See, e.g., Nardone v. United States, 308 U. S. 338, 308 U. S. 342.In light of these principles, the case before us is clear. Both the District Court and the Court of Appeals correctly held that the sole standard governing production of the agent's memorandum of his conference with Sanfilippo was 18 U.S.C. § 3500. The district judge and a unanimous Court of Appeals held that the statement was not within the definition of statement in (e) as properly understood by them. We have examined the statement and the record, and find that the determination of the two courts below was justified, and therefore must be sustained. [Footnote 12] It would bespeak a serious reflection on the conscience and capacity of the federal judiciary if both a trial judge and a Court of Appeals were found to have disregarded the command of Congress, duly interpreted, Page 360 U. S. 356 for making available a prior statement of a government witness in a case. Against such a contingency, there is always the safeguard of this Court's reviewing power.Affirmed

U.S. Supreme CourtPalermo v. United States, 360 U.S. 343 (1959)Palermo v. United StatesNo. 471Argued April 28, 1959Decided June 22, 1959360 U.S. 343SyllabusDuring the trial in a Federal District Court at which petitioner was convicted of knowingly and willfully evading the payment of income taxes for the years 1950, 1951, and 1952, an important issue was whether his handwritten record of dividends received in 1951 and 1952 had been given to an accounting firm while it was preparing his returns for those years, rather than in 1953, after revenue agents had begun investigating his returns. To impeach the testimony of a partner in the accounting firm that they had not received this record until 1953, petitioner called for and obtained the production of certain documents in the possession of the Government, but he was denied production of a 600-word memorandum summarizing parts of a 3 1/2-hour interrogation of the witness by a government agent.Held: such memorandum was not a "statement" of the kind required to be produced under the so-called Jencks Act, 18 U.S.C. § 3500; its production was properly denied; and the conviction is sustained. Pp. 360 U. S. 343-356.258 F.2d 397 affirmed.

1997_96-670

federal election day. The issue before us is whether such an ostensible election runs afoul of the federal statute. We hold that it does.IThe Elections Clause of the Constitution, Art. I, § 4, cl. 1, provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." The Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, see Storer v. Brown, 415 U. S. 724, 730 (1974), but only so far as Congress declines to pre-empt state legislative choices, see Roudebush v. Hartke, 405 U. S. 15, 24 (1972) ("Unless Congress acts, Art. I, § 4, empowers the States to regulate"). Thus it is well settled that the Elections Clause grants Congress "the power to override state regulations" by establishing uniform rules for federal elections, binding on the States. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 832-833 (1995). "[T]he regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative." Ex parte Siebold, 100 U. S. 371, 384 (1880).One congressional rule adopted under the Elections Clause (and its counterpart for the Executive Branch, Art. II, § 1, cl. 3) sets the date of the biennial election for federal offices. See 2 U. S. C. §§ 1, 7; 3 U. S. C. § 1. Title 2 U. S. C. § 7 was originally enacted in 1872, and now provides that "[t]he Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter." This provision, along with 2 U. S. C. § 1 (setting the same70rule for electing Senators under the Seventeenth Amendment) and 3 U. S. C. § 1 (doing the same for selecting Presidential electors), mandates holding all elections for Congress and the Presidency on a single day throughout the Union.In 1975, Louisiana adopted a new statutory scheme for electing United States Senators and Representatives. In October of a federal election year, the State holds what is popularly known as an "open primary" for congressional offices, La. Rev. Stat. Ann. § 18:402(B)(1) (West Supp. 1997), in which all candidates, regardless of party, appear on the same ballot, and all voters, with like disregard of party, are entitled to vote, § 18:401(B) (West 1979). If no candidate for a given office receives a majority, the State holds a run-off (dubbed a "general election") between the top two votegetters the following month on federal election day. § 18:481 (West 1979). But if one such candidate does get a majority in October, that candidate "is elected," § 18:511(A) (West Supp. 1997), and no further act is done on federal election day to fill the office in question. Since this system went into effect in 1978, over 80% of the contested congressional elections in Louisiana have ended as a matter of law with the open primary.lRespondents are Louisiana voters who sued petitioners, the State's Governor and secretary of state, challenging the open primary as a violation of federal law. The District Court granted summary judgment to petitioners, finding no conflict between the state and federal statutes, whereas a divided panel of the Fifth Circuit reversed, concluding that Louisiana's system squarely "conflicts with the federal statutes that establish a uniform federal election day." 90 F.3d 1026, 1031 (1996). We granted certiorari, 520 U. S. 1114 (1997), and now affirm.1 A run-off election has been held on federal election day in only 9 of the 57 contested elections for United States Representative and in only 1 of the 6 contested elections for United States Senator. See 90 F.3d 1026, 1030 (CA5 1996).71IIThe Fifth Circuit's conception of the issue here as a narrow one turning entirely on the meaning of the state and federal statutes is exactly right. For all of petitioners' invocations of state sovereignty, there is no colorable argument that § 7 goes beyond the ample limits of the Elections Clause's grant of authority to Congress.2 When the federal statutes speak of "the election" of a Senator or Representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder (subject only to the possibility of a later run-off, see 2 U. S. C. § 8).3 See N. Webster, An American Dictionary of the English Language 433 (C. Goodrich & N. Porter eds. 1869) (defining "election" as "[t]he act of choosing a person to fill an office"). By establishing a particular day as "the day" on which these actions must take place, the statutes simply regulate the time of the2 The Clause gives Congress "comprehensive" authority to regulate the details of elections, including the power to impose "the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved." Smiley v. Holm, 285 U. S. 355,366 (1932). Congressional authority extends not only to general elections, but also to any "primary election which involves a necessary step in the choice of candidates for election as representatives in Congress." United States v. Classic, 313 U. S. 299, 320 (1941).3 Title 2 U. S. C. § 8, which was enacted along with § 7, provides that a State may hold a congressional election on a day other than the uniform federal election day when such an election is necessitated "by a failure to elect at the time prescribed by law." The only explanation of this provision offered in the legislative history is Senator Allen G. Thurman's statement that "there can be no failure to elect except in those States in which a majority of all the votes is necessary to elect a member." Congo Globe, 42d Cong., 2d Sess., 677 (1872). In those States, if no candidate receives a majority vote on federal election day, there has been a failure to elect and a subsequent run-off election is required. See Public Citizen, Inc. V. Miller, 813 F. Supp. 821 (ND Ga.), aff'd, 992 F.2d 1548 (CAll 1993) (upholding under § 8 a run-off election that was held after federal election day, because in the initial election on federal election day no candidate received the majority vote that was as required by Georgia law).72election, a matter on which the Constitution explicitly gives Congress the final say.While true that there is room for argument about just what may constitute the final act of selection within the meaning of the law, our decision does not turn on any nicety in isolating precisely what acts a State must cause to be done on federal election day (and not before it) in order to satisfy the statute. Without paring the term "election" in § 7 down to the definitional bone, it is enough to resolve this case to say that a contested selection of candidates for a congressional office that is concluded as a matter of law before the federal election day, with no act in law or in fact to take place on the date chosen by Congress, clearly violates § 7.4Petitioners try to save the Louisiana system by arguing that, because Louisiana law provides for a "general election" on federal election day in those unusual instances when one is needed, the open primary system concerns only the "manner" of electing federal officials, not the "time" at which the elections will take place. Petitioners say that "[a]lthough Congress is authorized by the Constitution to alter or change the time, place and manner the States have chosen to conduct federal elections[,] in enacting 2 U. S. C. §§ 1 and 7, Congress sought only to alter the time in which elections were conducted, not their manner. Conversely, the open elections system [changed only the manner by which Louisiana chooses its federal officers; it] did not change the timing of the general election for Congress." Brief for Petitioners 21.Even if the distinction mattered here, the State's attempt to draw this time-manner line is merely wordplay, and wordplay just as much at odds with the Louisiana statute as that law is at odds with § 7. The State's provision for an October election addresses timing quite as obviously as § 7 does.4 This case thus does not present the question whether a State must always employ the conventional mechanics of an election. We hold today only that if an election does take place, it may not be consummated prior to federal election day.73State law straightforwardly provides that "[a] candidate who receives a majority of the votes cast for an office in a primary election is elected." La. Rev. Stat. Ann. § 18:511(A) (West Supp. 1997). Because the candidate said to be "elected" has been selected by the voters from among all eligible officeseekers, there is no reason to suspect that the Louisiana Legislature intended some eccentric meaning for the phrase "is elected." After a declaration that a candidate received a majority in the open primary, state law requires no further act by anyone to seal the election; the election has already occurred. Thus, contrary to petitioners' imaginative characterization of the state statute, the open primary does purport to affect the timing of federal elections: a federal election takes place prior to federal election day whenever a candidate gets a majority in the open primary. As the attorney general of Louisiana conceded at oral argument, "Louisiana's system certainly allows for the election of a candidate in October, as opposed to actually electing on Federal Election Day." Tr. of Oral Arg. 6.IIIWhile the conclusion that Louisiana's open primary system conflicts with 2 U. S. C. § 7 does not depend on discerning the intent behind the federal statute, our judgment is buttressed by an appreciation of Congress's object "to remedy more than one evil arising from the election of members of Congress occurring at different times in the different States." Ex parte Yarbrough, 110 U. S. 651, 661 (1884). As the sponsor of the original bill put it, Congress was concerned both with the distortion of the voting process threatened when the results of an early federal election in one State can influence later voting in other States, and with the burden on citizens forced to turn out on two different election days to make final selections of federal officers in Presidential election years:74"Unless we do fix some time at which, as a rule, Representatives shall be elected, it will be in the power of each State to fix upon a different day, and we may have a canvass going on all over the Union at different times. It gives some States undue advantage .... I can remember, in 1840, when the news from Pennsylvania and other States that held their elections prior to the presidential election settled the presidential election as effectually as it was afterward done .... I agree ... that Indiana, Ohio, and Pennsylvania, by voting in October, have an influence. But what I contend is that that is an undue advantage, that it is a wrong, and that it is a wrong also to the people of those States, that once in four years they shall be put to the trouble of having a double election." Congo Globe, 42d Cong., 2d Sess., 141 (1871) (remarks of Rep. Butler).See also Busbee v. Smith, 549 F. Supp. 494, 524 (DC 1982) (recounting the purposes of § 7), aff'd, 459 U. S. 1166 (1983). The Louisiana open primary has tended to foster both evils, having had the effect of conclusively electing more than 80% of the State's Senators and Representatives before the election day elsewhere, and, in Presidential election years, having forced voters to turn out for two potentially conclusive federal elections.IVWhen Louisiana's statute is applied to select from among congressional candidates in October, it conflicts with federal law and to that extent is void. The judgment below is affirmed.It is so ordered

OCTOBER TERM, 1997SyllabusFOSTER, GOVERNOR OF LOUISIANA, ET AL. v.LOVE ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 96-670. Argued October 6, 1997-Decided December 2,1997The Elections Clause of the Constitution, Art. I, § 4, cl. 1, invests the States with responsibility for the mechanics of congressional elections, see Storer v. Brown, 415 U. S. 724, 730, but grants Congress "the power to override state regulations" by establishing uniform rules for federal elections, U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 832-833. One such congressional rule sets the date of the biennial election for the offices of United States Senator, 2 U. S. C. § 1, and Representative, § 7, and mandates holding all congressional and Presidential elections on a single November day, 2 U. S. C. §§ 1,7; 3 U. S. C. § 1. Since 1978, Louisiana has held in October of a federal election year an "open primary" for congressional offices, in which all candidates, regardless of party, appear on the same ballot and all voters are entitled to vote. If a candidate for a given office receives a majority at the open primary, the candidate "is elected" and no further act is done on federal election day to fill that office. Since this system went into effect, over 80% of the State's contested congressional elections have ended as a matter of law with the open primary. Respondents, Louisiana voters, challenged this primary as a violation of federal law. Finding no conflict between the state and federal statutes, the District Court granted summary judgment to petitioners, the State's Governor and secretary of state. The Fifth Circuit reversed.Held: Louisiana's statute conflicts with federal law to the extent that it is applied to select a congressional candidate in October. Pp.71-74.(a) The issue here is a narrow one turning entirely on the meaning of the state and federal statutes. There is no colorable argument that § 7 goes beyond the ample limits of the Elections Clause's grant of authority to Congress. In speaking of "the election" of a Senator or Representative, the federal statutes plainly refer to the combined actions of voters and officials meant to make the final selection of an officeholder; and by establishing "the day" on which these actions must take place, the statutes simply regulate the time of the election, a matter on which the Constitution explicitly gives Congress the final say. pp. 71-72.(b) A contested selection of candidates for a congressional office that is concluded as a matter of law before the federal election day, with no68act in law or in fact to take place on the date chosen by Congress, clearly violates § 7. Louisiana's claim that its system concerns only the manner, not the time, of an election is at odds with the State's statute, which addresses timing quite as obviously as § 7 does. A federal election takes place in Louisiana before federal election day whenever a candidate gets a majority in the open primary. pp. 72-73.(c) This Court's judgment is buttressed by the fact that Louisiana's open primary has tended to foster both evils identified by Congress as reasons for passing the federal statute: the distortion of the voting process when the results of an early federal election in one State can influence later voting in other States, and the burden on citizens forced to turn out on two different election days to make final selections of federal officers in Presidential election years. Pp.73-74.90 F.3d 1026, affirmed.SOUTER, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined.Richard P. Ieyoub, Attorney General of Louisiana, argued the cause for petitioners. With him on the briefs were Roy A. Mongrue, Jr., and Angie Rogers Laplace, Assistant Attorneys General.M. Miller Baker argued the cause for respondents. With him on the brief were John W Perry, Jr., Daniel J. Balhoff, Thomas E. Balhoff, Judith R. Atkinson, and Brian M. Tauscher.JUSTICE SOUTER delivered the opinion of the Court.* Under 2 U. S. C. §§ 1 and 7, the Tuesday after the first Monday in November in an even-numbered year "is established" as the date for federal congressional elections. Louisiana's "open primary" statute provides an opportunity to fill the offices of United States Senator and Representative during the previous month, without any action to be taken on*JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join all but Part III of this opinion.69Full Text of Opinion

1973_72-5881

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to consider petitioner's claim that the provisions of Title II of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251-4255, deny due process and equal protection by excluding from discretionary rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions. The Circuits are in apparent conflict on this question. See the opinion of the Court of Appeals in this case, sub nom. Marshall v. Parker, 470 F.2d 34 (CA9), and Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970); United States v. Hamilton, 149 U.S.App.D.C. 295, 462 F.2d 1190 (1972); United States v. Bishop, 469 F.2d 1337 (CA1 1972); and Macias v. United States, 464 F.2d 1292 (CA5 1972), cert. pending, No. 72-5539.(1)Petitioner, Robert Edward Marshall, pleaded guilty to an indictment charging him with entering a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113(a). At sentencing, petitioner requested that he be considered for treatment as a narcotic addict pursuant to Tit. II of the Narcotic Addict Rehabilitation Act of Page 414 U. S. 419 1966 (NARA). The sentencing judge, after noting petitioner's prior felony convictions for burglary, forgery, and possession of a firearm, concluded that the exclusion of persons with two prior convictions from the discretionary provisions of the Act as set forth in 18 U.S.C. § 4251(f)(4) [Footnote 1] did not permit commitment under Page 414 U. S. 420 NARA. Petitioner was sentenced to 10 years' imprisonment pursuant to 18 U.S.C. § 4208(a)(2), but the District Judge recommended that petitioner receive treatment for narcotics addiction while incarcerated. [Footnote 2]Ten months after being sentenced, petitioner moved to vacate his sentence under 28 U.S.C. § 2255 on the ground that the "two prior felony" exclusion of NARA under § 4251(f)(4) violates equal protection as embodied in the Due Process Clause of the Fifth Amendment.The District Judge took note of Watson v. United States, supra, but declined to follow that holding. The District Judge also noted that there was no showing, as in Watson, supra, that petitioner's prior convictions and his drug addiction were related, [Footnote 3] and, since his prior convictions did not relate to traffic in narcotics, the provisions Page 414 U. S. 421 of 18 U.S.C. § 4251(f)(2) did not apply. The District Judge determined that, given the purposes of the statute, Congress had not acted arbitrarily in providing different disposition standards for convicted persons with records of prior felony convictions from those without such convictions, these classifications being related to eligibility for rehabilitative commitment under NARA.The Court of Appeals viewed petitioner's § 2255 petition as a motion under Rule 35 of the Federal Rules of Criminal Procedure for correction of an illegal sentence, and held the statutory classification constitutionally permissible, noting its disagreement with the decisions in Watson, supra, and United States v. Hamilton, supra. Viewing the Act in its entirety, [Footnote 4] the Court of Appeals concluded that Congress expressly limited the reach of the Act to addicts most likely to be rehabilitated through treatment and provided an exclusion as to convicted persons having two or more prior convictions.Concluding there is no "fundamental right" to rehabilitation from narcotics addiction at public expense after conviction of a crime, and there being no "suspect" classification under the statutory scheme, the Court of Appeals considered the correct standard to be whether the statutory Page 414 U. S. 422 classification bore "some relevance to the purpose for which the classification is made." Baxstrom v. Herold, 383 U. S. 107, 383 U. S. 111 (1966); Dandridge v. Williams, 397 U. S. 471 (1970). The court reasoned that Congress adopted the challenged standards in an effort to restrict eligibility to those most likely to respond to treatment, and held that Congress could not be said to have acted irrationally in so doing. The District Court's denial of petitioner's motion to vacate his sentence was affirmed, 470 F.2d 34 (CA9 1972). We granted certiorari, 410 U.S. 954 (1973). We agree with the District Court's and the Court of Appeals' reading of the statute, and affirm.(2)Petitioner concedes that the concept of equal protection as embodied in the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U. S. 497 (1954), does not require that all persons be dealt with identically, but rather that there be some "rational basis" for the statutory distinctions made, McGinnis v. Royster, 410 U. S. 263, 410 U. S. 270 (1973), or that they "have some relevance to the purpose for which the classification is made." Baxstrom v. Herold, supra, at 383 U. S. 111; Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 309 (1966). See also James v. Strange, 407 U. S. 128 (1972); Humphrey v. Cady, 405 U. S. 504 (1972). He argues that no such nexus exists under the classification provided by the challenged statute.The broad purpose of Congress in enacting NARA, as set forth in the Act itself, was:"[T]hat certain persons charged with or convicted of violating Federal criminal laws, who are determined to be addicted to narcotic drugs, and likely to be rehabilitated through treatment, should, in lieu of prosecution or sentencing, be civilly committed for confinement and treatment designed to Page 414 U. S. 423 effect their restoration to health and return to society as useful members."42 U.S.C. § 3401. See also H.R.Rep. No. 1486, 89th Cong., 2d Sess., 7 (1966), ("to provide for the treatment and rehabilitation of narcotic addicts when they are charged with or convicted of offenses against the United States"); S.Rep. No. 1667, 89th Cong., 2d Sess., 12 (1966). Congress recognized that some relationship between drug addiction and crime probably existed, and concluded that prosecution and imprisonment of all addicts, without more, would not cure addiction or retard the rising addiction rate, and that a rehabilitative, rather than a purely penal approach to the problem was called for. Id. at 13, 17.It was not the purpose of Congress, however, to make every addict eligible for civil commitment simply by reason of addiction. The congressional intent in adopting the statutory exclusion based on prior convictions which is challenged here is somewhat less explicitly defined, [Footnote 5] but the objectives emerge clearly when the Act is read as a whole. Having recognized some nexus between drug addiction and crime, Congress specifically sought to insure that any program aimed at providing for the treatment of drug addiction would not hinder Page 414 U. S. 424 traditional efforts to deal effectively with the strictly criminal aspects of the problem. [Footnote 6] The most explicit statement of congressional intent is found in the House Report:"The practical effect of the implementation of the law provided for in the bill is that strict punishment can be meted out where required to the hardened criminal, while justice can be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed.""* * * *" "The definition of 'eligible individual,' as set forth in the bill, insures that the persons considered as candidates for civil commitment will not include criminals charged with violent crimes or be those whose records disclose a history of serious crimes. [Footnote 7]"H.R.Rep. No. 1486, pp. 9-10. (Emphasis supplied.) Similarly, the Senate Report notes:"The bill contains sufficient safeguards to assure adequate protection of the general public against the addict who is or may be a hardened criminal, while providing the flexibility necessary to enable Page 414 U. S. 425 Federal authorities to medically treat the addict who is capable of being cured and rehabilitated. . . ."S.Rep. No. 1667, p. 13. [Footnote 8]It is quite clear that, in adopting the "two prior felony" exclusion, Congress sought first, to exclude from NARA treatment those less likely to be rehabilitated by such treatment, and second, to exclude those whose records disclosed a "history of serious crimes." The question we are called upon to decide is whether Congress could rationally have assumed that a person who has committed two or more prior felonies and is an addict at the time sentence is to be imposed is likely to be less susceptible of rehabilitation by reason of his past record, thus posing a greater threat to society upon release.Congress' concern with susceptibility and suitability of multiple offenders to rehabilitative treatment can reasonably be said to derive from its belief that, because of the nature of addiction treatment, one who had evidenced greater difficulty in conforming his behavior to societal rules and laws would himself be less likely to benefit from treatment. Additionally, such a person might also pose impediments to the successful treatment of others in the program. As testimony before both the House and Page 414 U. S. 426 Senate committees revealed, the treatment process for narcotics addiction is an arduous and a delicate undertaking, particularly in the aftercare stage when the subject is released into an unstructured environment which requires from the addict strict obedience to the limitations of the prescribed regime and full cooperation in the rehabilitative efforts. [Footnote 9]Additionally, there is no generally accepted medical view as to the efficacy of presently known therapeutic methods of treating addicts, and the prospect for the successful rehabilitation of narcotics addicts thus remains shrouded in uncertainty. Indeed, even the premise that drug addiction is one of the significant root causes of crime is not without challenge. See generally D. Musto, The American Disease: Origins of Narcotic Control (1973). See also American Bar Association and American Medical Association, Joint Committee on Narcotic Drugs, Drug Addiction: Crime or Disease? (1961). As testimony before the Congress revealed, no evidence to date has demonstrated more than a speculative chance for the successful rehabilitation of narcotics addicts. H.R.Rep. No. 1486, at 51. S.Rep. No. 1667, at 14. The NARA program was therefore fundamentally experimental in nature. See 112 Cong.Rec. 11896-11901 (1966). The suggestion that there is "obscurity" in the holding of this Court in Powell v. Texas, 392 U. S. 514 (1968), fails to take into account that, when courts deal with problems in the administration of criminal law such as those related to drug addiction, alcoholism, Page 414 U. S. 427 mental disease, and the like, they are necessarily confined to the existing limits of human knowledge in those areas. As MR. JUSTICE MARSHALL noted in Powell:"[T]he inescapable fact is that there is no agreement among members of the medical profession about what it means to say that 'alcoholism' is a 'disease.' One of the principal works in this field states that . . . 'alcoholism has too many definitions, and disease has practically none.'"Id. at 392 U. S. 522. The holding in Powell was a candid acknowledgment that the medical uncertainties afford little basis for judicial responses in absolute terms.When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad, and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices. Accordingly, it would have been a permissible choice for Congress to permit discretionary inclusion in NARA programs of those whose prior offenses were determined to be addiction related or motivated. Such a discretion might appropriately have been vested in the trial judge much in the manner in which he is now required to exercise his discretion under § 4252 in determining whether the defendant is an addict who is likely to be rehabilitated through treatment. [Footnote 10] That Congress has not yet chosen to so provide, however, does not render constitutionally impermissible its decision to limit treatment to those with less than two prior felony convictions. Williamson v. Lee Optical Co., 348 U. S. 483 (1955); Dandridge v. Page 414 U. S. 428 Williams, 397 U. S. 471 (1970); McGowan v. Maryland, 366 U. S. 420 (1961); Jefferson v. Hackney, 406 U. S. 535 (1972).It should be recognized that the classification selected by Congress is not one which is directed "against" any individual or category of persons, but rather it represents a policy choice in an experimental program made by that branch of Government vested with the power to make such choices. The Court has frequently noted that legislative classifications need not be perfect or ideal. The line drawn by Congress at two felonies, for example, might, with as much soundness, have been drawn instead at one, but this was for legislative, not judicial choice. McGinnis v. Royster, 410 U. S. 263 (1973); Powell v. Texas, supra, at 392 U. S. 539-540 (Black, J., concurring). Against this background, it cannot be said that it was unreasonable or irrational for Congress to act on the predicate reflected in the legislative history and explicitly stated in the exclusion provision of § 4251(f)(4), that a person with two or more prior felonies would be less likely to adjust and adhere to the disciplines and rigors of the treatment program, [Footnote 11] and hence is a less promising prospect for treatment than those with lesser criminal records.In addition, Congress might rationally have sought to exclude from NARA treatment centers those it thought might be potentially disruptive elements within the sensitive environment of a drug treatment program. [Footnote 12] Nor Page 414 U. S. 429 can Congress be said to have acted without reason in determining that an addict with multiple convictions was more "hardened," and thus a greater potential danger to society on early release than the addict who had committed one prior felony or none.Under NARA, Congress provided for comparatively lenient sentencing possibilities, [Footnote 13] but, in excluding addicts with two prior felonies, it sought to assure that, in an essentially experimental program to which limited resources were allocated, these features would not be exploited by persons who were viewed by Congress as primarily antisocial and only secondarily addicts. [Footnote 14] In addition, since the fact of two prior felony convictions may be said to evidence a lesser susceptibility of deterrence, Page 414 U. S. 430 the reduced level of deterrence implicit in the benign policy of Title II could reasonably be thought by Congress to create an unacceptable risk to society, and thus require the exclusion of such persons from NARA disposition.We therefore hold that Title II of NARA, 18 U.S.C. § 4251-4255, does not constitute a denial of due process or equal protection by excluding from rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions.Affirmed

U.S. Supreme CourtMarshall v. United States, 414 U.S. 417 (1974)Marshall v. United StatesNo. 72-5881Argued October 16-17, 1973Decided January 9, 1974414 U.S. 417SyllabusPetitioner, who had three prior felony convictions, moved for commitment as a narcotic addict pursuant to Title II of the Narcotic Addict Rehabilitation Act of 1966 (NARA), following a fourth felony conviction. The District Court held that the NARA's "two prior felony" exclusion precluded the requested commitment, rejecting petitioner's post-sentence motion to vacate his sentence on the ground that the "two prior felony" exclusion violated equal protection as embodied in the Fifth Amendment. The Court of Appeals affirmed.Held: Title II of NARA does not deny due process or equal protection by excluding from rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions, since Congress could rationally assume that an addict with a multiple felony record is likely to benefit less from rehabilitative treatment, present a possible impediment to the successful treatment of others, and be a greater threat to society upon release, because of that record. Pp. 414 U. S. 422-430.(a) In adopting the two-felony exclusion, Congress sought to exclude from NARA treatment (1) those less likely to be rehabilitated thereby and (2) those with a "history of serious crimes." Pp. 414 U. S. 423-425.(b) Congress could reasonably assume that, because of the nature of addiction treatment, the multiple felony offender would less likely benefit from, and might interfere with, a rehabilitation program. Pp. 414 U. S. 425, 414 U. S. 428.(c) Congress should have a wide latitude in formulating an experimental program like NARA, involving as it does medical and scientific uncertainties. Pp. 414 U. S. 427-428.(d) In excluding multiple offenders, Congress could safeguard that experimental program from possible improper exploitation and also avoid a possible unacceptable risk to society represented by a reduced level of deterrence. Pp. 414 U. S. 429-430.470 F.2d 34, affirmed.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., Page 414 U. S. 418 joined. MARSHALL J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 414 U. S. 430

1971_71-492

MR. JUSTICE POWELL delivered the opinion of the Court.This case presents the question reserved by the Court in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968), as to the right of a privately owned shopping center to prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center's operations. Relying primarily on Marsh v. Alabama, 326 U. S. 501 (1946), and Logan Valley, the United States District Court for the District of Oregon sustained an asserted First Amendment right to distribute handbills in petitioner's shopping center, and issued a permanent injunction restraining petitioner from interfering with such right. 308 F. Supp. 128 (1970). The Court of Appeals for the Ninth Circuit affirmed, 446 F.2d 545 (1971). We granted certiorari to consider petitioner's contention that the decision below Page 407 U. S. 553 violates rights of private property protected by the Fifth and Fourteenth Amendments. 404 U.S. 1037 (1972).Lloyd Corp., Ltd. (Lloyd), owns a large, modern retail shopping center in Portland, Oregon. Lloyd Center embraces altogether about 50 acres, including some 20 acres of open and covered parking facilities which accommodate more than 1,000 automobiles. It has a perimeter of almost one and one-half miles, bounded by four public streets. It is crossed in varying degrees by several other public streets, all of which have adjacent public sidewalks. Lloyd owns all land and buildings within the Center except these public streets and sidewalks. There are some 60 commercial tenants, including small shops and several major department stores.The Center embodies a relatively new concept in shopping center design. The stores are all located within a single large, multi-level building complex sometimes referred to as the "Mall." Within this complex, in addition to the stores, there are parking facilities, malls, private sidewalks, stairways, escalators, gardens, an auditorium, and a skating rink. Some of the stores open directly on the outside public sidewalks, but most open on the interior privately owned malls. Some stores open on both. There are no public streets or public sidewalks within the building complex, which is enclosed and entirely covered except for the landscaped portions of some of the interior malls.The distribution of the handbills occurred in the malls. They are a distinctive feature of the Center, serving both utilitarian and esthetic functions. Essentially, they are private, interior promenades with 10-foot sidewalks serving the stores, and with a center strip 30 feet wide in which flowers and shrubs are planted, and statuary, fountains, benches, and other amenities are located. There is no vehicular traffic on the malls. An architectural Page 407 U. S. 554 expert described the purpose of the malls as follows:"In order to make shopping easy and pleasant, and to help realize the goal of maximum sales [for the Center], the shops are grouped about special pedestrian ways or malls. Here, the shopper is isolated from the noise, fumes, confusion and distraction which he normally finds along city streets, and a controlled, carefree environment is provided. . . . [Footnote 1]"Although the stores close at customary hours, the malls are not physically closed, as pedestrian window shopping is encouraged within reasonable hours. [Footnote 2] LIoyd employs 12 security guards, who are commissioned as such by the city of Portland. The guards have police authority within the Center, wear uniforms similar to those worn by city police, and are licensed to carry handguns. They are employed by and subject to the control of Lloyd. Their duties are the customary ones, including shoplifting surveillance and general security.At a few places within the Center, small signs are embedded in the sidewalk which state:"NOTICE -- Areas In Lloyd Center Used By The Page 407 U. S. 555 Public Are Not Public Ways But Are For The Use Of Lloyd Center Tenants And The Public Transacting Business With Them. Permission To Use Said Areas May Be Revoked At Any Time. Lloyd Corporation, Ltd."The Center is open generally to the public, with a considerable effort being made to attract shoppers and prospective shoppers, and to create "customer motivation" as well as customer goodwill in the community. In this respect, the Center pursues policies comparable to those of major stores and shopping centers across the country, although the Center affords superior facilities for these purposes. Groups and organizations are permitted, by invitation and advance arrangement, to use the auditorium and other facilities. Rent is charged for use of the auditorium except with respect to certain civic and charitable organizations, such as the Cancer Society and Boy and Girl Scouts. The Center also allows limited use of the malls by the American Legion to sell poppies for disabled veterans, and by the Salvation Army and Volunteers of America to solicit Christmas contributions. It has denied similar use to other civic and charitable organizations. Political use is also forbidden, except that presidential candidates of both parties have been allowed to speak in the auditorium. [Footnote 3]The Center had been in operation for some eight years when this litigation commenced. Throughout this period, it had a policy, strictly enforced, against the distribution of handbills within the building complex and its malls. No exceptions were made with respect to handbilling, which was considered likely to annoy customers, to create litter, potentially to create disorders, Page 407 U. S. 556 and generally to be incompatible with the purpose of the Center and the atmosphere sought to be preserved.On November.14, 1968, the respondents in this case distributed within the Center handbill invitations to a meeting of the "Resistance Community" to protest the draft and the Vietnam war. The distribution, made in several different places on the mall walkways by five young people, was quiet and orderly, and there was no littering. There was a complaint from one customer. Security guards informed the respondents that they were trespassing, and would be arrested unless they stopped distributing the handbills within the Center. [Footnote 4] The guards suggested that respondents distribute their literature on the public streets and sidewalks adjacent to but outside of the Center complex. Respondents left the premises as requested "to avoid arrest" and continued the handbilling outside. Subsequently this suit was instituted in the District Court, seeking declaratory and injunctive relief.IThe District Court, emphasizing that the Center "is open to the general public," found that it is "the functional equivalent of a public business district." 308 F. Supp. at 130. That court then held that Lloyd's "rule prohibiting the distribution of handbills within the Mall violates . . . First Amendment rights." 308 F. Supp. at 131. In a per curiam opinion, the Court of Appeals held that it was bound by the "factual determination" as to the character of the Center, and concluded that the decisions of this Court in Marsh v. Alabama, 326 U. S. 501 (1946), and Amalgamated Food Page 407 U. S. 557 Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968), compelled affirmance. [Footnote 5]Marsh involved Chickasaw, Alabama, a company town wholly owned by the Gulf Shipbuilding Corp. The opinion of the Court, by Mr. Justice Black, described Chickasaw as follows:"Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town s policeman. Merchants and service establishments have rented the stores and business places on the business block, and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which cannot be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and, according to all indications, the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop Page 407 U. S. 558 highway traffic from coming onto the business block, and, upon arrival, a traveler may make free use of the facilities available there. In short, the town and its shopping district are accessible to and freely used by the public in general, and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation."326 U.S. at 326 U. S. 502-503. A Jehovah's Witness undertook to distribute religious literature on a sidewalk near the post office, and was arrested on a trespassing charge. In holding that First and Fourteenth Amendment rights were infringed, the Court emphasized that the business district was within a company-owned town, an anachronism long prevalent in some southern States and now rarely found. [Footnote 6]In Logan Valley, the Court extended the rationale of Marsh to peaceful picketing of a store located in a large shopping center, known as Logan Valley Mall, near Altoona, Pennsylvania. Weis Markets, Inc. (Weis), an original tenant, had opened a supermarket in one of the larger stores and was employing a wholly nonunion staff. Within 10 days after Weis opened, members of Amalgamated Food Employees Union Local 590 (Union) began picketing Weis, carrying signs stating that it was a nonunion market and that its employees were not receiving union wages or other union benefits. The picketing, conducted by nonemployees, was carried out Page 407 U. S. 559 almost entirely in the parcel pickup area immediately adjacent to the store and on portions of the adjoining parking lot. The picketing was peaceful, with the number of pickets varying from four to 13.Weis and Logan Valley Plaza, Inc., sought and obtained an injunction against this picketing. The injunction required that all picketing be confined to public areas outside the shopping center. On appeal, the Pennsylvania Supreme Court affirmed the issuance of the injunction, and this Court granted certiorari. In framing the question, this Court stated:"The case squarely presents . . . the question whether Pennsylvania's generally valid rules against trespass to private property can be applied in these circumstances to bar petitioners from the Weis and Logan premises."391 U.S. at 391 U. S. 315. The Court noted that the answer would be clear "if the shopping center premises were not privately owned, but instead constituted the business area of a municipality." Ibid. In the latter situation, it has often been held that publicly owned streets, sidewalks, and parks are so historically associated with the exercise of First Amendment rights that access to them for purposes of exercising such rights cannot be denied absolutely. Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Jamison v. Texas, 318 U. S. 413 (1943).The Court then considered Marsh v. Alabama, supra, and concluded that:"The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh."391 U.S. at 391 U. S. 318. But the Court was careful not to go further and say that, for all purposes and uses, the privately owned streets, Page 407 U. S. 560 sidewalks, and other areas of a shopping center are analogous to publicly owned facilities:"All we decide here is that, because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. Alabama, 326 U.S. at 326 U. S. 508, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put."Id. at 391 U. S. 319-320.The Court noted that the scope of its holding was limited, and expressly reserved judgment on the type of issue presented in this case:"The picketing carried on by petitioners was directed specifically at patrons of the Weis Market located within the shopping center, and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put."Id. at 391 U. S. 320 n. 9.The Court also took specific note of the facts that the Union's picketing was "directed solely at one establishment within the shopping center," id. at 391 U. S. 321, and that the public berms and sidewalks were "from 350 to 500 feet away from the Weis store." Id. at 391 U. S. 322. This distance made it difficult "to communicate [with] patrons of Weis" and "to limit [the] effect [of Page 407 U. S. 561 the picketing] to Weis only." Id. at 391 U. S. 322, 323. [Footnote 7] Logan Valley was decided on the basis of this factual situation, and the facts in this case are significantly different.IIThe courts below considered the critical inquiry to be whether Lloyd Center was "the functional equivalent of a public business district." [Footnote 8] This phrase was first used in Logan Valley, but its genesis was in Marsh. It is well to consider what Marsh actually decided. As noted above, it involved an economic anomaly of the past, "the company town." One must have seen such towns to understand that, "functionally," they were no different from municipalities of comparable size. They developed primarily in the Deep South to meet economic conditions, especially those which existed following the Civil War. Impoverished States, and especially backward areas thereof, needed an influx of industry and capital. Corporations, attracted to the area by natural resources and abundant labor, were willing to assume the role of local government. Quite literally, towns Page 407 U. S. 562 were built and operated by private capital with all of the customary services and utilities normally afforded by a municipal or state government: there were streets, sidewalks, sewers, public lighting, police and fire protection, business and residential areas, churches, postal facilities, and sometimes schools. In short, as Mr. Justice Black said, Chickasaw, Alabama, had "all the characteristics of any other American town." 326 U.S. at 326 U. S. 502. The Court simply held that, where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied where exercised in the customary manner on the town's sidewalks and streets. Indeed, as title to the entire town was held privately, there were no publicly owned streets, sidewalks, or parks where such rights could be exercised.Logan Valley extended Marsh to a shopping center situation in a different context from the company town setting, but it did so only in a context where the First Amendment activity was related to the shopping center's operations. There is some language in Logan Valley, unnecessary to the decision, suggesting that the key focus of Marsh was upon the "business district," and that, whenever a privately owned business district serves the public generally, its sidewalks and streets become the functional equivalents of similar public facilities. [Footnote 9] As Mr. Justice Black's dissent in Logan Valley emphasized, this would be an incorrect interpretation of the Court's decision in Marsh: [Footnote 10]"Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special Page 407 U. S. 563 situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. The particular company town involved was Chickasaw, Alabama, which, as we stated in the opinion, except for the fact that it""is owned by the Gulf Shipbuilding Corporation . . . has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated.""326 U.S. at 326 U. S. 502. Again, toward the end of the opinion, we emphasized that 'the town of Chickasaw does not function differently from any other town.' 326 U.S. at 326 U. S. 508. I think it is fair to say that the basis on which the Marsh decision rested was that the property involved encompassed an area that, for all practical purposes, had been turned into a town; the area had all the attributes of a town, and was exactly like any other town in Alabama."391 U.S. at 391 U. S. 330-331.The holding in Logan Valley was not dependent upon the suggestion that the privately owned streets and sidewalks of a business district or a shopping center are the equivalent, for First Amendment purposes, of municipally owned streets and sidewalks. No such expansive reading of the opinion of the Court is necessary or appropriate. The opinion was carefully phrased to limit its holding to the picketing involved, where the picketing was "directly related in its purpose to the use to which the shopping center property was being put," 391 U.S. at 391 U. S. 320 n. 9, and where the store was located in the center of a large private enclave, with the consequence that no other reasonable opportunities for the pickets to convey their message to their intended audience were available. Page 407 U. S. 564Neither of these elements is present in the case now before the Court.AThe handbilling by respondents in the malls of Lloyd Center had no relation to any purpose for which the center was built and being used. [Footnote 11] It is nevertheless argued by respondents that, since the Center is open to the public, the private owner cannot enforce a restriction against handbilling on the premises. The thrust of this argument is considerably broader than the rationale of Logan Valley. It requires no relationship, direct or indirect, between the purpose of the expressive activity and the business of the shopping center. The message sought to be conveyed by respondents was directed to all members of the public, not solely to patrons of Lloyd Center or of any of its operations. Respondents could have distributed these handbills on any public street, on any public sidewalk, in any public park, or in any public building in the city of Portland.Respondents' argument, even if otherwise meritorious, misapprehends the scope of the invitation extended to the public. The invitation is to come to the Center to do business with the tenants. It is true that facilities at the Center are used for certain meetings and Page 407 U. S. 565 for various promotional activities. The obvious purpose, recognized widely as legitimate and responsible business activity, is to bring potential shoppers to the Center, to create a favorable impression, and to generate goodwill. There is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.MR. JUSTICE WHITE, dissenting in Logan Valley, noted the limited scope of a shopping center's invitation to the public:"In no sense are any parts of the shopping center dedicated to the public for general purposes. . . . The public is invited to the premises, but only in order to do business with those who maintain establishments there. The invitation is to shop for the products which are sold. There is no general invitation to use the parking lot, the pickup zone, or the sidewalk except as an adjunct to shopping. No one is invited to use the parking lot as a place to park his car while he goes elsewhere to work. The driveways and lanes for auto traffic are not offered for use as general thoroughfares leading from one public street to another. Those driveways and parking spaces are not public streets, and thus available for parades, public meetings, or other activities for which public streets are used."391 U.S. at 391 U. S. 338.It is noteworthy that respondents' argument based on the Center's being "open to the public" would apply in varying degrees to most retail stores and service establishments across the country. They are all open to the public in the sense that customers and potential customers are invited and encouraged to enter. In terms of being open to the public, there are differences only Page 407 U. S. 566 of degree -- not of principle -- between a free-standing store and one located in a shopping center, between a small store and a large one, between a single store with some malls and open areas designed to attract customers and Lloyd Center, with its elaborate malls and interior landscaping.BA further fact, distinguishing the present case from Logan Valley, is that the Union pickets in that case would have been deprived of all reasonable opportunity to convey their message to patrons of the Weis store had they been denied access to the shopping center. [Footnote 12] The situation at Lloyd Center was notably different. The central building complex was surrounded by public sidewalks, totaling 66 linear blocks. All persons who enter or leave the private areas within the complex must cross public streets and sidewalks, either on foot or in automobiles. When moving to and from the privately Page 407 U. S. 567 owned parking lots, automobiles are required by law to come to a complete stop. Handbills may be distributed conveniently to pedestrians, and also to occupants of automobiles, from these public sidewalks and streets. Indeed, respondents moved to these public areas and continued distribution of their handbills after being requested to leave the interior malls. It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist. Such an accommodation would diminish property rights without significantly enhancing the asserted right of free speech. In ordering this accommodation, the courts below erred in their interpretation of this Court's decisions in Marsh and Logan Valley.IIIThe basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." There is the further proscription in the Fifth Amendment against the taking of "private property . . . for public use, without just compensation."Although accommodations between the values protected by these three Amendments are sometimes necessary, Page 407 U. S. 568 and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only. Even where public property is involved, the Court has recognized that it is not necessarily available for speaking, picketing, or other communicative activities. Mr. Justice Black, speaking for the Court in Adderley v. Florida, 385 U. S. 39 (1966), said:"The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason, there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over the jail custodian's objections, because this "area chosen for the peaceful civil rights demonstration was not only reasonable' but also particularly appropriate. . . ." Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioner rely on, Cox v. Louisiana, [379 U.S.] at 379 U. S. 554-555 and 379 U. S. 563-564. We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose." 385 U.S. at 385 U. S. 47-48.Respondents contend, however, that the property of a large shopping center is "open to the public," serves the same purposes as a "business district" of a municipality, and therefore has been dedicated to certain types Page 407 U. S. 569 of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. [Footnote 13] In effect, the owner of the company town was performing the full spectrum of municipal powers, and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.Nor does property lose its private character merely because the public is generally invited to use it for designated purposes. Few would argue that a free-standing store, with abutting parking space for customers, assumes significant public attributes merely because the public is invited to shop there. Nor is size alone the controlling factor. The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center. This is not to say that no differences may exist with respect to government regulation Page 407 U. S. 570 or rights of citizens arising by virtue of the size and diversity of activities carried on within a privately owned facility serving the public. There will be, for example, problems with respect to public health and safety which vary in degree and in the appropriate government response, depending upon the size and character of a shopping center, an office building, a sports arena, or other large facility serving the public for commercial purposes. We do say that the Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens, must be respected and protected. The Framers of the Constitution certainly did not think these fundamental rights of a free society are incompatible with each other. There may be situations where accommodations between them, and the drawing of lines to assure due protection of both, are not easy. But on the facts presented in this case, the answer is clear.We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. Accordingly, we reverse the judgment and remand the case to the Court of Appeals with directions to vacate the injunction.It is so ordered

U.S. Supreme CourtLloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972)Lloyd Corp., Ltd. v. TannerNo. 71-492Argued April 18, 1972Decided June 22, 1972407 U.S. 551SyllabusRespondents sought to distribute handbills in the interior mall area of petitioner's large privately owned shopping center. Petitioner had a strict no-handbilling rule. Petitioner's security guards requested respondents under threat of arrest to stop the handbilling, suggesting that they could resume their activities on the public streets and sidewalks adjacent to but outside the center, which respondents did. Respondents, claiming that petitioner's action violated their First Amendment rights, thereafter brought this action for injunctive and declaratory relief. The District Court, stressing that the center is "open to the general public" and "the functional equivalent of a public business district," and relying on Marsh v. Alabama, 326 U. S. 501, and Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308, held that petitioner's policy of prohibiting handbilling within the mall violated respondents' First Amendment rights. The Court of Appeals affirmed.Held: There has been no dedication of petitioner's privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center's operations, and petitioner's property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner's tenants. The facts in this case are significantly different from those in Marsh, supra, which involved a company town with "all the attributes" of a municipality, and Logan Valley, supra, which involved labor picketing designed to convey a message to patrons of a particular store, so located in the center of a large private enclave as to preclude other reasonable access to store patrons. Under the circumstances present in this case, where the handbilling was unrelated to any activity within the center and where respondents had adequate alternative means of communication, the courts below erred in holding those decisions controlling. Pp. 407 U. S. 556-570.446 F.2d 545, reversed and remanded. Page 407 U. S. 552POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and STEWART, JJ., joined, post, p. 407 U. S. 570.

1968_463

MR. JUSTICE FORTAS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE WHITE Join.On the petition of the International Brotherhood of Boilermakers and pursuant to its powers under § 9 of the National Labor Relations Act, 49 Stat. 453, 29 U.S.C. § 159, the National Labor Relations Board ordered an election among the production and maintenance employees of the respondent company. At the election, the employees were to select one of two labor unions as their exclusive bargaining representative, or to choose not to be represented by a union at all. In connection with the election, the Board ordered the respondent to furnish a list of the names and addresses of its employees who could vote in the election, so that the unions could use the list for election purposes. The respondent refused to comply with the order, and the election was held without the list. Both unions were defeated in the election.The Board upheld the unions' objections to the election because the respondent had not furnished the list, and the Board ordered a new election. The respondent again refused to obey a Board order to supply a list of employees, and the Board issued a subpoena ordering the respondent to provide the list or else produce its personnel and payroll records showing the employees' names and addresses. The Board filed an action in the United Page 394 U. S. 762 States District Court for the District of Massachusetts seeking to have its subpoena enforced or to have a mandatory injunction issued to compel the respondent to comply with its order.The District Court held the Board's order valid and directed the respondent to comply. 270 F. Supp. 280 (1967). The United States Court of Appeals for the First Circuit reversed. 397 F.2d 394 (1968). The Court of Appeals thought that the order in this case was invalid because it was based on a rule laid down in an earlier decision by the Board, Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966), and the Excelsior rule had not been promulgated in accordance with the requirements that the Administrative Procedure Act prescribes for rulemaking, 5 U.S.C. § 553. * We granted certiorari to resolve a conflict among the circuits concerning the validity and effect of the Excelsior rule. 393 U.S. 932 (1968). [Footnote 1]IThe Excelsior case involved union objections to the certification of the results of elections that the unions Page 394 U. S. 763 had lost at two companies. The companies had denied the unions a list of the names and addresses of employees eligible to vote. In the course of the proceedings, the Board "invited certain interested parties" to file briefs and to participate in oral argument of the issue whether the Board should require the employer to furnish lists of employees. 156 N.L.R.B. at 1238. Various employer groups and trade unions did so, as amici curiae. After these proceedings, the Board issued its decision in Excelsior. It purported to establish the general rule that such a list must be provided, but it declined to apply its new rule to the companies involved in the Excelsior case. Instead, it held that the rule would apply "only in those elections that are directed, or consented to, subsequent to 30 days from the date of [the] Decision." Id. at 1240, n. 5.Specifically, the Board purported to establish"a requirement that will be applied in all election cases. That is, within 7 days after the Regional Director has approved a consent-election agreement entered into by the parties . . . , or after the Regional Director or the Board has directed an election . . . , the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. The Regional Director, in turn, shall make this information available to all parties in the case. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed."Id. at 1239-1240.Section 6 of the National Labor Relations Act empowers the Board"to make . . . , in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act."29 U.S.C. 156. The Administrative Procedure Act contains specific provisions governing agency rulemaking, which it defines as "an agency statement of general or particular applicability and future Page 394 U. S. 764 effect," 5 U.S.C. § 551(4). [Footnote 2] The Act requires, among other things, publication in the Federal Register of notice of proposed rulemaking and of hearing; opportunity to be heard; a statement in the rule of its basis and purposes, and publication in the Federal Register of the rule as adopted. See 5 U.S.C. § 553. The Board asks us to hold that it has discretion to promulgate new rules in adjudicatory proceedings, without complying with the requirements of the Administrative Procedure Act.The rulemaking provisions of that Act, which the Board would avoid, were designed to assure fairness and mature consideration of rules of general application. See H.R.Rep. No.1980, 79th Cong., 2d Sess., 21-26 (1946); S.Rep. No. 752, 79th Cong., 1st Sess., 13-16 (1945). They may not be avoided by the process of making rules in the course of adjudicatory proceedings. There is no warrant in law for the Board to replace the statutory scheme with a rulemaking procedure of its own invention. Apart from the fact that the device fashioned by the Board does not comply with statutory command, it obviously falls short of the substance of the requirements of the Administrative Procedure Act. The "rule" created in Excelsior was not published in the Federal Register, which is the statutory and accepted means of giving notice of a rule as adopted; only selected organizations were given notice of the "hearing," whereas notice in the Federal Register would have been general in character; under the Administrative Procedure Act, the terms or substance of the rule would have to be stated in the notice of hearing, and all interested parties Page 394 U. S. 765 would have an opportunity to participate in the rulemaking.The Solicitor General does not deny that the Board ignored the rulemaking provisions of the Administrative Procedure Act. [Footnote 3] But he appears to argue that Excelsior's command is a valid substantive regulation, binding upon this respondent as such, because the Board promulgated it in the Excelsior proceeding, in which the requirements for valid adjudication had been met. This argument misses the point. There is no question that, in an adjudicatory hearing, the Board could validly decide the issue whether the employer must furnish a list of employees to the union. But that is not what the Board did in Excelsior. The Board did not even apply the rule it made to the parties in the adjudicatory proceeding, the only entities that could properly be subject to the order in that case. Instead, the Board purported to make a rule: i.e., to exercise its quasi-legislative power.Adjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein. See H. Friendly, The Federal Administrative Agencies 36-52 (1962). [Footnote 4] They Page 394 U. S. 766 generally provide a guide to action that the agency may be expected to take in future cases. Subject to the qualified role of stare decisis in the administrative process, they may serve as precedents. But this is far from saying, as the Solicitor General suggests, that commands, decisions, or policies announced in adjudication are "rules" in the sense that they must, without more, be obeyed by the affected public.In the present case, however, the respondent itself was specifically directed by the Board to submit a list of the names and addresses of its employees for use by the unions in connection with the election. [Footnote 5] This direction, which was part of the order directing that an election be held, is unquestionably valid. See, e.g., NLRB v. Waterman S.S. Co., 309 U. S. 206, 309 U. S. 226 (1940). Even though the direction to furnish the list was followed by citation to "Excelsior Underwear Inc., 156 NLRB No. 111," it is an order in the present case that the respondent was required to obey. Absent this direction by the Board, the respondent was under no compulsion to furnish the list because no statute and no validly adopted rule required it to do so.Because the Board in an adjudicatory proceeding directed the respondent itself to furnish the list, the decision of the Court of Appeals for the First Circuit must be reversed. [Footnote 6] Page 394 U. S. 767II.The respondent also argues that it need not obey the Board's order because the requirement of disclosure of employees' names and addresses is substantively invalid. This argument lacks merit. The objections that the respondent raises to the requirement of disclosure were clearly and correctly answered by the Board in its Excelsior decision. All of the United States Courts of Appeals that have passed on the question have upheld the substantive validity of the disclosure requirement, [Footnote 7] and the court below strongly intimated a view that the requirement was substantively a proper one, 397 F.2d at 396.We have held in a number of cases that Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives. See, e.g., NLRB v. Waterman S.S. Co., supra, at 309 U. S. 226; NLRB v. A. J. Tower Co., 329 U. S. 324, 329 U. S. 330 (1946). The disclosure requirement furthers this objective by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses. It is for the Board, and not for this Court, to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present. Page 394 U. S. 768IIIThe respondent contends that, even if the disclosure requirement is valid, the Board lacks power to enforce it by subpoena. Section 11(1) of the National Labor Relations Act provides that the Board shall have access to "any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question," and empowers the Board to issue subpoenas "requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation." Section 11(2) gives the district courts jurisdiction, upon application by the Board, to issue an order requiring a person who has refused to obey the Board's subpoena"to appear before the Board . . . there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question. . . ."29 U.S.C. §§ 161(1), (2).The respondent takes the position that these statutory provisions do not give the Board authority to subpoena the lists here in question because they are not "evidence" within the meaning of the statutory language. The District Court held, however, that,"in the context of § 11 of the Act, 'evidence' means not only proof at a hearing, but also books and records and other papers which will be of assistance to the Board in conducting a particular investigation. [Footnote 8]"The courts of appeals that have passed on the question have construed the term "evidence" in a similar manner. NLRB v. Hanes Hosiery Division, 384 F.2d 188, 191-192 (C.A.4th Cir.1967). See NLRB v. Rohlen, 385 F.2d 52, 55-58 (C.A. 7th Cir.1967); NLRB v. Beech-Nut Life Savers, Inc., 406 F.2d 253, 259 (C.A.2d Cir.1968); British Auto Parts, Inc. v. Page 394 U. S. 769 NLRB, 405 F.2d 1182, 1184 (C.A. 9th Cir.1968); NLRB v. Q-T Shoe Mfg. Co., 409 F.2d 1247 (C.A.3d Cir.1969). We agree that the list here in issue is within the scope of § 11 so that the Board's subpoena power may be validly exercised.The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with directions to reinstate its judgment.It is so ordered

U.S. Supreme CourtNLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969)National Labor Relations Board v. Wyman-Gordon Co.No. 63Argued March 3, 1969Decided April 23, 1969394 U.S. 759SyllabusThe National Labor Relations Board (NLRB) ordered a representation election among respondent's employees, and directed respondent to furnish a list of names and addresses of employees eligible to vote. Respondent refused to furnish the list, the election was held without it, and the unions were defeated. The NLRB ordered a new election and respondent again refused to obey an NLRB order to supply the list. The NLRB issued a subpoena ordering respondent to provide the list or records showing the employees' names and addresses. The NLRB filed an action in the District Court seeking to have its subpoena enforced or to have an injunction issued to compel compliance with its order. The District Court held the NLRB's order valid and directed respondent to comply. The Court of Appeals reversed, holding the order invalid because it was based on a rule laid down in an earlier NLRB decision, Excelsior Underwear Inc., 156 N.L.R.B. 1236, which rule had not been promulgated in accordance with the rulemaking requirements of the Administrative Procedure Act.Held: The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with directions to reinstate its judgment. Pp. 394 U. S. 761-775.397 F.2d 394, reversed and remanded.MR. JUSTICE FORTAS, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE WHITE, concluded that:1. In the Excelsior case the NLRB purported to exercise its quasi-legislative power and make a rule without following the rulemaking requirements of the Administrative Procedure Act. The Excelsior "rule" is therefore invalid. Pp. 394 U. S. 763-765.2. Here respondent was directed in an adjudicatory proceeding to submit a list of employees for use in connection with an election, Page 394 U. S. 760 and it was not the Excelsior "rule," but this valid order, that respondent was required to obey. P. 394 U. S. 766.3. The requirement of disclosure of employees' names is substantively valid, as the NLRB has wide discretion to ensure the fair and free choice of bargaining representatives, and such disclosure furthers this objective. P. 394 U. S. 767.4. The list of names comes within the scope of the term "evidence" in § 11 of the National Labor Relations Act, and so may properly be subpoenaed by the NLRB. Pp. 394 U. S. 768-769.MR. JUSTICE BLACK, joined by MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, concluded that:1. The requirement that an employer supply a list of employees prior to an election is valid, and can be enforced by subpoena. P. 394 U. S. 769.2. The Excelsior practice was adopted by the NLRB as a legitimate incident to the adjudication of a specific case, and the NLRB properly followed the procedures applicable to "adjudication", rather than "rulemaking." Pp. 394 U. S. 770-775.(a) NLRB's adjudicatory and rulemaking powers are almost inseparably related, and the exercise of one power does not exclude the use of the other. Pp. 394 U. S. 770-771.(b) The choice between proceeding by general rule or by adjudication lies primarily in the informed discretion of the NLRB. Pp. 394 U. S. 771-772.(c) All procedural safeguards required for adjudication were satisfied in the Excelsior case, and that decision did constitute adjudication within the meaning of the Administrative Procedure Act. Pp. 394 U. S. 772-773.(d) Even though the Excelsior list-furnishing requirement was to apply prospectively, the Excelsior order should not be regarded as any less a part of the adjudicatory process merely because the NLRB did not feel that it should upset Excelsior Company's reliance on past refusals to compel disclosure by setting aside that particular election. Pp. 394 U. S. 773-774.(e) It would be impractical to require the NLRB, in effect, to proceed by adjudication only when it could decide, prior to adjudicating a specific case, that any new practice to be adopted would be applied retroactively. Pp. 394 U. S. 774-775. Page 394 U. S. 761

1985_84-2030

(b) While a State, as here, may seek lower prices for its consumers, it may not insist that producers or consumers in other States surrender whatever competitive advantages they may possess. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511. Economic protectionism is not limited to attempts to convey advantages on local merchants; it may include attempts to give local consumers an advantage over consumers in other States. The mere fact that the effects of New York's ABC Law are triggered only by sales of liquor within New York therefore does not validate Page 476 U. S. 574 the law if it regulates the out-of-state transactions of distillers who sell in New York. Pp. 476 U. S. 579-580.(c) A "prospective" statute such as the affirmation provision of the ABC Law -- requiring that prices in the State in the current month not be higher than those that will be charged in any other State during the same (as opposed to the previous) month -- directly regulates out-of-state transactions in violation of the Commerce Clause. Once a distiller's posted price is in effect in New York, it must seek appellee's approval before it may lower its prices for the same item in other States. By defining the "effective price" of liquor (in view of appellant's promotional allowance program) differently from other States, New York can effectively force appellant to abandon its allowance program in States in which that program is legal, or force those other States to alter their own regulatory schemes in order to permit appellant to lower its New York prices without violating the affirmation laws of those States. Pp. 476 U. S. 582-584.2. The Twenty-first Amendment does not save the ABC Law's affirmative provision from invalidation under the Commerce Clause. That Amendment gives New York only the authority to control sales of liquor in New York, and confers no authority to control sales in other States. The Commerce Clause operates with full force whenever one State attempts to regulate the sale of alcoholic beverages in another State. Moreover, New York's affirmation provision may interfere with the ability of other States to exercise their own authority under the Twenty-first Amendment. Pp. 476 U. S. 584-585.64 N.Y.2d 479, 479 N.E.2d 764, reversed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL and O'CONNOR, JJ., joined, and in all but n. 6 of which BLACKMUN, J., joined. BLACKMUN, J., filed a concurring opinion, post, p. 476 U. S. 586. STEVENS, J., filed a dissenting opinion, in which WHITE and REHNQUIST, JJ., joined, post, p. 476 U. S. 586. BRENNAN, J., took no part in the consideration or decision of the case. Page 476 U. S. 575JUSTICE MARSHALL delivered the opinion of the Court.The State of New York requires every liquor distiller or producer that sells liquor to wholesalers within the State to sell at a price that is no higher than the lowest price the distiller charges wholesalers anywhere else in the United States. The issue in this case is whether that requirement violates the Commerce Clause of the Constitution.INew York extensively regulates the sale and distribution of alcoholic beverages within its borders. The State's Alcoholic Beverage Control Law (ABC Law) prohibits the manufacture and sale of alcoholic beverages within the State without the appropriate licenses, ABC Law § 100(1) (McKinney 1970), and regulates the terms of all sales, §§ 101-a to 101-bbb (McKinney 1970 and Supp.1986). Distillers and their agents may not sell to wholesalers in New York except in accordance with a price schedule filed with the State Liquor Authority. § 101-b(3)(a). The distiller or agent must file the price schedule before the 25th day of each month, and the prices therein become effective on the first day of the second following month. The schedule must contain a precise description of each item the distiller intends to sell, and a per-bottle and per-case price. All sales to any wholesaler in Page 476 U. S. 576 New York during the month for which the schedule is in effect must be at those prices.This litigation concerns § 101-b(3)(d) of the ABC Law, which requires any distiller or agent that files a schedule of prices to include an affirmation that"the bottle and case price of liquor to wholesalers set forth in such schedule is no higher than the lowest price at which such item of liquor will be sold by such [distiller] to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state (or state agency) which owns and operates retail liquor stores"during the month covered by the schedule. Violation of the statute may lead to revocation of a distiller's license and the forfeiture of bond posted by the distiller in connection with the license, § 101-b(6). Twenty other States have similar affirmation laws. [Footnote 1]Appellant Brown-Forman Distillers Corp. (Brown-Forman) is a distiller that owns several brands of liquor that it sells in New York and in other States. Beginning in 1978, appellant has offered its wholesalers cash payments, or "promotional allowances," which are credited against any amounts due appellant. [Footnote 2] Appellant intends for wholesalers Page 476 U. S. 577 to use these allowances for advertising; however, the amount of the allowance a wholesaler receives is not tied to the quantity either of the wholesaler's advertising or of its purchases of appellant's products. The amount of a particular wholesaler's allowance does depend on its past purchases and projections of future purchases, but accepting the allowance does not constitute an agreement to purchase any particular quantity of Brown-Forman products. The allowances, therefore, are unconditional, lump-sum payments to all wholesalers, in every State except New York, that purchase Brown-Forman brands.Appellant offered the promotional allowance to its New York wholesalers, but the Liquor Authority determined that the ABC Law prohibited such payments. [Footnote 3] The Authority also determined, however, that the payment of promotional allowances to wholesalers in other States lowered the effective price of Brown-Forman brands to those wholesalers, and thus violated § 101-b(3)(d) of the ABC Law. [Footnote 4] The Liquor Authority accordingly instituted license revocation proceedings against appellant.Appellant sought review of the Liquor Authority's ruling in the state courts, asserting that it was both arbitrary and unconstitutional. Appellant contended that it could not possibly file a schedule of prices that reflected precisely the "effective price" charged to wholesalers in other States, because there was no one "effective price." Each participating Page 476 U. S. 578 wholesaler could pay a different effective price in a given month depending on the amount of Brown-Forman product it had purchased during that month. Moreover, appellant argued, other States did not treat the promotional allowances as discounts. Were New York to force appellant to reduce its prices in that State, appellant would be charging a lower price to New York wholesalers than the price recognized by other States, thereby forcing appellant to violate the affirmation laws of those States. Appellant contended that the only way to avoid this dilemma was to stop offering promotional allowances, unless other States chose to alter their affirmation laws. By effectively forcing appellant to discontinue a promotional program in other States where that program was legal, appellant argued, New York's regulation violated the Commerce Clause. Appellant also argued that the affirmation law on its face directly regulated interstate commerce in violation of the Commerce Clause.The Appellate Division of the New York Supreme Court rejected these arguments, 100 App.Div.2d 55, 473 N.Y.S.2d 420 (1984), as did the New York Court of Appeals, 64 N.Y.2d 479, 479 N.E.2d 764 (1985). The Court of Appeals concluded, first, that the Liquor Authority's decision to consider the promotional allowances as a discount was supported by substantial evidence. Second, the court held that the ABC Law, as applied, does not violate the Commerce Clause, rejecting as speculative appellant's contention that it cannot comply simultaneously with the affirmation laws of New York and of other States. Finally, the court held that the affirmation law, on its face, does not violate the Commerce Clause. We noted probable jurisdiction limited to the question whether the ABC Law, on its face, violates the Commerce Clause, 474 U.S. 814 (1985). We now reverse.IIThis Court has adopted what amounts to a two-tiered approach to analyzing state economic regulation under the Page 476 U. S. 579 Commerce Clause. When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry. See, e.g., Philadelphia v. New Jersey, 437 U. S. 617 (1978); Shafer v. Farmers Grain Co., 268 U. S. 189 (1925); Edgar v. MITE Corp., 457 U. S. 624, 457 U. S. 640-643 (1982) (plurality opinion). When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, we have examined whether the State's interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits. Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 142 (1970). We have also recognized that there is no clear line separating the category of state regulation that is virtually per se invalid under the Commerce Clause and the category subject to the Pike v. Bruce Church balancing approach. In either situation, the critical consideration is the overall effect of the statute on both local and interstate activity. See Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 434 U. S. 440-441 (1978).Appellant does not dispute that New York's affirmation law regulates all distillers of intoxicating liquors evenhandedly, or that the State's asserted interest -- to assure the lowest possible prices for its residents -- is legitimate. Appellant contends that these factors are irrelevant, however, because the lowest-price affirmation provision of the ABC Law falls within that category of direct regulations of interstate commerce that the Commerce Clause wholly forbids. This is so, appellant contends, because the ABC Law effectively regulates the price at which liquor is sold in other States. By requiring distillers to affirm that they will make no sales anywhere in the United States at a price lower than the posted price in New York, appellant argues, New York makes it illegal for a distiller to reduce its price in other States during the period that the posted New York price is in Page 476 U. S. 580 effect. Appellant contends that this constitutes direct regulation of interstate commerce. The law also disadvantages consumers in other States, according to appellant, and is therefore the sort of "simple economic protectionism" that this Court has routinely forbidden. Philadelphia v. New Jersey, supra, at 437 U. S. 624.If appellant has correctly characterized the effect of the New York lowest-price affirmation law, that law violates the Commerce Clause. While a State may seek lower prices for its consumers, it may not insist that producers or consumers in other States surrender whatever competitive advantages they may possess. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 294 U. S. 528 (1935); Schwegmann Brothers Giant Super Markets v. Louisiana Milk Comm'n, 365 F. Supp. 1144 (MD La.1973), aff'd, 416 U.S. 922 (1974). Economic protectionism is not limited to attempts to convey advantages on local merchants; it may include attempts to give local consumers an advantage over consumers in other States. See, e.g., New England Power Co. v. New Hampshire, 455 U. S. 331, 455 U. S. 338 (1982) (State may not require "that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders"). In Seelig, supra, this Court struck down New York's Milk Control Act. The Act set minimum prices for milk purchased from producers in New York and in other States, and banned the resale within New York of milk that had been purchased for a lower price. Justice Cardozo's opinion for the Court recognized that a State may not "establish a wage scale or a scale of prices for use in other states, and . . . bar the sale of the products . . . unless the scale has been observed." Id. at 294 U. S. 528. The mere fact that the effects of New York's ABC Law are triggered only by sales of liquor within the State of New York therefore does not validate the law if it regulates the out-of-state transactions of distillers who sell in-state. Our inquiry, then, must center on whether New York's affirmation law regulates commerce in other States. Page 476 U. S. 581BThis Court has once before examined the extraterritorial effects of a New York affirmation statute. In Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35 (1966), the Court considered the constitutionality, under the Commerce and Supremacy Clauses, of the predecessor to New York's current affirmation law. That law differed from the present version in that it required the distiller to affirm that its prices during a given month in New York would be no higher than the lowest price at which the item had been sold elsewhere during the previous month. The Court recognized in that case, as we have here, that the most important issue was whether the statute regulated out-of-state transactions. Id. at 384 U. S. 42-43. It concluded, however, that "[t]he mere fact that [the statute] is geared to appellants' pricing policies in other States is not sufficient to invalidate the statute." The Court distinguished Seelig, supra, by concluding that any effects of New York's ABC Law on a distiller's pricing policies in other States were "largely matters of conjecture," 384 U.S. at 384 U. S. 42-43.Appellant relies on United States Brewers Assn. v. Healy, 692 F.2d 275 (CA2 1982), summarily aff'd, 464 U.S. 909 (1983), in seeking to distinguish the present case from Seagram. In Healy, the Court of Appeals for the Second Circuit considered a Connecticut price-affirmation statute for beer sales that is not materially different from the current New York ABC Law. The Connecticut statute, like the ABC Law, required sellers to post prices at the beginning of a month, and proscribed deviation from the posted prices during that month. The statute also required brewers to affirm that their prices in Connecticut were as low as the price at which they would sell beer in any bordering State during the effective month of the posted prices. The Court of Appeals distinguished Seagram based on the "prospective" nature of this affirmation requirement. It concluded that the Connecticut statute made it impossible for a brewer to lower Page 476 U. S. 582 its price in a bordering State in response to market conditions, so long as it had a higher posted price in effect in Connecticut. By so doing, the statute "regulate[d] conduct occurring wholly outside the state," 692 F.2d at 279, and thereby violated the Commerce Clause. We affirmed summarily.CWe agree with appellant and with the Healy court that a "prospective" statute such as Connecticut's beer affirmation statute, or New York's liquor affirmation statute, regulates out-of-state transactions in violation of the Commerce Clause. Once a distiller has posted prices in New York, it is not free to change its prices elsewhere in the United States during the relevant month. [Footnote 5] Forcing a merchant to seek regulatory approval in one State before undertaking a transaction in another directly regulates interstate commerce. Edgar v. MITE Corp., 457 U.S. at 457 U. S. 642 (plurality opinion); see also Baldwin v. G. A. F. Seelig, Inc., 294 U.S. at 294 U. S. 522 (regulation tending to "mitigate the consequences of competition between the states" constitutes direct regulation). While New York may regulate the sale of liquor within its borders, and may seek low prices for its residents, it may not Page 476 U. S. 583 "project its legislation into [other States] by regulating the price to be paid" for liquor in those States. Id. at 294 U. S. 521.That the ABC Law is addressed only to sales of liquor in New York is irrelevant if the "practical effect" of the law is to control liquor prices in other States. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 325 U. S. 775 (1945). We cannot agree with New York that the practical effects of the affirmation law are speculative. It is undisputed that, once a distiller's posted price is in effect in New York, it must seek the approval of the New York State Liquor Authority before it may lower its price for the same item in other States. It is not at all counterintuitive, as the dissent maintains, post at 476 U. S. 588, to assume that the Liquor Authority would not permit appellant to reduce its New York price after the posted price has taken effect. The stated purpose of the prohibition on price changes during a given month is to prevent price discrimination among retailers, see ABC Law §§ 101-b(1), (2)(a). That goal is in direct conflict with the dissent's view of the "whole purpose" of the ABC Law, and we have no means of predicting how the Authority would resolve that conflict. We do know, however, that the Liquor Authority forbade appellant to reduce its New York prices by offering promotional allowances to New York retailers precisely because the Authority believed that program would violate the price-discrimination provisions. App. to Juris. Statement 50a. The dissent would require us to assume that other States will adopt a flexible approach to appellant's promotional allowance program, post at 476 U. S. 589, despite New York's refusal to do so.Moreover, the proliferation of state affirmation laws following this Court's decision in Seagram has greatly multiplied the likelihood that a seller will be subjected to inconsistent obligations in different States. The ease with which New York's lowest-price regulation can interfere with a distiller's operations in other States is aptly demonstrated by the controversy that gave rise to this lawsuit. By defining the "effective price" of liquor differently from other States, Page 476 U. S. 584 New York can effectively force appellant to abandon its promotional allowance program in States in which that program is legal, or force those other States to alter their own regulatory schemes in order to permit appellant to lower its New York prices without violating the affirmation laws of those States. Thus New York has "project[ed] its legislation" into other States, and directly regulated commerce therein, in violation of Seelig, supra. [Footnote 6]IIINew York finally contends that the Twenty-first Amendment, which bans the importation or possession of intoxicating liquors into a State "in violation of the laws thereof," saves the ABC Law from invalidation under the Commerce Clause. That Amendment gives the States wide latitude to regulate the importation and distribution of liquor within their territories, California Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 445 U. S. 107 (1980). Therefore, New York argues, its ABC Law, which regulates the sale of alcoholic beverages within the State, is a valid exercise of the State's authority.It is well settled that the Twenty-first Amendment did not entirely remove state regulation of alcohol from the reach of the Commerce Clause. See Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984). Rather, the Twenty-first Amendment and the Commerce Clause "each must be considered in light of the other, and in the context of the issues and interests at stake in any concrete case." Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324, 377 U. S. 332 (1964). Our task, then, Page 476 U. S. 585 is to reconcile the interests protected by the two constitutional provisions.New York has a valid constitutional interest in regulating sales of liquor within the territory of New York. Section 2 of the Twenty-first Amendment, however, speaks only to state regulation of the "transportation or importation into any State . . . for delivery or use therein" of alcoholic beverages. That Amendment, therefore, gives New York only the authority to control sales of liquor in New York, and confers no authority to control sales in other States. The Commerce Clause operates with full force whenever one State attempts to regulate the transportation and sale of alcoholic beverages destined for distribution and consumption in a foreign country, Idlewild Bon Voyage Liquor Corp., supra, or another State. Our conclusion that New York has attempted to regulate sales in other States of liquor that will be consumed in other States therefore disposes of the Twenty-first Amendment issue.Moreover, New York's affirmation law may interfere with the ability of other States to exercise their own authority under the Twenty-first Amendment. Once a distiller has posted prices in New York, it is not free to lower them in another State, even in response to a regulatory directive by that State, without risking forfeiture of its license in New York. New York law, therefore, may force other States either to abandon regulatory goals or to deprive their citizens of the opportunity to purchase brands of liquor that are sold in New York. New York's reliance on the Twenty-first Amendment is therefore misplaced. Having found that the ABC Law, on its face, violates the Commerce Clause and is not a valid exercise of New York's powers under the Twenty-first Amendment, we reverse the judgment of the New York Court of Appeals.It is so ordered

U.S. Supreme CourtBrown-Forman v. N.Y. State Liq. Auth., 476 U.S. 573 (1986)Brown-Forman Distillers Corp. v. New York State Liquor AuthorityNo. 84-2030Argued March 3, 1986Decided June 3, 1986476 U.S. 573APPEAL FROM COURT OF APPEALS OF NEW YORKNew York's Alcoholic Beverage Control Law (ABC Law) provides that a distiller, licensed to do business in the State, may not sell its products to wholesalers within the State except in accordance with a monthly price schedule previously filed with appellee State Liquor Authority, and requires that the distiller include with the schedule an affirmation that the prices in the schedule are no higher than the lowest prices that the distiller will charge wholesalers anywhere else in the United States during the month. Appellee determined that the ABC Law prohibited appellant distiller, which sells its liquor in New York and in other States, from offering certain promotional allowances (based on past purchases and projections of future purchases) to wholesalers in the State, and that the payment of the allowances to wholesalers in other States lowered the "effective price" of appellant's products to those wholesalers, thus violating the affirmation provision of the ABC Law. After license revocation proceedings were instituted against appellant, it sought review of appellee's ruling in the Appellate Division of the New York Supreme Court, which held, inter alia, that the affirmation provision did not, on its face, directly regulate interstate commerce in violation of the Commerce Clause of the Federal Constitution. The New York Court of Appeals affirmed.Held:1. The affirmation provision of New York's ABC Law, on its face, violates the Commerce Clause. Pp. 476 U. S. 578-585.(a) In analyzing state economic regulation under the Commerce Clause, the critical consideration is the overall effect of the state law on both local and interstate activity. Pp. 476 U. S. 578-579.

1985_85-5023

JUSTICE WHITE delivered the opinion of the Court.The question presented is whether the Double Jeopardy Clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied, but does not find the evidence insufficient to support the death penalty.IIn 1977, petitioners Patrick and Michael Poland, disguised as police officers, stopped a Purolator van that was making cash deliveries to various banks in northern Arizona. After removing some $281,000 in cash from the van, petitioners took the two Purolator guards to a lake and dumped them into the water in sacks weighted with rocks. Autopsies indicated Page 476 U. S. 149 that the most probable cause of the guards' death was drowning, although one may have died of a heart attack. It was not possible to determine if the guards were drugged, but there was no evidence of a struggle.The jury disbelieved petitioners' alibi defense and convicted them of first-degree murder. Pursuant to former Ariz.Rev.Stat.Ann. § 13-454(A) (Supp.1973), the trial judge then sat as sentencer in a separate proceeding. At the hearing, the prosecution, relying on the evidence presented at trial, argued that two statutory aggravating circumstances were present: (1) that petitioners had "committed the offense as consideration for the receipt, or in expectation of the receipt, of [something] of pecuniary value," former Ariz.Rev.Stat.Ann. § 13-454(E)(5) (Supp.1973); and (2) that petitioners had "committed the offense in an especially heinous, cruel, or depraved manner," former Ariz.Rev.Stat. § 13-454(E)(6) (Supp.1973). The trial judge made the following finding with respect to the "pecuniary gain" aggravating circumstance:"The court finds the aggravating circumstance in § 13-454 E(3) [sic] is not present. This presumes the legislative intent was to cover a contract killing. If this presumption is inaccurate, the evidence shows the defendants received something of pecuniary value, cash in the amount of $281,000.00.""This, then, would be an aggravating circumstance."App. 15-16. The judge found that the "especially heinous, cruel, [or] depraved" aggravating circumstance was present, stating that the murders were "shockingly evil, insensate, and marked by debasement." Id. at 16. Finding that this aggravating circumstance outweighed the mitigating evidence, the judge sentenced petitioners to death. Id. at 14.On appeal, petitioners argued that the evidence was insufficient to support the judge's finding of the "especially heinous, cruel, or depraved" aggravating circumstance. They Page 476 U. S. 150 also argued that the jury's verdict was tainted by a jury-room discussion of evidence not admitted at trial. The Arizona Supreme Court agreed that the jury's verdict was tainted, necessitating reversal and retrial. State v. Poland, 132 Ariz. 269, 283-285, 645 P.2d 784, 798-800 (1982). The court next held that the evidence on which the State relied at the first sentencing hearing was insufficient to support a finding of the "especially heinous, cruel, or depraved" aggravating circumstance. Id. at 285, 645 P.2d at 800. Finally, the court stated that the trial court"mistook the law when it did not find that the defendants 'committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.'"Ibid. The court explained that this aggravating circumstance is not limited to situations involving contract killings, see State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), and added that,"[u]pon retrial, if the defendants are again convicted of first degree murder, the court may find the existence of this aggravating circumstance."132 Ariz. at 286, 645 P.2d at 801.On remand, petitioners were again convicted of first-degree murder. At the sentencing hearing, the prosecution, relying on the evidence presented at the second trial and also presenting additional evidence, argued that the "pecuniary gain" and "especially heinous, cruel, or depraved" aggravating factors were present in each petitioner's case. The prosecution alleged a third aggravating circumstance in petitioner Patrick Poland's case: previous conviction of "a felony . . . involving the use or threat of violence on another person," Ariz.Rev.Stat.Ann. § 13-454(E)(2) (Supp.1973). [Footnote 1] The trial judge found all of the aggravating circumstances alleged by the prosecution, and again sentenced both petitioners to death. Page 476 U. S. 151Petitioners argued on appeal, as they had at their second sentencing hearing, that the Double Jeopardy Clause barred reimposition of the death penalty. Their theory was that the Arizona Supreme Court's decision on their first appeal that the evidence failed to support the "especially heinous, cruel, or depraved" aggravating circumstance amounted to an "acquittal" of the death penalty. Cf. Bullington v. Missouri, 451 U. S. 430 (1981); Arizona v. Rumsey, 467 U. S. 203 (1984). A majority of the Arizona Supreme Court rejected this argument, stating:"Our holding in Poland I . . . was simply that the death penalty could not be based solely upon [the 'especially heinous, cruel, or depraved'] aggravating circumstance because there was insufficient evidence to support it. This holding was not tantamount to a death penalty 'acquittal.'"State v. Poland (Patrick), 144 Ariz. 388, 404, 698 P.2d 183, 199 (1985). Accord, State v. Poland (Michael), 144 Ariz. 412, 698 P.2d 207 (1985).The court found the evidence still insufficient to support the "especially heinous, cruel, or depraved" aggravating circumstance, but sufficient to support the "pecuniary gain" aggravating circumstance with respect to both defendants and the "prior conviction involving violence" circumstance with respect to Patrick Poland. State v. Poland (Patrick), supra, at 404-406, 698 P.2d at 199-201; accord, State v. Poland (Michael), supra. After again reviewing and independently weighing the mitigating and aggravating circumstances, the court concluded that the death penalty was appropriate in each petitioner's case. We granted certiorari to consider whether reimposing the death penalties on petitioners violated the Double Jeopardy Clause. 474 U.S. 816 (1985). We hold that it did not. Page 476 U. S. 152IIIn Bullington v. Missouri, supra, this Court held that a defendant sentenced to life imprisonment by a capital sentencing jury is protected by the Double Jeopardy Clause against imposition of the death penalty in the event that he obtains reversal of his conviction and is retried and reconvicted. The Court recognized the usual rule to be that, when a defendant obtains reversal of his conviction on appeal,"the original conviction has been nullified, and 'the slate wiped clean.' Therefore, if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served."Id. at 451 U. S. 442 (quoting North Carolina v. Pearce, 395 U. S. 711, 395 U. S. 721 (1969)). However, the Court found that its prior decisions had created an exception to this rule:"[T]he 'clean slate' rationale . . . is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case."Bullington, 451 U.S. at 451 U. S. 443. [Footnote 2] Although it is usually"impossible to conclude that a sentence less than the statutory maximum 'constitute[s] a decision to the effect that the government Page 476 U. S. 153 has failed to prove its case,'"ibid. (quoting Burks v. United States, 437 U. S. 1, 437 U. S. 15 (1978)), the Court found that Missouri, by"enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, . . . explicitly requires the jury to determine whether the prosecution has 'proved its case,'"id. at 451 U. S. 444 (emphasis in original). [Footnote 3] Accordingly, the Court held that the jury's decision to sentence Bullington to life imprisonment after his first conviction should be treated as an "acquittal" of the death penalty under the Double Jeopardy Clause.Recently, the Court held that the rationale of Bullington applies to the Arizona capital sentencing scheme at issue in this case. Arizona v. Rumsey, supra. [Footnote 4] In Rumsey, the Page 476 U. S. 154 trial judge erred in exactly the same way as the trial judge did at petitioners' first sentencing hearing in these cases, by construing the "pecuniary gain" aggravating circumstance as limited to "murder for hire" situations. Unlike the trial judge in this case, however, the trial judge in Rumsey found no aggravating circumstances, and entered a sentence of life imprisonment. This Court held that"[t]he double jeopardy principle relevant to [Rumsey's] case is the same as that invoked in Bullington: an acquittal on the merits by the sole decisionmaker in the proceeding is final, and bars retrial on the same charge."Id. at 467 U. S. 211.Under Bullington and Rumsey, therefore, the relevant inquiry in the cases before us is whether the sentencing judge or the reviewing court has "decid[ed] that the prosecution has not proved its case" for the death penalty, and hence has "acquitted" petitioners. Bullington, 451 U.S. at 451 U. S. 443.IIIAt no point during petitioners' first capital sentencing hearing and appeal did either the sentencer or the reviewing court hold that the prosecution had "failed to prove its case" that petitioners deserved the death penalty. Plainly, the sentencing judge did not acquit, for he imposed the death penalty. While the Arizona Supreme Court held that the sentencing judge erred in relying on the "especially heinous, cruel, or depraved" aggravating circumstance, it did not hold that the prosecution had failed to prove its case for the death penalty. Indeed, the court clearly indicated that there had been no such failure by remarking that"the trial court mistook the law when it did not find that the defendants 'committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value,'"and that Page 476 U. S. 155"[u]pon retrial, if the defendants are again convicted of first degree murder, the court may find the existence of this aggravating circumstance,"132 Ariz. at 286, 645 P.2d at 800, 801.Petitioners argue, however, that the Arizona Supreme Court "acquitted" them of the death penalty by finding the "evidence [insufficient] to support the sole aggravating circumstances found by the sentencer." Brief for Petitioners 16. Petitioners' implicit argument is, first, that the sentencing judge "acquitted" them of the "pecuniary gain" aggravating circumstance, and second, that the Double Jeopardy Clause rendered this "acquittal" final, so that the evidence relating to this circumstance was effectively removed from the case at the time of petitioners' first appeal. [Footnote 5]We reject the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an "acquittal" of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has "decided that the prosecution has not proved its case" that the death penalty is appropriate. [Footnote 6] We are not prepared Page 476 U. S. 156 to extend Bullington further and view the capital sentencing hearing as a set of minitrials on the existence of each aggravating circumstance. Such an approach would push the analogy on which Bullington is based past the breaking point.Aggravating circumstances are not separate penalties or offenses, but are "standards to guide the making of [the] choice" between the alternative verdicts of death and life imprisonment. 451 U.S. at 451 U. S. 438. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not, of itself, "convict" a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not "acquit" a defendant (i.e., preclude the death penalty).It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer's finding, albeit erroneous, that no aggravating circumstance is present is an "acquittal" barring a second death sentence proceeding. Arizona v. Rumsey, 467 U. S. 203 (1984). This is because"the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent he may be found guilty.'"United States v. Scott, 437 U. S. 82, 437 U. S. 91 (1978) (quoting Green v. United States, 355 U. S. 184, 355 U. S. 188 (1957)). This concern with protecting the finality of acquittals is not implicated when, as in these cases, a defendant is sentenced to death, i.e., "convicted." There is no cause to shield such a defendant from further litigation; further litigation is the only hope he has. The defendant may argue on appeal that the evidence presented at his sentencing hearing was, as a matter of law, insufficient to support the aggravating circumstances Page 476 U. S. 157 on which his death sentence was based, but the Double Jeopardy Clause does not require the reviewing court, if it sustains that claim, to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected. Such a rule would have the odd and unacceptable result of requiring a reviewing court to enter a death penalty "acquittal" even though that court is of the view that the State has "proved its case." Our decisions in Burks and Bullington do not support such a rule, which would certainly give the prosecution cause to "complain of prejudice." Burks, 437 U.S. at 437 U. S. 16. We hold, therefore, that the trial judge's rejection of the "pecuniary gain" aggravating circumstance in this case was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Furthermore, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied.The judgment of the Supreme Court of Arizona isAffirmed

U.S. Supreme CourtPoland v. Arizona, 476 U.S. 147 (1986)Poland v. ArizonaNo. 85-5023Argued February 24, 1986Decided May 5, 1986*476 U.S. 147SyllabusPetitioners robbed a bank van of $281,000 in cash and killed the guards by dumping them into a lake in sacks weighted with rocks. Petitioners were convicted of first-degree murder in an Arizona state court. At a separate hearing, while finding that the statutory aggravating circumstance that the offense was committed for "pecuniary gain" was not present because it applied only to contract killings, the trial judge sentenced petitioners to death upon finding that the statutory aggravating circumstance that the offense was committed in "an especially heinous, cruel, or depraved manner" was present. The Arizona Supreme Court, while reversing and remanding for a retrial on other grounds, held that the evidence was insufficient to support a finding of the "especially heinous" circumstance, but that the trial judge erred in finding the "pecuniary gain" circumstance limited to contract killings, and that, if petitioners were again convicted, the judge might find this circumstance present. On remand, petitioners were again convicted of first-degree murder and the trial judge again sentenced them to death, finding that both the "pecuniary gain" and "especially heinous" circumstances were present. The Arizona Supreme Court affirmed, rejecting petitioners' argument that the Double Jeopardy Clause barred reimposition of the death penalty. The court found the evidence still insufficient to support the "especially heinous" circumstance, but sufficient to support the "pecuniary gain" circumstance.Held: Reimposing the death penalty on petitioners did not violate the Double Jeopardy Clause. Pp. 476 U. S. 152-157.(a) When a conviction is reversed on appeal, it is nullified and "the slate wiped clean,'" so that, if the defendant is convicted again, he may constitutionally be subjected to whatever punishment is lawful. Bullington v. Missouri, 451 U. S. 430, 451 U. S. 442. This rationale is, however, inapplicable where a jury agrees or an appellate court decides that the prosecution "has not proved its case." Id. at 451 U. S. 443. Therefore, the relevant inquiry in these cases is whether the sentencing judge or the reviewing court has "decided that the prosecution has not proved its case" Page 476 U. S. 148 for the death penalty, and hence has "acquitted" petitioners. Bullington v. Missouri, supra; Arizona v. Rumsey, 467 U. S. 203. Pp. 476 U. S. 152-154.(b) The trial judge's rejection of the "pecuniary gain" aggravating circumstance was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Moreover, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied. Pp. 476 U. S. 154-157.144 Ariz. 388, 698 P.2d 183, and 144 Ariz. 412, 698 P.2d 207, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 476 U. S. 157.

1986_86-566

JUSTICE MARSHALL delivered the opinion of the Court.In this appeal, we decide whether § 2 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., which mandates enforcement of arbitration agreements, preempts § 229 of the California Labor Code, which provides that actions for the collection of wages may be maintained "without regard to the existence of any private agreement to arbitrate." Cal.Lab.Code Ann. § 229 (West 1971).IAppellee, Kenneth Morgan Thomas, brought this action in California Superior Court against his former employer, Kidder, Peabody & Co. (Kidder, Peabody), and two of its employees, appellants Barclay Perry and James Johnston. His complaint arose from a dispute over commissions on the sale of securities. Thomas alleged breach of contract, conversion, civil conspiracy to commit conversion, and breach of Page 482 U. S. 485 fiduciary duty, for which he sought compensatory and punitive damages. After Thomas refused to submit the dispute to arbitration, the defendants sought to stay further proceedings in the Superior Court. Perry and Johnston filed a petition in the Superior Court to compel arbitration; Kidder, Peabody invoked diversity jurisdiction and filed a similar petition in Federal District Court. Both petitions sought arbitration under the authority of §§ 2 and 4 of the Federal Arbitration Act. [Footnote 1]The demands for arbitration were based on a provision found in a Uniform Application for Securities Industry Registration form, which Thomas completed and executed in connection with his application for employment with Kidder, Peabody. That provision states:"I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register. . . ."App. 33a. Rule 347 of the New York Stock Exchange, Inc. (1975), with which Thomas registered, provides that"[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party. . . ."App. 34a. Page 482 U. S. 486 Kidder, Peabody sought arbitration as a member organization of the New York Stock Exchange (NYSE). Perry and Johnston relied on Thomas' allegation that they had acted in the course and scope of their employment, and argued that, as agents and employees of Kidder, Peabody, they were beneficiaries of the arbitration agreement.Thomas opposed both petitions on the ground that § 229 of the California Labor Code authorized him to maintain an action for wages, defined to include commissions, [Footnote 2] despite the existence of an agreement to arbitrate. He relied principally on this Court's decision in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U. S. 117 (1973), which had also considered the validity of § 229 in the face of a preemption challenge under the Supremacy Clause, U.S.Const., Art. VI, cl. 2. Thomas maintained that the decision in Ware stood for the proposition that the State's interest in protecting wage earners outweighs the federal interest in uniform dispute resolution.The Superior Court denied appellants' petition to compel arbitration. [Footnote 3] Thomas v. Kidder Peabody & Co., Civ. Action No. C529105 (Los Angeles County, Apr. 23, 1985) (reprinted at App. 128a-129a). The court characterized Ware as "controlling authority" which held that, "in accordance with California Labor Code Section 229, actions to collect wages may be pursued without regard to private arbitration agreements." Id. at 129a. It further concluded that, since Thomas' claims for conversion, civil conspiracy, and breach of fiduciary duty were ancillary to his claim for breach of Page 482 U. S. 487 contract and differed only in terms of the remedies sought, they should also be tried and not severed for arbitration. Id. at 128a-129a. The Superior Court did not address Thomas' contention that Perry and Johnston were "not parties" to the arbitration agreement, id. at 78a, and therefore lacked a contractual basis for asserting the right to arbitrate, an argument Thomas characterizes as one of "standing." [Footnote 4]Before the California Court of Appeal, appellants argued that Ware resolved only the narrow issue whether § 229 was preempted by Rule 347's provision for arbitration, given the promulgation of that Rule by the NYSE pursuant to § 6 of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 885, as amended, 15 U.S.C. § 78f, and the authority of the Securities and Exchange Commission (SEC) to review and modify the NYSE Rules pursuant to § 19 of the 1934 Act, 15 U.S.C. § 78s. [Footnote 5] See 414 U.S. at 414 U. S. 135. It was appellants' contention that, despite an indirect reference to the Federal Arbitration Page 482 U. S. 488 Act in footnote 15 of the Ware opinion, the preemptive effect of § 2 of the Act was not at issue in that case.In an unpublished opinion, the Court of Appeal affirmed. Thomas v. Perry, 2d Civ. No. B014485 (2d Dist., Div. 5, Apr. 10, 1986) (reprinted at App. 139a-142a). It read Ware's single reference to the Federal Arbitration Act to imply that the Court had refused to hold § 229 preempted by that Act and the litigants' agreement to arbitrate disputes pursuant to Rule 347. Thus, the Court of Appeal held that a claim for unpaid wages brought under § 229 was not subject to compulsory arbitration, notwithstanding the existence of an arbitration agreement. App. 140a-141a. Like the Superior Court, the Court of Appeal also rejected appellants' argument, based on this Court's decision in Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213 (1985), that the ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty were severable from the breach-of-contract claim, and should be arbitrated. App. 142a. Finally, the Court of Appeal refused to consider Thomas' argument that Perry and Johnston lacked "standing" to enforce the arbitration agreement. The court concluded that Thomas had raised this argument for the first time on appeal. [Footnote 6] Id. at 140a, n. 1. Page 482 U. S. 489The California Supreme Court denied appellants' petition for review. Id. at 144a. We noted probable jurisdiction, [Footnote 7] 479 U.S. 982 (1986), and now reverse.II"Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act."Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 460 U. S. 24 (1983). Enacted pursuant to the Commerce Clause, U.S.Const., Art. I, § 8, cl. 3, this body of substantive law is enforceable in both state and federal courts. Southland Corp. v. Keating, 465 U. S. 1, 465 U. S. 11-12 (1984) (§ 2 held to preempt a provision of the California Franchise Investment Law that California courts had interpreted to require judicial consideration of claims arising under that law). As we stated in Keating,"[i]n enacting § 2 of the federal Act, Congress declared a national policy favoring arbitration, and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration."Id. at 465 U. S. 10. "Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements." Id. at 465 U. S. 16 (footnote omitted). Section 2, therefore, embodies a clear federal policy of requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce or is revocable "upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. "We see nothing in the Act indicating that the broad principle of enforceability Page 482 U. S. 490 is subject to any additional limitations under state law." Keating, supra, at 465 U. S. 11.In Ware, which also involved a dispute between a securities broker and his former employer, we rejected a Supremacy Clause challenge to § 229 premised in part on the contention that, because the 1934 Act had empowered the NYSE to promulgate rules and had given the SEC authority to review and modify these rules, a private agreement to be bound by the arbitration provisions of NYSE Rule 347 was enforceable as a matter of federal substantive law, and preempted state laws requiring resolution of the dispute in court. But the federal substantive law invoked in Ware emanated from a specific federal regulatory statute governing the securities industry -- the 1934 Act. We examined the language and policies of the 1934 Act and found "no Commission rule or regulation that specifie[d] arbitration as the favored means of resolving employer-employee disputes," 414 U.S. at 414 U. S. 135, or that revealed a necessity for "nationwide uniformity of an exchange's housekeeping affairs." Id. at 414 U. S. 136. The fact that NYSE Rule 347 was outside the scope of the SEC's authority of review militated against finding a clear federal intent to require arbitration. Id. at 414 U. S. 135-136. Absent such a finding, we could not conclude that enforcement of California's § 229 would interfere with the federal regulatory scheme. Id. at 414 U. S. 139-140.By contrast, the present appeal addresses the preemptive effect of the Federal Arbitration Act, a statute that embodies Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause. Its general applicability reflects that "[t]he preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered. . . ." Byrd, 470 U.S. at 470 U. S. 221. We have accordingly held that these agreements must be "rigorously enforce[d]." Ibid.; see Shearson/American Express Inc. v. McMahon, ante at 482 U. S. 226; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 Page 482 U. S. 491 U.S. 614, 473 U. S. 625-626 (1985). This clear federal policy places § 2 of the Act in unmistakable conflict with California's § 229 requirement that litigants be provided a judicial forum for resolving wage disputes. Therefore, under the Supremacy Clause, the state statute must give way.The oblique reference to the Federal Arbitration Act in footnote 15 of the Ware decision, 414 U.S. at 414 U. S. 135, cannot fairly be read as a definitive holding to the contrary. There, the Court noted a number of decisions as having "endorsed the suitability of arbitration to resolve federally created rights." Ibid. (emphasis added). Footnote 15 did not address the issue of federal preemption of state-created rights. Rather, the import of the footnote was that the reasoning -- and perhaps result -- in Ware might have been different if the 1934 Act "itself ha[d] provided for arbitration." Ibid. [Footnote 8] Page 482 U. S. 492Our holding that § 2 of the Federal Arbitration Act preempts § 229 of the California Labor Code obviates any need to consider whether our decision in Byrd, supra, at 470 U. S. 221, would have required severance of Thomas' ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty from his breach-of-contract claim. We likewise decline to reach Thomas' contention that Perry and Johnston lack "standing" to enforce the agreement to arbitrate any of these claims, since the courts below did not address this alternative argument for refusing to compel arbitration. However, we do reject Thomas' contention that resolving these questions in appellants' favor is a prerequisite to their having standing under Article III of the Constitution to maintain the present appeal before this Court. As we perceive it, Thomas' "standing" argument simply presents a straightforward issue of contract interpretation: whether the arbitration provision inures to the benefit of appellants and may be construed, in light of the circumstances surrounding the litigants' agreement, to cover the dispute that has arisen between them. This issue may be resolved on remand; its status as an alternative ground for denying arbitration does not prevent us from reviewing the ground exclusively relied upon by the courts below. [Footnote 9] Page 482 U. S. 493The judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtPerry v. Thomas, 482 U.S. 483 (1987)Perry v. ThomasNo. 86-566Argued April 28, 1987Decided June 15, 1987482 U.S. 483SyllabusAppellee brought suit in California Superior Court against his former employer and appellants, two of its employees, alleging breach of contract and related causes of action arising from a dispute over commissions on securities sales. After appellee refused to arbitrate, appellants filed a petition to compel arbitration under §§ 2 and 4 of the Federal Arbitration Act, which respectively provide that contractual arbitration provisions are valid and enforceable and mandate their judicial enforcement. The demand for arbitration was based on a provision in a form appellee executed in connection with his employment application, whereby he agreed to arbitrate any dispute with his employer. Appellee opposed arbitration on the ground that his suit was authorized by California Labor Code § 229, which provides that wage collection actions may be maintained without regard to the existence of any private agreement to arbitrate. The court refused to compel arbitration, characterizing as "controlling authority" Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U. S. 117, which upheld § 229 in the face of a Supremacy Clause preemption challenge premised on an arbitration requirement in a New York Stock Exchange rule, which was promulgated pursuant to § 6 of the Securities Exchange Act of 1934 (1934 Act). The State Court of Appeals affirmed. Both lower courts refused to consider appellee's argument that appellants lacked "standing" to enforce the arbitration agreement, since they were not parties to it.Held:1. Under the Supremacy Clause, § 2 of the Federal Arbitration Act preempts § 229 of the California Labor Code. In enacting § 2, Congress declared a national policy favoring arbitration and withdrew the States' power to require a judicial forum for the resolution of claims that contracting parties agreed to resolve by arbitration. Ware is distinguishable on the ground that the language and policies of the 1934 Act and the regulations promulgated thereunder evidenced no clear federal intent to require arbitration. The oblique reference to the Federal Arbitration Act in footnote 15 of Ware cannot fairly be read as a definitive holding that that Act does not preempt § 229, since the footnote was concerned with federally created rights, and did not address the issue of federal preemption of state-created rights. Pp. 482 U. S. 489-491. Page 482 U. S. 4842. Appellee's contention that resolving in appellants' favor the question of their "standing" to enforce the agreement to arbitrate is a prerequisite under Article III of the Constitution to their maintenance of this appeal is rejected. Appellee's "standing" argument -- which this Court does not reach because the lower courts did not address it -- simply presents the straightforward contract interpretation issue whether the arbitration provision inures to appellants' benefit and may be construed to cover the present dispute. That issue may be resolved on remand, and its status as an alternative ground for denying arbitration does not prevent this Court from reviewing the lower courts' holdings on the preemption question. P. 482 U. S. 492.Reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and SCALIA, JJ., joined. STEVENS, J., post p. 482 U. S. 493, and O'CONNOR, J., post p. 482 U. S. 494, filed dissenting opinions.

1999_99-5

SyllabusAssuming that there has been gender-based disparate treatment by state authorities in these cases, it would not be enough to save § 13981's civil remedy, which is directed not at a State or state actor but at individuals who have committed criminal acts motivated by gender bias. Section 13981 visits no consequence on any Virginia public official involved in investigating or prosecuting Brzonkala's assault, and it is thus unlike any of the § 5 remedies this Court has previously upheld. See, e. g., South Carolina v. Katzenbach, 383 U. S. 301. Section 13981 is also different from previously upheld remedies in that it applies uniformly throughout the Nation, even though Congress' findings indicate that the problem addressed does not exist in all, or even most, States. In contrast, the § 5 remedy in Katzenbach was directed only to those States in which Congress found that there had been discrimination. Pp. 619-627.169 F.3d 820, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 627. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 628. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, and in which SOUTER and GINSBURG, JJ., joined as to Part I-A, post, p. 655.Solicitor General Waxman argued the cause for the United States in No. 99-5. With him on the briefs were Acting Assistant Attorney General Ogden, Deputy Solicitor General Underwood, Barbara McDowell, Mark B. Stern, Alisa B. Klein, and Anne Murphy. Julie Goldsheid argued the cause for petitioner in No. 99-29. With her on the briefs were Martha F. Davis, Eileen N. Wagner, Carter G. Phillips, Richard D. Bernstein, Katherine L. Adams, Jacqueline Gerson Cooper, and Paul A. Hemmersbaugh.Michael E. Rosman argued the cause for respondents in both cases. With him on the brief for respondent Morrison were Hans F. Bader and W David Paxton. Joseph Graham Painter, Jr., filed a brief for respondent Crawford. ttBriefs of amici curiae urging reversal were filed for the State of Arizona et al. by Janet Napolitano, Attorney General of Arizona, Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, Jennifer K. Brown, Assistant Attorney General, and Paula S. Bickett, and by the Attorneys General for their respective jurisdictions as fol-601CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In these cases we consider the constitutionality of 42 U. s. C. § 13981, which provides a federal civil remedy for thelows: Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Albert Benjamin "Ben" Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Patricia A. Madrid of New Mexico, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Jose A. Fuentes Agostini of Puerto Rico, Sheldon Whitehouse of Rhode Island, Paul G. Summers of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the Association of Trial Lawyers of America by Jeffrey Robert White; for AYUDA, Inc., et al. by Laura A. Foggan and Clifford M. Sloan; for the Bar of the City of New York by Leon Friedman, Ronald J. Tabak, Louis A. Craco, Jr., Greg Harris, and James F. Parver; for Equal Rights Advocates et al. by David S. Ettinger, Lisa R. Jaskol, and Mary-Christine Sungaila; for International Law Scholars and Human Rights Experts by Peter Weiss and Rhonda Copelon; for the Lawyers' Committee for Civil Rights Under Law et al. by Norman Redlich, Marc D. Stern, Daniel F. Kolb, Barbara Arnwine, Thomas J. Henderson, Jeffrey Sinensky, Steven Freeman, Melvin Shralow, Eliot Mincberg, and Nadine Taub; for Law Professors by Bruce Ackerman, Vicki C. Jackson, and Judith Resnik; for the National Network to End Domestic Violence et al. by Bruce D. Sokler; and for Joseph R. Biden, Jr., pro se.Briefs of amici curiae urging affirmance were filed for the State of Alabama by Bill Pryor, Attorney General, John J. Park, Jr., Assistant Attorney General, and Jeffrey s. Sutton; for the Institute for Justice et al. by Richard A. Epstein, William H. Mellor, Clint Bolick, Scott G. Bullock, Timothy Lynch, and Robert A. Levy; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Clarendon Foundation by Jay S. Bybee and Ronald D. Maines; for the Eagle Forum Education & Legal Defense Fund by Erik S. Jaffe and Phyllis Schlafiy; for the Independent Women's Forum by Anita K. Blair, E. Duncan602victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en bane, struck down § 13981 because it concluded that Congress lacked constitutional authority to enact the section's civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez, 514 U. S. 549 (1995), United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883), we affirm.IPetitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of 1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala, "You better not have any ... diseases." Complaint ~ 22. In the months following the rape, Morrison also allegedly announced in the dormitory's dining room that he "like[d] to get girls drunk and .... " Id., ~ 31. The omitted portions, quoted verbatim in the briefs on file with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend.Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribedGetchell, Jr., J. William Boland, and Robert L. Hodges; for the National Association of Criminal Defense Lawyers by Theodore M. Cooperstein and Lisa Kemler; for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper; for the Women's Freedom Network by Robert L. King; and for Rita Gluzman by Alan E. Untereiner.Michael P. Farris filed a brief for the Center for the Original Intent of the Constitution as amicus curiae.603antidepressant medication. Shortly after the rape Brzonkala stopped attending classes and withdrew from the university.In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech's Sexual Assault Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact with her despite the fact that she had twice told him "no." After the hearing, Virginia Tech's Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters.Virginia Tech's dean of students upheld the judicial committee's sentence. However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended to initiate a court challenge to his conviction under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to remedy the school's error in prosecuting her complaint under that policy, which had not been widely circulated to students. The university therefore conducted a second hearing under its Abusive Conduct Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester suspension. This time, however, the description of Morrison's offense was, without explanation, changed from "sexual assault" to "using abusive language."Morrison appealed his second conviction through the university's administrative system. On August 21, 1995, Virginia Tech's senior vice president and provost set aside Morrison's punishment. She concluded that it was "'excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy,'" Brzonkala v. Virginia Polytechnic Institute and State Univ., 132 F.3d 950, 955 (CA4 1997). Virginia Tech did not inform Brzonkala of this decision. After learning from a604newspaper that Morrison would be returning to Virginia Tech for the fall 1995 semester, she dropped out of the university.In December 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that Morrison's and Crawford's attack violated § 13981 and that Virginia Tech's handling of her complaint violated Title IX of the Education Amendments of 1972, 86 Stat. 373-375, 20 U. S. C. §§ 1681-1688. Morrison and Crawford moved to dismiss this complaint on the grounds that it failed to state a claim and that § 13981's civil remedy is unconstitutional. The United States, petitioner in No. 99-5, intervened to defend § 13981's constitutionality.The District Court dismissed Brzonkala's Title IX claims against Virginia Tech for failure to state a claim upon which relief can be granted. See Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 772 (WD Va. 1996). It then held that Brzonkala's complaint stated a claim against Morrison and Crawford under § 13981, but dismissed the complaint because it concluded that Congress lacked authority to enact the section under either the Commerce Clause or § 5 of the Fourteenth Amendment. Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).A divided panel of the Court of Appeals reversed the District Court, reinstating Brzonkala's § 13981 claim and her Title IX hostile environment claim. 1 Brzonkala v. Virginia Polytechnic and State Univ., 132 F.3d 949 (CA4 1997). The full Court of Appeals vacated the panel's opinion and reheard the case en banco The en banc court then issued an opinion affirming the District Court's conclusion that Brzonkala stated a claim under § 13981 because her complaint alleged a crime of violence and the allegations of Morrison's crude and derogatory statements regarding his1 The panel affirmed the dismissal of Brzonkala's Title IX disparate treatment claim. See 132 F. 3d, at 961-962.605treatment of women sufficiently indicated that his crime was motivated by gender animus.2 Nevertheless, the court by a divided vote affirmed the District Court's conclusion that Congress lacked constitutional authority to enact § 13981's civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F.3d 820 (CA4 1999). Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari. 527 U. S. 1068 (1999).Section 13981 was part of the Violence Against Women Act of 1994, § 40302,108 Stat. 1941-1942. It states that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 U. S. C. § 13981(b). To enforce that right, subsection (c) declares:"A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate. "Section 13981 defines a "crim[e] of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an2 The en banc Court of Appeals affirmed the District Court's conclusion that Brzonkala failed to state a claim alleging disparate treatment under Title IX, but vacated the District Court's dismissal of her hostile environment claim and remanded with instructions for the District Court to hold the claim in abeyance pending this Court's decision in Davis v. Monroe County Bd. of Ed., 526 U. S. 629 (1999). Brzonkala v. Virginia Polytechnic and State Univ., 169 F.3d 820, 827, n. 2 (CA4 1999). Our grant of certiorari did not encompass Brzonkala's Title IX claims, and we thus do not consider them in this opinion.606animus based on the victim's gender." § 13981(d)(1). It also provides that the term "crime of violence" includes any"(A) ... act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and"(B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the person who takes such action and the individual against whom such action is taken." § 13981(d)(2).Further clarifying the broad scope of § 13981's civil remedy, subsection (e)(2) states that "[n]othing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c) of this section." And subsection (e)(3) provides a § 13981 litigant with a choice of forums: Federal and state courts "shall have concurrent jurisdiction" over complaints brought under the section.Although the foregoing language of § 13981 covers a wide swath of criminal conduct, Congress placed some limitations on the section's federal civil remedy. Subsection (e)(l) states that "[n]othing in this section entitles a person to a cause of action under subsection (c) of this section for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender." Subsection (e)(4) further states that § 13981 shall not be construed "to confer on the courts of the United States jurisdiction over any State law claim seeking607the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree."Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in enacting § 13981. It said that a "Federal civil rights cause of action" is established "[p]ursuant to the affirmative power of Congress ... under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution." 42 U. S. C. § 13981(a). We address Congress' authority to enact this remedy under each of these constitutional provisions in turn.IIDue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U. S., at 568, 577-578 (KENNEDY, J., concurring); United States v. Harris, 106 U. S., at 635. With this presumption of constitutionality in mind, we turn to the question whether § 13981 falls within Congress' power under Article I, § 8, of the Constitution. Brzonkala and the United States rely upon the third clause of the section, which gives Congress power "[t]o regulate Commerce with foreign N ations, and among the several States, and with the Indian Tribes."As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our Nation has developed. See 514 U. S., at 552-557; id., at 568-574 (KENNEDY, J., concurring); id., at 584, 593-599 (THOMAS, J., concurring). We need not repeat that detailed review of608the Commerce Clause's history here; it suffices to say that, in the years since NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted. See Lopez, 514 U. S., at 555-556; id., at 573-574 (KENNEDY, J., concurring).Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress' regulatory authority is not without effective bounds. Id., at 557."[E]ven [our] modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power 'must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'" Id., at 556-557 (quoting Jones & Laughlin Steel, supra, at 37).3As we observed in Lopez, modern Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce power."3JU8TICE SOUTER'S dissent takes us to task for allegedly abandoning Jones & Laughlin Steel in favor of an inadequate "federalism of some earlier time." Post, at 641-643, 655. As the foregoing language from Jones & Laughlin Steel makes clear however, this Court has always recognized a limit on the commerce power inherent in "our dual system of government." 301 U. S., at 37. It is the dissent's remarkable theory that the commerce power is without judicially enforceable boundaries that disregards the Court's caution in Jones & Laughlin Steel against allowing that power to "effectually obliterate the distinction between what is national and what is local." Ibid.609514 U. S., at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277 (1981); Perez v. United States, 402 U. S. 146, 150 (1971)). "First, Congress may regulate the use of the channels of interstate commerce." 514 U. S., at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 256 (1964); United States v. Darby, 312 U. S. 100, 114 (1941)). "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." 514 U. S., at 558 (citing Shreveport Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States, 222 U. S. 20 (1911); Perez, supra, at 150). "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i. e., those activities that substantially affect interstate commerce." 514 U. S., at 558-559 (citing Jones & Laughlin Steel, supra, at 37).Petitioners do not contend that these cases fall within either of the first two of these categories of Commerce Clause regulation. They seek to sustain § 13981 as a regulation of activity that substantially affects interstate commerce. Given § 13981's focus on gender-motivated violence wherever it occurs (rather than violence directed at the instrumentalities of interstate commerce, interstate markets, or things or persons in interstate commerce), we agree that this is the proper inquiry.Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of § 13981. In Lopez, we held that the Gun-Free School Zones Act of 1990, 18 U. S. C. § 922(q)(1)(A), which made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress' authority under the Commerce Clause. See 514 U. S., at 551. Several significant considerations contributed to our decision.610First, we observed that § 922(q) was "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Id., at 561. Reviewing our case law, we noted that "we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce." Id., at 559. Although we cited only a few examples, including Wickard v. Filburn, 317 U. S. 111 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung, 379 U. S. 294 (1964); and Heart of Atlanta Motel, supra, we stated that the pattern of analysis is clear. Lopez, 514 U. S., at 559-560. "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Id., at 560.Both petitioners and JUSTICE SOUTER'S dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e. g., id., at 551 ("The Act [does not] regulat[e] a commercial activity"), 560 ("Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not"), 561 ("Section 922(q) is not an essential part of a larger regulation of economic activity"), 566 ("Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender 'legal uncertainty' "), 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition611elsewhere, substantially affect any sort of interstate commerce"); see also id., at 573-574 (KENNEDY, J., concurring) (stating that Lopez did not alter our "practical conception of commercial regulation" and that Congress may "regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy"), 577 ("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur"), 580 ("[U]nlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far" (citation omitted)). Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor. See id., at 559-560.4The second consideration that we found important in analyzing § 922(q) was that the statute contained "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have4JU8TICE SOUTER'S dissent does not reconcile its analysis with our holding in Lopez because it apparently would cast that decision aside. See post, at 637-643. However, the dissent cannot persuasively contradict Lopez's conclusion that, in every case where we have sustained federal regulation under the aggregation principle in Wickard v. Filburn, 317 U. S. 111 (1942), the regulated activity was of an apparent commercial character. See, e. g., Lopez, 514 U. S., at 559-560, 580.612an explicit connection with or effect on interstate commerce." Id., at 562. Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.Third, we noted that neither § 922(q) "'nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.''' Ibid. (quoting Brief for United States, O. T. 1994, No. 93-1260, pp. 5-6). While "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," 514 U. S., at 562 (citing McClung, supra, at 304; Perez, 402 U. S., at 156), the existence of such findings may "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." 514 U. S., at 563.Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563-567. The United States argued that the possession of guns may lead to violent crime, and that violent crime "can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe." Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. Ibid.We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress613to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id., at 564. We noted that, under this but-for reasoning:"Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories ... , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Ibid.With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e. g., id., at 559-560, and the cases cited therein.Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that § 13981 is sufficiently tied to interstate commerce, Congress elected to cast § 13981's remedy over a wider, and more purely intrastate, body of violent crime.55 Title 42 U. S. C. § 13981 is not the sole provision of the Violence Against Women Act of 1994 to provide a federal remedy for gender-motivated crime. Section 40221(a) of the Act creates a federal criminal remedy to614In contrast with the lack of congressional findings that we faced in Lopez, § 13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. See, e. g., H. R. Conf. Rep. No. 103-711, p. 385 (1994); S. Rep. No. 103-138, p. 40 (1993); S. Rep. No. 101-545, p. 33 (1990). But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, "'[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.''' 514 U. S., at 557, n. 2 (quoting Hodel, 452 U. S., at 311 (REHNQUIST, J., concurring in judgment)). Rather," '[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.''' 514 U. S., at 557, n. 2 (quoting Heart of Atlanta Motel, 379 U. S., at 273 (Black, J., concurring)).punish "interstate crimes of abuse including crimes committed against spouses or intimate partners during interstate travel and crimes committed by spouses or intimate partners who cross State lines to continue the abuse." S. Rep. No. 103-138, p.43 (1993). That criminal provision has been codified at 18 U. S. C. § 2261(a)(I), which states:"A person who travels across a State line or enters or leaves Indian country with the intent to injure, harass, or intimidate that person's spouse or intimate partner, and who, in the course of or as a result of such travel, intentionally commits a crime of violence and thereby causes bodily injury to such spouse or intimate partner, shall be punished as provided in subsection (b)."The Courts of Appeals have uniformly upheld this criminal sanction as an appropriate exercise of Congress' Commerce Clause authority, reasoning that "[t]he provision properly falls within the first of Lopez's categories as it regulates the use of channels of interstate commerce-i. e., the use of the interstate transportation routes through which persons and goods move." United States v. Lankford, 196 F.3d 563, 571-572 (CA5 1999) (collecting cases) (internal quotation marks omitted).615In these cases, Congress' findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers. Congress found that gender-motivated violence affects interstate commerce"by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; ... by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products." H. R. Conf. Rep. No. 103-711, at 385.Accord, S. Rep. No. 103-138, at 54. Given these findings and petitioners' arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded. See Lopez, supra, at 564. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power) to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gendermotivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.Petitioners' reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of616marriage, divorce, and childrearing on the national economy is undoubtedly significant. Congress may have recognized this specter when it expressly precluded § 13981 from being used in the family law context.6 See 42 U. S. C. § 13981(e)(4). Under our written Constitution, however, the limitation of congressional authority is not solely a matter of legislative grace.7 See Lopez, supra, at 575-579 (KENNEDY, J., concurring); Marbury, 1 Cranch, at 176-178.6We are not the first to recognize that the but-for causal chain must have its limits in the Commerce Clause area. In Lopez, 514 U. S., at 567, we quoted Justice Cardozo's concurring opinion in A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935):"There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours 'is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.'" Id., at 554 (quoting United States v. A. L. A. Schechter Poultry Corp., 76 F.2d 617, 624 (CA2 1935) (L. Hand, J., concurring)).7 JUSTICE SOUTER'S theory that Gibbons v. Ogden, 9 Wheat. 1 (1824), Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), and the Seventeenth Amendment provide the answer to these cases, see post, at 645-652, is remarkable because it undermines this central principle of our constitutional system. As we have repeatedly noted, the Framers crafted the federal system of Government so that the people's rights would be secured by the division of power. See, e. g., Arizona v. Evans, 514 U. S. 1, 30 (1995) (GINSBURG, J., dissenting); Gregory v. Ashcroft, 501 U. S. 452, 458-459 (1991) (cataloging the benefits of the federal design); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985) ("The 'constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties' ") (quoting Garcia, supra, at 572 (Powell, J., dissenting)). Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution's provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the Legislature's self-restraint. See, e. g., Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.) ("The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written"). It is thus a "'per-617We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what ismanent and indispensable feature of our constitutional system' " that" 'the federal judiciary is supreme in the exposition of the law of the Constitution.''' Miller v. Johnson, 515 U. S. 900, 922-923 (1995) (quoting CooperNo doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text. As we emphasized in United States v. Nixon, 418 U. S. 683 (1974): "In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others .... Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury that '[i]t is emphatically the province and duty of the judicial department to say what the law is.''' Id., at 703 (citation omitted).Contrary to JUSTICE SOUTER'S suggestion, see post, at 647-652, and n. 14, Gibbons did not exempt the commerce power from this cardinal rule of constitutional law. His assertion that, from Gibbons on, public opinion has been the only restraint on the congressional exercise of the commerce power is true only insofar as it contends that political accountability is and has been the only limit on Congress' exercise of the commerce power within that power's outer bounds. As the language surrounding that relied upon by JUSTICE SOUTER makes clear, Gibbons did not remove from this Court the authority to define that boundary. See Gibbons, supra, at 194-195 ("It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States .... Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State").618truly national and what is truly local. Lopez, 514 U. S., at 568 (citing Jones & Laughlin Steel, 301 U. S., at 30). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e. g., Cohens v. Virginia, 6 Wheat. 264, 426, 428 (1821) (Marshall, C. J.) (stating that Congress "has no general right to punish murder committed within any of the States," and that it is "clear ... that congress cannot punish felonies generally"). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.8 See, e. g., Lopez, 514 U. S., at 566 ("The Constitution ... withhold[s] from Congress a plenary police power"); id., at 584-585 (THOMAS, J., concurring) ("[W]e always have rejected read-8 JUSTICE SOUTER disputes our assertion that the Constitution reserves the general police power to the States, noting that the Founders failed to adopt several proposals for additional guarantees against federal encroachment on state authority. See post, at 645-646, and n. 14. This argument is belied by the entire structure of the Constitution. With its careful enumeration of federal powers and explicit statement that all powers not granted to the Federal Government are reserved, the Constitution cannot realistically be interpreted as granting the Federal Government an unlimited license to regulate. See, e. g., New York v. United States, 505 U. S. 144, 156-157 (1992). And, as discussed above, the Constitution's separation of federal power and the creation of the Judicial Branch indicate that disputes regarding the extent of congressional power are largely subject to judicial review. See n. 7, supra. Moreover, the principle that "'[t]he Constitution created a Federal Government of limited powers,'" while reserving a generalized police power to the States, is deeply ingrained in our constitutional history. New York, supra, at 155 (quoting Gregory v. Ashcroft, supra, at 457); see also Lopez, 514 U. S., at 584-599 (THOMAS, J., concurring) (discussing the history of the debates surrounding the adoption of the Commerce Clause and our subsequent interpretation of the Clause); Maryland v. Wirtz, 392 U. S. 183, 196 (1968).619ings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power"), 596-597, and n. 6 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause).IIIBecause we conclude that the Commerce Clause does not provide Congress with authority to enact § 13981, we address petitioners' alternative argument that the section's civil remedy should be upheld as an exercise of Congress' remedial power under § 5 of the Fourteenth Amendment. As noted above, Congress expressly invoked the Fourteenth Amendment as a source of authority to enact § 13981.The principles governing an analysis of congressional legislation under § 5 are well settled. Section 5 states that Congress may" 'enforce' by 'appropriate legislation' the constitutional guarantee that no State shall deprive any person of 'life, liberty, or property, without due process of law,' nor deny any person 'equal protection of the laws.'" City of Boerne v. Flores, 521 U. S. 507, 517 (1997). Section 5 is "a positive grant of legislative power," Katzenbach v. Morgan, 384 U. S. 641, 651 (1966), that includes authority to "prohibi[t] conduct which is not itself unconstitutional and [to] intrud[e] into 'legislative spheres of autonomy previously reserved to the States.'" Flores, supra, at 518 (quoting Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976)); see also Kimel v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000). However, "[a]s broad as the congressional enforcement power is, it is not unlimited." Oregon v. Mitchell, 400 U. S. 112, 128 (1970); see also Kimel, supra, at 81. In fact, as we discuss in detail below, several limitations inherent in § 5's text and constitutional context have been recognized since the Fourteenth Amendment was adopted.Petitioners' § 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence. This asser-620tion is supported by a voluminous congressional record. Specifically, Congress received evidence that many participants in state justice systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that these discriminatory stereotypes often result in insufficient investigation and prosecution of gendermotivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence. See H. R. Conf. Rep. No. 103711, at 385-386; S. Rep. No. 103-138, at 38, 41-55; S. Rep. No. 102-197, at 33-35, 41, 43-47. Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States' bias and deter future instances of discrimination in the state courts.As our cases have established, state-sponsored gender discrimination violates equal protection unless it "'serves "important governmental objectives and ... the discriminatory means employed" are "substantially related to the achievement of those objectives."'" United States v. Virginia, 518 U. S. 515, 533 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982), in turn quoting Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150 (1980)). See also Craig v. Boren, 429 U. S. 190, 198-199 (1976). However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government. See Flores, supra, at 520-524 (reviewing the history of the Fourteenth Amendment's enactment and discussing the contemporary belief that the Amendment" 'does621not concentrate power in the general government for any purpose of police government within the States''') (quoting T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871)). Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U. S. 1, 13, and n. 12 (1948).Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment's provisions, United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883). In Harris, the Court considered a challenge to § 2 of the Civil Rights Act of 1871. That section sought to punish "private persons" for "conspiring to deprive anyone of the equal protection of the laws enacted by the State." 106 U. S., at 639. We concluded that this law exceeded Congress' § 5 power because the law was "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers." Id., at 640. In so doing, we reemphasized our statement from Virginia v. Rives, 100 U. S. 313, 318 (1880), that "'these provisions of the fourteenth amendment have reference to State action exclusively, and not to any action of private individuals.'" Harris, supra, at 639 (misquotation in Harris).We reached a similar conclusion in the Civil Rights Cases.In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the § 5 enforcement power. 109 U. S., at 11 ("Individual invasion of individual rights is not the subject-matter of the [Fourteenth] [A]mendment"). See also, e. g., Romer v.622Evans, 517 U. S. 620, 628 (1996) ("[I]t was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations"); Lugar v. Edmondson Oil Co., 457 U. S. 922, 936 (1982) ("Careful adherence to the 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power"); Blum v. Yaretsky, 457 U. S. 991, 1002 (1982); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970); United States v. Cruikshank, 92 U. S. 542, 554 (1876) ("The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society").The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur-and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.Petitioners contend that two more recent decisions have in effect overruled this longstanding limitation on Congress' § 5 authority. They rely on United States v. Guest, 383 U. S. 745 (1966), for the proposition that the rule laid down in the Civil Rights Cases is no longer good law. In Guest, the Court reversed the construction of an indictment under 18 U. S. C. § 241, saying in the course of its opinion that "we deal here with issues of statutory construction, not with issues of constitutional power." 383 U. S., at 749. Three Members of the Court, in a separate opinion by Justice Brennan, expressed the view that the Civil Rights Cases623were wrongly decided, and that Congress could under § 5 prohibit actions by private individuals. 383 U. S., at 774 (opinion concurring in part and dissenting in part). Three other Members of the Court, who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three sentences stated the conclusion that Congress could "punis[h] all conspiracies-with or without state action-that interfere with Fourteenth Amendment rights." Id., at 762 (concurring opinion). Justice Harlan, in another separate opinion, commented with respect to the statement by these Justices:"The action of three of the Justices who joined the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary." Id., at 762, n. 1 (opinion concurring in part and dissenting in part).Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no occasion to revisit the Civil Rights Cases and Harris, having determined "the indictment [charging private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contain[ed] an express allegation of state involvement." 383 U. S., at 756. The Court concluded that the implicit allegation of "active connivance by agents of the State" eliminated any need to decide "the threshold level that state action must attain in order to create rights under the Equal Protection Clause." Ibid. All of this Justice Clark explicitly acknowledged. See id., at 762 (concurring opinion) ("The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities").624To accept petitioners' argument, moreover, one must add to the three Justices joining Justice Brennan's reasoned explanation for his belief that the Civil Rights Cases were wrongly decided, the three Justices joining Justice Clark's opinion who gave no explanation whatever for their similar view. This is simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion, when added to Justice Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil Rights Cases and Harris.Petitioners also rely on District of Columbia v. Carter, 409 U. S. 418 (1973). Carter was a case addressing the question whether the District of Columbia was a "State" within the meaning of Rev. Stat. § 1979, 42 U. S. C. § 1983-a section which by its terms requires state action before it may be employed. A footnote in that opinion recites the same litany respecting Guest that petitioners rely on. This litany is of course entirely dicta, and in any event cannot rise above its source. We believe that the description of the § 5 power contained in the Civil Rights Cases is correct:"But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular [s]tate legislation or [s]tate action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of [s]tate officers." 109 U. S., at 18.Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is625abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting § 13981:There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. The statement of Representative Garfield in the House and that of Senator Sumner in the Senate are representative:"[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them." Congo Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield)."The Legislature of South Carolina has passed a law giving precisely the rights contained in your 'supplementary civil rights bill.' But such a law remains a dead letter on her statute-books, because the State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to enforce it." Congo Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner).See also, e. g., Congo Globe, 42d Cong., 1st Sess., at 653 (statement of Sen. Osborn); id., at 457 (statement of Rep. Coburn); id., at App. 78 (statement of Rep. Perry); 2 Congo Rec. 457 (1874) (statement of Rep. Butler); 3 Congo Rec. 945 (1875) (statement of Rep. Lynch).But even if that distinction were valid, we do not believe it would save § 13981's civil remedy. For the remedy is simply not "corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers." Civil Rights Cases, supra, at 18. Or, as we have phrased it in more recent cases, prophylactic legislation under § 5 must have a "'congru-626ence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999); Flores, 521 U. S., at 526. Section 13981 is not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.In the present cases, for example, § 13981 visits no consequence whatever on any Virginia public official involved in investigating or prosecuting Brzonkala's assault. The section is, therefore, unlike any of the § 5 remedies that we have previously upheld. For example, in Katzenbach v. Morgan, 384 U. S. 641 (1966), Congress prohibited New York from imposing literacy tests as a prerequisite for voting because it found that such a requirement disenfranchised thousands of Puerto Rican immigrants who had been educated in the Spanish language of their home territory. That law, which we upheld, was directed at New York officials who administered the State's election law and prohibited them from using a provision of that law. In South Carolina v. Katzenbach, 383 U. S. 301 (1966), Congress imposed voting rights requirements on States that, Congress found, had a history of discriminating against blacks in voting. The remedy was also directed at state officials in those States. Similarly, in Ex parte Virginia, 100 U. S. 339 (1880), Congress criminally punished state officials who intentionally discriminated in jury selection; again, the remedy was directed to the culpable state official.Section 13981 is also different from these previously upheld remedies in that it applies uniformly throughout the Nation. Congress' findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the § 5 remedy upheld in Katzenbach v. Morgan, supra,627was directed only to the State where the evil found by Congress existed, and in South Carolina v. Katzenbach, supra, the remedy was directed only to those States in which Congress found that there had been discrimination.For these reasons, we conclude that Congress' power under § 5 does not extend to the enactment of § 13981.IVPetitioner Brzonkala's complaint alleges that she was the victim of a brutal assault. But Congress' effort in § 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under § 5 of the Fourteenth Amendment. If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States. The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1999SyllabusUNITED STATES v. MORRISON ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 99-5. Argued January 11, 2000-Decided May 15,2000*Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped by respondents while the three were students at Virginia Polytechnic Institute, and that this attack violated 42 U. S. C. § 13981, which provides a federal civil remedy for the victims of gender-motivated violence. Respondents moved to dismiss on the grounds that the complaint failed to state a claim and that § 13981's civil remedy is unconstitutional. Petitioner United States intervened to defend the section's constitutionality. In dismissing the complaint, the District Court held that it stated a claim against respondents, but that Congress lacked authority to enact § 13981 under either the Commerce Clause or § 5 of the Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for § 13981. The en banc Fourth Circuit affirmed.Held: Section 13981 cannot be sustained under the Commerce Clause or § 5 of the Fourteenth Amendment. pp. 607-627.(a) The Commerce Clause does not provide Congress with authority to enact § 13981's federal civil remedy. A congressional enactment will be invalidated only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U. S. 549, 568, 577-578. Petitioners assert that § 13981 can be sustained under Congress' commerce power as a regulation of activity that substantially affects interstate commerce. The proper framework for analyzing such a claim is provided by the principles the Court set out in Lopez. First, in Lopez, the noneconomic, criminal nature of possessing a firearm in a school zone was central to the Court's conclusion that Congress lacks authority to regulate such possession. Similarly, gender-motivated crimes of violence are not, in any sense, economic activity. Second, like the statute at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that § 13981 is sufficiently tied to interstate commerce*Together with No. 99-29, Brzonkala v. Morrison et al., also on certiorari to the same court.599to come within Congress' authority, Congress elected to cast § 13981's remedy over a wider, and more purely intrastate, body of violent crime. Third, although § 13981, unlike the Lopez statute, is supported by numerous findings regarding the serious impact of gender-motivated violence on victims and their families, these findings are substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely, a but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central Government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct's aggregate effect on interstate commerce. Pp. 607-619.(b) Section 5 of the Fourteenth Amendment, which permits Congress to enforce by appropriate legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property without due process, or deny any person equal protection of the laws, City of Boerne v. Flores, 521 U. S. 507,517, also does not give Congress the authority to enact § 13981. Petitioners' assertion that there is pervasive bias in various state justice systems against victims of gendermotivated violence is supported by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that the Amendment prohibits only state action, not private conduct. This was the conclusion reached in United States v. Harris, 106 U. S. 629, and the Civil Rights Cases, 109 U. S. 3, which were both decided shortly after the Amendment's adoption. The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time, who all had intimate knowledge and familiarity with the events surrounding the Amendment's adoption. Neither United States v. Guest, 383 U. S. 745, nor District of Columbia v. Carter, 409 U. S. 418, casts any doubt on the enduring vitality of the Civil Rights Cases and Harris.600Full Text of Opinion

1974_73-1290

MR. JUSTICE BRENNAN delivered the opinion of the Court.The question presented by this case is whether violations of the prohibition of a Federal Trade Commission (FTC) consent order against "acquiring" other companies constituted single violations within the meaning of the applicable civil penalty statutes, 38 Stat. 734, as amended, 15 U.S.C. § 21(l); 38 Stat. 719, as amended, 15 U.S.C. § 45(l), or whether such violations constituted a "continuing failure or neglect to obey" within the meaning of those statutes, authorizing imposition of daily penalties. The United States District Court for the District of Colorado interpreted the consent order to proscribe only the initial act of acquisition, and held that, therefore, only a single penalty might be imposed. 1972 CCH Trade Cases � 73,993, p. 92, 127 (Aug. 2, 1971). The Court of Appeals for the Tenth Circuit affirmed the District Court to that extent, 485 F.2d 16 (1973). A subsequent decision of the Court of Appeals for the Eighth Circuit is in conflict, United States v. Beatrice Foods Co., 493 F.2d 1259 (1974), cert. pending No. 73-1798. In interpreting a consent order worded in its pertinent terms similarly to that in this case, the Court of Appeals for the Eighth Circuit held that acquisition is a continuing offense until it is undone, noting that the construction of "acquiring" as a single, rather than continuing, violation "ignores the crucial effects of an acquisition and would render nonacquisition orders virtually meaningless." Id. at 1270.We granted certiorari in order to resolve this conflict between Courts of Appeals concerning the proper application of the "continuing" violation clauses of 15 U.S.C. §§ 21(l) and 45(l) to wording employed in a large number of FTC consent orders. [Footnote 1] Since we interpret Page 420 U. S. 226 "acquiring" as used in the consent order in this case to mean both the initial transaction and the maintaining of the rights obtained without resale, we hold that violation of the consent order is a continuing violation subject to daily penalties, and reverse. [Footnote 2] Page 420 U. S. 227IThe FTC alleged in 1960 that Continental Baking Co. (Continental), [Footnote 3] a major producer of bread and other bakery products, had violated § 7 of the Clayton Act, 38 Stat. 731, 64 Stat. 1125, 15 U.S.C. § 18, and § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, by various acquisitions which "may have the effect of substantially lessening competition or tending to create a monopoly. . . ." Before any decision in the case, the parties agreed to a proposed consent order which was approved by the FTC in May, 1962. The order, among Page 420 U. S. 228 other things, prohibited Continental for 10 years [Footnote 4] from"acquiring, directly or indirectly, through subsidiaries or otherwise, the whole or any part of the stock, share capital, or assets of any concern, corporate or non-corporate, engaged in any state of the United States in the production and sale of bread and bread-type rolls unless the Commission, on petition for modification of this Section III of this order, permits such an acquisition. . . ."Alleging that Continental had acquired assets in three companies in violation of this order, the Government brought suit in the District of Colorado under § 11(l) of the Clayton Act, 15 U.S.C. § 21(l) [Footnote 5] and § 5(l) of the Federal Page 420 U. S. 229 Trade Commission Act, 15 U.S.C. § 45(l), [Footnote 6] for civil penalties and other relief. The complaint prayed for penalties of $1,000 per day from the date of the contract of acquisition to the date of filing of the complaint on each of the three counts.The District Court held that two of the three transactions were, in fact, in violation of the consent order. It declined, however, to order daily penalties, finding that"the terms of the consent order proscribe only the act of acquisition, and that the violations of the consent order . . . did not constitute a 'continuing failure or neglect to obey' [15 U.S.C. §§ 21(l), 45(l)] said Page 420 U. S. 230 order. . . . Once these two acquisitions were accomplished, the violations were complete."1972 CCH Trade Cases, at 92, 129. The District Court therefore entered a judgment against ITT Continental for $5,000 for each of the two violations found. [Footnote 7]The Court of Appeals reversed the District Court only insofar as it had held one of the three transactions not in violation of the consent order. It affirmed on the matter of daily penalties, holding that"whether the order was directed to the acquisition or to the acquisition and retention of assets or interests . . . [is] an interpretation of the consent order, and the result is in accordance with the prevailing standards."485 F.2d at 21. Remand to the District Court was ordered only for imposition of a penalty for the third violation.IIThe basic question before us is whether there has been a "continuing failure or neglect to obey" an FTC order within the meaning of 15 U.S.C. §§ 21(l) and 45(l).The "continuing failure or neglect to obey" provision Page 420 U. S. 231 of § 45(l) was added to the Federal Trade Commission Act in 1950, and the like provision of § 21(l) to the Clayton Act in 1959. Although the legislative history of these provisions is sparse, some examples of behavior intended to be covered by the "continuing" violation provisions do appear in the legislative history. These include continuing conspiracies to fix prices or control production, maintenance of a billboard in defiance of an order prohibiting false advertising, failure to dissolve an unlawful merger, and failure to eliminate an interlocking directorate. See letter from FTC General Counsel to Senator Fulbright, 96 Cong.Rec. 3026-3027 (1950); Hearings on H.R. 432, H.R. 2977, H.R. 6049, and S. 726 before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess., 21 (1959); H.R.Rep. No. 580, 86th Cong., 1st Sess., 7 (1959). These violations share two discernible characteristics: the detrimental effect to the public and the advantage to the violator continue and increase over a period of time, and the violator could eliminate the effects of the violation if it were motivated to do so, after it had begun. Without these characteristics, daily penalties for such violations would probably have no greater deterrent effect than a single penalty, and accumulating daily penalties would therefore be unfair.The legislative history also makes clear that Congress was concerned with avoiding a situation in which the statutory penalty would be regarded by potential violators of FTC orders as nothing more than an acceptable cost of violation, rather than as a deterrence to violation. For example, Senator Aiken, chief proponent of the 1950 amendment, said that, if daily penalties for certain violations of the Federal Trade Commission Act were not permitted, "the fine would amount to a license in the amount of $5,000 for misrepresentation, which would be a very cheap fine, indeed." 96 Cong.Rec. 3025 (1950). Page 420 U. S. 232 Similarly, the House of Representatives Judiciary Committee said in its report on the 1959 amendments:"Although the maximum penalty may be severe, in certain cases, it would be appropriate. In the absence of the maximum penalty for a continuing offense, for example, commission and board orders with respect to mergers and interlocking directorships, would be ineffective. In such cases, unless the maximum penalty applied and each day of a continuing violation considered a separate offense, an order dissolving an unlawful merger could be ignored after the mere payment of a $5,000 fine."H.R.Rep. No. 580, 86th Cong., 1st Sess., 7 (1959). See also Hearings on H.R. 432, H.R. 2977, H.R. 6049, and S. 726, supra, at 30 (letter from FTC General Counsel).Thus, the "continuing failure or neglect to obey" provisions of 15 U.S.C. §§ 21(l) and 45(l) were intended to assure that the penalty provisions would provide a meaningful deterrence against violations whose effect is continuing and whose detrimental effect could be terminated or minimized by the violator at some time after initiating the violation. It seems apparent that acquisition in violation of an FTC order banning "acquiring" certain assets could be such a violation. Any anticompetitive effect of an acquisition continues as long as the assets obtained are retained, and the violator could undo or minimize any such effect by disposing of the assets at any time after the initial transaction. On the other hand, if violation of an order prohibiting "acquiring" assets were treated as a single violation, any deterrent effect of the penalty provisions would be entirely undermined, and the penalty would be converted into a minor tax upon a violation which could reap large financial benefits to the perpetrator. As we have seen, Congress Page 420 U. S. 233 added the continuing penalty provisions precisely to avoid such a result.IIIRespondent insists, however, that the underlying FTC order was a consent order proscribing only the initial act of acquisition, and that, therefore, the imposition of daily penalties which might otherwise be mandated cannot be permitted. Its argument is that "acquiring" in the consent order unambiguously refers only to the initial transaction, and that to read it otherwise is to add the words "holding" or "retaining" assets to the literal language of the order. This addition to the language of the order, ITT Continental contends, violates the principle of a line of cases culminating in United States v. Armour & Co., 402 U. S. 673 (1971), that any command of a consent decree or order must be found "within its four corners," id. at 402 U. S. 682, and not by reference to any "purposes" of the parties or of the underlying statutes. See United States v. Atlantic Refining Co., 360 U. S. 19 (1959); Hughes v. United States, 342 U. S. 353 (1952). Respondent asks us to conclude that the "acquirings" prohibited by the consent order are not capable of persisting over time, and that, therefore, there can be no "continuing failure or neglect to obey" the order. The Government, on the other hand, contends that the parties meant "acquiring" to include both purchase and retention of assets, and that, therefore, it is unnecessary to depart from the "four corners" rule of Armour to conclude that there has been a continuing violation.In Armour, it was first determined that the construction of the consent decree urged by the Government was inconsistent with the express terms of the consent decree it was seeking to enforce. [Footnote 8] The decree involved in Page 420 U. S. 234 Armour was the Meat Packers Consent Decree of 1920, entered in settlement of an antitrust case filed in District Court. Paragraph fourth of the decree enjoined Armour from engaging in certain businesses. The Greyhound Corporation, which was engaged in some of those businesses, acquired control of Armour. The Government claimed that this acquisition was in violation of the consent decree, contending that the purpose of the decree was structurally to separate the meatpackers from the retail food business entirely, and that the relationship between Armour and Greyhound was therefore prohibited.The Court noted that the language of the decree"taken in its natural sense, bars only active conduct on the part of the defendants. . . . [T]he decree does not speak in terms of relationships in general, but, rather, prohibits certain behavior, and, in doing so, prohibits some, but not all, economic interrelationship between Armour and the retail food business. . . . In short, we do not find in the decree a structural separation such as the Government claims. . . . [T]he decree leaves gaps inconsistent with so complete a separation."402 U.S. at 402 U. S. 678, 680. (Emphasis supplied.)Similarly, in both Atlantic Refining and Hughes, the Court first undertook to determine whether the language of the decree could support the construction urged by Page 420 U. S. 235 the Government, and concluded that it could not. In Hughes, the decree provided that Hughes was either to dispose of his stock in a certain corporation or commit the voting rights of his stock to a trustee "until [he] shall have sold his holdings of stock." 342 U.S. at 342 U. S. 355 n. The Court said:"A reading of the either/or wording would make most persons believe that Hughes was to have a choice of two different alternatives. Hughes would have no choice if the first 'alternative' was to sell the stock and the second 'alternative' was also to sell the stock."Id. at 342 U. S. 356. (Emphasis supplied.) Therefore, the Court concluded, the consent decree could not be construed, as the Government desired, to require Hughes to sell his stock.In Atlantic Refining, the Court concluded that the construction urged by the Government was a "strained construction," 360 U.S. at 360 U. S. 22, inconsistent with the "normal meaning," id. at 23, of the language used. It commented that, if the parties had intended the meaning urged by the Government, "one can hardly think of less appropriate language." Id. at 22.In all three of these cases, it was only after concluding that the language, fairly read, could not support the Government's construction that the Court turned to the contention that the restrictive reading was inconsistent with the purposes of the decree and of the antitrust laws assertedly violated. It was in this context that the Court noted that, because consent decrees are normally compromises in which the parties give up something they might have won in litigation and waive their rights to litigation, it is inappropriate to search for the "purpose" of a consent decree and construe it on that basis."[T]he decree itself cannot be said to have a purpose; rather, the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing Page 420 U. S. 236 purposes as the respective parties have the bargaining power and skill to achieve. . . . [T]he instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation. [Footnote 9]"Armour, 402 U.S. at 402 U. S. 681-682. Thus, the basic import of Armour, Atlantic Refining, and Hughes is that, since consent decrees and orders have many of the attributes of ordinary contracts, [Footnote 10] they should be construed basically as contracts, Page 420 U. S. 237 without reference to the legislation the Government originally sought to enforce but never proved applicable through litigation.We note that this case differs from Armour, Hughes, and Atlantic Refining in a most important respect. In each of those cases, the question of whether or not the consent decree was violated was the question for decision; in this case, respondent was found to have committed violations, and the issue before us affects only the manner of assigning penalties for each violation found. Thus, respondent is subject to some penalty, and there is no possibility as there was in Armour, Atlantic Refining, and Hughes that respondent will be penalized for behavior not prohibited at all by the order "within its four corners," Armour, 402 U.S. at 402 U. S. 682. Nothing in the consent order suggests that, although the parties agreed that Continental would refrain from "acquiring," they also agreed to limit the penalties which would otherwise apply if Continental did not refrain from that behavior. Such an agreement would be exceedingly odd, for it would undermine whatever prohibitions were imposed. As we have seen, 420 U. S. supra, it is quite possible that, under §§ 21(l) and 45(l), violation of an FTC adjudicated order against "acquiring" would be subject to daily penalties. It is not clear that Armour would require a different result merely because we are dealing with a consent order, since the parties reached no agreement at all concerning penalties to be applied in case of violation of the order. Page 420 U. S. 238We need not, however, determine whether §§ 21(l) and 45(l) would permit the imposition of daily penalties even if the consent order must be read as respondent maintains to proscribe only the initial act of acquisition. For we agree with the Government that the order "as it is written" does support an interpretation that the act of acquisition continues until the assets acquired are disgorged.IVSince a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. [Footnote 11] Such reliance does not in any way depart from the "four corners" rule of Armour.In this case, the consent order was part of an agreement between the parties entitled "Agreement Containing Consent Order to Divest and to Cease and Desist." The agreement incorporates by reference an "appendix," which sets forth at length the background leading to the complaint and the proposed order. In addition, the agreement provides that "[t]he complaint may be used in construing the terms of the order." Since the parties themselves so provided, both the appendix and the complaint are proper aids to the construction of the order and of the agreement of which it is part. [Footnote 12] Page 420 U. S. 239The complaint alleged that Continental had pursued "a continuous practice of acquiring various bakeries throughout the United States" (emphasis supplied), which were thereby "eliminated . . . as independent competitive factors in the manufacture, sale and distribution of bread and bread-type rolls. . . ." If the "acquiring" against which the order and the complaint incorporated in it were directed were limited to the single transaction by which Continental obtained rights in another company, it is hard to see why the effect which the complaint alleged followed from acquisitions would necessarily occur. For if Continental had sold the companies acquired as soon as the initial transactions were completed to other, independent companies, the bakeries would not have been "eliminated . . . as independent competitive factors."Reference to the appendix also supports the conclusion that "acquiring" as used in the order means both the initial transaction granting Continental rights in an independent bakery and the maintaining of those rights without resale. The appendix notes:"One of the principal problems in the baking industry is the tendency towards concentration and the continuous growth of major baking companies through acquisition. Such acquisitional growth and tendency towards concentration places in the hands of a few large companies the means to set the pattern of competition. . . . If this order is Page 420 U. S. 240 adopted by the Commission, the respondent's alleged continuous practice of acquiring companies baking and selling bread and bread-type rolls will be brought to a halt. . . ."(Emphasis supplied.) It is apparent that the "acquisitional growth" referred to in the appendix cannot be achieved merely by discrete transactions without reference to what is done with the assets obtained after those transactions. If Continental were merely a speculator in baking companies, buying assets in them and selling them soon thereafter, it would not necessarily create "through acquisition" a "tendency towards concentration" giving it the "means to set the pattern of competition." Thus, "acquiring" in both the appendix and the order, parts of the same agreement, must mean obtaining and retaining assets, not merely the former.Even without the aid of these explanatory documents properly usable to construe this particular order, we would have to conclude that "acquiring," as used in an antitrust decree or order, continues until the assets obtained are disgorged. As the foregoing analysis of the ancillary documents here illustrates, "acquiring" and related words do not, as respondent insists, unambiguously refer to a single transaction. Rather, as a matter of ordinary usage, they can, and in the antitrust context they do, encompass the continuing act of obtaining certain rights and treating them as one's own. We must assume that the parties here used the words with the specialized meaning they have in the antitrust field, since they were composing a legal document in settlement of an antitrust complaint.We need not go beyond the Clayton Act itself to conclude that "acquisition," as used in § 7 of the Act, means holding, as well as obtaining, assets. The Act provides that the FTC, if it finds a violation of § 7, can require a party to "divest itself of the stock, or other share capital, or assets, held . . . contrary to the provisions of [§ 7]." Page 420 U. S. 241 15 U.S.C. § 21(b). (Emphasis supplied.) Thus, the framers of the Act did not regard the terms "acquire" and "acquisition" as unambiguously banning only the initial transaction of acquisition; rather, they read the ban against "acquisition" to include a ban against holding certain assets.This Court's opinions reflect the same understanding. For example, in FTC v. Western Meat Co., 272 U. S. 554 (1926), the Court, in discussing an FTC order based on a violation of § 7, said:"The order here questioned was entered when respondent actually held and owned the stock contrary to law. The Commission's duty was to prevent the continuance of this unlawful action by an order directing that it cease and desist therefrom and divest itself of what it had no right to hold."Id. at 272 U. S. 559. (Emphasis supplied.) See also Arrow-Hart & Hegeman Elec. Co. v. FTC, 291 U. S. 587, 291 U. S. 596-599 (1934).Similarly, this Court's opinion in United States v. Du Pont, 353 U. S. 586 (1957), rests upon the conclusion that "acquisition" can mean, and in the context of § 7 of the Clayton Act does mean, both the purchase of rights in another company and the retention of those rights.In Du Pont, a § 7 case was brought in 1949, but based on a purchase of stock by Du Pont in 1917-1919. It was argued that "the Government could not maintain this action in 1949 because § 7 is applicable only to the acquisition of stock, and not to the holding or subsequent use of stock." 353 U.S. at 353 U. S. 596-597. Thus, Du Pont was seeking to interpret "acquire," as used in § 7, [Footnote 13] much as Page 420 U. S. 242 respondent here seeks to read "acquiring" in the consent decree.The Court in Du Pont rejected the interpretation urged upon it. Instead, the Court held that there is a violation"any time when the acquisition threatens to ripen into a prohibited effect. . . . To accomplish the congressional aim, the Government may proceed at any time that an acquisition may be said with reasonable probability to contain a threat that it may lead to a restraint of commerce or tend to create a monopoly of a line of commerce."Id. at 353 U. S. 597. Thus, there can be a violation at some time later even if there was clearly no violation -- no realistic threat of restraint of commerce or creation of a monopoly -- at the time of the initial acts of acquisition. Clearly, this result can obtain only because "acquisition" under § 7 is not a discrete transaction, but a status which continues until the transaction is undone. [Footnote 14] Page 420 U. S. 243Thus, under the order "as it is written," "acquiring" must mean both the act of first obtaining assets and the retention and use of those assets. To conclude otherwise would be to ignore the flexibility of the English language, as well as the circumstances surrounding the order and the context in which the parties were operating. And, since the order bans the continuing act of obtaining and retaining certain assets, a violation of the order is a "continuing failure or neglect to obey" it, and daily penalties may be imposed under 15 U.S.C. §§ 21(l) and 45(l).Because the Court of Appeals erred in concluding that daily penalties could not be imposed, we reverse and remand for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. ITT Continental Baking Co., 420 U.S. 223 (1975)United States v. ITT Continental Baking Co.No. 73-1290Argued November 13, 1974Decided February 19, 1975420 U.S. 223SyllabusThe civil penalty provisions of the Clayton Act, 15 U.S.C. § 21(l), and the Federal Trade Commission Act, 15 U.S.C. § 45(l), similarly provide in part that each separate violation of a Federal Trade Commission (FTC) cease and desist order issued under the respective Acts shall be a separate offense, except that, in the case of a violation through "continuing failure or neglect to obey" a final order of the FTC each day of continuance of such failure shall be deemed a separate offense. After the FTC had charged the Continental Baking Co. (Continental), a bakery which later merged with respondent, with violations of § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act by various acquisitions of other bakeries, the parties agreed to a consent order prohibiting Continental from "acquiring" other bakeries. Thereafter, alleging that Continental had acquired assets in other companies in violation of this order, the Government brought suit for civil penalties to be imposed daily from the date of the contract of acquisition to the date of filing of the complaint. The District Court, while holding that the order had been violated, declined to order daily penalties, finding that the order proscribed only the initial act of acquisition, that the violations did not constitute "a continuing failure or neglect to obey" within the meaning of §§ 21(l) and 45(l), and that, therefore, only a single penalty might be imposed. The Court of Appeals affirmed that holding.Held: "Acquiring" as used in the consent order means both the initial transaction and the maintaining of the rights obtained without resale, and therefore violation of the order is a "continuing failure or neglect to obey" an FTC order within the meaning of §§ 21(l) and 45(l) and thus subject to daily penalties thereunder. Pp. 420 U. S. 230-243.(a) The purpose of the "continuing failure or neglect to obey" provisions of §§ 21(l) and 45(l), as shown by their legislative Page 420 U. S. 224 histories, to assure that the penalty provisions would meaningfully deter violations whose effect is continuing and whose detrimental effect could be terminated or minimized by the violator at some time after initiating the violation, would be undermined and the penalty would be converted into a minor tax if violation of an order prohibiting "acquiring" assets were treated as a single violation. Pp. 420 U. S. 230-233.(b) Since the consent order "as it is written" supports an interpretation that the act of acquisition continues until the assets are disgorged (see (c), infra), there is no need to determine whether §§ 21(l) and 45(l) would permit the imposition of daily penalties even if the consent order must be read, as respondent claims, to proscribe only the initial act of acquisition. Pp. 420 U. S. 233-238.(c) Under the consent order "as it is written," "acquiring" must mean both the act of first obtaining assets and the retention and use of those assets, since to conclude otherwise would be to ignore the flexibility of the English language, as well as the circumstances surrounding the order and the context in which the parties were operating. That conclusion is supported by both the "appendix" to the parties' agreement of which the order is a part and the complaint, as proper aids for construing the order which is to be construed basically as a contract. But even without the aid of these documents, "acquiring," as used in an antitrust decree or order, continues until the assets are disgorged, since "acquiring" and related words, as used in the antitrust context, encompass the continuing act of obtaining certain rights and treating them as one's own. Pp. 420 U. S. 238-243.485 F.2d 16, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, MARSHALL, WHITE, and BLACKMUN, JJ., joined. STEWART, J., filed a dissenting opinion, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 420 U. S. 243. Page 420 U. S. 225

1977_77-452

MR. JUSTICE BRENNAN delivered the opinion of the Court.The primary question presented in these cases is whether the Interstate Commerce Commission is authorized by § 15(7) of the Interstate Commerce Act, as added, 36 Stat. 552, and amended, 49 U.S.C. § 15(7), [Footnote 1] to suspend initial tariff schedules of an interstate carrier subject to Part I of the Act, 24 Stat. 379, as amended, 49 U.S.C. §§ 1-27 (1970 ed. and Supp. V). In addition, we are asked to decide whether, if the Commission is so authorized, it has additional authority summarily to fix maximum interim tariff rates which will be allowed to go into effect during the suspension period and to require carriers filing tariffs containing such rates, as a further condition of nonsuspension, to refund any amounts collected which are ultimately found to be unlawful. We hold that the Commission has statutory authority to suspend initial tariff schedules, and that it has power ancillary to that authority to establish maximum interim rates and associated regulations -- including refund provisions -- as it has done in these cases. Page 436 U. S. 634IIn 1968, massive reservoirs of oil were discovered at Prudhoe Bay in the Alaskan Arctic. Two years later, plans crystallized to build a pipeline from Prudhoe Bay to the all-weather port of Valdez on Alaska's Pacific coast. After protracted environmental litigation was ended by special Act of Congress, [Footnote 2] construction of the Trans Alaska Pipeline System (TAPS) began in 1974. In May and June, 1977, seven of the eight owners of TAPS, [Footnote 3] anticipating completion of TAPS in mid-1977, filed tariffs with the Interstate Commerce Commission [Footnote 4] setting out the rules and rates governing transportation Page 436 U. S. 635 of oil over TAPS. These rates were met immediately by formal protests [Footnote 5] from the State of Alaska, [Footnote 6] the Arctic Slope Regional Corporation, [Footnote 7] the United States Department of Justice, [Footnote 8] and the Commission's Bureau of Investigations and Enforcement. [Footnote 9]Acting pursuant to § 15(7) of the Interstate Commerce Act, the Commission [Footnote 10] found that the protests lodged against the Page 436 U. S. 636 TAPS tariffs gave it "reason to believe the proposed rates are not just and reasonable." Trans Alaska Pipeline System, 355 I.C.C. 80, 81 (1977) (TAPS). In support of this conclusion, it cited the protestants' arguments that the filed rates allowed excessive returns on capital [Footnote 11] and that the cost data provided by the carriers were overstated. [Footnote 12] Dismissing the TAPS carriers' argument that § 15(7) gave the Commission no power to suspend initial rates, the Commission suspended the TAPS rates for the full seven months allowed by law, see 355 I.C.C. at 81-82, citing protestants' showing of "probable unlawfulness," id. at 81, and the Commission's concern that"maintenance of excessively high rates could act as a deterrent or an obstacle to the use of the pipeline by nonaffiliated oil producers, and would also delay the Alaskan interests in obtaining revenues that depend upon the wellhead price of the oil."Id. at 82.On the other hand, the Commission found that it would not be in the public interest if TAPS had to close for a seven-month period. Id. at 3. Accordingly, "accept[ing] the basic data supplied by the carriers" as true, ibid., the Commission Page 436 U. S. 637 applied what it stated to be its traditional rate-of-return calculation [Footnote 13] to compute new rates that approximated what full investigation would likely reveal to be lawful rates, [Footnote 14] and it stated that it would not suspend interim tariffs which specified rates no higher than those estimated. See id. at 83-86. However, since the estimated rates might still "exceed reasonable levels," the Commission stated that any interim tariffs must provide for refunds of any amounts later determined to be in excess of lawful rates. Id. at 86. [Footnote 15]Four pipeline owners, petitioners here, [Footnote 16] filed a petition for review of the Commission's suspension order in the Court of Appeals for the Fifth Circuit. That court determined: (1) that the Commission had the statutory authority to suspend Page 436 U. S. 638 an initial tariff as well as changes in tariffs; (2) that it had authority ancillary to the suspension power to set out, without an adjudicatory hearing, maximum interim rates which it would allow to go into effect during the suspension period; and (3) that it had authority to condition a decision not to suspend tariffs on a requirement that carriers whose tariffs were allowed to go into effect be prepared to make refunds of any amounts collected -- whether under initially proposed or interim tariffs -- which were later determined (after full hearing) to be unlawful. Mobil Alaska Pipeline Co. v. United States, 557 F.2d 775 (1977).Petitioners sought review in this Court and filed applications for a stay of the Commission's suspension order, all relief having been denied by the Fifth Circuit. On October 20, 1977, we granted the applications for a stay, 434 U.S. 913, and we issued a supplemental stay order on November 14, 1977. 434 U. S. 949. Thereafter we granted certiorari to consider the three issues decided by the Court of Appeals. 434 U.S. 964. We affirm. [Footnote 17] Page 436 U. S. 639IIBy the Act of Sept. 18, 1940, ch. 722, Tit. I, § 1, 54 Stat. 899, note preceding 49 U.S.C. § 1, Congress declared the National Transportation Policy of the United States to be "to encourage the establishment and maintenance of reasonable charges for transportation services." Part I of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. §§ 1-27 (1970 ed. and Supp. V), which applies to common carriers by rail and pipeline, is one vehicle by which the National Transportation Policy is carried into effect. Under the Act as passed in 1887, however, the role of the Commission in establishing "reasonable charges" was circumscribed. Although § 1 of the Act provided that"[a]ll charges made for any service rendered or to be rendered in the transportation of passengers or property . . . shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful,"24 Stat. 379, this Court early held that the Commission had no authority to set charges, but could only determine if charges set, by the carriers were unreasonable or unjust in the context of granting reparations to injured shippers. See ICC v. Cincinnatti, N.O. & T.P. R. Co., 167 U. S. 479 (1897); 1 I. Sharfman, The Interstate Commerce Commission 227 (1931) (hereinafter Sharfman). Page 436 U. S. 640In 1906, Congress passed the Hepburn Act, 34 Stat. 54, which, inter alia, augmented the Commission's authority to condemn existing rates as unjust or unreasonable by adding express authority to set maximum rates to be observed by carriers in the future. See 49 U.S.C. § 15. Under the Hepburn Act, however, the Commission could not issue an order affecting a rate until it had become effective. This feature of the Hepburn Act was immediately recognized by the Commission as a major defect. See Sharfman 51 n. 50. It meant that the only relief against unreasonable rates lay in the reparations remedy, and this could not provide a satisfactory solution:"In many cases, the damage suffered through loss of competitive advantage far exceeds the difference between the rate actually charged and that found to be reasonable by the Commission; and in most instances the burden of the unreasonable rate is borne by a prior producer or is shifted to the ultimate consumer, for whom no redress whatever is available as against the carrier."Id. at 51. See H.R.Rep. No. 923, 61st Cong., 2d Sess., 4 (1910), quoting President Taft's special message to Congress on the Interstate Commerce Act; [Footnote 18] S.Rep. No. 355, 61st Cong., 2d Sess., 8 (1910); [Footnote 19] United States v. Chesapeake & Ohio R. Co., 426 U. S. 500, 426 U. S. 513, and n. 10 (1976) (Chessie); Dixon, The Mann-Elkins Act, 24 Q.J.Econ. 593, 602-603 (1910) Page 436 U. S. 641 (hereinafter Dixon). The Commission's Annual Reports also tell us that, as early as 1907, private litigants were able to convince some federal courts to enjoin rate advances after their effective dates, but before the Commission was able to complete an investigation as required by the Hepburn Act. See Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 372 U. S. 663-664, and n. 6 (1963); Sharfman 50 n. 49. Thus, not only did the Hepburn Act fail to protect the public against unreasonable carrier charges, but the equity litigation spawned by the Act led to discrimination in rates -- much like that prohibited by § 1 of the Act -- in the situation in which shippers successful in court would be paying one charge while those who were unsuccessful, or who did not have the wherewithal to go to court or to post an injunction bond, were paying higher charges. See Arrow, supra at 372 U. S. Sharfman 50 n. 49; Dixon 603.To"provid[e] a 'means . . . for checking at the threshold new adjustments that might subsequently prove to be unreasonable or discriminatory, safeguarding the community against irreparable losses and recognizing more fully that the Commission's essential task is to establish and maintain reasonable charges and proper rate relationships,'"Chessie, supra at 426 U. S. 513, quoting Sharfman 59, Congress passed the Mann-Elkins Act of 1910, 36 Stat. 539. Section 12 of that Act, 36 Stat. 552, amended § 15 of the Interstate Commerce Act to allow the Commission to suspend "any schedule stating a new individual or joint rate, fare, or charge" for a period not to exceed 10 months. The suspension power conferred was intended to be a "particularly potent tool," giving the Commission "tremendous power.'" Chessie, supra at 426 U. S. 513, quoting 45 Cong.Rec. 3471 (1910) (statement of Sen. Elkins speaking on behalf of majority report).Section 15 of the Act, as augmented by the Hepburn and Mann-Elkins Acts, thus works with §§ 1 and 6 of the Act, 49 U.S.C. §§ 1 and 6 (1970 ed. and Supp. V), to give the Commission Page 436 U. S. 642 a complete ratemaking charter. Section 1, as we have indicated above, sets the standard that rates and charges must meet, and § 6 -- which prohibits a carrier covered by Part I from engaging in interstate transportation unless its rates, fares, and charges have been filed and published and which, in addition, allows changes in any rate, fare, or charge to be made only after notice to the Commission and public through advance filing of schedules showing the proposed changes, see 49 U.S.C. §§ 6(1), 6(3), and 6(7) -- insures both that the Commission will have sufficient notice to exercise its suspension power, and that no carrier can operate on suspended or disapproved schedules.IIIWith this background in mind, we turn to the question whether the Commission is authorized by § 15(7) to suspend the initial rates of a common carrier subject to Part I of the Interstate Commerce Act.Section 15(7) states that,"[w]henever there shall be filed . . . any schedule stating a new individual or joint rate, fare, or charge, . . . the Commission . . . may from time to time suspend the operation of such schedule. . . ."(Emphasis added.) It is hard to imagine rates any more "new" than those filed for TAPS, a service which has never before been offered. And, since § 15(7) applies to any new rate, there is little room to argue that Congress meant the suspension power not to apply to these cases, although we recognize that the Court of Appeals found that § 15(7) had no plain meaning. See 557 F.2d at 781.Nonetheless, petitioners argue that "new" does not really mean "new," but refers only to increased or changed rates, i.e., rates which replace other rates previously in effect. As we understand the argument, it draws on three sources. First, it is said that Congress, in 1910, was directing its attention solely to the problem of increased railroad rates and, therefore, that the statute should be limited to this application. Second, Page 436 U. S. 643 petitioners argue that the only rate schedules the Interstate Commerce Act requires to be filed prior to their effective date are schedules of changed rates. See 49 U.S.C. § 6(3). Since, in their view, § 15(7) is intended to work in tandem with § 6(3), petitioners conclude that new schedules include only changed schedules. Finally, petitioners point to language added to § 15(7) by § 418 of the Transportation Act of 1920, 41 Stat. 48487, which they say authoritatively glosses the word "new," limiting it to the increased rate situation. We find these arguments unpersuasive.AThis Court, in interpreting the words of a statute, has"some 'scope for adopting a restricted, rather than a literal or usual, meaning of its words where acceptance of that meaning would lead to absurd results . . . or would thwart the obvious purpose of the statute' . . . , [b]ut it is otherwise 'where no such consequences would follow, and where . . . it appears to be consonant with the purposes of the Act. . . .'"Commissioner v. Brown, 380 U. S. 563, 380 U. S. 571 (1965) (citations omitted). Under this test, a restriction on the "literal or usual meaning" of the word "new" is not warranted by the legislative history of the Mann-Elkins Act.First, petitioners' claim that the Commission is without authority to suspend initial rates is not limited to situations in which proposed initial rates are in some sense reasonable; it is a claim that a carrier can impose any rate it chooses. [Footnote 20] Nor have petitioners pointed to any mechanism which would tend to make initial rates reasonable, and Congress, in 1910, concluded that the reparations provisions of the Commerce Page 436 U. S. 644 Act are an insufficient check. Moreover, in these cases, the reparations remedy is particularly ineffective, since those who will ship oil over TAPS are almost exclusively parents or cosubsidiaries of TAPS owners. [Footnote 21] Thus, to an indeterminate, but possibly large extent, excess transportation charges to shippers will be offset by excess profits to TAPS owners, creating a wash transaction from the standpoint of parent oil companies. Indeed, it is telling that no shipper of oil protested the TAPS rates. Instead, as one might predict from experience under the Hepburn Act, see supra at 436 U. S. 640-641, only the public perceives that it will be injured by the proposed TAPS rates and has objected to them. See nn. 6-8 supra. Therefore, in the absence of suspension authority, unreasonable initial rates -- both generally and in these cases -- like unreasonable increases in existing rates, will almost certainly be passed along to "a prior producer or . . . to the ultimate consumer." Sharfman 51.Second, if the Commission has no authority to suspend initial rates, it follows that Congress cannot have meant to foreclose whatever equity power there is in the courts to enjoin Page 436 U. S. 645 carrier rates. Thus, with respect to initial rates, courts might again reach "diverse conclusions," jeopardizing "the regulatory goal of uniformity," and "causing in turn discrimination and hardship to the general public.'" Arrow, 372 U.S. at 372 U. S. 664, quoting ICC Annual Report 10 (1907). [Footnote 22]Accordingly, far from reaching an "absurd resul[t]'" which would "`thwart the obvious purpose of the statute,'" Brown, supra, at 380 U. S. 571, a literal reading of the word "new" in § 15(7) is necessary to curb mischief flowing from unchecked initial rates, which is in every way identical to that flowing from unchecked changes in rates to which the Mann-Elkins Act is concededly addressed. Given the equivalence of the harms resulting from unchecked initial and changed rates, only unequivocal statements in the legislative history of the Act would support any limitation on the scope of the suspension power. Petitioners, however, have been able to offer only isolated remarks made in floor debates in favor of their position. [Footnote 23] These show at most that the primary area Page 436 U. S. 646 of congressional concern was the situation in which railroads increased their preexisting rates. There is nothing to show that Congress intended to limit the suspension power to this situation, however, and, indeed, other isolated remarks show quite clearly that Representative Mann, at least, thought both initial and changed rates could be suspended. [Footnote 24] Therefore, we conclude that the word "new" must be given its literal interpretation, which embraces the rates that are the subject of this litigation. [Footnote 25] Page 436 U. S. 647BNor do we think much can be made of the fact that Congress, in Part I of the Interstate Commerce Act, sometimes refers to "new" rates and sometimes to "changed" rates.While it is true that § 6(3) of the Act provides that"[n]o change shall be made in . . . rates . . . which have been filed and published by any common carrier . . . except after thirty days' notice to the Commission and to the public"(emphasis added), we do not not read this section to restrict § 15(7), as petitioners do. Central to petitioners' argument is the premise that § 6(3) provides the exclusive procedure through which tariffs can be filed with the Commission. But this is not so.We can agree that § 6(3) simply cannot describe the procedure to be followed for filing initial rates, since that section, by its terms, applies only to changes in tariffs which have previously been filed with the Commission, and initial tariffs, by definition, have not been so filed. However, the conclusion that § 6(3) cannot govern the filing of initial tariffs only begins the analysis, for § 6(1) of the Act -- which states that"[e]very common carrier . . . shall file with the Commission . . . schedules showing all the rates, fares, and charges for transportation [over its routes,]"49 U.S.C. § 6(1) (emphasis added) -- plainly requires initial rates, as well as rates resulting from tariff changes, to be filed with the Commission. Since initial tariffs cannot be filed under § 6(3), the question therefore arises how initial tariffs are to be filed. Page 436 U. S. 648The Interstate Commerce Act gives no answer to this question; § 6 is silent on the issue. However, the Commission provided an answer by regulation in 1906 in order to clarify carrier obligations under the then recently enacted Hepburn Act. [Footnote 26] In that year, the Commission issued Tariff Circular No A, which provided:"NEW ROADS. -- On new lines of road, including branches and extensions of existing roads, individual rates may be established in the first instance, and also joint rates to and from points on such new line, without notice, on posting a tariff of such rates and filing the same with the Commission."The immediately preceding paragraph of the same Circular provided that "Changes in Rates" had to be filed on 30 days' notice, which suggests that the Commission was aware that the 30-day requirement of § 6(3), and indeed that § (3) itself, was inapplicable to initial rates for "new roads." The rule announced in Circular 2-A became Rule 44 of Tariff Circular 14-A in 1907 and Rule 57 of Tariff Circular 15-A in 1908, a numerical designation which has been retained to this day. See 49 CFR § 1300.57 (1977). [Footnote 27] Page 436 U. S. 649Thus, in 1910 when the Mann-Elkins Act was passed, Commission practice was quite clear. Initial tariffs were filed under Rule 57 on 1 day's notice (later changed to 10 days' notice) and tariff changes were filed under the provisions of 6(3). Since both the Rule and the Act provided that tariffs should be filed with delayed effective dates, it was clearly possible for the Commission to suspend either initial or changed rates. Consequently, we find no basis for concluding either that § 6(3) in fact provides the exclusive procedural avenue for filing tariffs or that Congress in 1910 would have thought that it did.Similarly, although § 418 of the Transportation Act of 1920, 41 Stat. 484-487, added a sentence to § 15(7) -- "if the proceeding has not been concluded [within the suspension period], the proposed change . . . shall go into effect at the end of such period" -- nothing in the legislative history of that Act suggests that "change" is to be read to restrict the scope of the suspension power. Moreover, the amending language of § 418 itself refers to both changed rates and rate increases, which would suggest that changed rates include more than rate increases. [Footnote 28]Finally, as we have indicated, the tariff provisions in Part I of the Act did not spring full grown into the statute books. Section 6(3), part of the 1887 Act, was drafted at a time when the Commission had no ratemaking authority. Section 15(7) traces to three Acts -- the 1887 Act, the Hepburn Act, and the Mann-Elkins Act -- and was then further amended by the Transportation Act of 1920. Since, therefore, the tariff provisions grew more like Topsy than Athena, it is inappropriate to insist that each phrase in those provisions fit meticulously Page 436 U. S. 650 with every other. Instead, the Act must be construed not only by its language but by its purposes if sense is to be made of the verbal accretions of many years. Under this proper standard of construction, there is little to commend the argument that the word "change" was meant to narrow "new." To the contrary, the opposite construction -- that "new" was intended to clarify the meaning of "change" -- is more justified given the purposes of the Hepburn and Mann-Elkins Acts. Indeed, when Congress did enact comprehensive tariff schemes in Parts II, [Footnote 29] III, [Footnote 30] and IV [Footnote 31] Of the Interstate Commerce Act, which cover (respectively) motor carriers, common carriers by water, and freight forwarders, it indicated unequivocally in the language of the suspension provisions that initial rates were "new" rates capable of being suspended, and yet references to "changed" rates appear in those Parts in each place they appear in Part I. [Footnote 32] Page 436 U. S. 651CFor the reasons stated above, we conclude that the Commission is authorized by § 15(7) to suspend rates which are "new" in the sense that they apply to services which have never before been offered to the public.IVOur conclusion that the Commission can suspend TAPS's initial rates does not end our inquiry, for petitioners also argue that the Commission has here exceeded whatever power Page 436 U. S. 652 it has to suspend tariffs. Pointing to the Commission's calculation of rates which it would allow to go into effect during the suspension period, they state that the Commission has set rates without the hearing required by 49 U.S.C. § 15(1). [Footnote 33] We disagree.The reason the Commission has been given power to suspend is to prevent irreparable harm to the public during the Page 436 U. S. 653 time when it has under consideration the lawfulness of a proposed rate. See 436 U. S. supra. The foundation for a suspension is the Commission's conclusion that a proposed rate is probably unreasonable or unjust. See, e.g., TAPS, 355 I.C.C. at 81-82. To make such a determination, the Commission is obviously required to form a tentative opinion about the location of the line between the just and the unjust, the reasonable and the unreasonable. Moreover, the Commission is required by § 15(7) to set out its reasons in writing for suspending a tariff. The usual and sufficient reason will be that the Commission has found a proposed tariff to fall on the unjust or unreasonable side of the line it has drawn, and it is a reason of precisely this sort that the Commission has given here. See 355 I.C.C. at 81-83.Petitioners do not apparently disagree that the Commission can suspend a tariff because it falls on the wrong side of the line of reasonableness, but they would prevent the Commission in suspending a tariff from stating, as it did here, where the tentative dividing line lies. Such a statement, they say, is ratemaking. ut this is untenable: no principle of law requires the Commission to engage in a pointless charade in which carriers desiring to exercise their § 6(3) rights are required to submit and resubmit tariffs until one finally goes below an undisclosed maximum point of reasonableness and is allowed to take effect. The administrative process, after all, is not modeled on "The Price is Right." What the Commission did here, therefore, far from being condemnable, is an intelligent and practical exercise of its suspension power which is thoroughly in accord with Congress' goal, recognized in Arrow, 372 U.S. at 372 U. S. 664-666; see United States v. SCRAP, 412 U. S. 669, 412 U. S. 697 (1973), to strike a fair balance between the needs of the public and the needs of regulated carriers. Indeed, the Commission might well have been derelict in its duty had it insisted on charade once it had determined that there was a way TAPS could operate without harm to the Page 436 U. S. 654 public. Cf. Arrow, supra; SCRAP, supra; 43 U.S.C. § 1651(a) (1970 ed., Supp. V) (congressional policy favors "[t]he early development and delivery of oil . . . from Alaska's North Slope to domestic markets").VFinally, petitioners contend that the Commission has no power to subject them to an obligation to account for and refund amounts collected under the interim rates in effect during the suspension period and the initial rates which would become effective at the end of such period. They point to the absence of any express authority for such refund provisions, and also to the fact that § 15(7) does provide expressly for refunds in a limited category of circumstances, namely, where there is an "increased rate or charge for or in respect to the transportation of property," which has become effective at the end of a suspension period. This statutory pattern, they suggest, indicates that Congress considered and rejected any broader refund scheme, thereby curtailing any ancillary power to order refund provisions that the Commission might otherwise have.In response, we note first that we have already recognized in Chessie that the Commission does have powers "ancillary" to its suspension power which do not depend on an express statutory grant of authority. We had no occasion in Chessie to consider what the full range of such powers might be, but we did indicate that the touchstone of ancillary power was a "direc[t] relat[ionship]" between the power asserted and the Commission's "mandate to assess the reasonableness of . . . rates and to suspend them pending investigation if there is a question as to their legality." 426 U.S. at 426 U. S. 514. Applying this test, we found in Chessie a direct relationship which justified the Commission in insisting that the proceeds of proposed general railroad rate increases be used to pay for deferred maintenance. If such a use was made of the proceeds, Page 436 U. S. 655 the rates were reasonable, but they might not be reasonable if put to other purposes. Ibid. We also noted that "[d]elay through suspension would only have aggravated the already poor condition of some of the railroads." Ibid. Thus, we approved the deferred maintenance condition essentially because it was necessary to strike a proper balance between the interests of the carriers and the interests of the public.The situation here is very similar. Even a cursory glance at the pleadings before the Commission shows that extended adjudicatory proceedings will be required to resolve the question of precisely what are fair rates. Accordingly, it is not apparent how the Commission could discharge its mandate under § 15(7) summarily "to assess the reasonableness of [TAPS] rates," 426 U.S. at 426 U. S. 514, while considering the interest of the TAPS carriers in beginning operations, unless it could make gross approximations of the sort it made in this proceeding, in which it essentially accepted carrier-supplied data as true and properly included in the TAPS rate base notwithstanding protests to the contrary. See TAPS, supra at 83; supra at 436 U. S. 636, and n. 12. But if such approximations are to be used to meet the needs of carriers, it is plain that refund provisions are a necessary and "directly related," Chessie, 426 U.S. at 426 U. S. 514, means of discharging the Commission's other mandate to protect the public pending a more complete determination of the reasonableness of the TAPS ratesThus, here as in Chessie, the Commission's refund conditions are a "legitimate, reasonable, and direct adjunct to the Commission's explicit statutory power to suspend rates pending investigation," in that they allow the Commission, in exercising its suspension power, to pursue "a more measured course" and to "offe[r] an alternative tailored far more precisely to the particular circumstances" of these cases. Ibid. Since, again as in Chessie, the measured course adopted here is necessary to strike a proper balance between the interests of carriers and the public, we think the Interstate Commerce Act should Page 436 U. S. 656 be construed to confer on the Commission the authority to enter on this course unless language in the Act plainly requires a contrary result.We turn, therefore, to the language in § 15(7) on which petitioners rely. This language was not part of the Mann-Elkins Act, but was added by the Transportation Act of 1920. See § 418 of the latter Act, 41 Stat. 484, 487. Section 418 rearranged the paragraphs of § 15 of the Interstate Commerce Act and made numerous modifications to the text of that section. Among other things, § 418 reduced the suspension period created by the Mann-Elkins Act from 10 months to 120 days. According to Commissioner Clark, this change was intended to alleviate complaints by the railroads that the 10-month period too long deprived them of needed revenue in the situation in which proposed rates were ultimately determined to be reasonable. See 1 Hearings on H.R. 4378 before the House Committee on Interstate and Foreign Commerce, 66th Cong., 1st Sess., 30-31 (1919). To protect shippers, the reduction in the suspension period was counterbalanced with a provision authorizing the Commission to require carriers to keep account of and refund amounts collected under tariffs which became effective after a 120-day suspension. See ibid. The provisions were summarized in the Report of the Conference Committee which described the provisions of the House bill which provided the text of § 418:"[The House bill provided that] as to freight rates the carrier should keep a record in all cases where the commission had not concluded such hearing, and, if the commission finally found the rates too high, the carrier was required to make refunds to the shippers affected."H.R.Conf.Rep. No. 650, 66th Cong., 2d Sess., 66 (1920).This passage, which declares that Congress sought to protect the public in "all cases" in which a hearing had not been concluded by the termination of the suspension period, certainly cannot be read to indicate that Congress placed any Page 436 U. S. 657 emphasis on the word "increased" or intended to limit the Commission's ancillary powers. Indeed, the House Report on the same bill, H. R Rep. No. 456, 66th Cong., 1st Sess., 20-21 (1919), appears to refer to "increased" rates only to distinguish them from "decreased" rates, over which the 1920 Act for the first time gave the Commission some authority by conferring power to set minimum rates, see id. at 19, and as to which there is no need to create a refund procedure to protect shippers. From this very sketchy history, therefore, it seems that Congress' purpose was to create a remedy less cumbersome than the reparations procedure to protect shippers whenever they could be harmed due to the shortened suspension period created by the 1920 Act. See Arrow, 372 U.S. at 372 U. S. 665-666. Accordingly, we conclude that nothing in the Transportation Act precludes what the Commission has done here and, moreover, that the Commission's actions are completely consistent with what Congress intended when it drafted the 1920 Act.VIFor the reasons stated above, the judgment below is in all respectsAffirmed

U.S. Supreme CourtTrans Alaska Pipeline Rate Cases, 436 U.S. 631 (1978)Trans Alaska Pipeline Rate Cases Nos. 77-452, 77-457 and 77-602Argued March 28, 1978Decided June 6, 1978436 U.S. 631SyllabusAnticipating completion of the Trans Alaska Pipeline System (TAPS) in mid-1977, seven of its eight owners filed tariffs for the transportation of oil over TAPS with the Interstate Commerce Commission, which at that time had jurisdiction over oil pipelines. Four protestants, respondents here, immediately asked the ICC to suspend the proposed rates, which were claimed to be prima facie unlawful for a number of reasons. Rejecting the carriers' argument that it had no authority under § 15(7) of the Interstate Commerce Act (Act) (which provides that "[w]henever there shall be filed . . . any schedule stating a new individual or joint rate, . . . the Commission . . . may . . . suspend the operation of such schedule") to suspend TAPS's initial rates, the ICC concluded that the rates should be suspended. It then went on to hold that the TAPS carriers could submit interim tariffs, to be effective on one day's notice, which would be allowed to go into effect during the suspension period if the rates proposed in such tariffs were lower than levels summarily fixed by the ICC and if the TAPS carriers would agree to refund any amounts collected under either the interim or initially proposed tariffs which might subsequently (after full hearing) be held to be unlawful. The TAPS carriers petitioned for review of the ICC's order in the Court of Appeals, which affirmed all aspects of the order.Held:1. Pursuant to § 15(7), the ICC is authorized to suspend initial tariff schedules of an interstate carrier subject to Part I of the Act, as it did here. As against the contention that the word "new" as used in § 15(7) was intended to refer only to increased or changed rates (i.e., rates which replace other rates previously in effect), such word must be given its literal interpretation as applying to services which have never before been offered to the public, thus embracing the initial rates in question in these cases. Pp. 436 U. S. 642-652.2. The ICC has power ancillary to its suspension authority under Page 436 U. S. 632 § 15(7) to establish, without an adjudicatory hearing, maximum interim rates which it would allow to go into effect during the suspension period. By so establishing such interim rates here, the ICC did not exceed its suspension power but, to the contrary, performed an intelligent and practical exercise of its suspension power in accord with Congress' goal in § 15(7) to strike a fair balance between the needs of the public and the needs of regulated carriers. Pp. 436 U. S. 651-654.3. The ICC, as part of such ancillary power to establish maximum interim rates, has authority, which it properly exercised here, to condition its decision not to suspend tariffs on a requirement that the carriers refund any amounts collected under either interim or initially proposed rates that might later be determined to exceed lawful rates, notwithstanding the absence of express authority in the statute for such refunds. United States v. Chesapeake & Ohio R. Co., 426 U. S. 500. If the ICC's approximations of what would be lawful rates are to be used to meet the carriers' needs, such refund provisions are a necessary and "directly related," id. at 426 U. S. 514, means of discharging the ICC's mandate to protect the public pending a more complete determination of the reasonableness of the rates, and thus are a "legitimate, reasonable, and direct adjunct to the Commission's explicit statutory power to suspend rates pending investigation," ibid., in that they allow the ICC, in exercising its suspension power, to pursue "a more measured course" and to "offe[r] an alternative tailored far more precisely to the particular circumstances" of these cases. Ibid. Pp. 436 U. S. 654-657.557 F.2d 775, affirmed.BRENNAN, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the cases. Page 436 U. S. 633

1962_42

MR. JUSTICE GOLDBERG delivered the opinion of the Court.These consolidated appeals present as a key question the validity under § 1 of the Sherman Act [Footnote 1] of block booking of copyrighted feature motion pictures for television exhibition. We hold that the tying agreements here are illegal, and in violation of the Act. Page 371 U. S. 40The United States brought separate civil antitrust actions in the Southern District of New York in 1957 against six major distributors of pre-1948 copyrighted motion picture feature films for television exhibition, alleging that each defendant had engaged in block booking in violation of § 1 of the Sherman Act. The complaints asserted that the defendants had, in selling to television stations, conditioned the license or sale of one or more feature films upon the acceptance by the station of a package or block containing one or more unwanted or inferior films. No combination or conspiracy among the distributors was alleged, nor was any monopolization or attempt to monopolize under § 2 of the Sherman Act averred. The sole claim of illegality rested on the manner in which each defendant had marketed its product. The successful pressure applied to television station customers to accept inferior films along with desirable pictures was the gravamen of the complaint.After a lengthy consolidated trial, the district judge filed exhaustive findings of fact, conclusions of law, and a carefully reasoned opinion, 189 F. Supp. 373, in which he found that the actions of the defendants constituted violations of § 1 of the Sherman Act. The conclusional finding of fact and law was that". . . the several defendants have each, from time to time and to the extent set forth in the specific findings of fact, licensed or offered to license one or more feature films to television stations on condition that the licensee also license one or more other such feature films, and have, from time to time and to the extent set forth in the specific findings of fact, refused, expressly or impliedly, to license feature films to television stations unless one or more other such feature films were accepted by the licensee."189 F. Supp. at 397-398. Page 371 U. S. 41The judge recognized that there was keen competition between the defendant distributors, and therefore rested his conclusion solely on the individual behavior of each in engaging in block booking. In reaching his decision, he carefully considered the evidence relating to each of the 68 licensing agreements that the Government had contended involved block booking. He concluded that only 25 of the contracts were illegally entered into. Nine of these belonged to defendant C & C Super Corp., which had an admitted policy of insisting on block booking that it sought to justify on special grounds.Of the others, defendant Loew's, Incorporated, had in two negotiations that resulted in licensing agreements declined to furnish stations KWTV of Oklahoma City and WBRE of Wilkes-Barre with individual film prices, and had refused their requests for permission to select among the films in the groups. Loew's exacted from KWTV a contract for the entire Loew's library of 723 films, involving payments of $314,725.20. The WBRE agreement was for a block of 100 films, payments to total $15,000.Defendant Screen Gems, Inc., was also found to have block booked two contracts, both with WTOP of Washington, D.C., one calling for a package of 26 films and payments of $20,800 and the other for 52 films and payments of $40,000. The judge accepted the testimony of station officials that they had requested the right to select films and that their requests were refused.Associated Artists Productions, Inc., negotiated four contracts that were found to be block booked. Station WTOP was to pay $118,800 for the license of 99 pictures, which were divided into three groups of 33 films, based on differences in quality. To get "Treasure of the Sierra Madre," "Casablanca," "Johnny Belinda," "Sergeant York," and "The Man Who Came to Dinner," among others, WTOP also had to take such films as "Nancy Drew Page 371 U. S. 42 Troubleshooter," "Tugboat Annie Sails Again," "Kid Nightingale," "Gorilla Man," and "Tear Gas Squad." A similar contract for 100 pictures, involving a license fee of $140,000, was entered into by WMAR of Baltimore. Triangle Publications, owner and operator of five stations, was refused the right to select among Associated's packages, and ultimately purchased the entire library of 754 films for a price of $2,262,000 plus 10% of gross receipts. Station WJAR of Providence, which licensed a package of 58 features for a fee of $25,230, had asked first if certain films it considered undesirable could be dropped from the offered packages, and was told that the packages could not be split.Defendant National Telefilm Associates was found to have entered into five block booked contracts. Station WMAR wanted only 10 Selznick films, but was told that it could not have them unless it also bought 24 inferior films from the "TNT" package and 12 unwanted "Fabulous 40's." It bought all of these, for a total of $62,240. Station WBRE, before buying the "Fox 52" package in its entirety for $7,358.50, requested and was refused the right to eliminate undesirable features. Station WWLP of Springfield, Massachusetts, inquired about the possibility of splitting two of the packages, was told this was not possible, and then bought a total of 59 films in two packages for $8,850. A full package contract for National's "Rocket 86" group of 86 films was entered into by KPIX of San Francisco, payments to total $232,200, after KPIX requested and was denied permission to eliminate undesirable films from the package. Station WJAR wanted to drop 10 or 12 British films from this defendant's "Champagne 58" package, was told that none could be deleted, and then bought the block for $31,000.The judge found that defendant United Artists Corporation had in three consummated negotiations conditioned the sale of films on the purchase of an entire Page 371 U. S. 43 package. The "Top 39" were licensed by WAAM of Baltimore for $40,000 only after receipt of a refusal to sell 13 of the 39 films in the package. Station WHTN of Huntington, West Virginia, purchased "Award 52" for $16,900 after United Artists refused to deal on any basis other than purchase of the entire 52 films. Thirty-nine films were purchased by WWLP for $5,850 after an initial inquiry about selection of titles was refused.Since defendant C & C was found to have had an overall policy of block booking, the court did not analyze the particular circumstances of the nine negotiations which had resulted in the licensing of packages of films. C & C's policies resulted in at least one station having to take a package in which "certain of the films were unplayable, since they had a foreign language sound track." 189 F. Supp. at 389.The court entered separate final judgments against the defendants, wherein each was enjoined from"(A) Conditioning or tying, or attempting to condition or tie, the purchase or license of the right to exhibit any feature film over any television station upon the purchase or license of any other film;""(B) Conditioning the purchase or license of the right to exhibit any feature film over any television station upon the purchase or license for exhibition over any other television station of that feature film, or any other film;""(C) Entering into any agreement to sell or license the right to exhibit any feature film over any television station in which the differential between the price or fee for such feature film when sold or licensed alone and the price or fee for the same film when sold or licensed with one or more other film [sic] has the effect of conditioning the sale or license of such film upon the sale or license of one or more other films. "Page 371 U. S. 44All of the defendants except National Telefilm [Footnote 2] appeal from the decree. The appeals of defendants Loew's, Screen Gems, Associated Artists, and United Artists raise identical issues, and are consolidated as No. 43. The appeal of defendant C & C raises additional issues, and is therefore separately numbered as No. 44. The Government, although it won on the merits below, asserts in a cross-appeal (No. 42) that the scope and specificity of the decree entered by the District Court were inadequate to prevent the continued attainment of illegal objectives. It seeks to have the decree broadened in a number of ways. All of the defendants below oppose these modifications. The cases are here on direct appeal from the District Court under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. We noted probable jurisdiction, 368 U.S. 973, and consolidated the appeals. We shall consider No. 43 first, since appellants there raise the fundamental question whether their activities were in violation of the antitrust laws. We shall thereafter consider No. 44, the special arguments of appellant C & C, and finally No. 42, the Government's request for broadening the decree.IThis case raises the recurring question of whether specific tying arrangements violate § 1 of the Sherman Act. [Footnote 3] This Court has recognized that "[t]ying agreements serve hardly any purpose beyond the suppression of competition," Standard Oil Co. of California v. United States, 337 U. S. 293, 337 U. S. 305-306. They are an object of antitrust Page 371 U. S. 45 concern for two reasons -- they may force buyers into giving up the purchase of substitutes for the tied product, see Times-Picayune Pub. Co. v. United States, 345 U. S. 594, 345 U. S. 605, and they may destroy the free access of competing suppliers of the tied product to the consuming market, see International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 396. A tie-in contract may have one or both of these undesirable effects when the seller, by virtue of his position in the market for the tying product, has economic leverage sufficient to induce his customers to take the tied product along with the tying item. The standard of illegality is that the seller must have"sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product. . . ."Northern Pacific R. Co. v. United States, 356 U. S. 1, 356 U. S. 6. Market dominance -- some power to control price and to exclude competition -- is by no means the only test of whether the seller has the requisite economic power. Even absent a showing of market dominance, the crucial economic power may be inferred from the tying product's desirability to consumers or from uniqueness in its attributes. [Footnote 4]The requisite economic power is presumed when the tying product is patented or copyrighted, International Salt Co. v. United States, 332 U. S. 392; United States Page 371 U. S. 46 v. Paramount Pictures, Inc., 334 U. S. 131. This principle grew out of a long line of patent cases which had eventuated in the doctrine that a patentee who utilized tying arrangements would be denied all relief against infringements of his patent. Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502; Carbice Corp. v. American Patents Dev. Corp., 283 U. S. 27; Leitch Mfg. Co. v. Barber Co., 302 U. S. 458; Ethyl Gasoline Corp. v. United States, 309 U. S. 436; Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488; Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661. These cases reflect a hostility to use of the statutorily granted patent monopoly to extend the patentee's economic control to unpatented products. The patentee is protected as to his invention, but may not use his patent rights to exact tribute for other articles.Since one of the objectives of the patent laws is to reward uniqueness, the principle of these cases was carried over into antitrust law on the theory that the existence of a valid patent on the tying product, without more, establishes a distinctiveness sufficient to conclude that any tying arrangement involving the patented product would have anticompetitive consequences. E.g., International Salt Co. v. United States, 332 U. S. 392. In United States v. Paramount Pictures, Inc., 334 U. S. 131, 334 U. S. 156-159, the principle of the patent cases was applied to copyrighted feature films which had been block booked into movie theaters. The Court reasoned that"The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, 286 U. S. 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress.""The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits Page 371 U. S. 47 derived by the public from the labors of authors.""It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius. But the reward does not serve its public purpose if it is not related to the quality of the copyright. Where a high quality film greatly desired is licensed only if an inferior one is taken, the latter borrows quality from the former and strengthens its monopoly by drawing on the other. The practice tends to equalize, rather than differentiate, the reward for the individual copyrights. Even where all the films included in the package are of equal quality, the requirement that all be taken if one is desired increases the market for some. Each stands not on its own footing, but in whole or in part on the appeal which another film may have. As the District Court said, the result is to add to the monopoly of the copyright in violation of the principle of the patent cases involving tying clauses."334 U.S. at 334 U. S. 158.Appellants attempt to distinguish the Paramount decision in its relation to the present facts: the block booked sale of copyrighted feature films to exhibitors in a new medium -- television. Not challenging the District Court's finding that they did engage in block booking, they contend that the uniqueness attributable to a copyrighted feature film, though relevant in the movie theater context, is lost when the film is being sold for television use. Feature films, they point out, constitute less than 8% of television programming, and they assert that films are "reasonably interchangeable" with other types of programming material and with other feature films as well. Thus, they argue that their behavior is not to be judged by the principle of the patent cases, as applied to copyrighted materials in Paramount Pictures, but by the general Page 371 U. S. 48 principles which govern the validity of tying arrangements of nonpatented products, e.g., Northern Pacific R. Co. v. United States, 356 U. S. 1, 356 U. S. 6, 356 U. S. 11. They say that the Government's proof did not establish their "sufficient economic power" in the sense contemplated for nonpatented products. [Footnote 5]Appellants cannot escape the applicability of Paramount Pictures. A copyrighted feature film does not lose its legal or economic uniqueness because it is shown on a television, rather than a movie screen.The district judge found that each copyrighted film block booked by appellants for television use "was in itself a unique product"; that feature films "varied in theme, in artistic performance, in stars, in audience appeal, etc.," and were not fungible; and that, since each defendant, by reason of its copyright, had a "monopolistic" position as to each tying product, "sufficient economic power" to impose an appreciable restraint on free competition in the tied product was present, as demanded by the Northern Pacific decision. 189 F. Supp. at 381. [Footnote 6] We agree. These findings of the district judge, supported by the record, confirm the presumption of uniqueness resulting from the existence of the copyright itself.Moreover, there can be no question in this case of the adverse effects on free competition resulting from appellants' Page 371 U. S. 49 illegal block booking contracts. Television stations forced by appellants to take unwanted films were denied access to films marketed by other distributors who, in turn, were foreclosed from selling to the stations. Nor can there be any question as to the substantiality of the commerce involved. The 25 contracts found to have been illegally block booked involved payments to appellants ranging from $60,800 in the case of Screen Gems to over $2,500,000 in the case of Associated Artists. A substantial portion of the licensing fees represented the cost of the inferior films which the stations were required to accept. These anticompetitive consequences are an apt illustration of the reasons underlying out recognition that the mere presence of competing substitutes for the tying product, here taking the form of other programming material as well as other feature films, is insufficient to destroy the legal, and indeed the economic, distinctiveness of the copyrighted product. Standard Oil Co. of California v. United States, 337 U. S. 293, 337 U. S. 307; Times-Picayune Pub. Co. v. United States, 345 U. S. 594, 345 U. S. 611 and n. 30. By the same token, the distinctiveness of the copyrighted tied product is not inconsistent with the fact of competition, in the form of other programming material and other films, which is suppressed by the tying arrangements.It is therefore clear that the tying arrangements here, both by their "inherent nature" and by their "effect," injuriously restrained trade. United States v. American Tobacco Co., 221 U. S. 106, 221 U. S. 179. Accommodation between the statutorily dispensed monopoly in the combination of contents in the patented or copyrighted product and the statutory principles of free competition demands that extension of the patent or copyright monopoly by the use of tying agreements be strictly confined. There may be rare circumstances in which the doctrine we have enunciated under § 1 of the Sherman Act prohibiting tying arrangements involving patented or copyrighted Page 371 U. S. 50 tying products is inapplicable. However, we find it difficult to conceive of such a case, and the present case is clearly not one.The principles underlying our Paramount Pictures decision have general application to tying arrangements involving copyrighted products, and govern here. Applicability of Paramount Pictures brings with it a meeting of the test of Northern Pacific, since Paramount Pictures is but a particularized application of the general doctrine as reaffirmed in Northern Pacific. Enforced block booking of films is a vice in both the motion picture and television industries, and that the sin is more serious (in dollar amount) in one than the other does not expiate the guilt for either. Appellants' block booked contracts are covered by the flat holding in Paramount Pictures, 334 U.S. at 334 U. S. 159, that "a refusal to license one or more copyrights unless another copyright is accepted" is "illegal."Appellants (other than C & C) make the additional argument that each of them was found to have entered into such a small number of illegal contracts as to make it improper to enter injunctive relief. Appellants urge that their overall sales policies were to allow selective purchasing of films, and that, in light of this, the fact that a few contracts were found to be illegal does not justify the entering of injunctive relief. We disagree. Illegality having been properly found, appellants cannot now complain that its incidence was too scattered to warrant injunctive relief. The trial judge, exercising sound judgment, has concluded that injunctive relief is necessary to prevent further violations. We think that finding wholly warranted. Moreover, the record shows that Loew's only instituted its policy of making individual films available shortly after suit was brought, and there is evidence that United Artists was conscientious in publicizing its willingness Page 371 U. S. 51 to deal in individual films only after the commencement of suit was imminent. There is no reason to disturb the judge's legal conclusions and decree merely because he did not find more illegal agreements when, as here, the illegal behavior of each defendant had substantial anticompetitive effects.IIAppellant C & C, in its separate appeal, raises certain arguments which amount to an attempted business justification for its admitted block booking policy. C & C purchased the telecasting rights in some 742 films known as the "RKO Library." It did so with a bank loan for the total purchase price, and, to get the bank loan, it needed a guarantor, which it found in the International Latex Corporation. Latex, however, demanded and secured an agreement from C & C that films would not be sold without obtaining in return a commitment from television stations to show a minimum number of Latex spot advertisements in conjunction with the films. Thus, since stations could not feasibly telecast the minimum number of spots without buying a large number of films to spread them over, C & C by requiring the minimum number of advertisements, effectively forced block booking on those stations which purchased its films. C & C contends that block booking was merely the by-product of two legitimate business motives -- Latex' desire for a saturation advertising campaign and C & C's wish to buy a large film library. However, the obvious answer to this contention is that the thrust of the antitrust laws cannot be avoided merely by claiming that the otherwise illegal conduct is compelled by contractual obligations. Were it otherwise, the antitrust laws could be nullified. Contractual obligations cannot thus supersede statutory imperatives. Hence, tying arrangements, once found to exist in a context Page 371 U. S. 52 of sufficient economic power, are illegal "without elaborate inquiry as to . . . the business excuse for their use," Northern Pacific R. Co. v. United States, 356 U. S. 1, 356 U. S. 5.In Nos. 43 and 44, therefore, we agree with the merits of the District Court's decision. It correctly found that the conditioning of the sale of one or more copyrighted feature films to television stations upon the purchase of one or more other films is illegal. The antitrust laws do not permit a compounding of the statutorily conferred monopoly.IIIThe trial judge's ability to formulate a decree tailored to deal with the violations existent in each case is normally superior to that of any reviewing court, due to his familiarity with testimony and exhibits. Notwithstanding our belief that primary responsibility for the decree must rest with the trial judge if workable results are to obtain, it is our duty to examine the decree in light of the record to see that the relief it affords is adequate to prevent the recurrence of the illegality which brought on the given litigation. United States v. United States Gypsum Co., 340 U. S. 76, 340 U. S. 89.The United States contends that the relief afforded by the final judgments [Footnote 7] is inadequate, and that, to be adequate, it must also: (1) require the defendants to price the films individually and offer them on a picture by picture basis; (2) prohibit noncost-justified differentials in price between a film when sold individually and when sold as part of a package; (3) proscribe "temporary" refusals by a distributor to deal on less than a block basis while he is negotiating with a competing television station for a package sale. Page 371 U. S. 53Some of the practices which the Government seeks to have enjoined with its requested modifications are acts which may be entirely proper when viewed alone. To ensure, however, that relief is effectual, otherwise permissible practices connected with the acts found to be illegal must sometimes be enjoined. Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 309 U. S. 461; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 321 U. S. 724; Hartford-Empire Co. v. United States, 323 U. S. 386, 323 U. S. 409; International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 401; United States v. United States Gypsum Co., 340 U. S. 76, 340 U. S. 88-89. When the Government has won the lawsuit, it is entitled to win the cause as well, International Salt Co. v. United States, supra, 332 U.S. at 332 U. S. 401.A. Initial Offer of Individual Films, Individually PricedUnder the final judgments entered by the court, a distributor would be free to offer films in a package initially, without stating individual prices. If, however, he delayed at all in producing individual prices upon request, he would subject himself to a possible contempt sanction. The Government's first request would prevent this "first bite" possibility, forcing the offer of the films on an individual basis at the outset (but, as we view it, not precluding a simultaneous package offer, United States v. Paramount Pictures, Inc., supra, 334 U.S. at 334 U. S. 159).This is a necessary addition to the decrees, in view of the evidence appearing in the record. Television stations which asked for the individual prices of some of the better pictures "couldn't get any sort of a firm kind of an answer," according to one station official. He stated that they received a"certain form of equivocation, like the price for the better pictures that we wanted was so high that it wouldn't be worth our while to discuss the matter, . . . Page 371 U. S. 54 the implication being that it wouldn't happen."A Screen Gems intra-company memorandum about a Baton Rouge station's price request stated that"I told him that I would be happy to talk to him about it, figuring we could start the old round robin that worked so well in Houston & San Antonio."Without the proposed amendment to the decree, distributors might surreptitiously violate it by allowing or directing their salesmen to be reluctant to produce the individual price list on request. This subtler form of sales pressure, though not accompanied by any observable delay over time, might well result in some television stations' buying the block, rather than trying to talk the seller into negotiating on an individual basis. Requiring the production of the individual list on first approach will obviate this danger.B. Prohibition of Noncost-justified Price DifferentialsThe final judgments, as entered, only prohibit a price differential between a film offered individually and as part of a package which "has the effect of conditioning the sale or license of such film upon the sale or license of one or more other films." The Government contends that this provision, appearing by itself, is too vague, and will lead to unnecessary litigation. Differentials unjustified by cost savings may already be prohibited under the decree as it now appears. Nevertheless, the addition of a specific provision to prevent such differentials will prevent uncertainty in the operation of the decree. To ensure that litigation over the scope and application of the decrees is not left until a contempt proceeding is brought, the second requested modification should be added. The Government, however, seeks to make distribution costs the only saving which can legitimately be the basis of a discount. We would not so limit the relevant cost justifications. To prevent definitional arguments, and to ensure Page 371 U. S. 55 that all proper bases of quantity discount may be used, the modification should be worded in terms of allowing all legitimate cost justifications.C. Prohibition of "Temporary" Refusals to DealThe Government's third request is, like the first, designed to prevent distributors from subjecting prospective purchasers to a "run-around" on the purchase of individual films. No doubt temporary refusal to sell in broken lots to one customer while negotiating to sell the entire block to another is a proper business practice, viewed in vacuo, but we think that, if permitted here, it may tend to force some stations into buying pre-set packages to forestall a competitor's getting the entire group. In recognition of this, the Government seeks a blanket prohibition against all temporary refusals to deal. We agree in the main, except that the modification proposed by the Government fails to give full recognition to that part of this Court's holding in Paramount Pictures which said,"We do not suggest that films may not be sold in blocks or groups, when there is no requirement, express or implied, for the purchase of more than one film. All we hold to be illegal is a refusal to license one or more copyrights unless another copyright is accepted."334 U.S. at 334 U. S. 159.We therefore grant the Government's request, but modify it only to the limited degree necessary to permit a seller briefly to defer licensing or selling to a customer pending the expeditious conclusion of bona fide negotiations already being conducted with a competing station on a proposal wherein the distributor has simultaneously offered to license or sell films either individually or in a package.The modifications we have specified will bring about a greater precision in the operation of the decrees. We Page 371 U. S. 56 have concluded that they will properly protect the interest of the Government in guarding against violations, and the interest of the defendants in seeking in good faith to comply.The judgments are vacated, and the causes are remanded to the District Court for further proceedings in conformity with this opinion.Vacated and remanded

U.S. Supreme CourtUnited States v. Lowe's Inc., 371 U.S. 38 (1962)United States v. Lowe's IncorporatedNo. 42Argued October 16, 1962Decided November 5, 1962*371 U.S. 38Syllabus1. Section 1 of the Sherman Act was violated when individual distributors of copyrighted feature motion picture films for television exhibition engaged in block booking such films to television broadcasting stations -- i.e., conditioning the license or sale of the right to exhibit one or more feature films upon acceptance by each station of a package or block of films containing one or more unwanted or inferior films -- even in the absence of any combination or conspiracy between the distributors and any monopolization or attempt to monopolize. Pp. 371 U. S. 39-50, 371 U. S. 52.2. The fact that, on the records in these cases, each defendant was found to have entered into a comparatively small number of illegal contracts did not make it improper for the District Court to grant injunctive relief. Pp. 371 U. S. 50-51.3. The block booking engaged in by one of the defendants cannot be justified or excused by its plea of business necessity, since the thrust of the antitrust laws cannot be avoided merely by claiming that the otherwise illegal conduct was compelled by contractual obligations to a third party. Pp. 371 U. S. 51-52.4. The decrees entered by the District Court should be amended so as to:(a) Require the defendants to price films individually and offer them on a picture by picture basis. Pp. 371 U. S. 52-54.(b) Prohibit differentials in price between a film when sold individually and when sold as part of a package, except when such price differentials are justified by relevant and legitimate cost considerations. Pp. 371 U. S. 54-55.(c) Proscribe "temporary" refusals by a distributor to deal on less than a block basis, except that a distributor may briefly defer licensing or selling to a customer pending the expeditious conclusion Page 371 U. S. 39 of bona fide negotiations already being conducted with a competing station on a proposal wherein the distributor has simultaneously offered to license or sell films either individually or in a package. P. 371 U. S. 55.189 F. Supp. 373, judgments vacated and causes remanded.

1955_20

MR. JUSTICE CLARK delivered the opinion of the Court.This case concerns the tax treatment to be accorded certain transactions in commodity futures. [Footnote 1] In the Tax Court, petitioner Corn Products Refining Company contended that its purchases and sales of corn futures in 1940 and 1942 were capital asset transactions under § 117(a) of the Internal Revenue Code of 1939. It further contended that its futures transactions came within the "wash sales" provisions of § 118. The 1940 claim was disposed of on the ground that § 118 did not apply, but, for the year 1942, both the Tax Court and the Court of Appeals for the Second Circuit, 215 F.2d 513, held that the futures were not capital assets under § 117. We granted certiorari, 348 U.S. 911, [Footnote 2] because of an asserted conflict with holdings in the Courts of Appeals for the Third, Fifth, and Sixth Circuits. [Footnote 3] Since we hold that these futures do not constitute capital assets in petitioner's hands, we do not reach the issue of whether the transactions were "wash sales." Page 350 U. S. 48Petitioner is a nationally known manufacturer of products made from grain corn. It manufactures starch, syrup, sugar, and their byproducts, feeds, and oil. Its average yearly grind of raw corn during the period 1937 through 1942 varied from thirty-five to sixty million bushels. Most of its products were sold under contracts requiring shipment in thirty days at a set price or at market price on the date of delivery, whichever was lower. It permitted cancellation of such contracts, but, from experience, it could calculate with some accuracy future orders that would remain firm. While it also sold to a few customers on long-term contracts involving substantial orders, these had little effect on the transactions here involved. [Footnote 4]In 1934 and again in 1936, droughts in the corn belt caused a sharp increase in the price of spot corn. With a storage capacity of only 2,300,000 bushels of corn, a bare three weeks' supply, Corn Products found itself unable to buy at a price which would permit its refined corn sugar, cerealose, to compete successfully with cane and beet sugar. To avoid a recurrence of this situation, petitioner, in 1937, began to establish a long position in corn futures "as a part of its corn buying program" and "as the most economical method of obtaining an adequate supply of raw corn" without entailing the expenditure of large sums for additional storage facilities. At harvest time each year, it would buy futures when the price appeared favorable. It would take delivery on such contracts as it found necessary to its manufacturing operations, and sell the remainder in early summer if no shortage was imminent. Page 350 U. S. 49 If shortages appeared, however, it sold futures only as it bought spot corn for grinding. [Footnote 5] In this manner, it reached a balanced position with reference to any increase in spot corn prices. It made no effort to protect itself against a decline in prices.In 1940, it netted a profit of $680,587.39 in corn futures, but, in 1942, it suffered a loss of $109,969.38. In computing its tax liability, Corn Products reported these figures as ordinary profit and loss from its manufacturing operations for the respective years. It now contends that its futures were "capital assets" under § 117, and that gains and losses therefrom should have been treated as arising from the sale of a capital asset. [Footnote 6] In support of this position, it claims that its futures trading was separate and apart from its manufacturing operations, and that, in its futures transactions, it was acting as a "legitimate capitalist." United States v. New York Coffee & Sugar Exchange, 263 U. S. 611, 263 U. S. 619. It denies that its futures transactions were "hedges" or "speculative" dealings as Page 350 U. S. 50 covered by the ruling of General Counsel's Memorandum 17322, XV-2 Cum.Bull. 151, and claims that it is in truth "the forgotten man" of that administrative interpretation.Both the Tax Court and the Court of Appeals found petitioner's futures transactions to be an integral part of its business designed to protect its manufacturing operations against a price increase in its principal raw material and to assure a ready supply for future manufacturing requirements. Corn Products does not level a direct attack on these two court findings, but insists that its futures were "property" entitled to capital asset treatment under § 117, and, as such, were distinct from its manufacturing business. We cannot agree.We find nothing in this record to support the contention that Corn Products' futures activity was separate and apart from its manufacturing operation. On the contrary, it appears that the transactions were vitally important to the company's business as a form of insurance against increases in the price of raw corn. Not only were the purchases initiated for just this reason, but the petitioner's sales policy, selling in the future at a fixed price or less, continued to leave it exceedingly vulnerable to rises in the price of corn. Further, the purchase of corn futures assured the company a source of supply which was admittedly cheaper than constructing additional storage facilities for raw corn. Under these facts, it is difficult to imagine a program more closely geared to a company's manufacturing enterprise or more important to its successful operation.Likewise, the claim of Corn Products that it was dealing in the market as a "legitimate capitalist" lacks support in the record. There can be no quarrel with a manufacturer's desire to protect itself against increasing costs of raw materials. Transactions which provide such protection are considered a legitimate form of insurance. United States v. New York Coffee & Sugar Exchange, 263 Page 350 U. S. 51 U.S. at 263 U. S. 619; Browne v. Thorn, 260 U. S. 137, 260 U. S. 139-140. However, in labeling its activity as that of a "legitimate capitalist" exercising "good judgment" in the futures market, petitioner ignores the testimony of its own officers that, in entering that market, the company was "trying to protect a part of [its] manufacturing costs;" that its entry was not for the purpose of "speculating and buying and selling corn futures," but to fill an actual"need for the quantity of corn [bought] . . . in order to cover . . . what [products] we expected to market over a period of fifteen or eighteen months."It matters not whether the label be that of "legitimate capitalist" or "speculator;" this is not the talk of the capital investor, but of the far-sighted manufacturer. For tax purposes, petitioner's purchases have been found to "constitute an integral part of its manufacturing business" by both the Tax Court and the Court of Appeals, and, on essentially factual questions, the findings of two courts should not ordinarily be disturbed. Comstock v. Group of Institutional Investors, 335 U. S. 211, 335 U. S. 214.Petitioner also makes much of the conclusion by both the Tax Court and the Court of Appeals that its transactions did not constitute "true hedging." It is true that Corn Products did not secure complete protection from its market operations. Under its sales policy, petitioner could not guard against a fall in prices. It is clear, however, that petitioner feared the possibility of a price rise more than that of a price decline. It therefore purchased partial insurance against its principal risk, and hoped to retain sufficient flexibility to avoid serious losses on a declining market.Nor can we find support for petitioner's contention that hedging is not within the exclusions of § 117(a). Admittedly, petitioner's corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, Page 350 U. S. 52 property held for sale to customers, or depreciable property used in a trade or business. But the capital asset provision of § 117 must not be so broadly applied as to defeat, rather than further, the purpose of Congress. Burnet v. Harmel, 287 U. S. 103, 287 U. S. 108. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss, rather than capital gain or loss. The preferential treatment provided by § 117 applies to transactions in property which are not the normal source of business income. It was intended"to relieve the taxpayer from . . . excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions."Burnet v. Harmel, 287 U.S. at 287 U. S. 106. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied, and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. This Court has always construed narrowly the term "capital assets" in § 117. See Hort v. Commissioner, 313 U. S. 28, 313 U. S. 31; Kieselbach v. Commissioner, 317 U. S. 399, 317 U. S. 403.The problem of the appropriate tax treatment of hedging transactions first arose under the 1934 Tax Code revision. [Footnote 7] Thereafter, the Treasury issued G.C.M. 17322, supra, distinguishing speculative transactions in commodity futures from hedging transactions. It held that hedging transactions were essentially to be regarded as insurance, rather than a dealing in capital assets, and that Page 350 U. S. 53 gains and losses therefrom were ordinary business gains and losses. The interpretation outlined in this memorandum has been consistently followed by the courts as well as by the Commissioner. [Footnote 8] While it is true that this Court has not passed on its validity, it has been well recognized for 20 years, and Congress has made no change in it though the Code has been reenacted on three subsequent occasions. This bespeaks congressional approval. Helvering v. Winmill, 305 U. S. 79, 305 U. S. 83. Furthermore, Congress has since specifically recognized the hedging exception here under consideration in the short-sale rule of § 1233(a) of the 1954 Code. [Footnote 9]We believe that the statute clearly refutes the contention of Corn Products. Moreover, it is significant to note that practical considerations lead to the same conclusion. To hold otherwise would permit those engaged in hedging transactions to transmute ordinary income into capital Page 350 U. S. 54 gain at will. The hedger may either sell the future and purchase in the spot market or take delivery under the future contract itself. But if a sale of the future created a capital transaction, while delivery of the commodity under the same future did not, a loophole in the statute would be created, and the purpose of Congress frustrated.The judgment isAffirmed

U.S. Supreme CourtCorn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955)Corn Products Refining Co. v.Commissioner of Internal RevenueNo. 20Argued October 18, 1955Decided November 7, 1955350 U.S. 46SyllabusPetitioner's purchases and sales of corn futures in 1940 and 1942, which, though not "true hedges," were an integral part of its manufacturing business, held not capital asset transactions under § 117(a) of the Internal Revenue Code of 1939, and gains and losses therefrom gave rise to ordinary income and ordinary deductions. Pp. 350 U. S. 47-54.(a) The finding by both the Tax Court and the Court of Appeals that petitioner's purchases constitute "an integral part of its manufacturing business" is here sustained. Pp. 350 U. S. 50-51.(b) Through its purchases of commodity futures, petitioner obtained partial insurance against its principal risk -- the possibility of a price rise. P. 350 U. S. 51.(c) The capital asset provision of § 117 is to be narrowly construed. P. 350 U. S. 52.(d) Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss, rather than capital gain or loss. P. 350 U. S. 52.(e) The Treasury ruling, G.C.M. 17322, that hedging transactions were essentially to be regarded as insurance, rather than dealings in capital assets, and that gains and losses therefrom were ordinary business gains and losses, has been consistently followed by the courts as well as by the Commissioner, and has had the tacit approval of Congress. Pp. 350 U. S. 52-53.(f) The conclusion here reached is supported by practical considerations, as well as by the statute. Pp. 350 U. S. 53-54.215 F.2d 513, affirmed. Page 350 U. S. 47

1992_91-8199

The United States District Court for the Southern District of Texas sentenced petitioner to 5 years' imprisonment on the first § 924(c)(1) count and to 20 years on each of the other five § 924(c)(1) counts, the terms to run consecutively. The United States Court of Appeals for the Fifth Circuit affirmed the convictions and sentence. 954 F.2d 262 (1992). We granted certiorari on the question whether petitioner's second through sixth convictions under § 924(c)(1) in this single proceeding arose "[i]n the case of his second or subsequent conviction" within the meaning of § 924(c)(1). 506 U. S. 814 (1992).Petitioner contends that the language of § 924(c)(1) is facially ambiguous, and should therefore be construed in his favor pursuant to the rule of lenity. His principal argument in this regard is that the word "conviction" can, according to the dictionary, have two meanings, "either the return of a jury verdict of guilt or the entry of a final judgment on that verdict," Brief for Petitioner 4; and that the phrase "second or subsequent conviction" could therefore "mean 'an additional finding of guilt rendered at any time'" (which would include petitioner's convictions on the second through sixth counts in the single proceeding here) or "'a judgment of conviction entered at a later time,'" (which would not include those convictions, since the District Court entered only a single judgment on all of the counts), id., at 7.It is certainly correct that the word "conviction" can mean either the finding of guilt or the entry of a final judgment on that finding. The word has many other meanings as well, including "[a]ct of convincing of error, or of compelling the admission of a truth"; "[s]tate of being convinced; esp., state of being convicted of sin, or by one's conscience"; "[a] strong persuasion or belief; as, to live up to one's convictions; an intensity of thorough conviction." Webster's New International Dictionary 584 (2d ed. 1950). But of course susceptibility of all of these meanings does not render the word "conviction," whenever it is used, ambiguous; all but one of the132meanings is ordinarily eliminated by context. There is not the slightest doubt, for example, that § 924(c)(1), which deals with punishment in this world rather than the next, does not use "conviction" to mean the state of being convicted of sin. Petitioner's contention overlooks, we think, this fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used. See King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991); Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989); United States v. Morton, 467 U. S. 822, 828 (1984).In the context of § 924(c)(1), we think it unambiguous that "conviction" refers to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgment of conviction. A judgment of conviction includes both the adjudication of guilt and the sentence. See Fed. Rule Crim. Proc. 32(b)(1) ("A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence" (emphasis added)); see also Black's Law Dictionary 843 (6th ed. 1990) (quoting Rule 32(b)(1) in defining "judgment of conviction"). Thus, if "conviction" in § 924(c)(1) meant "judgment of conviction," the provision would be incoherent, prescribing that a sentence which has already been imposed (the defendant's second or subsequent "conviction") shall be 5 or 20 years longer than it was.Petitioner contends that this absurd result is avoided by the "[i]n the case of" language at the beginning of the provision. He maintains that a case is the "case of [a defendant's] second or subsequent" entry of judgment of conviction even before the court has entered that judgment of conviction and even before the court has imposed the sentence that is the prerequisite to the entry of judgment of conviction. We think not. If "conviction" meant "entry of judgment of conviction," a "case" would surely not be the "case of his second or subsequent conviction" until that judgment of conviction was entered, by which time a lower sentence than that which133§ 924(c)(1) requires would already have been imposed. And more fundamentally still, petitioner's contention displays once again the regrettable penchant for construing words in isolation. The word "case" can assuredly refer to a legal proceeding, and if the phrase "in the case of" is followed by a name, such as "Marbury v. Madison," that is the apparent meaning. When followed by an act or event, however, "in the case of" normally means "in the event of" -and we think that is its meaning here.The sentence of § 924(c)(1) that immediately follows the one at issue here confirms our reading of the term "conviction." That sentence provides: "Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection." That provision, like the one before us in this case, is obviously meant to control the terms of a sentence yet to be imposed. But if we give the term "convicted" a meaning similar to what petitioner contends is meant by "conviction" -as connoting, that is, the entry of judgment, which includes sentence-we once again confront a situation in which the prescription of the terms of a sentence cannot be effective until it is too late, i. e., until after the sentence has already been pronounced.1We are also confirmed in our conclusion by the recognition that petitioner's reading would give a prosecutor unreviewable discretion either to impose or to waive the enhanced sentencing provisions of § 924(c)(1) by opting to charge and try the defendant either in separate prosecutions or under a multicount indictment. Although the present prosecution1 Petitioner also argues that the terms "second" and "subsequent" admit of at least two meanings-next in time and next in order or succession. That ambiguity is worth pursuing if "conviction" means "judgment," since a judgment entered once-in-time can (as here) include multiple counts. The point becomes irrelevant, however, when "conviction" means (as we hold) a finding of guilt. Unlike a judgment on several counts, findings of guilt on several counts are necessarily arrived at successively in time.134would not have permitted enhanced sentencing, if the same charges had been divided into six separate prosecutions for the six separate bank robberies, enhanced sentencing would clearly have been required. We are not disposed to give the statute a meaning that produces such strange consequences.2The dissent contends that § 924(c)(1) must be read to impose the enhanced sentence only for an offense committed after a previous sentence has become final. Though this interpretation was not mentioned in petitioner's briefs, and was put forward only as a fallback position in petitioner's oral argument, see Tr. of Oral Arg. 4, the dissent thinks it so "obvious," post, at 142, that our rejection of it constitutes a triumph of "textualism" over "common sense," post, at 146, and the result of "an elaborate exercise in sentence parsing," ibid. We note, to begin with, that most of the textual distinctions made in this opinion-all of them up to this pointrespond to the elaborate principal argument of petitioner that "conviction" means "entry of judgment." It takes not much "sentence parsing" to reject the quite different argument of the dissent that the terms "subsequent offense" and "second or subsequent conviction" mean exactly the same thing, so that "second conviction" means "first offense after an earlier conviction."No one can disagree with the dissent's assertion that "Congress sometimes uses slightly different language to convey the same message," post, at 137-but when it does so it uses "slightly different language" that means the same thing. "Member of the House" instead of "Representative," for2 The dissent contends that even under our reading of the statute, "prosecutors will continue to enjoy considerable discretion in deciding how many § 924(c) offenses to charge in relation to a criminal transaction or series of transactions." Post, at 145. That discretion, however, pertains to the prosecutor's universally available and unvoidable power to charge or not to charge an offense. Petitioner's reading would confer the extraordinary new power to determine the punishment for a charged offense by simply modifying the manner of charging.135example. Or "criminal offense" instead of "crime." But to say that "subsequent offense" means the same thing as "second or subsequent conviction" requires a degree of verbal know-nothingism that would render government by legislation quite impossible. Under the terminology "second or subsequent conviction," in the context at issue here, it is entirely clear (without any "sentence parsing") that a defendant convicted of a crime committed in 1992, who has previously been convicted of a crime committed in 1993, would receive the enhanced sentence.The dissent quotes extensively from Gonzalez v. United States, 224 F.2d 431 (CAl1955). See post, at 138-139. But far from supporting the "text-insensitive" approach favored by the dissent, that case acknowledges that "[i]n construing subsequent offender statutes ... the decisions of the courts have varied depending upon the particular statute involved." 224 F. 2d, at 434. It says, as the dissent points out, that federal courts have "uniformly" held it to be the rule that a second offense can occur only after conviction for the first. Ibid. But those holdings were not arrived at in disregard of the statutory text. To the contrary, as Gonzalez goes on to explain:"'It cannot legally be known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense.'" Ibid. (quoting Holst v. Owens, 24 F.2d 100, 101 (CA5 1928)).The present statute, however, does not use the term "offense," so it cannot possibly be said that it requires a criminal act after the first conviction. What it requires is a conviction after the first conviction. There is utterly no ambiguity in that, and hence no occasion to invoke the rule of lenity. (The erroneous lower-court decisions cited by the dissent, see post, at 142-144, do not alter this assessment;136judges cannot cause a clear text to become ambiguous by ignoring it.)In the end, nothing but personal intuition supports the dissent's contention that the statute is directed at those who "'failed to learn their lessons from the initial punishment,'" post, at 146 (quoting United States v. Neal, 976 F.2d 601, 603 (CA9 1992) (Fletcher, J., dissenting)). Like most intuitions, it finds Congress to have intended what the intuitor thinks Congress ought to intend.3 And like most intuitions, it is not very precise. "[F]ailed to learn their lessons from the initial punishment" would seem to suggest that the serving of the punishment, rather than the mere pronouncement of it, is necessary before the repeat criminal will be deemed an inadequate student-a position that certainly appeals to "common sense," if not to text. Elsewhere, however, the dissent says that the lesson is taught once "an earlier conviction has become final," post, at 142-so that the felon who escapes during a trial that results in a conviction becomes eligible for enhanced punishment for his later crimes, though he has seemingly been taught no lesson except that the law is easy to beat. But no matter. Once text is abandoned, one intuition will serve as well as the other. We choose to follow the language of the statute, which gives no indication that punishment of those who fail to learn the "lesson" of prior conviction or of prior punishment is the sole purpose of § 924(c)(1), to the exclusion of other penal goals such as taking repeat offenders off the streets for especially long periods, or simply visiting society's retribution upon repeat offenders more severely. We do not agree with the dissent's suggestion that these goals defy "common sense." It seems to us eminently sensible to punish the second murder, for3 The dissent quotes approvingly the ungarnished policy view that "'punishing first offenders [i. e., repeat offenders who have not yet been convicted of an earlier offense] with twenty-five-year sentences does not deter crime as much as it ruins lives.'" Post, at 146, n. 10 (quoting United States v. Jones, 965 F.2d 1507, 1521 (CAS 1992)).137example, with life in prison rather than a term of yearswhether or not conviction of the first murder (or completion of the sentence for the first murder) has yet occurred.Finally, we need not tarry over petitioner's contention that the rule of lenity is called for because his 105-year sentence "is so glaringly unjust that the Court cannot but question whether Congress intended such an application of the phrase, 'in the case of his second or subsequent conviction.'" Brief for Petitioner 24. Even under the dissent's reading of § 924(c)(1), some criminals whose only offenses consist of six armed bank robberies would receive a total sentence of 105 years in prison. We see no reason why it is "glaringly unjust" that petitioner be treated similarly here, simply because he managed to evade detection, prosecution, and conviction for the first five offenses and was ultimately tried for all six in a single proceeding.The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1992SyllabusDEAL v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 91-8199. Argued March 1, 1993-Decided May 17, 1993On the basis of his use of a gun in committing six bank robberies on different dates, petitioner Deal was convicted, in a single proceeding, of six counts of carrying and using a firearm during and in relation to a crime of violence in violation of 18 U. S. C. § 924(c)(I). Section 924(c)(I) prescribes a 5-year prison term for the first such conviction (in addition to the punishment provided for the crime of violence) and requires a 20year sentence "[i]n the case of [a] second or subsequent conviction under this subsection." The District Court sentenced Deal to 5 years' imprisonment on the first § 924(c)(I) count and to 20 years on each of the five other counts, the terms to run consecutively. The Court of Appeals affirmed.Held: Deal's second through sixth convictions in a single proceeding arose "[i]n the case of his second or subsequent conviction" within the meaning of § 924(c)(I). There is no merit to his contention that the language of § 924(c)(I) is facially ambiguous and should therefore be construed in his favor under the rule of lenity. In context, "conviction" unambiguously refers to the finding of guilt that necessarily precedes the entry of a final judgment of conviction. If it referred, as Deal contends, to "judgment of conviction," which by definition includes both the adjudication of guilt and the sentence, the provision would be incoherent, prescribing that a sentence which has already been imposed shall be 5 or 20 years longer than it was. Deal's reading would have the strange consequence of giving a prosecutor unreviewable discretion either to impose or to waive the enhanced sentence by opting to charge and try a defendant either in separate prosecutions or under a single multi count indictment. The provision also cannot be read to impose an enhanced sentence only for an offense committed after a previous sentence has become final. While lower courts have held that statutes providing enhancement for "subsequent offenses" apply only when a second offense has been committed after conviction for the first, those decisions depend on the fact that it cannot legally be known that an "offense" has been committed until there has been a conviction. The present statute does not use the term "offense," and so does not require a criminal act after the first conviction; it merely requires a conviction after the first conviction. Nor is the rule oflenity called for on grounds that the total length130of Deal's sentence (105 years) is "glaringly unjust." Under any conceivable reading of § 924(c)(I), some criminals convicted of six armed bank robberies would receive a sentence of that length. It is not "glaringly unjust" to refuse to give Deal a lesser sentence merely because he escaped apprehension and conviction until the sixth crime had been committed. Pp. 131-137.954 F.2d 262, affirmed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and O'CONNOR, JJ., joined, post, p. 137.Dola J. Young argued the cause for petitioner. With her on the briefs were Roland E. Dahlin II and H. Michael Sokolow.Miguel A. Estrada argued the cause for the United States.With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Robert J. Erickson.JUSTICE SCALIA delivered the opinion of the Court. Between January and April 1990, petitioner committed six bank robberies on six different dates in the Houston, Texas, area. In each robbery, he used a gun. Petitioner was convicted of six counts of bank robbery, 18 U. S. C. §§ 2113(a) and (d), six counts of carrying and using a firearm during and in relation to a crime of violence, § 924(c), and one count of being a felon in possession of firearms, § 922(g). Title 18 U. S. C. § 924(c)(1) (1988 ed., Supp. III) provides:"Whoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... , be sentenced to imprisonment for five years .... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years .... "131Full Text of Opinion

1981_81-611

JUSTICE BRENNAN delivered the opinion of the Court.Section 16A of Chapter 278 of the Massachusetts General Laws, [Footnote 1] as construed by the Massachusetts Supreme Judicial Court, requires trial judges, at trials for specified sexual offenses involving a victim under the age of 18, to exclude the press and general public from the courtroom during the testimony of that victim. The question presented is whether the statute thus construed violates the First Amendment as applied to the States through the Fourteenth Amendment.IThe case began when appellant, Globe Newspaper Co. (Globe), unsuccessfully attempted to gain access to a rape trial conducted in the Superior Court for the County of Norfolk, Commonwealth of Massachusetts. The criminal defendant in that trial had been charged with the forcible rape and forced unnatural rape of three girls who were minors at the time of trial -- two 16 years of age and one 17. In April, 1979, during hearings on several preliminary motions, the trial judge ordered the courtroom closed. [Footnote 2] Before the trial Page 457 U. S. 599 began, Globe moved that the court revoke this closure order, hold hearings on any future such orders, and permit appellant to intervene "for the limited purpose of asserting its rights to access to the trial and hearings on related preliminary motions." App. 12a-14a. The trial court denied Globe's motions, [Footnote 3] relying on Mass.Gen.Laws Ann., ch. 278, § 16A (West 1981), and ordered the exclusion of the press and general public from the courtroom during the trial. The defendant immediately objected to that exclusion order, and the prosecution stated for purposes of the record that the order was issued on the court's "own motion, and not at the request of the Commonwealth." App. 18a.Within hours after the court had issued its exclusion order, Globe sought injunctive relief from a justice of the Supreme Judicial Court of Massachusetts. [Footnote 4] The next day, the justice conducted a hearing, at which the Commonwealth, "on behalf of the victims," waived "whatever rights it [might] have [had] to exclude the press." Id. at 28a. [Footnote 5] Nevertheless, Page 457 U. S. 600 Globe's request for relief was denied. Before Globe appealed to the full court, the rape trial proceeded and the defendant was acquitted.Nine months after the conclusion of the criminal trial, the Supreme Judicial Court issued its judgment, dismissing Globe's appeal. Although the court held that the case was rendered moot by completion of the trial, it nevertheless stated that it would proceed to the merits, because the issues raised by Globe were "significant and troublesome, and . . . capable of repetition yet evading review.'" Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 848, 401 N.E.2d 360, 362 (1980), quoting Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515 (1911). As a statutory matter, the court agreed with Globe that § 16A did not require the exclusion of the press from the entire criminal trial. The provision was designed, the court determined,"to encourage young victims of sexual offenses to come forward; once they have come forward, the statute is designed to preserve their ability to testify by protecting them from undue psychological harm at trial."379 Mass., at 860, 401 N.E.2d at 369. Relying on these twin purposes, the court concluded that § 16A required the closure of sex-offense trials only during the testimony of minor victims; during other portions of such trials, closure was "a matter within the judge's sound discretion." Id. at 864, 401 N.E.2d at 371. The court did not pass on Globe's contentions that it had a right to attend the entire Page 457 U. S. 601 criminal trial under the First and Sixth Amendments, noting that it would await this Court's decision -- then pending -- in Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980). [Footnote 6]Globe then appealed to this Court. Following our decision in Richmond Newspapers, we vacated the judgment of the Supreme Judicial Court, and remanded the case for further consideration in light of that decision. Globe Newspaper Co. v. Superior Court, 449 U.S. 894 (1980).On remand, the Supreme Judicial Court, adhering to its earlier construction of § 16A, considered whether our decision in Richmond Newspapers required the invalidation of the mandatory closure rule of § 16 A. 383 Mass. 838, 42 N.E.2d 773 (1981). [Footnote 7] In analyzing the First Amendment issue, [Footnote 8] the court recognized that there is "an unbroken tradition of openness" in criminal trials. Id. at 845, 423 N.E.2d at 778. But the court discerned "at least one notable exception" to this tradition: "In cases involving sexual assaults, portions of trials have been closed to some segments of the public, even when the victim was an adult." Id. at 846, 423 Page 457 U. S. 602 N.E.2d at 778. The court also emphasized that § 16A's mandatory closure rule furthered "genuine State interests," which the court had identified in its earlier decision as underlying the statutory provision. These interests, the court stated, "would be defeated if a case-by-case determination were used." Id. at 848, 423 N.E.2d at 779. While acknowledging that the mandatory closure requirement results in a "temporary diminution" of "the public's knowledge about these trials," the court did not think"that Richmond Newspapers require[d] the invalidation of the requirement, given the statute's narrow scope in an area of traditional sensitivity to the needs of victims."Id. at 851, 423 N.E.2d at 781. The court accordingly dismissed Globe's appeal. [Footnote 9]Globe again sought review in this Court. We noted probable jurisdiction. 454 U.S. 1051 (1981). For the reasons that follow, we reverse, and hold that the mandatory closure rule contained in § 16A violates the First Amendment. [Footnote 10]IIIn this Court, Globe challenges that portion of the trial court's order, approved by the Supreme Judicial Court of Massachusetts, that holds that § 16A requires, under all circumstances, the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial. Because the entire order expired with the completion of the rape trial at which the defendant was acquitted, we must consider at the outset whether a live controversy remains. Under Art. III, § 2, of the Constitution, our jurisdiction extends only to actual cases or controversies. Nebraska Press Page 457 U. S. 603 Assn. v. Stuart, 427 U. S. 539, 427 U. S. 546 (1976)."The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.'"Ibid., quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. at 219 U. S. 515.The controversy between the parties in this case is indeed "capable of repetition, yet evading review." It can reasonably be assumed that Globe, as the publisher of a newspaper serving the Boston metropolitan area, will someday be subjected to another order relying on § 16A's mandatory closure rule. See Gannett Co. v. DePasquale, 443 U. S. 368, 443 U. S. 377-378 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 448 U. S. 563 (plurality opinion). And because criminal trials are typically of "short duration," ibid., such an order will likely "evade review, or at least considered plenary review in this Court." Nebraska Press Assn. v. Stuart, supra, at 427 U. S. 547. We therefore conclude that the controversy before us is not moot within the meaning of Art. III, and turn to the merits.IIIAThe Court's recent decision in Richmond Newspapers firmly established for the first time that the press and general public have a constitutional right of access to criminal trials. Although there was no opinion of the Court in that case, seven Justices recognized that this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment. 448 U.S. at 448 U. S. 558-581 (plurality opinion); id. at 448 U. S. 584-598 (BRENNAN, J., concurring in judgment); id. at 448 U. S. 598-601 (Stewart, J., concurring in judgment); id. at 448 U. S. 601-604 (BLACKMUN, J., concurring in judgment). [Footnote 11] Page 457 U. S. 604Of course, this right of access to criminal trials is not explicitly mentioned in terms in the First Amendment. [Footnote 12] But we have long eschewed any "narrow, literal conception" of the Amendment's terms, NAACP v. Button, 371 U. S. 415, 371 U. S. 430 (1963), for the Framers were concerned with broad principles, and wrote against a background of shared values and practices. The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 448 U. S. 579-580, and n. 16 (plurality opinion) (citing cases); id. at 448 U. S. 587-588, and n. 4 (BRENNAN, J., concurring in judgment). Underlying the First Amendment right of access to criminal trials is the common understanding that "a major purpose of that Amendment was to protect the free discussion of governmental affairs," Mills v. Alabama, 384 U. S. 214, 384 U. S. 218 (1966). By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government. See Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 95 (1940); Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 448 U. S. 587-588 (BRENNAN, J., concurring in judgment). See also id. at 448 U. S. 575 (plurality opinion) (the "expressly guaranteed freedoms" of the First Amendment "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government"). Thus, to the extent that the First Amendment embraces a right of access to criminal Page 457 U. S. 605 trials, it is to ensure that this constitutionally protected "discussion of governmental affairs" is an informed one.Two features of the criminal justice system, emphasized in the various opinions in Richmond Newspapers, together serve to explain why a right of access to criminal trials in particular is properly afforded protection by the First Amendment. First, the criminal trial historically has been open to the press and general public. "[A]t the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open." Richmond Newspapers, Inc. v. Virginia, supra, at 448 U. S. 569 (plurality opinion). And since that time, the presumption of openness has remained secure. Indeed, at the time of this Court's decision in In re Oliver, 333 U. S. 257 (1948), the presumption was so solidly grounded that the Court was "unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country." Id. at 333 U. S. 266 (footnote omitted). This uniform rule of openness has been viewed as significant in constitutional terms not only "because the Constitution carries the gloss of history," but also because "a tradition of accessibility implies the favorable judgment of experience." Richmond Newspapers, Inc. v. Virginia, supra, at 448 U. S. 589 (BRENNAN, J., concurring in judgment). [Footnote 13] Page 457 U. S. 606Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. [Footnote 14] Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. [Footnote 15] And, in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process -- an essential component in our structure of self-government. [Footnote 16] In sum, the institutional value of the open criminal trial is recognized in both logic and experience.BAlthough the right of access to criminal trials is of constitutional stature, it is not absolute. See Richmond Newspapers, Inc. v. Virginia, supra, at 448 U. S. 581, n. 18 (plurality opinion); Nebraska Press Assn. v. Stuart, 427 U.S. at 427 U. S. 570. But the 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, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, Page 457 U. S. 607 it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. See, e.g., Brown v. Hartlage, 456 U. S. 45, 456 U. S. 554 (1982); Smith v. Daily Mail Publishing Co., 443 U. S. 97, 443 U. S. 101-103 (1979); NAACP v. Button, 371 U.S. at 371 U. S. 438. [Footnote 17] We now consider the state interests advanced to support Massachusetts' mandatory rule barring press and public access to criminal sex offense trials during the testimony of minor victims.IVThe state interests asserted to support § 16A, though articulated in various ways, are reducible to two: the protection of minor victims of sex crimes from further trauma and embarrassment; and the encouragement of such victims to come forward and testify in a truthful and credible manner. [Footnote 18] We consider these interests in turn.We agree with appellee that the first interest -- safeguarding the physical and psychological wellbeing of a minor [Footnote 19] -- is a compelling one. But as compelling as that interest is, it Page 457 U. S. 608 does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. [Footnote 20] Among the factors to be weighed are the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, [Footnote 21] and the interests of parents and relatives. Section 16A, in contrast, requires closure even if the victim does not seek the exclusion of the press and general public, and would not suffer injury by their presence. [Footnote 22] In the case before us, for example, the names of the minor victims were already in the public record, [Footnote 23] and the record indicates that the victims Page 457 U. S. 609 may have been willing to testify despite the presence of the press. [Footnote 24] If the trial court had been permitted to exercise its discretion, closure might well have been deemed unnecessary. In short, § 16A cannot be viewed as a narrowly tailored means of accommodating the State's asserted interest: that interest could be served just as well by requiring the trial court to determine on a case-by-case basis whether the State's legitimate concern for the wellbeing of the minor victim necessitates closure. Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State's interest. [Footnote 25]Nor can § 16A be justified on the basis of the Commonwealth's second asserted interest -- the encouragement of minor victims of sex crimes to come forward and provide accurate testimony. The Commonwealth has offered no empirical support for the claim that the rule of automatic closure contained in § 16A will lead to an increase in the number of minor sex victims coming forward and cooperating with state authorities. [Footnote 26] Not only is the claim speculative in empirical Page 457 U. S. 610 terms, but it is also open to serious question as a matter of logic and common sense. Although § 16A bars the press and general public from the courtroom during the testimony of minor sex victims, the press is not denied access to the transcript, court personnel, or any other possible source that could provide an account of the minor victim's testimony. Thus, § 16A cannot prevent the press from publicizing the substance of a minor victim's testimony, as well as his or her identity. If the Commonwealth's interest in encouraging minor victims to come forward depends on keeping such matters secret, § 16A hardly advances that interest in an effective manner. And even if § 16A effectively advanced the State's interest, it is doubtful that the interest would be sufficient to overcome the constitutional attack, for that same interest could be relied on to support an array of mandatory closure rules designed to encourage victims to come forward: surely it cannot be suggested that minor victims of sex crimes are the only crime victims who, because of publicity attendant to criminal trials, are reluctant to come forward and testify. The State's argument based on this interest therefore proves too much, and runs contrary to the very foundation of the right of access recognized in Richmond Newspapers: namely, "that a presumption of openness inheres in the very nature of a criminal trial under our system of justice." 448 U.S. at 448 U. S. 573 (plurality opinion).VFor the foregoing reasons, we hold that § 16A, as construed by the Massachusetts Supreme Judicial Court, violates Page 457 U. S. 611 the First Amendment to the Constitution. [Footnote 27] Accordingly, the judgment of the Massachusetts Supreme Judicial Court isReversed

U.S. Supreme CourtGlobe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982)Globe Newspaper Co. v. Superior CourtNo. 81-611Argued March 29, 1982Decided June 23, 1982457 U.S. 596SyllabusAppellee Massachusetts trial court, relying on a Massachusetts statute providing for exclusion of the general public from trials of specified sexual offenses involving a victim under the age of 18, ordered the exclusion of the press and public from the courtroom during the trial of a defendant charged with rape of three minor girls. Appellant newspaper publisher challenged the exclusion order, and ultimately, after the trial had resulted in the defendant's acquittal, the Massachusetts Supreme Judicial Court construed the Massachusetts statute as requiring, under all circumstances, the exclusion of the press and public during the testimony of a minor victim in a sex-offense trial.Held:1. The fact that the exclusion order expired with completion of the trial at which the defendant was acquitted does not render the controversy moot within the meaning of Art. III. The controversy is "capable of repetition, yet evading review," since it can reasonably be assumed that appellant will someday be subjected to another order relying on the Massachusetts statute, and since criminal trials are typically of short duration. Pp. 457 U. S. 602-603.2. The Massachusetts statute, as construed by the Massachusetts Supreme Judicial Court, violates the First Amendment as applied to the States through the Fourteenth Amendment. Pp. 457 U.S. 603-607.(a) To the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that the constitutionally protected "discussion of governmental affairs" is an informed one. The right of access to criminal trials in particular is properly afforded protection by the First Amendment both because such trials have historically been open to the press and public and because such right of access plays a particularly significant role in the functioning of the judicial process and the government as a whole. Pp. 457 U.S. 603-606.(b) The right of access to criminal trials is not absolute, but the circumstances under which the press and public can be barred are limited. The State must show that denial of such right is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. Pp. 457 U. S. 606-607. Page 457 U. S. 5973. The Massachusetts statute cannot be justified on the basis of either the State's interest in protecting minor victims of sex crimes from further trauma and embarrassment or its interest in encouraging such victims to come forward and testify in a truthful and credible manner. Pp. 457 U. S. 607-610.(a) Compelling as the first interest is, it does not justify a mandatory closure rule. Such interest could be just as well served by requiring the trial court to determine on a case-by-case basis whether the State's legitimate concern for the minor victim's wellbeing necessitates closure. Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State's interest. Pp. 457 U. S. 607-609.(b) The second asserted interest is not only speculative in empirical terms, but is also open to serious question as a matter of logic and common sense. Although the statute was construed to bar the press and public from the courtroom during a minor sex victim's testimony, the press is not denied access to the transcript, court personnel, or any other source that could provide an account of such testimony, and thus the statute cannot prevent the press from publicizing the substance of that testimony, as well as the victim's identity. Pp. 457 U. S. 609-610.383 Mass. 838, 423 N.E.2d 773, reversed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 457 U. S. 611. BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 457 U. S. 612. STEVENS, J., filed a dissenting opinion, post, p. 457 U. S. 620. Page 457 U. S. 598

1982_81-1506

JUSTICE REHNQUIST delivered the opinion of the Court.The question in the case ultimately comes down to whether respondent National Right to Work Committee (NRWC or respondent) limited its solicitation of funds to "members" within the meaning of 2 U.S.C. § 441b(b)(4)(C). [Footnote 1]In April, 1977, petitioner Federal Election Commission (Commission) [Footnote 2] determined that there was probable cause to Page 459 U. S. 199 believe that NRWC had violated the above-cited provisions of the Act by soliciting contributions from persons who were not its "members." Shortly thereafter, respondent filed a complaint in the United States District Court for the Eastern District of Virginia seeking injunctive and declaratory relief against the Commission. One month later, the Commission filed an enforcement proceeding against respondent in the United States District Court for the District of Columbia, seeking to establish respondent's violation of 2 U.S.C. § 441b. The actions were consolidated in the latter court, which granted summary judgment in favor of the Commission on the basis of stipulated facts. 501 F. Supp. 422 (1980). [Footnote 3] The judgment of the District Court was reversed by the Court of Appeals for the District of Columbia Circuit, 214 U.S.App.D.C. 215, 665 F.2d 371 (1981), and we granted certiorari. 456 U.S. 914 (1982).Respondent NRWC is a nonprofit corporation without capital stock organized under the laws of the Commonwealth of Virginia. Given the central role of the congressional use of the word "member" in this litigation, it is useful to set forth respondent's organizational history in some detail. In 1975, respondent's predecessor and another corporation merged; the articles of merger filed in the District of Columbia by the successor corporation stated that NRWC "shall not have members." A similar statement is contained in the articles of incorporation of NRWC that are presently filed in Virginia. Likewise, respondent's bylaws make no reference to members or to membership in the corporation. The stated purpose of NRWC, according to its Virginia articles of incorporation, is"[t]o help make the public aware of the fact that American citizens are being required, against their will, to join and pay dues to labor organizations in order to earn a living. "Page 459 U. S. 200App. to Pet. for Cert. 17a. In pursuance of this objective, NRWC regularly mails messages to millions of individuals and businesses whose names have found their way onto commercially available mailing lists that the organization has purchased or rented. The letters do not mention membership in NRWC, but seek donations to help NRWC publicize its opposition to compulsory unionism, and frequently contain a questionnaire that the recipient is requested to answer and return.In late 1975, in order to comply with § 441b, NRWC established a separate segregated fund, see § 441b(b)(4)(C), [Footnote 4] "to receive and make contributions on behalf of federal candidates." The fund was denominated the "Employees Rights Campaign Committee" (ERCC); its operation was completely subsidized from the NRWC treasury, which paid all the expenses of establishing and administering the fund, and of soliciting contributions. During part of 1976, NRWC sent letters to some 267,000 individuals, who had at one time contributed to it, soliciting contributions to ERCC. As a result of these solicitations, the fund received some $77,000 in contributions.In October, 1976, another lobbying group, the Committee for an Effective Congress, filed a complaint against ERCC with the Commission, alleging violation of 2 U.S.C. § 441b(b)(4). The complaint asserted that NRWC had violated this section of the Act by using corporate funds to solicit contributions to ERCC from persons who were not NRWC's stockholders, executive or administrative personnel, or their families. NRWC did not deny these assertions, but took Page 459 U. S. 201 the position that the recipients of its solicitation letters were "members" of NRWC within the proviso set forth in § 441b(b)(4)(C). The Commission found probable cause to believe that a violation had occurred, and after completing the investigative procedures set out in the statute and unsuccessfully attempting to resolve the matter through conciliation, see 2 U.S.C. § 437g (1976 ed., Supp. V), it authorized the filing of a civil enforcement suit. This litigation followed.Essential to the proper resolution of the case is the interpretation of § 441b(b)(4)(C)'s statement that the prohibition against corporate solicitation contained in § 441b(b)(4)(A) shall not prevent"a . . . corporation without capital stock . . . from soliciting contributions to [a separate segregated fund established by a corporation without capital stock] from members of such . . . corporation. . . ."(Emphasis added.) The Court of Appeals rejected the Commission's contentions regarding the meaning of "member," and went on to hold that the term "embraces at least those individuals whom NRWC describes as its active and supporting members." 214 U.S.App.D.C. at 220, 665 F.2d at 376. The opinion of the Court of Appeals indicates that this construction was reached at least in part because of concern for the constitutional implications of any narrower construction. Id. at 218-220, 665 F.2d at 374-376. As explained below, we reject this construction.The statutory purpose of § 441b, as outlined above, is to prohibit contributions or expenditures by corporations or labor organizations in connection with federal elections. 2 U.S.C. § 441b(a). The section, however, permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of "separate segregated fund[s]," which may be "utilized for political purposes." 2 U. S C. § 441b(b)(2)(C). The Act restricts the operations of such segregated funds, however, by making it unlawful for a corporation Page 459 U. S. 202 to solicit contributions to a fund established by it from persons other than its "stockholders and their families and its executive or administrative personnel and their families." 2 U.S.C. § 441b(b)(4)(A). Finally, and of most relevance here, the section just quoted has its own proviso, which states in pertinent part that"[t]his paragraph shall not prevent a . . . corporation without capital stock, or a separate segregated fund established by a . . . corporation without capital stock, from soliciting contributions to such a fund from members"of the sponsoring corporation. 2 U.S.C. § 441b(b)(4)(C). The effect of this proviso is to limit solicitation by nonprofit corporations to those persons attached in some way to it by its corporate structure. Ibid.The Court of Appeals, as we have noted, construed the term "member" in § 441b to embrace "at least those individuals whom NRWC describes as its active and supporting members." 214 U.S.App.D.C. at 220, 665 F.2d at 376. The two categories of members recognized by NRWC were described in the following terms by the Court of Appeals:"NRWC attracts members by publicizing its position on issues relating to compulsory unionism through advertisements, personal contacts, and, primarily, letters. These letters describe the purpose of NRWC, urge the recipient to assist NRWC (by, for example, writing to legislators), request financial support, and ask the recipient to respond to a questionnaire that will determine whether that person shares a similar political philosophy. A person who, through his response, evidences an intention to support NRWC in promoting voluntary unionism qualifies as a member. A person who responds without contributing financially is considered a supporting member; a person who responds and also contributes is considered an active member. NRWC sends an acknowledgement and a membership card to both classes. In the regular course of operations, NRWC's members receive newsletters, action alerts, and responses Page 459 U. S. 203 to individual requests for information. They respond to issue surveys and are asked to communicate with their elected representatives when appropriate. See Joint App. vol. II, at 387 et seq."Id. at 217, n. 1, 665 F.2d at 373, n. 1. In respondent's view, both categories satisfy the membership requirement of § 441b(b)(4)(C).The Commission, however, insists that these standards of "membership" are too fluid and insubstantial to come within the statutory term "member," and argues further that they do not comply with the Commission's regulation defining the term:"(e) 'Members' means all persons who are currently satisfying the requirements for membership in a membership organization, trade association, cooperative, or corporation without capital stock. . . . A person is not considered a member under this definition if the only requirement for membership is a contribution to a separate segregated fund."Federal Election Commission Regulations, 11 CFR § 114.1(e) (1982). The Commission also contends that NRWC's Virginia articles of incorporation, filed by respondent, which state that respondent has no members, are dispositive. While we do not feel sufficiently informed at this time to attempt an exegesis of the statutory meaning of the word "members" beyond that necessary to decide this case, we find it relatively easy to dispose of these arguments that respondent's solicitation was limited to its "members," since, in our view, this would virtually excise from the statute the restriction of solicitation to "members."Section 441b(b)(4)(C) was one of several amendments to the Act enacted in 1976. The entire legislative history of the subsection appears to be the floor statement of Senator Allen who introduced the provision in the Senate and explained the purpose of his amendment in this language: Page 459 U. S. 204"Mr. President, all this amendment does is to cure an omission in the bill. It would allow corporations that do not have stock but have a membership organization, such as a cooperative or other corporations without capital stock and, hence, without stockholders, to set up separate segregated political funds as to which it can solicit contributions from its membership; since it does not have any stockholders to solicit, it should be allowed to solicit its members. That is all that the amendment provides. It does cover an omission in the bill that I believe all agree should be filled."122 Cong.Rec. 7198 (1976). This statement suggests that "members" of nonstock corporations were to be defined, at least in part, by analogy to stockholders of business corporations and members of labor unions. The analogy to stockholders and union members suggests that some relatively enduring and independently significant financial or organizational attachment is required to be a "member" under § 441b(b)(4)(C). The Court of Appeals' determination that NRWC's "members" include anyone who has responded to one of the corporation's essentially random mass mailings would, we think, open the door to all but unlimited corporate solicitation, and thereby render meaningless the statutory limitation to "members."We also assume, since there is no body of federal law of corporations, see Burks v. Lasker, 441 U. S. 471, 441 U. S. 477 (1979), that Congress intended at least some reference to the laws of the various States dealing with nonprofit corporations. In an analogous situation, where Congress had authorized state taxation of "real property" of subsidiaries of the Reconstruction Finance Corporation, the Court said:"We think the congressional purpose can best be accomplished by application of settled state rules as to what constitutes 'real property,' so long as it is plain, as it is here, that the state rules do not effect a discrimination against the Government, or patently run counter to Page 459 U. S. 205 the terms of the Act."RFC v. Beaver County, 328 U. S. 204, 328 U. S. 210 (1946). Like property, the structure and powers of nonprofit corporations are defined principally by state law; as in the case of property, state law provides some guidance in deciding whether NRWC's solicitation was confined to its "members."Most States apparently permit nonprofit corporations to have "members" similar to shareholders in a business corporation, although state statutes generally do not seem to require this form of organization, see, e.g., ALI-ABA, Model Nonprofit Corporation Act § 11 (1964); in many States, the board of directors of a nonprofit corporation may be an autonomous, self-perpetuating body. [Footnote 5] Given the wide variety of treatment of the subject of membership in state incorporation laws, and the focus of the Commission's regulation on the corporation's own standards, we think it was entirely permissible for the Commission in this case to look to NRWC's corporate charter under the laws of Virginia and the bylaws adopted in accordance with that charter.Applying the statutory language as we interpret it to the facts of this case, [Footnote 6] we think Congress did not intend to allow the 267,000 individuals solicited by NRWC during 1976 to Page 459 U. S. 206 come within the exclusion for "members" in 2 U.S.C. § 441b(b)(4)(C). Although membership cards are ultimately sent to those who either contribute or respond in some other way to respondent's mailings, the solicitation letters themselves make no reference to members. Members play no part in the operation or administration of the corporation; they elect no corporate officials, and indeed there are apparently no membership meetings. There is no indication that NRWC's asserted members exercise any control over the expenditure of their contributions. Moreover, as previously noted, NRWC's own articles of incorporation and other publicly filed documents explicitly disclaimed the existence of members. We think that, under these circumstances, those solicited were insufficiently attached to the corporate structure of NRWC to qualify as "members" under the statutory proviso.Unlike the Court of Appeals, we do not think this construction of the statute raises any insurmountable constitutional difficulties. The Court of Appeals expressed the view that the sort of solicitations involved here would neither corrupt officials nor coerce members of the corporation holding minority political views, the two goals which it believed Congress had in mind in enacting the statutory provisions at issue. That being so, the Court of Appeals apparently thought, and respondent argues here, that the term "members" must be given an elastic definition in order to prevent impermissible interference with the constitutional rights enunciated in cases such as NAACP v. Button, 371 U. S. 415 (1963), and Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980). Similarly, respondent places considerable reliance on our statement in Buckley v. Valeo, 424 U. S. 1, 424 U. S. 25 (1976):"The Court's decisions involving associational freedoms establish that the right of association is a 'basic constitutional freedom,' Kusper v. Pontikes, 414 U.S. at 414 U. S. 57, that is 'closely allied to freedom of speech and a right Page 459 U. S. 207 which, like free speech, lies at the foundation of a free society.' Shelton v. Tucker, 364 U. S. 479, 364 U. S. 486 (1960). See, e.g., Bates v. Little Rock, 361 U. S. 516, 361 U. S. 522-523 (1960); NAACP v. Alabama, [357 U.S.] at 257 U. S. 460-461; NAACP v. Button, supra, at 371 U. S. 452 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental 'action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.' NAACP v. Alabama, supra, at 357 U. S. 460-461."Under this standard, respondent asserts, the Act's restriction of its solicitation cannot be upheld.While we fully subscribe to the views stated in Buckley, in the very next sentence to the passage quoted by the respondent, the Court went on to say:"Yet, it is clear that '[n]either the right to associate nor the right to participate in political activities is absolute.' CSC v. Letter Carriers, 413 U. S. 548, 413 U. S. 567 (1973)."Ibid. In this case, we conclude that the associational rights asserted by respondent may be and are overborne by the interests Congress has sought to protect in enacting § 441b.To place respondent's constitutional claims in proper perspective, we repeat language used in Buckley v. Valeo, supra, at 424 U. S. 13:"The constitutional power of Congress to regulate federal elections is well established, and is not questioned by any of the parties in this case."The first purpose of § 441b, petitioners state, is to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political "war chests" which could be used to incur political debts from legislators who are aided by the contributions. See United States v. Automobile Workers, 352 U. S. 567, 352 U. S. 579 (1957). The second purpose Page 459 U. S. 208 of the provisions, petitioners argue, is to protect the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed. See United States v. CIO, 335 U. S. 106, 335 U. S. 113 (1948).We agree with petitioners that these purposes are sufficient to justify the regulation at issue. Speaking of corporate involvement in electoral politics, we recently said:"The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted."First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 788, n. 26 (1978) (citations omitted). Likewise, in Buckley v. Valeo, supra, at 424 U. S. 26-27, we specifically affirmed the importance of preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption. These interests directly implicate "the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process." United States v. Automobile Workers, supra, at 352 U. S. 570.We are also convinced that the statutory prohibitions and exceptions we have considered are sufficiently tailored to these purposes to avoid undue restriction on the associational interests asserted by respondent. The history of the movement to regulate the political contributions and expenditures of corporations and labor unions is set forth in great detail in United States v. Automobile Workers, supra, at 352 U. S. 570-584, and we need only summarize the development here. Seventy-five years ago, Congress first made financial contributions to federal candidates by corporations illegal by enacting the Page 459 U. S. 209 Tillman Act, ch. 420, 34 Stat. 864. Within the next few years, Congress went further and required financial disclosure by federal candidates following election, Act of June 25, 1910, ch. 392, 36 Stat. 822, and the following year required preelection disclosure as well. Act of Aug.19, 1911, ch. 33, 37 Stat. 25. The Federal Corrupt Practices Act, passed in 1925, extended the prohibition against corporate contributions to include "anything of value," and made acceptance of a corporate contribution as well as the giving of such a contribution a crime. 43 Stat. 1070.The first restrictions on union contributions were contained in the second Hatch Act, 54 Stat. 767, and later, in the War Labor Disputes Act of 1943, § 9, 57 Stat. 167, union contributions in connection with federal elections were prohibited altogether. These prohibitions on union political activity were extended and strengthened in the Taft-Hartley Act, 61 Stat. 136, which broadened the earlier prohibition against contributions to "expenditures" as well. Congress codified most of these provisions in the Federal Election Campaign Act of 1971, 86 Stat. 3, and enacted later amendments in 1974, 88 Stat. 1263, in 1976, 90 Stat. 475, and in 1980, 93 Stat. 1339. Section 441b(b)(4)(C) is, as its legislative history indicates, merely a refinement of this gradual development of the federal election statute.This careful legislative adjustment of the federal electoral laws, in a "cautious advance, step by step," NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 46 (1937), to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference, see Rostker v. Goldberg, 453 U. S. 57, 453 U. S. 64, 67 (1981). As we discuss below, it also reflects a permissible assessment of the dangers posed by those entities to the electoral process.In order to prevent both actual and apparent corruption, Congress aimed a part of its regulatory scheme at corporations. The statute reflects a legislative judgment that the special characteristics of the corporate structure require particularly Page 459 U. S. 210 careful regulation. See United States v. Morton Salt Co., 338 U. S. 632, 338 U. S. 652 (1950). While § 441b restricts the solicitation of corporations and labor unions without great financial resources, as well as those more fortunately situated, we accept Congress' judgment that it is the potential for such influence that demands regulation. Nor will we second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. As we said in California Medical Assn. v. FEC, 453 U. S. 182, 453 U. S. 201 (1981), the "differing structures and purposes" of different entities "may require different forms of regulation in order to protect the integrity of the electoral process." [Footnote 7]To accept the view that a solicitation limited only to those who have in the past proved "philosophically compatible" to the views of the corporation must be permitted under the statute in order for the prohibition to be constitutional would ignore the teachings of our earlier decisions. The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, First National Bank of Boston v. Bellotti, supra, at 435 U. S. 788, n. 26, and there is no reason why it may not in this case be accomplished by treating unions, corporations, Page 459 U. S. 211 and similar organizations differently from individuals. California Medical Assn. v. FEC, supra, at 453 U. S. 201.Respondent also asserts a claim of unconstitutional vagueness, relying on such additional cases as Connally v. General Construction Co., 269 U. S. 385 (1926); Grayned v. City of Rockford, 408 U. S. 104 (1972); Speiser v. Randall, 357 U. S. 513 (1958); and Smith v. California, 361 U. S. 147 (1959). We think the vagueness claim is adequately answered by the language quoted earlier from CSC v. Letter Carriers, 413 U. S. 548, 413 U. S. 567 (1973). There may be more than one way under the statute to go about determining who are "members" of a nonprofit corporation, and the statute may leave room for uncertainty at the periphery of its exception for solicitation of "members." However, on this record, we are satisfied that NRWC's activities extended in large part, if not in toto, to people who would not be members under any reasonable interpretation of the statute. See Broadrick v. Oklahoma, 413 U. S. 601 (1973). [Footnote 8]The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtFEC v. National Right to Work Comm., 459 U.S. 197 (1982)Federal Election Commission v. National Right to Work CommitteeNo. 81-1506Argued November 1, 1982Decided December 13, 1982459 U.S. 197SyllabusThe Federal Election Campaign Act of 1971, 2 U.S.C. § 441b(a), prohibits corporations and labor unions from making contributions or expenditures in connection with federal elections. The section, however, permits some participation by unions and corporations in the federal electoral process by allowing these organizations to establish and pay the expenses of "separate segregated funds" which may be used for political purposes during federal elections. The Act restricts the operations of such segregated funds in several respects. Of most relevance here, 2 U.S.C. §§ 441b(b)(4)(A) and 441b(b)(4)(C) provide that a corporation without capital stock may solicit contributions to a fund it has established only from "members" of the corporation. During 1976, respondent National Right to Work Committee (NRWC), a corporation without capital stock, solicited some 267,000 persons for contributions to a separate segregated fund that it sponsored. Petitioner Federal Election Commission determined that NRWC's solicitation violated § 441b(b)(4)(C), because the persons it had solicited were not its members. Among other things, NRWC's solicitation letters did not mention membership, its articles of incorporation disclaim the existence of members, and members play no part in the operation or administration of the corporation.Held:1. The persons solicited by NRWC were insufficiently attached to the corporation to qualify as members under § 441b(b)(4)(C). This interpretation of the Act does not raise constitutional difficulties. Pp. 459 U. S. 201-207.2. The First Amendment associational rights asserted by NRWC are overborne by the interests Congress has sought to protect in enacting § 441b. The provision marks the culmination of a careful legislative adjustment of the federal electoral laws to prevent both actual and apparent corruption, and reflects a legislative judgment that the special characteristics of corporations require prophylactic measures. Pp. 207-211.214 U.S.App.D.C. 215, 665 F.2d 371, reversed.REHNQUIST, J., delivered the opinion for a unanimous Court. Page 459 U. S. 198

1981_80-2195

JUSTICE STEVENS delivered the opinion of the Court.This case involves presumptions. The question presented is whether a presumption that has been used to evaluate a judicial or prosecutorial response to a criminal defendant's exercise of a right to be retried after he has been convicted Page 457 U. S. 370 should also be applied to evaluate a prosecutor's pretrial response to a defendant's demand for a jury trial.After the respondent requested a trial by jury on pending misdemeanor charges, he was indicted and convicted on a felony charge. Believing that the sequence of events gave rise to an impermissible appearance of prosecutorial retaliation against the defendant's exercise of his right to be tried by jury, the United States Court of Appeals for the Fourth Circuit reversed the felony conviction. 637 F.2d 250. Because this case presents an important question concerning the scope of our holdings in North Carolina v. Pearce, 395 U. S. 711, and Blackledge v. Perry, 417 U. S. 21, we granted the Government's petition for certiorari. 454 U.S. 1079.IRespondent Goodwin was stopped for speeding by a United States Park Policeman on the Baltimore-Washington Parkway. Goodwin emerged from his car to talk to the policeman. After a brief discussion, the officer noticed a clear plastic bag underneath the armrest next to the driver's seat of Goodwin's car. The officer asked Goodwin to return to his car and to raise the armrest. Respondent did so, but as he raised the armrest, he placed the car into gear and accelerated rapidly. The car struck the officer, knocking him first onto the back of the car and then onto the highway. The policeman returned to his car, but Goodwin eluded him in a high-speed chase.The following day, the officer filed a complaint in the District Court charging respondent with several misdemeanor and petty offenses, including assault. Goodwin was arrested and arraigned before a United States Magistrate. The Magistrate set a date for trial, but respondent fled the jurisdiction. Three years later, Goodwin was found in custody in Virginia, and was returned to Maryland.Upon his return, respondent's case was assigned to an attorney from the Department of Justice, who was detailed Page 457 U. S. 371 temporarily to try petty crime and misdemeanor cases before the Magistrate. The attorney did not have authority to try felony cases or to seek indictments from the grand jury. Respondent initiated plea negotiations with the prosecutor, but later advised the Government that he did not wish to plead guilty and desired a trial by jury in the District Court. [Footnote 1]The case was transferred to the District Court and responsibility for the prosecution was assumed by an Assistant United States Attorney. Approximately six weeks later, after reviewing the case and discussing it with several parties, the prosecutor obtained a four-count indictment charging respondent with one felony count of forcibly assaulting a federal officer and three related counts arising from the same incident. [Footnote 2] A jury convicted respondent on the felony count and on one misdemeanor count.Respondent moved to set aside the verdict on the ground of prosecutorial vindictiveness, contending that the indictment on the felony charge gave rise to an impermissible appearance of retaliation. The District Court denied the motion, finding that "the prosecutor in this case has adequately dispelled any appearance of retaliatory intent." [Footnote 3] Page 457 U. S. 372Although the Court of Appeals readily concluded that "the prosecutor did not act with actual vindictiveness in seeking a felony indictment," 637 F.2d at 252, it nevertheless reversed. Relying on our decisions in North Carolina v. Pearce, supra, and Blackledge v. Perry, supra, the court held that the Due Process Clause of the Fifth Amendment prohibits the Government from bringing more serious charges against a defendant after he has invoked his right to a jury trial, unless the prosecutor comes forward with objective evidence to show that the increased charges could not have been brought before the defendant exercised his rights. Because the court believed that the circumstances surrounding the felony indictment gave rise to a genuine risk of retaliation, it adopted a legal presumption designed to spare courts the "unseemly task" of probing the actual motives of the prosecutor. 637 F.2d at 255.IITo punish a person because he has done what the law plainly allows him to do is a due process violation "of the most basic sort." Bordenkircher v. Hayes, 434 U. S. 357, 434 U. S. 363. In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic -- and itself uncontroversial -- principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right. [Footnote 4]The imposition of punishment is the very purpose of virtually all criminal proceedings. The presence of a punitive Page 457 U. S. 373 motivation, therefore, does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity. Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to "presume" an improper vindictive motive. Given the severity of such a presumption, however -- which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct -- the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.In North Carolina v. Pearce, the Court held that neither the Double Jeopardy Clause nor the Equal Protection Clause prohibits a trial judge from imposing a harsher sentence on retrial after a criminal defendant successfully attacks an initial conviction on appeal. The Court stated, however, that"[i]t can hardly be doubted that it would be a flagrant violation [of the Due Process Clause] of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside."395 U.S. at 395 U. S. 723-724. The Court continued:"Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory Page 457 U. S. 374 motivation on the part of the sentencing judge."Id. at 395 U. S. 725. In order to assure the absence of such a motivation, the Court concluded:"[W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal."Id. at 395 U. S. 726. In sum, the Court applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence. [Footnote 5] Page 457 U. S. 375In Blackledge v. Perry, 417 U. S. 21, the Court confronted the problem of increased punishment upon retrial after appeal in a setting different from that considered in Pearce. Perry was convicted of assault in an inferior court having exclusive jurisdiction for the trial of misdemeanors. The court imposed a 6-month sentence. Under North Carolina law, Perry had an absolute right to a trial de novo in the Superior Court, which possessed felony jurisdiction. After Perry filed his notice of appeal, the prosecutor obtained a felony indictment charging him with assault with a deadly weapon. Perry pleaded guilty to the felony and was sentenced to a term of five to seven years in prison.In reviewing Perry's felony conviction and increased sentence, [Footnote 6] this Court first stated the essence of the holdings in Pearce and the cases that had followed it:"The lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness.'"417 U.S. at 417 U. S. 27. The Court held that the opportunities for vindictiveness in the situation before it were such "as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case." Ibid. It explained: Page 457 U. S. 376"A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing, and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such appeals -- by 'upping the ante' through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy -- the State can insure that only the most hardy defendants will brave the hazards of a de novo trial."Id. at 417 U. S. 27-28. The Court emphasized in Blackledge that it did not matter that no evidence was present that the prosecutor had acted in bad faith or with malice in seeking the felony indictment. [Footnote 7] As in Pearce, the Court held that the likelihood of vindictiveness justified a presumption that would free defendants of apprehension of such a retaliatory motivation on the part of the prosecutor. [Footnote 8]Both Pearce and Blackledge involved the defendant's exercise of a procedural right that caused a complete retrial after he had been once tried and convicted. The decisions in these cases reflect a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided. The doctrines of stare decisis, res judicata, the law of the case, and double jeopardy all are based, at least in part, on that deep-seated bias. Page 457 U. S. 377 While none of these doctrines barred the retrials in Pearce and Blackledge, the same institutional pressure that supports them might also subconsciously motivate a vindictive prosecutorial or judicial response to a defendant's exercise of his right to obtain a retrial of a decided question.In Bordenkircher v. Hayes, 434 U. S. 357, the Court for the first time considered an allegation of vindictiveness that arose in a pretrial setting. In that case, the Court held that the Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged. The prosecutor in that case had explicitly told the defendant that, if he did not plead guilty and "save the court the inconvenience and necessity of a trial," he would return to the grand jury to obtain an additional charge that would significantly increase the defendant's potential punishment. [Footnote 9] The defendant refused to plead guilty, and the prosecutor obtained the indictment. It was not disputed that the additional charge was justified by the evidence, that the prosecutor was in possession of this evidence at the time the original indictment was obtained, and that the prosecutor sought the additional charge because of the accused's refusal to plead guilty to the original charge.In finding no due process violation, the Court in Bordenkircher considered the decisions in Pearce and Blackledge, and stated:"In those cases, the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction -- a situation 'very different from the give-and-take Page 457 U. S. 378 negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.' Parker v. North Carolina, 397 U. S. 790, 397 U. S. 809 (opinion of BRENNAN, J.)."434 U.S. at 434 U. S. 362. The Court stated that the due process violation in Pearce and Blackledge"lay not in the possibility that a defendant might be deterred from the exercise of a legal right . . . , but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction."434 U.S. at 434 U. S. 363.The Court held, however, that there was no such element of punishment in the "give-and-take" of plea negotiation, so long as the accused "is free to accept or reject the prosecution's offer." Ibid. The Court noted that, by tolerating and encouraging the negotiation of pleas, this Court had accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his constitutional right to stand trial. The Court concluded:"We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment."Id. at 434 U. S. 365.The outcome in Bordenkircher was mandated by this Court's acceptance of plea negotiation as a legitimate process. [Footnote 10] In declining to apply a presumption of vindictiveness, Page 457 U. S. 379 the Court recognized that "additional" charges obtained by a prosecutor could not necessarily be characterized as an impermissible "penalty." Since charges brought in an original indictment may be abandoned by the prosecutor in the course of plea negotiation -- in often what is clearly a "benefit" to the defendant -- changes in the charging decision that occur in the Page 457 U. S. 380 context of plea negotiation are an inaccurate measure of improper prosecutorial "vindictiveness." [Footnote 11] An initial indictment -- from which the prosecutor embarks on a course of plea negotiation -- does not necessarily define the extent of the legitimate interest in prosecution. For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded. [Footnote 12]IIIThis case, like Bordenkircher, arises from a pretrial decision to modify the charges against the defendant. Unlike Bordenkircher, however, there is no evidence in this case that could give rise to a claim of actual vindictiveness; the Page 457 U. S. 381 prosecutor never suggested that the charge was brought to influence the respondent's conduct. [Footnote 13] The conviction in this case may be reversed only if a presumption of vindictiveness -- applicable in all cases -- is warranted.There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution, or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins -- and certainly by the time a conviction has been obtained -- it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some "burden" on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.Thus, the timing of the prosecutor's action in this case suggests that a presumption of vindictiveness is not warranted. Page 457 U. S. 382 A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. [Footnote 14] As we made clear in Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution. [Footnote 15]The nature of the right asserted by the respondent confirms that a presumption of vindictiveness is not warranted in this case. After initially expressing an interest in plea negotiation, respondent decided not to plead guilty, and requested a trial by jury in District Court. In doing so, he forced the Government to bear the burdens and uncertainty of a trial. This Court in Bordenkircher, made clear that the mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision Page 457 U. S. 383 are unjustified. Respondent argues that such a presumption is warranted in this case, however, because he not only requested a trial -- he requested a trial by jury.We cannot agree. The distinction between a bench trial and a jury trial does not compel a special presumption of prosecutorial vindictiveness whenever additional charges are brought after a jury is demanded. To be sure, a jury trial is more burdensome than a bench trial. The defendant may challenge the selection of the venire; the jury itself must be impaneled; witnesses and arguments must be prepared more carefully to avoid the danger of a mistrial. These matters are much less significant, however, than the facts that, before either a jury or a judge, the State must present its full case against the accused and the defendant is entitled to offer a full defense. As compared to the complete trial de novo at issue in Blackledge, a jury trial -- as opposed to a bench trial -- does not require duplicative expenditures of prosecutorial resources before a final judgment may be obtained. Moreover, unlike the trial judge in Pearce, no party is asked "to do over what it thought it had already done correctly." [Footnote 16] A prosecutor has no "personal stake" in a bench trial, and thus no reason to engage in "self-vindication" upon a defendant's request for a jury trial. [Footnote 17] Perhaps most importantly, the institutional bias against the retrial of a decided question that supported the decisions in Pearce and Blackledge simply has no counterpart in this case. [Footnote 18] Page 457 U. S. 384There is an opportunity for vindictiveness, as there was in Colten and Chaffin. Those cases demonstrate, however, that a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule. As Blackledge makes clear,"the Due Process Clause is not offended by all possibilities of increased punishment . . . but only by those that pose a realistic likelihood of 'vindictiveness.'"417 U.S. at 417 U. S. 27. The possibility that a prosecutor would respond to a defendant's pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness certainly is not warranted.IVIn declining to apply a presumption of vindictiveness, we of course do not foreclose the possibility that a defendant, in an appropriate case, might prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do. [Footnote 19] In this case, however, the Court of Appeals stated: "On this record, we readily conclude that the prosecutor did not act with actual vindictiveness in seeking a felony indictment." 637 F.2d at 252. Respondent does not challenge that finding. Absent a presumption of vindictiveness, no due process violation has been established.The judgment of the Court of Appeals is reversed. The Page 457 U. S. 385 case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Goodwin, 457 U.S. 368 (1982)United States v. GoodwinNo. 80-2195Argued April 21, 1982Decided June 18, 1982457 U.S. 368SyllabusAfter initially expressing an interest in plea bargaining on misdemeanor charges, respondent decided not to plead guilty and requested a trial by jury. While the misdemeanor charges were still pending, he was indicted and convicted in Federal District Court on a felony charge arising out of the same incident as the misdemeanor charges. Respondent moved to set aside the verdict on the ground of prosecutorial vindictiveness, contending that the felony indictment gave rise to an impermissible appearance of retaliation. The District Court denied the motion. The Court of Appeals reversed, holding that, although the prosecutor did not act with actual vindictiveness in seeking a felony indictment, the Due Process Clause prohibits the Government from bringing more serious charges against the defendant after he has invoked his right to a jury trial, unless the prosecutor comes forward with objective evidence that the increased charges could not have been brought before the defendant exercised his right. Believing that the circumstances surrounding the felony indictment gave rise to a genuine risk of retaliation, the court adopted a legal presumption of prosecutorial vindictiveness.Held: A presumption of prosecutorial vindictiveness was not warranted in this case, and absent such a presumption, no due process violation was established. Pp. 457 U. S. 372-384.(a) In cases in which action detrimental to a defendant has been taken after the exercise of a legal right, the presumption of an improper vindictive motive has been applied only where a reasonable likelihood of vindictiveness existed. North Carolina v. Pearce, 395 U. S. 711; Blackledge v. Perry, 417 U. S. 21. Cf. Bordenkircher v. Hayes, 434 U. S. 357. Pp. 457 U. S. 372-380.(b) A change in the prosecutor's charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. It is unrealistic to assume that a prosecutor's probable response to such pretrial motions as to be tried by a jury is to seek to penalize and to deter. Here, the timing of the prosecutor's action suggests that a presumption of vindictiveness was not warranted. A prosecutor should remain free before trial to exercise his discretion to determine the extent of the societal interest in the prosecution. The initial Page 457 U. S. 369 charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution. Bordenkircher, supra. Pp. 457 U. S. 380-382.(c) The nature of the right asserted by respondent confirms that a presumption of vindictiveness was not warranted in this case. The mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unwarranted. Bordenkircher, supra. Pp. 457 U. S. 382-383.(d) The fact that respondent, as opposed to having a bench trial, requested a jury trial does not compel a special presumption of prosecutorial vindictiveness whenever additional charges are thereafter brought. While there may have been an opportunity for vindictiveness here, a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule. The possibility that a prosecutor would respond to a defendant's pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness is certainly not warranted. Pp. 457 U. S. 383-384.637 F.2d 250, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post at 457 U. S. 385. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post at 457 U. S. 386.

1990_89-1799

JUSTICE KENNEDY delivered the opinion of the Court.In this libel case, a public figure claims he was defamed by an author who, with full knowledge of the inaccuracy, used quotation marks to attribute to him comments he had not made. The First Amendment protects authors and journalists who write about public figures by requiring a plaintiff to prove that the defamatory statements were made with what we have called "actual malice," a term of art denoting deliberate or reckless falsification. We consider in this opinion whether the attributed quotations had the degree of falsity required to prove this state of mind, so that the public figure can defeat a motion for summary judgment and proceed to a trial on the merits of the defamation claim.IPetitioner Jeffrey Masson trained at Harvard University as a Sanskrit scholar, and in 1970 became a professor of Sanskrit & Indian Studies at the University of Toronto. He spent eight years in psychoanalytic training, and qualified as Page 501 U. S. 500 an analyst in 1978. Through his professional activities, he came to know Dr. Kurt Eissler, head of the Sigmund Freud Archives, and Dr. Anna Freud, daughter of Sigmund Freud and a major psychoanalyst in her own right. The Sigmund Freud Archives, located at Maresfield Gardens outside of London, serves as a repository for materials about Freud, including his own writings, letters, and personal library. The materials, and the right of access to them, are of immense value to those who study Freud, his theories, life and work.In 1980, Eissler and Anna Freud hired petitioner as Projects Director of the Archives. After assuming his post, petitioner became disillusioned with Freudian psychology. In a 1981 lecture before the Western New England Psychoanalytical Society in New Haven, Connecticut, he advanced his theories of Freud. Soon after, the Board of the Archives terminated petitioner as Projects Director.Respondent Janet Malcolm is an author and a contributor to respondent The New Yorker, a weekly magazine. She contacted petitioner in 1982 regarding the possibility of an article on his relationship with the Archives. He agreed, and the two met in person and spoke by telephone in a series of interviews. Based on the interviews and other sources, Malcolm wrote a lengthy article. One of Malcolm's narrative devices consists of enclosing lengthy passages in quotation marks, reporting statements of Masson, Eissler, and her other subjects.During the editorial process, Nancy Franklin, a member of the fact-checking department at The New Yorker, called petitioner to confirm some of the facts underlying the article. According to petitioner, he expressed alarm at the number of errors in the few passages Franklin discussed with him. Petitioner contends that he asked permission to review those portions of the article which attributed quotations or information to him, but was brushed off with a never-fulfilled promise Page 501 U. S. 501 to "get back to [him]." App. 67. Franklin disputes petitioner's version of their conversation. App. 246-247.The New Yorker published Malcolm's piece in December, 1983, as a two-part series. In 1984, with knowledge of at least petitioner's general allegation that the article contained defamatory material, respondent Alfred A. Knopf, Inc., published the entire work as a book, entitled In the Freud Archives.Malcolm's work received complimentary reviews. But this gave little joy to Masson, for the book portrays him in a most unflattering light. According to one reviewer,"Masson the promising psychoanalytic scholar emerges gradually, as a grandiose egotist -- mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: his own words reveal this psychological profile -- a self-portrait offered to us through the efforts of an observer and listener who is, surely, as wise as any in the psychoanalytic profession."Coles, Freudianism Confronts Its Malcontents, Boston Globe, May 27, 1984, pp. 58, 60.Petitioner wrote a letter to the New York Times Book Review calling the book "distorted." In response, Malcolm stated:"Many of [the] things Mr. Masson told me (on tape) were discreditable to him, and I felt it best not to include them. Everything I do quote Mr. Masson as saying was said by him, almost word for word. (The 'almost' refers to changes made for the sake of correct syntax.) I would be glad to play the tapes of my conversation with Mr. Masson to the editors of The Book Review whenever they have 40 or 50 short hours to spare."App. 222-223.Petitioner brought an action for libel under California law in the United States District Court for the Northern District of California. During extensive discovery and repeated Page 501 U. S. 502 amendments to the complaint, petitioner concentrated on various passages alleged to be defamatory, dropping some and adding others. The tape recordings of the interviews demonstrated that petitioner had, in fact, made statements substantially identical to a number of the passages, and those passages are no longer in the case. We discuss only the passages relied on by petitioner in his briefs to this Court.Each passage before us purports to quote a statement made by petitioner during the interviews. Yet in each instance no identical statement appears in the more than 40 hours of taped interviews. Petitioner complains that Malcolm fabricated all but one passage; with respect to that passage, he claims Malcolm omitted a crucial portion, rendering the remainder misleading.(a) "Intellectual Gigolo." Malcolm quoted a description by petitioner of his relationship with Eissler and Anna Freud as follows:"'Then I met a rather attractive older graduate student and I had an affair with her. One day, she took me to some art event, and she was sorry afterward. She said, 'Well, it is very nice sleeping with you in your room, but you're the kind of person who should never leave the room -- you're just a social embarrassment anywhere else, though you do fine in your own room.' And you know, in their way, if not in so many words, Eissler and Anna Freud told me the same thing. They like me well enough 'in my own room.' They loved to hear from me what creeps and dolts analysts are. I was like an intellectual gigolo -- you get your pleasure from him, but you don't take him out in public. . . .'"In the Freud Archives 38. The tape recordings contain the substance of petitioner's reference to his graduate student friend, App. 95, but no suggestion that Eissler or Anna Freud considered him, or that he considered himself, an "intellectual gigolo.'" Instead, petitioner said: Page 501 U. S. 503"They felt, in a sense, I was a private asset but a public liability. . . . They liked me when I was alone in their living room, and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with me."Id. at 104.(b) "Sex, Women, Fun." Malcolm quoted petitioner as describing his plans for Maresfield Gardens, which he had hoped to occupy after Anna Freud's death:"'It was a beautiful house, but it was dark and sombre and dead. Nothing ever went on there. I was the only person who ever came. I would have renovated it, opened it up, brought it to life. Maresfield Gardens would have been a center of scholarship, but it would also have been a place of sex, women, fun. It would have been like the change in The Wizard of Oz, from black-and-white into color.'"In the Freud Archives 33. The tape recordings contain a similar statement, but in place of the reference to "sex, women, fun," and The Wizard of Oz, petitioner commented:"[I]t is an incredible storehouse. I mean, the library, Freud's library alone is priceless in terms of what it contains: all his books with his annotations in them; the Schreber case annotated, that kind of thing. It's fascinating."App. 127. Petitioner did talk, earlier in the interview, of his meeting with a London analyst:"I like him. So, and we got on very well. That was the first time we ever met and you know, it was buddy-buddy, and we were to stay with each other and [laughs] we were going to pass women on to each other, and we were going to have a great time together when I lived in the Freud house. We'd have great parties there and we were [laughs] --"* * * Page 501 U. S. 504". . . going to really, we were going to live it up."Id. at 129.(c) "It Sounded Better." Petitioner spoke with Malcolm about the history of his family, including the reasons his grandfather changed the family name from Moussaieff to Masson, and why petitioner adopted the abandoned family name as his middle name. The article contains the passage:"'My father is a gem merchant who doesn't like to stay in any one place too long. His father was a gem merchant, too -- a Bessarabian gem merchant, named Moussaieff, who went to Paris in the twenties and adopted the name Masson. My parents named me Jeffrey Lloyd Masson, but in 1975 I decided to change my middle name to Moussaieff -- it sounded better.'"In the Freud Archives 36. In the most similar tape recorded statement, Masson explained at considerable length that his grandfather had changed the family name from Moussaieff to Masson when living in France, "[j]ust to hide his Jewishness." Petitioner had changed his last name back to Moussaieff, but his then-wife Terry objected that "nobody could pronounce it and nobody knew how to spell it, and it wasn't the name that she knew me by." Petitioner had changed his name to Moussaieff because he "just liked it." "[I]t was sort of part of analysis: a return to the roots, and your family tradition and so on." In the end, he had agreed with Terry that "it wasn't her name after all," and used Moussaieff as a middle instead of a last name. App. 87-89.(d) "I Don't Know Why I Put It In." The article recounts part of a conversation between Malcolm and petitioner about the paper petitioner presented at his 1981 New Haven lecture:"[I] asked him what had happened between the time of the lecture and the present to change him from a Freudian Page 501 U. S. 505 psychoanalyst with somewhat outre views into the bitter and belligerent anti-Freudian he had become.""Masson sidestepped my question. 'You're right, there was nothing disrespectful of analysis in that paper,' he said. 'That remark about the sterility of psychoanalysis was something I tacked on at the last minute, and it was totally gratuitous. I don't know why I put it in.'"In the Freud Archives 53. The tape recordings instead contain the following discussion of the New Haven lecture:"Masson: 'So they really couldn't judge the material. And, in fact, until the last sentence I think they were quite fascinated. I think the last sentence was an in, [sic] possibly, gratuitously offensive way to end a paper to a group of analysts. Uh, -- '""Malcolm: 'What were the circumstances under which you put it [in]? . . .'""Masson: 'That it was, was true.'"* * * *". . . I really believe it. I didn't believe anybody would agree with me."* * * *". . . But I felt I should say something because the paper's still well within the analytic tradition in a sense. . . ."* * * *". . . It's really not a deep criticism of Freud. It contains all the material that would allow one to criticize Freud, but I didn't really do it. And then I thought, I really must say one thing that I really believe, that's not going to appeal to anybody and that was the very last sentence. Because I really do believe psychoanalysis is entirely sterile. . . ."App. 176.(e) "Greatest Analyst Who Ever Lived." The article contains the following self-explanatory passage: Page 501 U. S. 506"A few days after my return to New York, Masson, in a state of elation, telephoned me to say that Farrar, Straus & Giroux has taken The Assault on Truth [Masson's book]. "Wait till it reaches the best-seller list, and watch how the analysts will crawl," he crowed. "They move whichever way the wind blows. They will want me back, they will say that Masson is a great scholar, a major analyst -- after Freud, he's the greatest analyst who ever lived. Suddenly they'll be calling, begging, cajoling: Please take back what you've said about our profession; our patients are quitting.' They'll try a short smear campaign, then they'll try to buy me, and ultimately they'll have to shut up. Judgment will be passed by history. There is no possible refutation of this book. It's going to cause a revolution in psychoanalysis. Analysis stands or falls with me now."" In the Freud Archives 162. This material does not appear in the tape recordings. Petitioner did make the following statements on related topics in one of the taped interviews with Malcolm:". . . I assure you when that book comes out, which I honestly believe is an honest book, there is nothing, you know, mean-minded about it. It's the honest fruit of research and intellectual toil. And there is not an analyst in the country who will say a single word in favor of it."App. 136."Talk to enough analysts and get them right down to these concrete issues and you watch how different it is from my position. It's utterly the opposite and that's finally what I realized, that I hold a position that no other analyst holds, including, alas, Freud. At first I thought: Okay, it's me and Freud against the rest of the analytic world, or me and Freud and Anna Freud and Kur[t] Eissler and Vic Calef and Brian Bird and Sam Page 501 U. S. 507 Lipton against the rest of the world. Not so, it's me. It's me alone."Id. at 139. The tape of this interview also contains the following exchange between petitioner and Malcolm:"Masson: '. . . analysis stands or falls with me now.'""Malcolm: 'Well that's a very grandiose thing to say.'""Masson: 'Yeah, but it's got nothing to do with me. It's got to do with the things I discovered.'"Id. at 137.(f) "He Had The Wrong Man." In discussing the Archives' board meeting at which petitioner's employment was terminated, Malcolm quotes petitioner as giving the following explanation of Eissler's attempt to extract a promise of confidentiality:"[Eissler] was always putting moral pressure on me. 'Do you want to poison Anna Freud's last days? Have you no heart? You're going to kill the poor old woman.' I said to him, 'What have I done? You're doing it. You're firing me. What am I supposed to do -- be grateful to you?' 'You could be silent about it. You could swallow it. I know it is painful for you. But you could just live with it in silence.' 'Why should I do that?' 'Because it is the honorable thing to do.' Well, he had the wrong man."In the Freud Archives 67. From the tape recordings, on the other hand, it appears that Malcolm deleted part of petitioner's explanation (italicized below), and petitioner argues that the "wrong man" sentence relates to something quite different from Eissler's entreaty that silence was "the honorable thing." In the tape recording, petitioner states:"But it was wrong of Eissler to do that, you know. He was constantly putting various kinds of moral pressure on me and, 'Do you want to poison Anna Freud's last days? Have you no heart?' He called me: 'Have you no heart? You're going to kill the poor old woman. Page 501 U. S. 508 Have you no heart? Think of what she's done for you and you are now willing to do this to her.' I said, 'What have I, what have I done? You did it. You fired me. What am I supposed to do: thank you? be grateful to you?' He said, 'Well you could never talk about it. You could be silent about it. You could swallow it. I know it's painful for you but just live with it in silence.' 'Fuck you,' I said, 'Why should I do that? Why? You know, why should one do that?' 'Because it's the honorable thing to do and you will save face. And who knows? If you never speak about it and you quietly and humbly accept our judgment, who knows that in a few years if we don't bring you back?' Well, he had the wrong man."App. 215-216.Malcolm submitted to the District Court that not all of her discussions with petitioner were recorded on tape, in particular conversations that occurred while the two of them walked together or traveled by car, while petitioner stayed at Malcolm's home in New York, or while her tape recorder was inoperable. She claimed to have taken notes of these unrecorded sessions, which she later typed, then discarding the handwritten originals. Petitioner denied that any discussion relating to the substance of the article occurred during his stay at Malcolm's home in New York, that Malcolm took notes during any of their conversations, or that Malcolm gave any indication that her tape recorder was broken.Respondents moved for summary judgment. The parties agreed that petitioner was a public figure, and so could escape summary judgment only if the evidence in the record would permit a reasonable finder of fact, by clear and convincing evidence, to conclude that respondents published a defamatory statement with actual malice as defined by our cases. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 477 U. S. 255-256 (1986). The District Court analyzed each of the passages and held that the alleged inaccuracies did not raise a jury question. The court found that the allegedly fabricated quotations were either substantially true or were "one of a number of possible Page 501 U. S. 509 rational interpretations' of a conversation or event that 'bristled with ambiguities,'" and thus were entitled to constitutional protection. 686 F. Supp. 1396, 1399 (1987) (quoting Bose Corp. v. Consumer's Union of the United States, Inc., 466 U. S. 485, 466 U. S. 512 (1984)). The court also ruled that the "he had the wrong man" passage involved an exercise of editorial judgment upon which the courts could not intrude. 686 F. Supp. at 1403-1404.The Court of Appeals affirmed, with one judge dissenting. 895 F.2d 1535 (CA9 1989). The court assumed for much of its opinion that Malcolm had deliberately altered each quotation not found on the tape recordings, but nevertheless held that petitioner failed to raise a jury question of actual malice, in large part for the reasons stated by the District Court. In its examination of the "intellectual gigolo" passage, the court agreed with the District Court that petitioner could not demonstrate actual malice, because Malcolm had not altered the substantive content of petitioner's self-description, but went on to note that it did not consider the "intellectual gigolo" passage defamatory, as the quotation merely reported Kurt Eissler's and Anna Freud's opinions about petitioner. In any event, concluded the court, the statement would not be actionable under the "incremental harm branch' of the `libel-proof' doctrine," id. at 1541 (quoting Herbert v. Lando, 781 F.2d 298, 310-311 (CA2 1986)).The dissent argued that any intentional or reckless alteration would prove actual malice, so long as a passage within quotation marks purports to be a verbatim rendition of what was said, contains material inaccuracies, and is defamatory. 895 F.2d at 1562-1570. We granted certiorari, 498 U.S. 808 (1990), and now reverse.IIAUnder California law,"[l]ibel is a false and unprivileged publication by writing . . . which exposes any person to hatred, Page 501 U. S. 510 contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."Cal.Civ.Code Ann. § 45 (West 1982). False attribution of statements to a person may constitute libel if the falsity exposes that person to an injury comprehended by the statute. See Selleck v. Globe International, Inc., 166 Cal. App. 3d 1123, 1132, 212 Cal. Rptr. 838, 844 (1985); Cameron v. Wernick, 251 Cal. App. 2d 890, 60 Cal. Rptr. 102 (1967); Kerby v. Hal Roach Studios, Inc., 53 Cal. App. 2d 207, 213, 127 P.2d 577, 581 (1942); cf. Baker v. Los Angeles Herald Examiner, 42 Cal. 3d 254, 260-261, 228 Cal. Rptr. 206, 208-210, 721 P.2d 87, 90-91 (1986). It matters not under California law that petitioner alleges only part of the work at issue to be false. "[T]he test of libel is not quantitative; a single sentence may be the basis for an action in libel even though buried in a much longer text," though the California courts recognize that, "[w]hile a drop of poison may be lethal, weaker poisons are sometimes diluted to the point of impotency." Washburn v. Wright, 261 Cal. App. 2d 789, 795, 68 Cal. Rptr. 224, 228 (1968).The First Amendment limits California's libel law in various respects. When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with "knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 279-280 (1964). Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author "in fact entertained serious doubts as to the truth of his publication," St. Amant v. Thompson, 390 U. S. 727, 390 U. S. 731 (1968), or acted with a "high degree of awareness of . . . probable falsity," Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 74 (1964).Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill-will. See Greenbelt Page 501 U. S. 511 Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation, and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 491 U. S. 666, n. 7 (1989). In place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity. This definitional principle must be remembered in the case before us.BIn general, quotation marks around a passage indicate to the reader that the passage reproduces the speaker's words verbatim. They inform the reader that he or she is reading the statement of the speaker, not a paraphrase or other indirect interpretation by an author. By providing this information, quotations add authority to the statement and credibility to the author's work. Quotations allow the reader to form his or her own conclusions, and to assess the conclusions of the author, instead of relying entirely upon the author's characterization of her subject.A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold. John Lennon once was quoted as saying of Page 501 U. S. 512 the Beatles, "We're more popular than Jesus Christ now." Time, Aug. 12, 1966, p. 38. Supposing the quotation had been a fabrication, it appears California law could permit recovery for defamation because, even without regard to the truth of the underlying assertion, false attribution of the statement could have injured his reputation. Here, in like manner, one need not determine whether petitioner is or is not the greatest analyst who ever lived in order to determine that it might have injured his reputation to be reported as having so proclaimed.A self-condemnatory quotation may carry more force than criticism by another. It is against self-interest to admit one's own criminal liability, arrogance, or lack of integrity, and so all the more easy to credit when it happens. This principle underlies the elemental rule of evidence which permits the introduction of admissions, despite their hearsay character, because we assume "that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true." Advisory Committee's Notes on Fed.Rule Evid. 804(b)(3), 28 U.S.C. App. p. 789 (citing Hileman v. Northwest Engineering Co., 346 F.2d 668 (CA6 1965)).Of course, quotations do not always convey that the speaker actually said or wrote the quoted material."Punctuation marks, like words, have many uses. Writers often use quotation marks, yet no reasonable reader would assume that such punctuation automatically implies the truth of the quoted material."Baker v. Los Angeles Examiner, 42 Cal. 3d at 263, 228 Cal. Rptr. at 211, 721 P.2d at 92. In Baker, a television reviewer printed a hypothetical conversation between a station vice-president and writer/producer, and the court found that no reasonable reader would conclude the plaintiff in fact had made the statement attributed to him. Id. at 267, 228 Cal. Rptr. at 213, 721 P.2d at 95. Writers often use quotations as in Baker, and a reader will not reasonably understand the quotations to indicate reproduction of a conversation that took place. In other Page 501 U. S. 513 instances, an acknowledgement that the work is so-called docudrama or historical fiction, or that it recreates conversations from memory, not from recordings, might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed.The work at issue here, however, as with much journalistic writing, provides the reader no clue that the quotations are being used as a rhetorical device or to paraphrase the speaker's actual statements. To the contrary, the work purports to be nonfiction, the result of numerous interviews. At least a trier of fact could so conclude. The work contains lengthy quotations attributed to petitioner, and neither Malcolm nor her publishers indicate to the reader that the quotations are anything but the reproduction of actual conversations. Further, the work was published in The New Yorker, a magazine which at the relevant time seemed to enjoy a reputation for scrupulous factual accuracy. These factors would, or at least could, lead a reader to take the quotations at face value. A defendant may be able to argue to the jury that quotations should be viewed by the reader as nonliteral or reconstructions, but we conclude that a trier of fact in this case could find that the reasonable reader would understand the quotations to be nearly verbatim reports of statements made by the subject.CThe constitutional question we must consider here is whether, in the framework of a summary judgment motion, the evidence suffices to show that respondents acted with the requisite knowledge of falsity or reckless disregard as to truth or falsity. This inquiry, in turn, requires us to consider the concept of falsity, for we cannot discuss the standards for knowledge or reckless disregard without some understanding of the acts required for liability. We must consider whether the requisite falsity inheres in the attribution of words to the petitioner which he did not speak. Page 501 U. S. 514In some sense, any alteration of a verbatim quotation is false. But writers and reporters, by necessity, alter what people say, at the very least to eliminate grammatical and syntactical infelicities. If every alteration constituted the falsity required to prove actual malice, the practice of journalism, which the First Amendment standard is designed to protect, would require a radical change, one inconsistent with our precedents and First Amendment principles. Petitioner concedes this absolute definition of falsity in the quotation context is too stringent, and acknowledges that "minor changes to correct for grammar or syntax" do not amount to falsity for purposes of proving actual malice. Brief for Petitioner 18, 36-37. We agree, and must determine what, in addition to this technical falsity, proves falsity for purposes of the actual malice inquiry.Petitioner argues that, excepting correction of grammar or syntax, publication of a quotation with knowledge that it does not contain the words the public figure used demonstrates actual malice. The author will have published the quotation with knowledge of falsity, and no more need be shown. Petitioner suggests that, by invoking more forgiving standards, the Court of Appeals would permit and encourage the publication of falsehoods. Petitioner believes that the intentional manufacture of quotations does not "represen[t] the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies," Bose Corp., 466 U.S. at 466 U. S. 513, and that protection of deliberate falsehoods would hinder the First Amendment values of robust and well-informed public debate by reducing the reliability of information available to the public.We reject the idea that any alteration beyond correction of grammar or syntax by itself proves falsity in the sense relevant to determining actual malice under the First Amendment. An interviewer who writes from notes often will engage in the task of attempting a reconstruction of the speaker's statement. That author would, we may assume, Page 501 U. S. 515 act with knowledge that, at times, she has attributed to her subject words other than those actually used. Under petitioner's proposed standard, an author in this situation would lack First Amendment protection if she reported as quotations the substance of a subject's derogatory statements about himself.Even if a journalist has tape recorded the spoken statement of a public figure, the full and exact statement will be reported in only rare circumstances. The existence of both a speaker and a reporter; the translation between two media, speech and the printed word; the addition of punctuation; and the practical necessity to edit and make intelligible a speaker's perhaps rambling comments, all make it misleading to suggest that a quotation will be reconstructed with complete accuracy. The use or absence of punctuation may distort a speaker's meaning, for example, where that meaning turns upon a speaker's emphasis of a particular word. In other cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of one name for another, a journalist might alter the speaker's words but preserve his intended meaning. And conversely, an exact quotation out of context can distort meaning, although the speaker did use each reported word.In all events, technical distinctions between correcting grammar and syntax and some greater level of alteration do not appear workable, for we can think of no method by which courts or juries would draw the line between cleaning up and other changes, except by reference to the meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type would be an unnecessary departure from First Amendment principles of general applicability, and, just as important, a departure from the underlying purposes of the tort of libel as understood since the latter half of the 16th century. From then until now, the tort action for defamation has existed to redress injury to the plaintiff's reputation by a statement that is defamatory and false. See Page 501 U. S. 516 Milkovich v. Lorain Journal Co., 497 U. S. 1, 497 U. S. 11 (1990). As we have recognized,"[t]he legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood."Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974). If an author alters a speaker's words but effects no material change in meaning, including any meaning conveyed by the manner or fact of expression, the speaker suffers no injury to reputation that is compensable as a defamation.These essential principles of defamation law accommodate the special case of inaccurate quotations without the necessity for a discrete body of jurisprudence directed to this subject alone. Last Term, in Milkovich v. Lorain Journal Co., we refused "to create a wholesale defamation exemption for anything that might be labeled opinion.'" 497 U.S. at 497 U. S. 18 (citation omitted). We recognized that "expressions of `opinion' may often imply an assertion of objective fact." Ibid. We allowed the defamation action to go forward in that case, holding that a reasonable trier of fact could find that the so-called expressions of opinion could be interpreted as including false assertions as to factual matters. So too in the case before us, we reject any special test of falsity for quotations, including one which would draw the line at correction of grammar or syntax. We conclude, rather, that the exceptions suggested by petitioner for grammatical or syntactical corrections serve to illuminate a broader principle.The common law of libel takes but one approach to the question of falsity, regardless of the form of the communication. See Restatement (Second) of Torts § 563, Comment c (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 776 (5th ed.1984). It overlooks minor inaccuracies and concentrates upon substantial truth. As in other jurisdictions, California law permits the defense of substantial truth, and would absolve a defendant even if she cannot"justify every word of the alleged defamatory matter; it is sufficient if the substance of the Page 501 U. S. 517 charge be proved true, irrespective of slight inaccuracy in the details."B. Witkin, Summary of California Law, § 495 (9th ed.1988) (citing cases). In this case, of course, the burden is upon petitioner to prove falsity. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 475 U. S. 775 (1986). The essence of that inquiry, however, remains the same whether the burden rests upon plaintiff or defendant. Minor inaccuracies do not amount to falsity so long as "the substance, the gist, the sting, of the libelous charge be justified." Heuer v. Kee, 15 Cal. App. 2d 710, 714, 59 P.2d 1063, 1064 (1936); see also Alioto v. Cowles Communications, Inc., 623 F.2d 616, 619 (CA9 1980); Maheu v. Hughes Tool Co., 569 F.2d 459, 465-466 (CA9 1978). Put another way, the statement is not considered false unless it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." R. Sack, Libel, Slander, and Related Problems 138 (1980); see, e.g., Wheling v. Columbia Broadcasting System, Inc., 721 F.2d 506, 509 (CA5 1983); see generally R. Smolla, Law of Defamation § 5.08 (1991). Our definition of actual malice relies upon this historical understanding.We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 279-280, and Gertz v. Robert Welch, Inc., supra, 418 U.S. at 418 U. S. 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.Deliberate or reckless falsification that comprises actual malice turns upon words and punctuation only because words and punctuation express meaning. Meaning is the life of language. And, for the reasons we have given, quotations may be a devastating instrument for conveying false meaning. In the case under consideration, readers of In the Freud Archives may have found Malcolm's portrait of petitioner especially Page 501 U. S. 518 damning because so much of it appeared to be a self-portrait, told by petitioner in his own words. And if the alterations of petitioner's words gave a different meaning to the statements, bearing upon their defamatory character, then the device of quotations might well be critical in finding the words actionable.DThe Court of Appeals applied a test of substantial truth which, in exposition if not in application, comports with much of the above discussion. The Court of Appeals, however, went one step beyond protection of quotations that convey the meaning of a speaker's statement with substantial accuracy, and concluded that an altered quotation is protected so long as it is a "rational interpretation" of an actual statement, drawing this standard from our decisions in Time, Inc. v. Pape, 401 U. S. 279 (1971), and Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984). Application of our protection for rational interpretation in this context finds no support in general principles of defamation law or in our First Amendment jurisprudence. Neither Time, Inc. v. Pape nor Bose Corp. involved the fabrication of quotations, or any analogous claim, and because many of the quotations at issue might reasonably be construed to state or imply factual assertions that are both false and defamatory, we cannot accept the reasoning of the Court of Appeals on this point.In Time, Inc. v. Pape, we reversed a libel judgment which arose out of a magazine article summarizing a report by the United States Commission on Civil Rights discussing police civil rights abuses. The article quoted the Commission's summary of the facts surrounding an incident of police brutality, but failed to include the Commission's qualification that these were allegations taken from a civil complaint. The Court noted that "the attitude of the Commission toward the factual verity of the episodes recounted was anything but straightforward," and distinguished between a "direct account Page 501 U. S. 518 of events that speak for themselves," 401 U.S. at 401 U. S. 285, 401 U. S. 286, and an article descriptive of what the Commission had reported. Time, Inc. v. Pape took into account the difficult choices that confront an author who departs from direct quotation and offers his own interpretation of an ambiguous source. A fair reading of our opinion is that the defendant did not publish a falsification sufficient to sustain a finding of actual malice.In Bose Corp., a Consumer Reports reviewer had attempted to describe in words the experience of listening to music through a pair of loudspeakers, and we concluded that the result was not an assessment of events that speak for themselves, but "one of a number of possible rational interpretations' of an event `that bristled with ambiguities' and descriptive challenges for the writer." 466 U.S. at 466 U. S. 512 (quoting Time, Inc. v. Pape, supra, 401 U.S. at 401 U. S. 290). We refused to permit recovery for choice of language which, though perhaps reflecting a misconception, represented "the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies." 466 U.S. at 466 U. S. 513.The protection for rational interpretation serves First Amendment principles by allowing an author the interpretive license that is necessary when relying upon ambiguous sources. Where, however, a writer uses a quotation, and where a reasonable reader would conclude that the quotation purports to be a verbatim repetition of a statement by the speaker, the quotation marks indicate that the author is not involved in an interpretation of the speaker's ambiguous statement, but attempting to convey what the speaker said. This orthodox use of a quotation is the quintessential "direct account of events that speak for themselves." Time, Inc. v. Pape, supra, 401 U.S. at 401 U. S. 285. More accurately, the quotation allows the subject to speak for himself.The significance of the quotations at issue, absent any qualification, is to inform us that we are reading the statement Page 501 U. S. 520 of petitioner, not Malcolm's rational interpretation of what petitioner has said or thought. Were we to assess quotations under a rational interpretation standard, we would give journalists the freedom to place statements in their subjects' mouths without fear of liability. By eliminating any method of distinguishing between the statements of the subject and the interpretation of the author, we would diminish to a great degree the trustworthiness of the printed word, and eliminate the real meaning of quotations. Not only public figures but the press doubtless would suffer under such a rule. Newsworthy figures might become more wary of journalists, knowing that any comment could be transmuted and attributed to the subject, so long as some bounds of rational interpretation were not exceeded. We would ill-serve the values of the First Amendment if we were to grant near absolute, constitutional protection for such a practice. We doubt the suggestion that, as a general rule, readers will assume that direct quotations are but a rational interpretation of the speaker's words, and we decline to adopt any such presumption in determining the permissible interpretations of the quotations in question here.IIIAWe apply these principles to the case before us. On summary judgment, we must draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. at 477 U. S. 255. So we must assume, except where otherwise evidenced by the transcripts of the tape recordings, that petitioner is correct in denying that he made the statements attributed to him by Malcolm, and that Malcolm reported with knowledge or reckless disregard of the differences between what petitioner said and what was quoted. Page 501 U. S. 521Respondents argue that, in determining whether petitioner has shown sufficient falsification to survive summary judgment, we should consider not only the tape-recorded statements but also Malcolm's typewritten notes. We must decline that suggestion. To begin with, petitioner affirms in an affidavit that he did not make the complained of statements. The record contains substantial additional evidence, moreover, evidence which, in a light most favorable to petitioner, would support a jury determination under a clear and convincing standard that Malcolm deliberately or recklessly altered the quotations.First, many of the challenged passages resemble quotations that appear on the tapes, except for the addition or alteration of certain phrases, giving rise to a reasonable inference that the statements have been altered. Second, Malcolm had the tapes in her possession, and was not working under a tight deadline. Unlike a case involving hot news, Malcolm cannot complain that she lacked the practical ability to compare the tapes with her work in progress. Third, Malcolm represented to the editor-in-chief of The New Yorker that all the quotations were from the tape recordings. Fourth, Malcolm's explanations of the time and place of unrecorded conversations during which petitioner allegedly made some of the quoted statements have not been consistent in all respects. Fifth, petitioner suggests that the progression from typewritten notes, to manuscript, then to galleys provides further evidence of intentional alteration. Malcolm contests petitioner's allegations, and only a trial on the merits will resolve the factual dispute. But at this stage, the evidence creates a jury question whether Malcolm published the statements with knowledge or reckless disregard of the alterations.BWe must determine whether the published passages differ materially in meaning from the tape recorded statements, so as to create an issue of fact for a jury as to falsity. Page 501 U. S. 522(a) "Intellectual Gigolo." We agree with the dissenting opinion in the Court of Appeals that "[f]airly read, intellectual gigolo suggests someone who forsakes intellectual integrity in exchange for pecuniary or other gain." 895 F.2d at 1551. A reasonable jury could find a material difference between the meaning of this passage and petitioner's tape-recorded statement that he was considered "much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with [him]."The Court of Appeals majority found it difficult to perceive how the "intellectual gigolo" quotation was defamatory, a determination supported not by any citation to California law, but only by the argument that the passage appears to be a report of Eissler's and Anna Freud's opinions of petitioner. Id. at 1541. We agree with the Court of Appeals that the most natural interpretation of this quotation is not an admission that petitioner considers himself an intellectual gigolo, but a statement that Eissler and Anna Freud considered him so. It does not follow, though, that the statement is harmless. Petitioner is entitled to argue that the passage should be analyzed as if Malcolm had reported falsely that Eissler had given this assessment (with the added level of complexity that the quotation purports to represent petitioner's understanding of Eissler's view). An admission that two well-respected senior colleagues considered one an "intellectual gigolo" could be as or more damaging than a similar self-appraisal. In all events, whether the "intellectual gigolo" quotation is defamatory is a question of California law. To the extent that the Court of Appeals based its conclusion in the First Amendment, it was mistaken.The Court of Appeals relied upon the "incremental harm" doctrine as an alternative basis for its decision. As the court explained it,"[t]his doctrine measures the incremental reputational harm inflicted by the challenged statements beyond the harm imposed by the nonactionable remainder of the publication."Ibid.; see generally Note, 98 Harv.L.Rev. Page 501 U. S. 523 1909 (1985); R. Smolla, Law of Defamation § 9.10[4][d] (1991). The court ruled, as a matter of law, that,"[g]iven the . . . many provocative, bombastic statements indisputably made by Masson and quoted by Malcolm, the additional harm caused by the 'intellectual gigolo' quote was nominal or nonexistent, rendering the defamation claim as to this quote nonactionable."895 F.2d at 1541.This reasoning requires a court to conclude that, in fact, a plaintiff made the other quoted statements, cf. Liberty Lobby, Inc. v. Anderson, 241 U.S.App.D.C. 246, 251, 746 F.2d 1563, 1568 (1984), vacated and remanded on other grounds, 477 U. S. 477 U.S. 242 (1986), and then to undertake a factual inquiry into the reputational damage caused by the remainder of the publication. As noted by the dissent in the Court of Appeals, the most "provocative, bombastic statements" quoted by Malcolm are those complained of by petitioner, and so this would not seem an appropriate application of the incremental harm doctrine. 895 F.2d at 1566.Furthermore, the Court of Appeals provided no indication whether it considered the incremental harm doctrine to be grounded in California law or the First Amendment. Here, we reject any suggestion that the incremental harm doctrine is compelled as a matter of First Amendment protection for speech. The question of incremental harm does not bear upon whether a defendant has published a statement with knowledge of falsity or reckless disregard of whether it was false or not. As a question of state law, on the other hand, we are given no indication that California accepts this doctrine, though it remains free to do so. Of course, state tort law doctrines of injury, causation, and damages calculation might allow a defendant to press the argument that the statements did not result in any incremental harm to a plaintiff's reputation.(b) "Sex, Women, Fun." This passage presents a closer question. The "sex, women, fun" quotation offers a very different picture of petitioner's plans for Maresfield Gardens Page 501 U. S. 524 than his remark that "Freud's library alone is priceless." See supra at 501 U. S. 503. Petitioner's other tape-recorded remarks did indicate that he and another analyst planned to have great parties at the Freud house and, in a context that may not even refer to Freud house activities, to "pass women on to each other." We cannot conclude as a matter of law that these remarks bear the same substantial meaning as the quoted passage's suggestion that petitioner would make the Freud house a place of "sex, women, fun."(c) "It Sounded Better." We agree with the District Court and the Court of Appeals that any difference between petitioner's tape-recorded statement that he "just liked" the name Moussaieff, and the quotation that "it sounded better" is, in context; immaterial. Although Malcolm did not include all of petitioner's lengthy explanation of his name change, she did convey the gist of that explanation: Petitioner took his abandoned family name as his middle name. We agree with the Court of Appeals that the words attributed to petitioner did not materially alter the meaning of his statement.(d) "I Don't Know Why I Put It In." Malcolm quotes petitioner as saying that he "tacked on at the last minute" a "totally gratuitous" remark about the "sterility of psychoanalysis" in an academic paper, and that he did so for no particular reason. In the tape recordings, petitioner does admit that the remark was "possibly [a] gratuitously offensive way to end a paper to a group of analysts," but when asked why he included the remark, he answered "[because] it was true . . . I really believe it." Malcolm's version contains material differences from petitioner's statement, and it is conceivable that the alteration results in a statement that could injure a scholar's reputation.(e) "Greatest Analyst Who Ever Lived." While petitioner did, on numerous occasions, predict that his theories would do irreparable damage to the practice of psychoanalysis, and did suggest that no other analyst shared his views, no tape-recorded statement appears to contain the substance or the Page 501 U. S. 525 arrogant and unprofessional tone apparent in this quotation. A material difference exists between the quotation and the tape-recorded statements, and a jury could find that the difference exposed petitioner to contempt, ridicule or obloquy.(f) "He Had The Wrong Man." The quoted version makes it appear as if petitioner rejected a plea to remain in stoic silence and do "the honorable thing." The tape-recorded version indicates that petitioner rejected a plea supported by far more varied motives: Eissler told petitioner that not only would silence be "the honorable thing," but petitioner would "save face," and might be rewarded for that silence with eventual reinstatement. Petitioner described himself as willing to undergo a scandal in order to shine the light of publicity upon the actions of the Freud Archives, while Malcolm would have petitioner describe himself as a person who was "the wrong man" to do "the honorable thing." This difference is material, a jury might find it defamatory, and, for the reasons we have given, there is evidence to support a finding of deliberate or reckless falsification.Because of the Court of Appeals' disposition with respect to Malcolm, it did not have occasion to address petitioner's argument that the District Court erred in granting summary judgment to The New Yorker Magazine, Inc., and Alfred A. Knopf, Inc., on the basis of their respective relations with Malcolm or the lack of any independent actual malice. These questions are best addressed in the first instance on remand.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

U.S. Supreme CourtMasson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)Masson v. New Yorker Magazine, Inc.No. 89-1799Argued Jan. 14, 1991Decided June 20, 1991501 U.S. 496SyllabusPetitioner Masson, a psychoanalyst, became disillusioned with Freudian psychology while serving as Projects Director of the Sigmund Freud Archives, and was fired after advancing his own theories. Thereafter, respondent Malcolm, an author and contributor to respondent The New Yorker, a magazine, taped several interviews with Masson and wrote a lengthy article on his relationship with the Archives. One of Malcolm's narrative devices consists of enclosing lengthy passages attributed to Masson in quotation marks. Masson allegedly expressed alarm about several errors in those passages before the article was published. After its publication, and with knowledge of Masson's allegations that it contained defamatory material, respondent Alfred A. Knopf, Inc., published the work as a book, which portrayed Masson in a most unflattering light. He brought an action for libel under California law in the Federal District Court, concentrating on passages alleged to be defamatory, six of which are before this Court. In each instance, the quoted statement does not appear in the taped interviews. The parties dispute whether there were additional untaped interviews, the notes from which Malcolm allegedly transcribed. The court granted respondents' motion for summary judgment. It concluded that the alleged inaccuracies were substantially true or were rational interpretations of ambiguous conversations, and therefore did not raise a jury question of actual malice, which is required when libel is alleged by a public figure. The Court of Appeals affirmed. The court found, among other things, that one passage -- in which Masson was quoted as saying that Archive officials had considered him an "intellectual gigolo" while the tape showed that he said he "was much too junior within the hierarchy of analysis for these important . . . analysts to be caught dead with [him]" -- was not defamatory, and would not be actionable under the "incremental harm" doctrine.Held:1. The evidence presents a jury question whether Malcolm acted with requisite knowledge of falsity or reckless disregard as to the truth or falsity of five of the passages. Pp. 501 U. S. 509-525.(a) As relevant here, the First Amendment limits California's libel law by requiring that a public figure prove by clear and convincing evidence that the defendant published the defamatory statement with Page 501 U. S. 497 actual malice. However, in place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity. Pp. 501 U. S. 509-511.(b) A trier of fact in this case could find that the reasonable reader would understand the quotations attributed to Masson to be nearly verbatim reports of his statements. In general, quotation marks indicate a verbatim reproduction, and quotations add authority to a statement and credibility to an author's work. A fabricated quotation may injure reputation by attributing an untrue factual assertion to the speaker, or by indicating a negative personal trait or an attitude the speaker does not hold. While some quotations do not convey that the speaker actually said or wrote the quoted material, such is not the case here. Malcolm's work gives the reader no clue that the quotations are anything but the reproductions of actual conversations, and the work was published in a magazine that enjoyed a reputation for scrupulous factual inquiry. These factors could lead a reader to take the quotations at face value. Pp. 501 U.S. 511-513.(c) The common law of libel overlooks minor inaccuracies and concentrates upon substantial truth. Thus, a deliberate alteration of a plaintiff's words does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 279-280, and Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 342, unless it results in a material change in the statement's meaning. While the use of quotations to attribute words not in fact spoken is important to that inquiry, the idea that any alteration beyond correction of grammar or syntax by itself proves falsity is rejected. Even if a statement has been recorded, the existence of both a speaker and a reporter, the translation between two media, the addition of punctuation, and the practical necessity to edit and make intelligible a speakers' perhaps rambling comments, make it misleading to suggest that a quotation will be reconstructed with complete accuracy. However, if alterations give a different meaning to a speaker's statements, bearing upon their defamatory character, then the device of quotations might well be critical in finding the words actionable. Pp. 501 U. S. 513-518.(d) Although the Court of Appeals applied a test of substantial truth, it erred in going one step further and concluding that an altered quotation is protected so long as it is a "rational interpretation" of the actual statement. The protection for rational interpretation serves First Amendment principle by allowing an author the interpretive license that is necessary when relying upon ambiguous sources; but where a writer uses a quotation that a reasonable reader would conclude purports to be a verbatim repetition of the speaker's statement, the quotation Page 501 U. S. 498 marks indicate that the author is not interpreting the speaker's ambiguous statement, but is attempting to convey what the speaker said. Time, Inc. v. Pape, 401 U. S. 279; Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, distinguished. Pp. 501 U. S. 518-520.(e) In determining whether Masson has shown sufficient falsification to survive summary judgment, it must be assumed, except where otherwise evidenced by the tape recordings' transcripts, that he is correct in denying that he made the statements Malcolm attributed to him, and that Malcolm reported with knowledge or reckless disregard of the differences between what he said and what was quoted. Malcolm's typewritten notes should not be considered, since Masson denied making the statements, and since the record contains substantial additional evidence to support a jury determination under a clear and convincing evidence standard that Malcolm deliberately or recklessly altered the quotations. While she contests Masson's allegations, only a trial on the merits will resolve the factual dispute. Pp. 501 U. S. 520-521.(f) Five of the six published passages differ materially in meaning from the tape recorded statements so as to create an issue of fact for a jury as to falsity. Whether the "intellectual gigolo" passage is defamatory is a question of California law, and to the extent that the Court of Appeals based its conclusion on the First Amendment, it was mistaken. Moreover, an "incremental harm" doctrine -- which measures the incremental reputational harm inflicted by the challenged statements beyond the harm imposed by the nonactionable remainder of the publication -- is not compelled as a matter of First Amendment protection for speech, since it does not bear on whether a defendant has published a statement with knowledge of falsity or reckless disregard of whether it was false or not. Pp. 501 U. S. 521-525.2. On remand, the Court of Appeals should consider Masson's argument that the District Court erred in granting summary judgment to the New Yorker Magazine, Inc., and Alfred A. Knopf, Inc., on the basis of their respective relations with Malcolm or the lack of any independent actual malice, since the court failed to reach his argument because of its disposition with respect to Malcolm. P. 501 U. S. 525.895 F.2d 1535, (CA9 1989), reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined, and in Parts I, II-A, II-D, and III-A of which WHITE and SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined, post, p. 501 U. S. 525. Page 501 U. S. 499

2000_00-6677

Syllabus402. It therefore cannot be said that it was objectively unreasonable for the Texas court to conclude that Penry is not entitled to relief on his Fifth Amendment claim. See Williams, supra, at 409. Even if the Court's precedent were to establish squarely that use of the Peebles report violated the Fifth Amendment, that error would justify overturning Penry's sentence only if he could establish that the error had a substantial and injurious effect or influence in determining the jury's verdict. E. g., Brecht v. Abrahamson, 507 U. S. 619, 637. There is considerable doubt that Penry could make such a showing. The excerpt from the Peebles report was neither the first nor the last expert opinion the jury heard to the effect that Penry posed a future danger and was by no means the key to the State's case on future dangerousness. Pp. 793-796.2. The jury instructions at Penry's resentencing, however, did not comply with the Court's mandate in Penry I. To the extent the Texas appellate court believed that Penry I was satisfied merely because a supplemental instruction was given, the court clearly misapprehended that prior decision. The key under Penry I is that the jury be able to "consider and give effect to [a defendant's mitigating] evidence in imposing sentence." 492 U. S., at 319. To the extent the state court concluded that the substance of the jury instructions given at Penry's resentencing satisfied Penry I, that determination was objectively unreasonable. The three special issues submitted to the jury were identical to the ones found inadequate in Penry I. Although the supplemental instruction mentioned mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical. The jury was clearly instructed that a "yes" answer to a special issue was appropriate only when supported by the evidence beyond a reasonable doubt, and that a "no" answer was appropriate only when there was a reasonable doubt as to whether the answer to a special issue should be "yes." The verdict form listed the three special issues and, with no mention of mitigating circumstances, confirmed and clarified the jury's two choices with respect to each special issue. In the State's view, however, the jury was also told that it could ignore these clear guidelines and-even if there was in fact no reasonable doubt as to the matter inquired about-answer any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or more truthful "yes" answers to an untruthful "no" answer in order to avoid a death sentence for Penry. The supplemental instruction thereby made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation. The comments of the prosecutor and defense counsel, as well as the comments of the court during voir dire, did785little to clarify the confusion caused by the instructions themselves. Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion the Court reached in Penry I: "[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." 492 U. S., at 326. Pp. 796-804.215 F.3d 504, affirmed in part, reversed in part, and remanded.O'CONNOR, J., delivered the opinion of the Court, Parts I, II, and III-A of which were unanimous, and Part III-B of which was joined by STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 804.Robert S. Smith argued the cause for petitioner. With him on the briefs were Julia Tarver and John E. Wright.Andy Taylor, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were John Cornyn, Attorney General, Gregory S. Coleman, Solicitor General, Michael T. McCaul, Deputy Attorney General, Edward L. Marshall, Senior Assistant Attorney General, and Gena Blount Bunn and Tommy L. Skaggs, Assistant Attorneys General.Gene C. Schaerr argued the cause for the State of Alabama as amicus curiae urging affirmance. With him on the brief were Bill Pryor, Attorney General, J. Clayton Crenshaw, Assistant Attorney General, Carter G. Phillips, and Rebecca K. Smith.**Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W Ellis, Michael B. Browde, Jeffrey J. Pokorak, and Stanley S. Herr; and for the National Association of Criminal Defense Lawyers by Edward M. Chikofsky, LisaBriefs of amici curiae urging affirmance were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for Justice for All by Patrick F. Philbin.Richard Wilson and William J. Edwards filed a brief for the International Association for the Scientific Study of Intellectual Disabilities et al. as amici curiae.786JUSTICE O'CONNOR delivered the opinion of the Court.In 1989, we held that Johnny Paul Penry had been sentenced to death in violation of the Eighth Amendment because his jury had not been adequately instructed with respect to mitigating evidence. See Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I). The State of Texas retried Penry in 1990, and that jury also found him guilty of capital murder and sentenced him to death. We now consider whether the jury instructions at Penry's resentencing complied with our mandate in Penry 1. We also consider whether the admission into evidence of statements from a psychiatric report based on an uncounseled interview with Penry ran afoul of the Fifth Amendment.IJohnny Paul Penry brutally raped and murdered Pamela Carpenter on October 25, 1979. In 1980, a Texas jury found him guilty of capital murder. At the close of the penalty hearing, the jury was instructed to answer three statutorily mandated "special issues":"'(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;"'(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and"'(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.'" Id., at 310 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989)).The jury answered "yes" to each issue and, as required by statute, the trial court sentenced Penry to death. 492 U. S., at 310-311.787Although Penry had offered extensive evidence that he was mentally retarded and had been severely abused as a child, the jury was never instructed that it could consider and give mitigating effect to that evidence in imposing sentence. Id., at 320. Nor was any of the three special issues broad enough in scope that the jury could consider and give effect to the mitigating evidence in answering the special issue. Id., at 322-325. While Penry's mental retardation was potentially relevant to the first special issue-whether he had acted deliberately-we found no way to be sure that the jurors fully considered the mitigating evidence as it bore on the broader question of Penry's moral culpability. Id., at 322-323. As to the second issue-whether Penry would be a future danger-the evidence of his mental retardation and history of abuse was "relevant only as an aggravating factor." Id., at 323 (emphasis in original). And the evidence was simply not relevant in a mitigating way to the third issue-whether Penry had unreasonably responded to any provocation. Id., at 324-325.The comments of counsel also failed to clarify the jury's role. Defense counsel had urged the jurors to vote "no" on one of the special issues if they believed that Penry, because of the mitigating evidence, did not deserve to be put to death. The prosecutor, however, had reminded them of their "oath to follow the law and ... answe[r] these questions based on the evidence and following the law." Id., at 325 (internal quotation marks omitted)."In light of the prosecutor's argument, and ... in the absence of instructions informing 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," we concluded that "a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." Id., at 326,788328. We thus vacated Penry's sentence, confirming that in a capital case, "[t]he sentencer must ... be able to consider and give effect to [mitigating] evidence in imposing sentence," so that" 'the sentence imposed ... reflec[ts] a reasoned moral response to the defendant's background, character, and crime.'" Id., at 319 (quoting California v. Brown, 479 U. S. 538, 545 (1987) (O'CONNOR, J., concurring) (emphasis in original)).Penry was retried in 1990 and again found guilty of capital murder. During the penalty phase, the defense again put on extensive evidence regarding Penry's mental impairments and childhood abuse. One defense witness on the subject of Penry's mental impairments was Dr. Randall Price, a clinical neuropsychologist. On direct examination, Dr. Price testified that he believed Penry suffered from organic brain impairment and mental retardation. App. 276-279; 878. In the course of cross-examining Dr. Price, the prosecutor asked what records Price had reviewed in preparing his testimony. Price cited 14 reports, including a psychiatric evaluation of Penry prepared by Dr. Felix Peebles on May 19, 1977. Id., at 327. The Peebles report had been prepared at the request of Penry's then-counsel to determine Penry's competency to stand trial on a 1977 rape charge-unrelated to the rape and murder of Pamela Carpenter. Id., at 55-60, 125. The prosecutor asked Dr. Price to read a specific portion of the Peebles report for the jury. Over the objection of defense counsel, Dr. Price recited that it was Dr. Peebles' "professional opinion that if Johnny Paul Penry were released from custody, that he would be dangerous to other persons." Id., at 413. The prosecutor again recited this portion of the Peebles report during his closing argument. Id., at 668.When it came time to submit the case to the jury, the court instructed the jury to determine Penry's sentence by answering three special issues-the same three issues that789had been put before the jury in Penry 1. Specifically, the jury had to determine whether Penry acted deliberately when he killed Pamela Carpenter; whether there was a probability that Penry would be dangerous in the future; and whether Penry acted unreasonably in response to provocation. App. 676-678. Cf. Penry I, 492 U. S., at 320.The court told the jury how to determine its answers tothose issues:"[B]efore any issue may be answered 'Yes,' all jurors must be convinced by the evidence beyond a reasonable doubt that the answer to such issue should be 'Yes.' ... [I]f any juror, after considering the evidence and these instructions, has a reasonable doubt as to whether the answer to a Special Issue should be answered 'Yes,' then such juror should vote 'No' to that Special Issue." App. 672-673.The court explained the consequences of the jury's decision: "[I]f you return an affirmative finding on each of the special issues submitted to you, the court shall sentence the defendant to death. You are further instructed that if you return a negative finding on any special issue submitted to you, the court shall sentence the defendant to the Texas Department of Corrections for life. You are therefore instructed that your answers to the special issues, which determine the punishment to be assessed the defendant by the court, should be reflective of your finding as to the personal culpability of the defendant, JOHNNY PAUL PENRY, in this case." Id., at 674-675.The court then gave the following "supplemental instruction":"You are instructed that when you deliberate on the questions posed in the special issues, you are to consider790mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues." Id., at 675.A complete copy of the instructions was attached to the verdict form, and the jury took the entire packet into the deliberation room. Tr. of Oral Arg. 31. The verdict form itself, however, contained only the text of the three special issues, and gave the jury two choices with respect to each special issue: "We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue is 'Yes,'" or "We, the jury, because at least ten (10) jurors have a reasonable doubt as to the matter inquired about in this Special Issue, find and determine that the answer to this Special Issue is 'No.'" App. 676-678.After deliberating for approximately 2lf2 hours, the jury returned its punishment verdict. See 51 Record 1948, 1950. The signed verdict form confirmed that the jury had unanimously agreed that the answer to each special issue was "yes." App. 676-678. In accordance with state law, the court sentenced Penry to death.791The Texas Court of Criminal Appeals affirmed Penry's conviction and sentence. The court rejected Penry's claim that the admission of language from the 1977 Peebles report violated Penry's Fifth Amendment privilege against selfincrimination. The court reasoned that because Dr. Peebles had examined Penry two years prior to the murder of Pamela Carpenter, Penry had not at that time been "confronted with someone who was essentially an agent for the State whose function was to gather evidence that might be used against him in connection with the crime for which he was incarcerated." Penry v. State, 903 S. W. 2d 715, 759-760 (1995) (internal quotation marks and citation omitted).The court also rejected Penry's claim that the jury instructions given at his second sentencing hearing were constitutionally inadequate because they did not permit the jury to consider and give effect to his mitigating evidence of mental retardation and childhood abuse. The court cited Penry I for the proposition that when a defendant proffers "mitigating evidence that is not relevant to the special issues or that has relevance to the defendant's moral culpability beyond the scope of the special issues ... the jury must be given a special instruction in order to allow it to consider and give effect to such evidence." 903 S. W. 2d, at 765. Quoting the supplemental jury instruction given at Penry's second trial, see supra, at 789-790, the court overruled Penry's claim of error. The court stated that "a nullification instruction such as this one is sufficient to meet the constitutional requirements of [Penry I)." 903 S. W. 2d, at 765.In 1998, after his petition for state habeas corpus relief was denied, see App. 841 (trial court order); id., at 863 (Court of Criminal Appeals order), Penry filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. § 2254 (1994 ed. and Supp. V) in the United States District Court for the Southern District of Texas. The District Court rejected both of Penry's claims, finding that the Texas Court of Criminal Appeals' conclusions on both points were neither contrary792to, nor an unreasonable application of, clearly established federal law. App. 893, 920. After full briefing and argument, the United States Court of Appeals for the Fifth Circuit denied a certificate of appealability. 215 F.3d 504 (2000).We stayed Penry's execution and granted certiorari to consider Penry's constitutional arguments regarding the admission of the Peebles report and the adequacy of the jury instructions. 531 U. S. 1010 (2000).IIBecause Penry filed his federal habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that law govern the scope of our review. Specifically, 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V) prohibits a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."Last Term in Williams v. Taylor, 529 U. S. 362 (2000), we explained that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning. Id., at 404. A state court decision will be "contrary to" our clearly established precedent if the state court either "applies a rule that contradicts the governing law set forth in our cases," or "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Id., at 405-406. A state court decision will be an "unreasonable application of" our clearly established precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id., at 407-408.793"[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id., at 409. Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable. Id., at 410-411.Although the District Court evaluated the Texas Court of Criminal Appeals' disposition of Penry's claims under a standard we later rejected in Williams, see App. 882 (stating that an application of law to facts is "unreasonable 'only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect'" (citation omitted)), the Fifth Circuit articulated the proper standard of review, as set forth in § 2254(d)(1) and clarified in Williams, and denied Penry relief. Guided by this same standard, we now turn to the substance of Penry's claims.III APenry contends that the admission into evidence of the portion of the 1977 Peebles report that referred to Penry's future dangerousness violated his Fifth Amendment privilege against self-incrimination because he was never warned that the statements he made to Dr. Peebles might later be used against him. The Texas Court of Criminal Appeals disagreed, concluding that when Dr. Peebles interviewed Penry, Peebles was not acting as an agent for the State in order to gather evidence that might be used against Penry. 903 S. W. 2d, at 759.Penry argues that this case is indistinguishable from Estelle v. Smith, 451 U. S. 454 (1981). In Estelle, we considered a situation in which a psychiatrist conducted an794ostensibly neutral competency examination of a capital defendant, but drew conclusions from the defendant's uncounseled statements regarding his future dangerousness, and later testified for the prosecution on that crucial issue. We likened the psychiatrist to "an agent of the State recounting unwarned statements made in a postarrest custodial setting," and held that "[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Id., at 467468. The admission of the psychiatrist's testimony under those "distinct circumstances" violated the Fifth Amendment. Id., at 466.This case differs from Estelle in several respects. First, the defendant in Estelle had not placed his mental condition at issue, id., at 457, n. 1, whereas Penry himself made his mental status a central issue in both the 1977 rape case and his trials for Pamela Carpenter's rape and murder. Second, in Estelle, the trial court had called for the competency evaluation and the State had chosen the examining psychiatrist. Id., at 456-457. Here, however, it was Penry's own counsel in the 1977 case who requested the psychiatric exam performed by Dr. Peebles. Third, in Estelle, the State had called the psychiatrist to testify as a part of its affirmative case. Id., at 459. Here, it was during the crossexamination of Penry's own psychological witness that the prosecutor elicited the quotation from the Peebles report. And fourth, in Estelle, the defendant was charged with a capital crime at the time of his competency exam, and it was thus clear that his future dangerousness would be a specific issue at sentencing. Penry, however, had not yet murdered Pamela Carpenter at the time of his interview with Dr. Peebles.We need not and do not decide whether these differences affect the merits of Penry's Fifth Amendment claim.795Rather, the question is whether the Texas court's decision was contrary to or an unreasonable application of our precedent. 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V). We think it was not. The differences between this case and Estelle are substantial, and our opinion in Estelle suggested that our holding was limited to the "distinct circumstances" presented there. It also indicated that the Fifth Amendment analysis might be different where a defendant "intends to introduce psychiatric evidence at the penalty phase." 451 U. S., at 472. Indeed, we have never extended Estelle's Fifth Amendment holding beyond its particular facts. Cf., e. g., Buchanan v. Kentucky, 483 U. S. 402 (1987) (Estelle does not apply, and it does not violate the Fifth Amendment, where a prosecutor uses portions of a psychiatric evaluation requested by a defendant to rebut psychiatric evidence presented by the defendant at trial). We therefore cannot say that it was objectively unreasonable for the Texas court to conclude that Penry is not entitled to relief on his Fifth Amendment claim.Even if our precedent were to establish squarely that the prosecution's use of the Peebles report violated Penry's Fifth Amendment privilege against self-incrimination, that error would justify overturning Penry's sentence only if Penry could establish that the error "'had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946)). We think it unlikely that Penry could make such a showing.The excerpt from the Peebles report bolstered the State's argument that Penry posed a future danger, but it was neither the first nor the last opinion the jury heard on that point. Four prison officials testified that they were of the opinion that Penry "would commit criminal acts of violence that would constitute a continuing threat to society." App. 94, 104, 138; 47 Record 970. Three psychiatrists tes-796tified that Penry was a dangerous individual and likely to remain so. Two were the State's own witnesses. See App. 487, 557. The third was Dr. Price-the same defense witness whom the prosecutor had asked to read from the Peebles report. Before that recitation, Dr. Price had stated his own opinion that "[i]f [Penry] was in the free world, I would consider him dangerous." Id., at 392.While the Peebles report was an effective rhetorical tool, it was by no means the key to the State's case on the question whether Penry was likely to commit future acts of violence. We therefore have considerable doubt that the admission of the Peebles report, even if erroneous, had a "substantial and injurious effect" on the verdict. Brecht v. Abrahamson, supra, at 637. Accordingly, we will not disturb the Texas Court of Criminal Appeals' rejection of Penry's Fifth Amendment claim.BPenry also contends that the jury instructions given at his second sentencing hearing did not comport with our holding in Penry I because they did not provide the jury with a vehicle for expressing its reasoned moral response to the mitigating evidence of Penry's mental retardation and childhood abuse. The Texas Court of Criminal Appeals disagreed. The court summarized Penry I as holding that when a defendant proffers "mitigating evidence that is not relevant to the special issues or that has relevance to the defendant's moral culpability beyond the scope of the special issues ... the jury must be given a special instruction in order to allow it to consider and give effect to such evidence." 903 S. W. 2d, at 765. The court then stated that the supplemental jury instruction given at Penry's second sentencing hearing satisfied that mandate. Ibid.The Texas court did not make the rationale of its holding entirely clear. On one hand, it might have believed that Penry I was satisfied merely by virtue of the fact that797a supplemental instruction had been given. On the other hand, it might have believed that it was the substance of that instruction which satisfied Penry 1.While the latter seems to be more likely, to the extent it was the former, the Texas court clearly misapprehended our prior decision. Penry I did not hold that the mere mention of "mitigating circumstances" to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may "consider" mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to "consider and give effect to [a defendant's mitigating] evidence in imposing sentence." 492 U. S., at 319 (emphasis added). See also Johnson v. Texas, 509 U. S. 350, 381 (1993) (O'CONNOR, J., dissenting) ("[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances" (emphasis in original)). For it is only when the jury is given a "vehicle for expressing its 'reasoned moral response' to that evidence in rendering its sentencing decision," Penry I, 492 U. S., at 328, that we can be sure that the jury "has treated the defendant as a 'uniquely individual human bein[gJ' and has made a reliable determination that death is the appropriate sentence," id., at 319 (quoting Woodson v. North Carolina, 428 U. S. 280, 304, 305 (1976)).The State contends that the substance of the supplemental instruction satisfied Penry I because it provided the jury with the requisite vehicle for expressing its reasoned moral response to Penry's particular mitigating evidence. Specifically, the State points to the admittedly "less than artful" portion of the supplemental instruction which says:"If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you de-798termine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues." App. 675 (emphasis added). See also Brief for Respondent 16.We see two possible ways to interpret this confusing instruction. First, as the portions italicized above indicate, it can be understood as telling the jurors to take Penry's mitigating evidence into account in determining their truthful answers to each special issue. Viewed in this light, however, the supplemental instruction placed the jury in no better position than was the jury in Penry 1. As we made clear in Penry I, none of the special issues is broad enough to provide a vehicle for the jury to give mitigating effect to the evidence of Penry's mental retardation and childhood abuse. Cf. 492 U. S., at 322-325. In the words of Judge Dennis below, the jury's ability to consider and give effect to Penry's mitigating evidence was still "shackled and confined within the scope of the three special issues." 215 F. 3d, at 514 (dissenting opinion). Thus, because the supplemental instruction had no practical effect, the jury instructions at Penry's second sentencing were not meaningfully different from the ones we found constitutionally inadequate in Penry 1.Alternatively, the State urges, it is possible to understand the supplemental instruction as informing the jury that it could "simply answer one of the special issues 'no' if it believed that mitigating circumstances made a life sentence ... appropriate ... regardless of its initial answers to the questions." Brief for Respondent 16. The Texas Court of Criminal Appeals appeared to understand the instruction in this sense, when it termed the supplemental instruction a "nullification instruction." 903 S. W. 2d, at 765. Even assuming the jurors could have understood the instruc-799tion to operate in this way, the instruction was not as simple to implement as the State contends. Rather, it made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation.The jury was clearly instructed that a "yes" answer to a special issue was appropriate only when supported "by the evidence beyond a reasonable doubt." App. 672. A "no" answer was appropriate only when there was "a reasonable doubt as to whether the answer to a Special Issue should be ... 'Yes.'" Id., at 673. The verdict form listed the three special issues and, with no mention of mitigating circumstances, confirmed and clarified the jury's two choices with respect to each special issue. The jury could swear that it had unanimously determined "beyond a reasonable doubt that the answer to this Special Issue is 'Yes.'" Id., at 676-678. Or it could swear that at least 10 jurors had "a reasonable doubt as to the matter inquired about in this Special Issue" and that the jury thus had "determin[ed] that the answer to this Special Issue is 'No.'" Ibid. (emphasis added).In the State's view, however, the jury was also told that it could ignore these clear guidelines and-even if there was in fact no reasonable doubt as to the matter inquired aboutanswer any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or more truthful "yes" answers to an untruthful "no" answer in order to avoid a death sentence for Penry.We generally presume that jurors follow their instructions. See, e. g., Richardson v. Marsh, 481 U. S. 200, 211 (1987). Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry's mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental in-800struction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a "'true verdict.'" Tex. Code Crim. Proc. Ann., Art. 35.22 (Vernon 1989).The mechanism created by the supplemental instruction thus inserted "an element of capriciousness" into the sentencing decision, "making the jurors' power to avoid the death penalty dependent on their willingness" to elevate the supplemental instruction over the verdict form instructions. Roberts v. Louisiana, 428 U. S. 325, 335 (1976) (plurality opinion). There is, at the very least, "a reasonable likelihood that the jury ... applied the challenged instruction in a way that prevent[ed] the consideration" of Penry's mental retardation and childhood abuse. Boyde v. California, 494 U. S. 370, 380 (1990). The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence.Even though the Texas Court of Criminal Appeals focused solely on the supplemental instruction in affirming Penry's sentence, the State urges us to evaluate the instruction contextually, with reference to the comments of the prosecutor and defense counsel, as well as the comments of the court during voir dire. Indeed, we have said that we will approach jury instructions in the same way a jury would-with a "commonsense understanding of the instructions in the light of all that has taken place at the trial." Id., at 381. Penry I itself illustrates this methodology, as there we evaluated the likely effect on the jury of the comments of the defense counsel and prosecutor. 492 U. S., at 325-326. As we did there, however, we conclude that these comments were insufficient to clarify the confusion caused by the instructions themselves.801Voir dire was a month-long process, during which approximately 90 prospective jurors were interviewed. See 3 Record (index of transcripts). Many of the venire membersincluding each of the 12 jurors who was eventually empaneled-received a copy of an instruction largely similar to the supplemental instruction ultimately given to the jury. After each juror read the instruction, the judge attempted to explain how it worked. See, e. g., 18 Record 966967 ("[I]f you thought the mitigating evidence was sufficient ... you might, even though you really felt those answers [to the three special issues] should be yes, you might answer one or more of them no ... so [Penry] could get the life sentence rather than the death penalty"). The prosecutor then attempted to explain the instruction. See, e. g., id., at 980 ("[E]ven though [you] believe all three of these answers are yes, [you] don't think the death penalty is appropriate for this particular person because of what has happened to him in the past .... [The] instruction is to give effect to that belief and answer one or all of these issues no"). And with most of the jurors, defense counsel also gave a similar explanation. See, e. g., id., at 1018 ("[I]f you believe[d] [there] was a mitigating circumstance ... you [could] apply that mitigation to answer-going back and changing an answer from yes to a no").While these comments reinforce the State's construction of the supplemental instruction, they do not bolster our confidence in the jurors' ability to give effect to Penry's mitigating evidence in deciding his sentence. Rather, they highlight the arbitrary way in which the supplemental instruction operated, and the fact that the jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence.Moreover, we are skeptical that, by the time their penalty phase deliberations began, the jurors would have remembered the explanations given during voir dire, much less taken them as a binding statement of the law. Voir dire802began almost two full months before the penalty phase deliberations. In the interim, the jurors had observed the rest of voir dire, listened to a 5-day guilt-phase trial and extensive instructions, participated in 2lf2 hours of deliberations with respect to Penry's guilt, and listened to another 5-day trial on punishment. The comments of the court and counsel during voir dire were surely a distant and convoluted memory by the time the jurors began their deliberations on Penry's sentence.The State also contends that the closing arguments in the penalty phase clarified matters. Penry's counsel attempted to describe the jury's task:"If, when you thought about mental retardation and the child abuse, you think that this guy deserves a life sentence, and not a death sentence, ... then, you get to answer one of ... those questions no. The Judge has not told you which question, and you have to give that answer, even if you decide the literally correct answer is yes. Not the easiest instruction to follow and the law does funny things sometimes." App. 640.Again, however, this explanation only reminded the jurors that they had to answer the special issues dishonestly in order to give effect to Penry's mitigating evidence. For the reasons discussed above, such a "clarification" provided no real help. Moreover, even if we thought that the arguments of defense counsel could be an adequate substitute for statements of the law by the court, but see Boyde v. California, supra, at 384, the prosecutor effectively neutralized defense counsel's argument, as did the prosecutor in Penry I, by stressing the jury's duty "[t]o follow your oath, the evidence and the law." App. 616. At best, the jury received mixed signals.Our opinion in Penry I provided sufficient guidance as to how the trial court might have drafted the jury charge for Penry's second sentencing hearing to comply with our803mandate. We specifically indicated that our concerns would have been alleviated by a jury instruction defining the term "deliberately" in the first special issue "in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability." 492 U. S., at 323. The trial court surely could have drafted an instruction to this effect. Indeed, Penry offered two definitions of "deliberately" that the trial court refused to give. See Tr. of Oral Arg. 12, 14-15.A clearly drafted catchall instruction on mitigating evidence also might have complied with Penry 1. Texas' current capital sentencing scheme (revised after Penry's second trial and sentencing) provides a helpful frame of reference. Texas now requires the jury to decide "[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed." Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001). * Penry's counsel, while not conceding the issue, admitted that he "would have a tough time saying that [Penry I] was not complied with under the new Texas procedure." Tr. of Oral Arg. 16. At the very least, the brevity and clarity of this instruction highlight the confusing nature of the supplemental instruction actually given, and indicate that the trial court had adequate alternatives available to it as it drafted the instructions for Penry's trial.Thus, to the extent the Texas Court of Criminal Appeals concluded that the substance of the jury instructions given* Another recent development in Texas is the passage of a bill banning the execution of mentally retarded persons. See Babineck, Perry:Death-penalty measure needs analyzing, Dallas Morning News, May 31, 2001, p. 27A. As this opinion goes to press, Texas Governor Rick Perry is still in the process of deciding whether to sign the bill. Ibid.804Opinion of THOMAS, J.at Penry's second sentencing hearing satisfied our mandate in Penry I, that determination was objectively unreasonable. Cf. Shafer v. South Carolina, ante, at 40, 50 (holding on direct review that the South Carolina Supreme Court "incorrectly limited" our holding in Simmons v. South Carolina, 512 U. S. 154 (1994), because the court had mischaracterized "how the State's new [capital sentencing] scheme works"). The three special issues submitted to the jury were identical to the ones we found constitutionally inadequate as applied in Penry 1. Although the supplemental instruction made mention of mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical. The comments of the court and counsel accomplished little by way of clarification. Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion we reached in Penry I: "[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." 492 U. S., at 326.The judgment of the United States Court of Appeals for the Fifth Circuit is therefore affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2000SyllabusPENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 00-6677. Argued March 27, 200l-Decided June 4, 2001In 1989, this Court held that petitioner Penry had been sentenced to death in violation of the Eighth Amendment. At the close of the penalty hearing during Penry's first Texas capital murder trial, the jury was instructed to answer three statutorily mandated "special issues": (1) whether Penry's conduct was committed deliberately and with the reasonable expectation that death would result; (2) whether it was probable that he would be a continuing threat to society; and (3) whether the killing was unreasonable in response to any provocation by the deceased. Although Penry had offered extensive evidence that he was mentally retarded and had been severely abused as a child, the jury was never told it could consider and give mitigating effect to that evidence in imposing sentence. In holding that the jury had not been adequately instructed with respect to the mitigating evidence, the Court found, among other things, that none of the special issues was broad enough to allow the jury to consider and give effect to that evidence. Penry v. Lynaugh, 492 U. S. 302 (Penry I). When Texas retried Penry in 1990, he was again found guilty of capital murder. During the penalty phase, the defense again put on extensive evidence regarding Penry's mental impairments and childhood abuse. On direct examination by the defense, a clinical neuropsychologist, Dr. Price, testified that he believed Penry suffered from organic brain impairment and mental retardation. During cross-examination, Price cited as one of the records he had reviewed in preparing his testimony a psychiatric evaluation prepared by Dr. Peebles in 1977 at the request of Penry's then-counsel to determine Penry's competency to stand trial on an earlier charge unrelated to the murder at issue. Over a defense objection, Price recited a portion of that evaluation which stated that it was Peebles' professional opinion that if Penry were released, he would be dangerous to others. When it came time to submit the case to the jury, the trial court instructed the jury to determine Penry's sentence by answering the same three special issues that were at issue in Penry I. The trial court then gave a "supplemental instruction": "[W]hen you deliberate on the ... special issues, you are to consider mitigating circumstances, if any, supported by the evidence .... If you find [such]783circumstances ... , you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to [Penry's] personal culpability ... , a negative finding should be given to one of the special issues." The verdict form itself, however, contained only the text of the three special issues, and gave the jury two choices with respect to each: "Yes" or "No." Because the jury unanimously answered "yes" to each special issue, the court sentenced Penry to death in accordance with state law. In affirming, the Texas Court of Criminal Appeals rejected Penry's claims that the admission of language from the Peebles report violated Penry's Fifth Amendment privilege against self-incrimination, and that the jury instructions were constitutionally inadequate because they did not permit the jury to consider and give effect to his particular mitigating evidence. With respect to the latter, the court held that the supplemental instruction met Penry fs constitutional requirements. After his petition for state habeas corpus relief was denied, Penry petitioned for federal habeas relief under 28 U. S. C. § 2254. The District Court found that the state appellate court's conclusions on both of Penry's claims were neither contrary to, nor an unreasonable application of, clearly established federal law. The Fifth Circuit denied a certificate of appealability.Held:1. Penry's argument is unavailing that the admission into evidence of the portion of the Peebles report referring to his future dangerousness violated his Fifth Amendment privilege against self-incrimination. This case is distinguishable from Estelle v. Smith, 451 U. S. 454, in which the Court held that the admission of a psychiatrist's testimony on the topic of future dangerousness, based on a defendant's uncounseled statements, violated the Fifth Amendment. The Court need not and does not decide whether the several respects in which this case differs from Estelle affect the merits of Penry's claim. Rather, the question is whether the Texas court's decision was "contrary to" or an "unreasonable application" of this Court's precedent. 28 U. S. C. § 2254(d)(1); see Williams v. Taylor, 529 U. S. 362. It was not. The differences between this case and Estelle are substantial, and the Court's Estelle opinion suggested that its holding was limited to the "distinct circumstances" presented there. 451 U. S., at 466. It also indicated that the Fifth Amendment analysis might be different where a defendant introduces psychiatric evidence at the penalty phase. Id., at 472. Indeed, the Court has never extended Estelle's Fifth Amendment holding beyond its particular facts. Cf., e. g., Buchanan v. Kentucky, 483 U. S.784Full Text of Opinion

1987_85-1551

JUSTICE O'CONNOR delivered the opinion of the Court.Alan J. Karcher and Carmen A. Orechio, the former presiding officers of the New Jersey Legislature, seek to appeal a judgment declaring a New Jersey statute unconstitutional. Their appeal presents the question whether public officials who have participated in a lawsuit solely in their official capacities may appeal an adverse judgment after they have left office. We hold that they may not.IIn December, 1982, the New Jersey Legislature enacted, over the Governor's veto, a statute requiring the State's primary and secondary public school educators to permit their students to observe a minute of silence before the start of each schoolday. The statute reads as follows:"Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1-minute period of silence to be used solely at the discretion of the individual student, Page 484 U. S. 75 before the opening exercises of each school day for quiet and private contemplation or introspection."N.J.Stat.Ann. § 18A:36-4 (West Supp.1987). The New Jersey Attorney General immediately announced that he would not defend the statute if it were challenged. The statute became effective December 17, 1982, and, within a month, appellees -- a New Jersey public school teacher, several public school students, and parents of public school students -- challenged its constitutionality in federal court. Appellees sued under 42 U.S.C. § 1983, alleging that the statute violated the Establishment Clause of the First Amendment and seeking both declaratory and injunctive relief. They named as defendants the New Jersey Department of Education, its Commissioner, and two township boards of education.When it became apparent that neither the Attorney General nor the named defendants would defend the statute, Karcher and Orechio, as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, respectively, sought and obtained permission to intervene as defendants on behalf of the legislature. Appellees entered into a stipulation dismissing the suit against the named defendants, but the District Court refused to accept the stipulation out of concern for the effect it might have on the jurisdictional posture of the case. The legislature, through its presiding officers, carried the entire burden of defending the statute.After a 5-day trial, the District Court declared the New Jersey statute unconstitutional. Applying the test set out in Lemon v. Kurtzman, 403 U. S. 602 (1971), the court held that the statute violated the Establishment Clause of the First Amendment because its purpose was religious, rather than secular, because it both advanced and inhibited religion, and because it fostered excessive government entanglement with religion. May v. Cooperman, 572 F. Supp. 1561 (NJ 1983). Page 484 U. S. 76Karcher and Orechio appealed from the District Court's judgment in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate. The named defendants filed letters with the Court of Appeals stating that they would not participate in the appeal, except to the extent necessary to protect themselves from having to pay attorney's fees.The Court of Appeals affirmed the District Court's declaratory judgment by a divided vote. The majority held that the statute did not promote or inhibit religion, and would not foster excessive entanglement between government and religion, but affirmed the District Court's conclusion that the statute violated the Establishment Clause for lack of a valid secular purpose. The dissent concluded that the evidence was not sufficient to prove the absence of a secular legislative purpose. The Court of Appeals entered its judgment of affirmance on December 24, 1985. May v. Cooperman, 780 F.2d 240 (CA3 1985).On January 14, 1986, Karcher and Orechio lost their posts as presiding legislative officers. Charles Hardwick replaced Karcher as Speaker of the New Jersey General Assembly. John Russo succeeded Orechio as President of the New Jersey Senate.A March 19, 1986, notice appealing the judgment of the Court of Appeals to this Court was filed on behalf of "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio, as President of the New Jersey Senate and the New Jersey Senate." App. to Juris. Statement 106a-107a. By letter dated May 6, 1986, appellants' counsel informed us that Senate President Russo and General Assembly Speaker Hardwick were withdrawing the legislature's appeal, but that Karcher desired to continue the appeal. App. to Motion to Dismiss or Affirm 1a-3a. Appellees moved to dismiss the appeal on the ground that the legislature's withdrawal left the Court without a case or controversy. We postponed consideration of Page 484 U. S. 77 the jurisdictional question to the hearing of the case on the merits. 479 U.S. 1062 (1987). We now dismiss the appeal for want of jurisdiction.IIThe power of federal courts to hear and decide cases is defined by Article III of the Constitution and by the federal statutes enacted thereunder. Karcher and Orechio seek to invoke this Court's jurisdiction under 28 U.S.C. § 1254(2). That statute empowers us to review cases upon"appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States."One who is not an original party to a lawsuit may, of course become a party by intervention, substitution, or third-party practice. 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice � 203.06 pp. 3-20 (1987). But we have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom. United States ex rel. Louisiana v. Jack, 244 U. S. 397, 244 U. S. 402 (1917); Ex parte Leaf Tobacco Board of Trade, 222 U. S. 578, 222 U. S. 581 (1911); Ex parte Cockcroft, 104 U. S. 578, 104 U. S. 579 (1882); Ex parte Cutting, 94 U. S. 14, 94 U. S. 20-21 (1877).Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office. Davis v. Preston, 280 U. S. 406, 280 U. S. 407 (1930). Federal Rule of Appellate Procedure 43(c)(1) provides that,"[w]hen a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency . . . ceases to hold office, the action does not abate and the public officer's successor is automatically substituted as a party."The current presiding officers Page 484 U. S. 78 have informed us that the New Jersey Legislature is not an appellant in this case.Having lost their official status as presiding legislative officers, Karcher and Orechio now seek to appeal in their capacities as individual legislators and as representatives of the majority of the 200th New Jersey Legislature, the now-expired legislative body that enacted the minute of silence statute. They do not seek leave to intervene in those capacities. Rather, they assert, for the first time in their briefs to this Court, that they originally intervened and litigated the lawsuit in those roles.The fact that Karcher and Orechio participated in this litigation in their official capacities as presiding officers on behalf of the legislature does not mean that they became parties in all of their personal and professional capacities. In Bender v. Williamsport Area School District, 475 U. S. 534 (1986), we observed that "[a]cts performed by the same person in two different capacities 'are generally treated as the transactions of two different legal personages.'" Id. at 475 U. S. 543, n. 6, quoting F. James & G. Hazard, Civil Procedure § 11.6, p. 594 (3d ed.1985). The concept of "legal personage" is a practical means of identifying the real interests at stake in a lawsuit. We have repeatedly recognized that the real party in interest in an official capacity suit is the entity represented, and not the individual officeholder. See Bender, supra, at 475 U. S. 543-544; Kentucky v. Graham, 473 U. S. 159, 473 U. S. 166 (1985); Brandon v. Holt, 469 U. S. 464, 469 U. S. 471 (1985). We therefore agree with the Solicitor General's view that Karcher and Orechio's intervention as presiding legislative officers does not entitle them to appeal in their other individual and professional capacities. Brief for United States as Amicus Curiae 10-11. Karcher and Orechio may not appeal the Court of Appeals' judgment as individual legislators or as representatives of the 200th Legislature unless the record shows that they participated in those capacities below. Page 484 U. S. 79The course of proceedings in this case from the District Court to this Court make it clear that the only party intervenor in this case was the incumbent New Jersey Legislature. At the District Court hearing on their oral motion to intervene, Karcher and Orechio represented to both the court and their opponents that they were intervening on behalf of the legislature, and not as individual legislators. [Footnote 1] The District Court permitted Karcher and Orechio to intervene as party Page 484 U. S. 80 defendants only in their representative capacities as presiding legislative officers. The intervention order provided:"Alan J. Karcher in his representative capacity as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Page 484 U. S. 81 Orechio in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate; be permitted to intervene as direct party defendants."App. 53-54. The District Court's opinion on the merits identifies the defendant intervenors as "the New Jersey Assembly and New Jersey Senate." May v. Cooperman, 572 F. Supp. at 1563. In its separate opinion on attorney's fees, the District Court emphasizes that it gave the legislature leave to intervene to represent the interests of the State:"The Legislature itself, through the Speaker of the General Assembly and the President of the Senate, moved to intervene in the case. The Legislature was permitted to intervene because it was responsible for enacting the statute and because no other party defendant was willing to defend the statute. The Legislature sought to perform a task which normally falls to the executive branch, but which, in this case, the executive branch refused to perform."Record, Doc. No. 60, p. 20.The record in the Court of Appeals similarly identifies the appellant intervenor as the New Jersey Legislature. The notice of appeal was filed by"Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio as President of the New Jersey Senate and the New Jersey Senate, Defendants Intervenors."Record, Doc. No. 64. The Court of Appeals' opinion identifies the appellants as "the New Jersey Senate and Assembly." 780 F.2d at 241.The notice of appeal to this Court identifies the appellants as "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio, as President of the New Jersey Senate and the New Jersey Senate." App. to Juris. Statement 106a-107a. Even the jurisdictional statement refers to the appellants as "the Legislature." Juris. Statement 5-6. Though appellants assert in their brief that Karcher and Orechio as individual legislators were proper parties in the District Court and the Court of Appeals, our review of the record satisfies us that Karcher and Orechio have neither formally sought, nor in any sense been granted, permission to participate in this lawsuit as individual legislators.We think it is also clear from the record that the party intervenor at each point in the proceedings below was the incumbent legislature, on behalf of the State, and not the particular legislative body that enacted the minute of silence law. Nowhere in the record did Karcher and Orechio assert that they represented the 200th Legislature and no other.In sum, Karcher and Orechio participated in this lawsuit in their official capacities as presiding officers of the New Jersey Legislature, but, since they no longer hold those offices, they lack authority to pursue this appeal on behalf of the legislature. Karcher and Orechio, as individual legislators and as representatives of the 200th New Jersey Legislature, are not "parties" entitled to appeal the Court of Appeals' judgment under 28 U.S.C. § 1254(2). Accordingly, we must dismiss their appeal for want of jurisdiction.IIIKarcher and Orechio argue that, if we dismiss their appeal, we must vacate the judgments below. They advance two theories in support of this result.First they contend that the judgments below must be vacated because no proper party defendant ever intervened in the case. This is so, they say, because New Jersey law does not authorize the presiding legislative officers to represent the New Jersey Legislature in litigation. Not only is this claim directly contrary to appellants' explicit representations Page 484 U. S. 82 to the District Court, [Footnote 2] it appears to be wrong as a matter of New Jersey law. The New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties respondent on behalf of the legislature in defense of a legislative enactment. In re Forsythe, 91 N.J. 141, 144, 450 A.2d 499, 500 (1982). Since the New Jersey Legislature had authority under state law to represent the State's interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant appellant.Appellants' second theory for vacating the judgments below is based upon our practice of vacating lower court judgments when a case becomes moot on appeal. See Burke v. Barnes, 479 U. S. 361, 479 U. S. 365 (1987); United States Department of Treasury v. Galioto, 477 U. S. 556, 477 U. S. 560 (1986); United States v. Munsingwear, Inc., 340 U. S. 36, 340 U. S. 39 (1950). In United States v. Munsingwear, we explained that, when a case becomes moot in its journey through the federal courts, we will reverse or vacate the "unreviewable" judgment below and remand with directions to dismiss. We reasoned that this procedure"clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance."Id. at 340 U. S. 40. Karcher and Orechio contend that the rationale underlying the Munsingwear procedure applies to this case, for it is the happenstance of their loss of official status that renders the judgment unreviewable. Page 484 U. S. 83We reject this argument because its underlying premise is wrong. This case did not become unreviewable when Karcher and Orechio left office. Rather, under Federal Rule of Appellate Procedure 43(c)(1), the authority of Karcher and Orechio to pursue the appeal on behalf of the legislature passed to their successors in office. The rules effectuating automatic substitution of public officers were specifically designed to prevent suits involving public officers from becoming moot due to personnel changes. See Advisory Committee Notes on 1961 Amdt. to Fed.Rule Civ.Proc. 25(d)(1), 28 U.S.C. pp. 568-569.This controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing party -- the New Jersey Legislature -- declined to pursue its appeal. Accordingly, the Munsingwear procedure is inapplicable to this case. Because Karcher and Orechio are not parties to this case in the capacities under which they seek to appeal, their appeal must be dismissed for want of jurisdiction.It is so ordered

U.S. Supreme CourtKarcher v. May, 484 U.S. 72 (1987)Karcher v. MayNo. 85-1551Argued October 6, 1987Decided December 1, 1987484 U.S. 72SyllabusWithin a month after the effective date of a New Jersey statute requiring primary and secondary public school educators to permit students to observe a minute of silence before the start of each schoolday "for quiet and private contemplation or introspection," appellees -- a teacher, several students, and parents -- filed suit in Federal District Court under 42 U.S.C. § 1983, claiming that the statute violated the Establishment Clause of the First Amendment. When it became apparent that neither the State's Attorney General nor the named defendants -- the State Department of Education, its Commissioner, and two local boards of education -- would defend the statute, the then-presiding Speaker of the New Jersey General Assembly and the President of the State Senate (hereafter appellants) sought and obtained permission to intervene as defendants on behalf of the legislature, and thereafter carried the entire burden of defending the statute. The District Court declared the statute unconstitutional, and the Court of Appeals affirmed. After appellants lost their posts as presiding legislative officers, they filed a notice in this Court appealing the judgment under 28 U.S.C. § 1254(2). Appellants' counsel having informed the Court that the new presiding legislative officers were withdrawing the legislature's appeal, appellees moved to dismiss on the ground that the withdrawal left the Court without a case or controversy.Held:1. The appeal must be dismissed for want of jurisdiction. Appellants intervened and participated throughout this lawsuit only in their official capacities as presiding officers on behalf of the state legislature. They no longer hold those offices, and the authority to pursue the lawsuit on behalf of the legislature has passed to their successors under Federal Rule of Appellate Procedure 43(c)(1). Their successors have withdrawn the legislature's appeal. Moreover, appellants' intervention and participation as presiding legislative officers does not entitle them to appeal in their newly asserted roles as individual legislators and as representatives of the majority of the now-expired legislature that enacted the statute. The record establishes that, throughout the proceedings in this case, appellants never sought or asserted participation in either of those Page 484 U. S. 73 capacities, and that the only real party intervenor was the incumbent legislature. Thus, appellants are not "parties" entitled to appeal the Court of Appeals' judgment under § 1254(2). Pp. 484 U. S. 77-81.2. Dismissal of the appeal does not require that the judgments below be vacated. The contention that no proper party defendant ever intervened in the case, because New Jersey law does not authorize the presiding legislative officers to represent the legislature in litigation, not only is directly contrary to appellants' explicit representations to the District Court, but appears to be wrong as a matter of state law, since the New Jersey Supreme Court has granted applications by the presiding legislative officers to intervene as parties respondent on behalf of the legislature in defense of a legislative enactment. Moreover, this Court's procedure, under United States v. Munsingwear, Inc., 340 U. S. 36, of vacating lower court judgments when a case becomes moot on appeal in order to allow future relitigation of the issues between the parties and to eliminate a judgment rendered "unreviewable" by happenstance, is inapplicable to this case. This controversy did not become moot, nor was the judgment here rendered unreviewable, by appellants' loss of official status. Rather, the authority to pursue the appeal on behalf of the legislature passed to appellants' successors in office, and the controversy ended when the legislature declined to pursue its appeal. Pp. 484 U. S. 81-83.Appeal dismissed. Reported below: 780 F.2d 240.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post at p. 484 U. S. 83. Page 484 U. S. 74

1965_63

MR. JUSTICE WHITE delivered the opinion of the Court.We have been asked in this case to determine whether the Court of Appeals had jurisdiction to set aside a reparation order of the Federal Maritime Commission which was before it upon the consolidated appeals of the shipper and the carrier, the shipper asking that the award be increased and the carrier asking that it be set aside. In addition, we have been asked to determine whether the Court of Appeals applied the proper standard of review when it set aside the reparation award. We answer the first question in the affirmative and the second in the negative. Accordingly, we reverse.Flota Mercante Grancolombiana, S.A. (Flota) is a common carrier engaged in carrying bananas from South America to the United States. In July, 1955, it entered into an exclusive two-year carrying contract with Panama Ecuador, a banana shipper, and gave Panama Ecuador an option to renew the contract for an additional three years, subject to its meeting the rate offered by any other shipper. This exclusive contract was executed after the Federal Maritime Board, in June, 1953, had ruled that Flota's competitor, Grace Line, was a common carrier of bananas and had violated the Shipping Act, 1916, §§ 14 Fourth [Footnote 1] and 16 First [Footnote 2] by refusing Page 383 U. S. 610 to allocate its banana shipping space equitable among all qualified shippers. [Footnote 3] In April, 1957, the Board reiterated its view that Grace Line had violated the Shipping Act by signing exclusive carrying contracts and it ordered Grace Line to offer to all qualified shippers, upon a fair basis, shipping space on forward-booking contracts not to exceed two years in length. [Footnote 4] One month after this ruling, Flota rejected a bid by Consolo, a banana shipper competing with Panama Ecuador, for the entire shipping space and honored the option given Panama Ecuador by executing to it a three-year exclusive carrying contract. Shortly thereafter, Consolo demanded a "fair and reasonable" amount of the carrying space pursuant to the previous Grace Line decisions of the Board, and threatened to file a complaint if its demand were rejected. Flota rejected the demand, and itself filed a petition before the Board for declaratory relief exonerating it from liability to Consolo. Consolo followed with a complaint before the Board asking for damages. These proceedings were consolidated, and, in June, 1959, the Board ruled that Flota's three-year exclusive contract with Panama Ecuador Page 383 U. S. 611 violated the Shipping Act, §§ 14 Fourth and 16 First, and it ordered Flota to allocate its space fairly among all qualified banana shippers. [Footnote 5] Pursuant to § 2(c) of the Administrative Orders Review Act (64 Stat. 1129, as amended, 5 U.S.C. § 1032(c) (1964 ed.)), Flota petitioned the Court of Appeals for the District of Columbia Circuit to set aside this order. This appeal was stayed pending determination of the reparations proceeding. In March, 1961, the Board ordered Flota to pay Consolo certain reparations for the violation of the Shipping Act. [Footnote 6] Both Flota and Consolo appealed from this reparation order, and each intervened in the appeal of the other, Consolo asking that the reparation award be increased and Flota asking that it be set aside. These appeals were consolidated together with Flota's appeal to set aside the Board's finding of a violation of the Shipping Act.The Court of Appeals held that it had jurisdiction to consider these appeals. It affirmed the Board's finding that Flota had violated the Shipping Act, but remanded to the Board the issue of reparations so that it could "consider whether, under all the circumstances, it is inequitable to force Flota to pay reparations. . . ." [Footnote 7] On remand, the Federal Maritime Commission [Footnote 8] concluded that it was not inequitable to require Flota to pay Consolo reparations, although it did reduce the amount of the award. [Footnote 9] Again, both Flota and Consolo appealed to the Court of Appeals for the District of Page 383 U. S. 612 Columbia Circuit, each intervened in the appeal of the other, and the two appeals were consolidated. [Footnote 10] Again Consolo maintained that the award was too small, and Flota argued that it should be set aside in part or in whole. The Court of Appeals reversed and vacated the reparation award, concluding that,"[i]n view of the substantial evidence showing that it would be inequitable to assess damages against Flota in favor of Consolo, . . . the Commission abused the discretion granted it under Section 22 of the Shipping Act [Footnote 11] [to issue reparation awards]. . . ."119 U.S.App.D.C. 345, 352, 342 F.2d 924, 931. Consolo petitioned this Court for a writ of certiorari to review that decision, which we granted. 381 U.S. 933.IThe first question we have is whether the Court of Appeals had jurisdiction of the appeals filed by Consolo and Flota. [Footnote 12] Page 383 U. S. 613As we read the controlling statutory provisions, it seems clear that the Court of Appeals had jurisdiction to consider Consolo's direct appeal from the Commission's reparation order granting only part of the relief requested. Section 2 of the Administrative Orders Review Act (5 U.S.C. § 1032 (1964 ed.)) gives the courts of appeals"exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . (c) such final orders of the . . . Federal Maritime Board . . . as are now subject to judicial review pursuant to the provisions of section 830 of Title 46. . . ."Section 830 of Title 46 (§ 31 of the Shipping Act, 1916, 39 Stat. 738, as amended), in turn, says that, "except as otherwise provided," orders of the Federal Maritime Board are reviewable pursuant to the same procedures as are available "in similar suits in regard to orders of the Interstate Commerce Commission. . . ." Accordingly, if, pursuant to provisions in the Interstate Commerce Act, a shipper can bring a direct review proceeding to challenge the adequacy of a reparation award issued by the Interstate Commerce Commission, he should be permitted to bring a similar proceeding to challenge the adequacy of a reparation award from the Federal Maritime Commission, subject of course to any special provisions applicable to maritime cases such as the provision in § 2 of the Administrative Orders Review Act that direct review proceedings shall be conducted in the courts of appeals rather than the district courts.The Court has previously held that an order of the Interstate Commerce Commission denying a shipper's reparation claim is subject to direct review at the instance of the shipper, United States v. Interstate Commerce Page 383 U. S. 614 Comm'n, 337 U. S. 426, primarily because the adverse order would be wholly unreviewable unless the shipper is permitted to bring an appeal. See Rochester Tel. Corp. v. United States, 307 U. S. 125. Likewise, in D. L. Piazza Co. v. West Coast Line, Inc., 210 F.2d 947, cert. denied, 348 U.S. 839, the Court of Appeals for the Second Circuit was of the opinion that the principles of United States v. Interstate Commerce Comm'n were authority for allowing the shipper to seek direct review of an order of the Federal Maritime Board denying a major part, but not all, of the shipper's reparation claim. We think Piazza was correct in this respect, and we accordingly agree with the court below that it would have jurisdiction to consider Consolo's appeal.As for Flota's appeal, much of what we have said in Interstate Commerce Comm'n v. Atlantic Coast Line R. Co., decided today, is pertinent to our consideration here. In that case, where direct review had not been sought by the shipper, we held that the carrier may have review of a reparation order of the Interstate Commerce Commission only in connection with the shipper's enforcement action under § 16(2) of the Interstate Commerce Act. Section 30 of the Shipping Act, 39 Stat. 737, as amended, provides for a similar action by the shipper to enforce a reparation award by the Maritime Commission, and extends certain procedural advantages to the shipper generally comparable to those provided by § 16(2) of the Interstate Commerce Act. He has a wide scope of venue; he is not liable for costs unless they accrue on his own appeal; he is allowed reasonable attorney fees if he ultimately prevails; he is the beneficiary of broad service of process and joinder provisions; and the findings and order of the Commission are given prima facie effect in the enforcement action. These advantages were given to the shipper because he was considered generally to be the weaker party in the controversy, and he serves an important Page 383 U. S. 615 role in the enforcement of the Shipping Act. It was to protect advantages similar to these by preventing the carrier from emasculating the enforcement action that we concluded in Interstate Commerce Comm'n v. Atlantic Coast Line R. Co. that the carrier could not seek review of the reparation award except in connection with a shipper's enforcement action. It is readily apparent, we think, that this holding is applicable to Shipping Act cases when the shipper himself has not sought direct review in the Court of Appeals.Here, however, the jurisdiction of the Court of Appeals has been invoked by the shipper, who seeks to increase the amount of his damages. In these circumstances, we find nothing in the Shipping Act or the Administrative Orders Review Act that would prevent the Court of Appeals from also considering Flota's request, either as a consolidated appeal pursuant to § 2 of the Administrative Orders Review Act or as an intervenor's cross-claim, to have the reparation order set aside or reduced, a result which will not, in our view, substantially impair the procedural advantages intended for a shipper under § 30.Concerning venue, the shipper will still be able to select the forum. Although the venue provisions governing an appeal are somewhat different from those governing an enforcement suit, the shipper still has relatively wide opportunities to find a convenient forum. Section 3 of the Administrative Orders Review Act (64 Stat. 1130, 5 U.S.C. § 1033 (1964 ed.)) enables the petitioner to bring suit in the judicial circuit where he resides, where his principal office is located, or in the District of Columbia. By requiring that the carrier's review proceeding be brought in the court selected by the shipper for his appeal, all the issues in the controversy will be tried in a relatively convenient forum for the shipper. Page 383 U. S. 616The shipper will not have the benefit in a direct review of those provisions in § 30 that exempt him from his costs and enable him to collect his attorney's fees if he ultimately prevails. [Footnote 13] However, the only additional costs and attorney's fees that the shipper will incur if the carrier is permitted to challenge the reparation award upon a consolidated appeal or cross-claim are those costs and fees attributable to additional issues not otherwise raised by the shipper's appeal. To the extent the arguments a carrier may advance to decrease or set aside an award would be asserted in any event as defenses to the shipper's claim for increased reparations, no additional costs or fees will be incurred beyond those which the shipper would normally assume for his appeal. And if the shipper prevails against the carrier's appeal, any additional costs, although not attorney's fees, as are incurred may be assessed against the carrier as the losing party under 28 U.S.C. § 1912 (1964 ed.). See also District of Columbia Cir.R. 20(b).The minimal disadvantages resulting to the shipper from permitting the carrier to attack the reparation order are more than offset by the desirability of a prompt and efficient determination of the validity of the Commission's order. Many of the arguments a carrier might make in defense against a shipper's suit to increase the award could also be advanced to show that the award should be reduced or set aside entirely. And once the carrier intervenes in the shipper's appeal, all the parties interested in the complete resolution of the validity of Page 383 U. S. 617 the Commission's order are before the court. In this situation, it would make little sense to require the carrier to break off his argument short of its logical conclusion and relitigate it anew before a district court in an enforcement action. [Footnote 14]With the jurisdiction of the Court of Appeals properly invoked by the shipper, there is, therefore, every reason to permit the carrier not only to litigate the amount of the reparation order, but also to insist upon a determination of the validity of the Commission's order, both with respect to the carrier's violation of the Act [Footnote 15] and with respect to the reparation award itself. If the carrier finally prevails on either of these claims, there would then be no occasion for a separate enforcement suit in the District Court. If the carrier's claims going to the validity of the order are rejected by the Court of Appeals, the determination of a violation by the carrier would be binding in the subsequent enforcement action by the shipper; nor would there be any basis in the course of a subsequent enforcement action conducted in accordance with § 30 to redetermine whether or not the award itself is supported by substantial evidence in the administrative record. [Footnote 16] Hence, the shipper will need to litigate the Page 383 U. S. 618 issue of validity only once, and this in the Court of Appeals at the instance of the carrier. Although two proceedings may be required to collect his damages, this is only a necessary incident of the shipper's decision to bring his appeal in the first place.In short, although a shipper may lose some of the procedural advantages given him by § 30 if he is forced to defend the validity of the Commission's order in conjunction with his appeal, these losses generally will not be substantial. To the extent that he is disadvantaged, this is the result of a conscious choice he has made. And from the point of view of the enforcement of the Shipping Act, it is certainly less important that the shipper be assisted in his efforts to obtain a greater award than it is to assist him in his efforts to enforce an existing award. The Court of Appeals was correct in sustaining its own jurisdiction to hear Flota's appeal.IIWe turn, then, to the standard of review used by the Court of Appeals when it reversed the Commission's reparation order.The Court of Appeals rejected the Commission's finding that it would not be inequitable to award Consolo reparations because it felt this finding "ignores . . . the substantial weight of the evidence. . . ." 119 U.S. App.D.C. 345, 347, 342 F.2d 924, 926. It then concluded that the Commission abused its discretion in ordering reparations because "of the substantial evidence showing that [the reparations] would be inequitable." Id. at 352, 342 F.2d, at 931. In effect, the standard of review applied and articulated by the Court of Appeals in this case was that, if "substantial evidence" or "the substantial evidence" supports a conclusion contrary to that reached by the Commission, then the Commission Page 383 U. S. 619 must be reversed. [Footnote 17] This standard is not consistent with that provided by the Administrative Procedure Act.Section 10(e) of the Administrative Procedure Act (60 Stat. 243, 5 U.S.C. § 1009(e) (1964 ed.)) gives a reviewing court authority to "set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, [or] an abuse of discretion . . . [or] (5) unsupported by substantial evidence. . . ." Cf. United States v. Interstate Commerce Comm'n, 91 U.S.App.D.C. 178, 183-184, 198 F.2d 958, 963-964, cert. denied, 344 U.S. 893. We have defined "substantial evidence" Page 383 U. S. 620 as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. of New York v. Labor Board, 305 U. S. 197, 305 U. S. 229."[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury."Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 306 U. S. 300. [Footnote 18] This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105, 316 U. S. 106; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.Congress was very deliberate in adopting this standard of review. [Footnote 19] It frees the reviewing courts of the time-consuming and difficult task of weighing the evidence; it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute. [Footnote 20] These policies are particularly important when a court is asked to review an agency's Page 383 U. S. 621 fashioning of discretionary relief. [Footnote 21] In this area, agency determinations frequently rest upon a complex and hard-to-review mix of considerations. By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency. These policies would be damaged by the standard of review articulated by the court below.Ordinarily, we would be inclined to remand to the Court of Appeals for further consideration in light of the standard of review established by the Administrative Procedure Act. Universal Camera Corp. v. Labor Board, 340 U. S. 474; Labor Board v. Walton Mfg. Co., 369 U. S. 404. However, in view of the fact that this controversy already dates back more than eight years, that it has been before the Court of Appeals twice, and that the relevant standard is not hard to apply in this instance, we think this controversy had better terminate now. See O'Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504.Section 22 of the Shipping Act, 1916, provides that "The Board . . . may direct the payment . . . of full reparation to the complainant for the injury caused by such violation." 46 U.S.C. § 821 (1964 ed.). (Emphasis added.) This contemplates that the Commission shall have a certain amount of discretion, [Footnote 22] but it does not Page 383 U. S. 622 specify what factors are to be considered by the Commission in exercising this discretion. However, we assume that the Commission could validly consider such factors as whether a reparation award would enhance the enforcement of the Act, whether the shipper had suffered compensable injury, and whether the award of reparations would be consistent with the previous application of the Act, as well as the factor of culpability of the carrier. [Footnote 23] Hence, even if the carrier's conduct were such that it would be inequitable to require it to pay a reparation award, this, by itself, might not be sufficient to establish that the Commission abused its discretion under the Act. However, we need not rest upon this distinction, because we feel that it is clear that there is substantial evidence in the record, considered as a whole, to support the Commission's findings that it would not be inequitable in this case to require Flota to pay Consolo reparations.The Maritime Board determined, and the Court of Appeals agreed, that Flota had been guilty of "unfairly" or "unjustly" discriminating against Consolo and of giving an "undue unreasonable preference" to Panama Ecuador in violation of § 14 Fourth and § 16 First Page 383 U. S. 623 of the Shipping Act. [Footnote 24] These findings, which were essential to the determination that Flota had violated the Shipping Act, substantially undercut any equities that Flota might claim. Nevertheless, the Court of Appeals considered it inequitable to make Flota pay reparations because Flota might have believed, in view of the unsettled law, that it was not illegal to exclude Consolo.Prior to Flota's rejection of Consolo's request for a fair portion of the shipping space, the Federal Maritime Board had decided only two cases relevant to this issue: Consolo v. Grace Line, supra, and Banana Distributors, Inc. v. Grace Line, supra. Both cases held invalid exclusive dealing contracts similar to the one in question here. The Court of Appeals would minimize these two cases as precedents because no order was issued in the first Grace Line decision and the second Grace Line decision was ultimately reversed and remanded by the Court of Appeals for the Second Circuit. Nevertheless, at the time Flota entered into the 1957 exclusive contract with Panama Ecuador, and at the time it rejected Consolo's request for a fair share of the shipping space, these decisions were authoritative pronouncements by the agency primarily responsible for administering and interpreting the Shipping Act. And, although the second Grace Line decision was ultimately reversed and remanded, upon reconsideration, the Board still found the exclusive contract there is question to be illegal, and that Page 383 U. S. 624 decision was ultimately affirmed upon appeal to the Second Circuit. [Footnote 25]As further evidence of good faith, the Court of Appeals was of the opinion that Flota could reasonably have believed its situation was different from that presented to the Board in the Grace Line cases because of physical differences between its vessels and those owned by Grace Line. However, in its first decision affirming the Board's finding of a violation the Court of Appeals had affirmed that the record "adequately supported" the Board's finding that "the differences between Flota's vessels and Grace's vessels are not impressive." 112 U.S.App.D.C. 302, 307, 302 F.2d 887, 892. We think the Court's first judgment was the correct one. The record is adequate to establish that Flota took a deliberate, and we think substantial, risk when it gambled that the previous contrary precedent could be distinguished. We agree with the Commission that there is nothing inhering in this situation that would make it inequitable to require Flota to pay reparations.Nor do we feel the record reveals that the reparation award is inequitable because Flota had asked for declaratory relief or because that request was pending before the Board for almost two years. In the first place, Flota did not request declaratory relief until after it had entered into the offending exclusive dealing contract with Panama Ecuador and until it became clear that Consolo was going to sue anyway. Under these circumstances, the Commission was justifiably skeptical about Flota's motives in bringing suit. Further, although Flota's suit was pending for about two years, the record indicates that much of the delay involved in this case was at the request or approval of Flota. At any rate, it has never Page 383 U. S. 625 been the law that a litigant is absolved from liability for that time during which his litigation is pending. Labor Board v. Electric Vacuum Cleaner Co., 315 U. S. 685; Louisville & Nashville R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U. S. 217. During this time, Flota was able to postpone the predictable demise of its discriminatory contract and Consolo continued to suffer injury.Similarly, we do not believe that Flota acquired any "equities" by being caught between the conflicting demands of Consolo and Panama Ecuador. Not only was this a dilemma of Flota's own making, but, in 1958 Flota rejected an opportunity to escape it. At that time, Panama Ecuador announced that it was going to cancel the contract unless Flota reduced its rates. Although believing itself under no legal obligation to reduce rates, Flota nevertheless did so in order to perpetuate the illegal exclusive dealing contract with Panama Ecuador. Finally, there was a provision in Flota's contract with Panama Ecuador that absolved Flota from liability for refusing to comply with the contract if it was illegal. Although absolution of liability depended upon the contract being declared, in fact, illegal, in light of the previous Grace Line decisions, we think this would have been the more reasonable course of action.Finally we reject the argument that Flota did not benefit from its policy of excluding Consolo, and that Consolo lost "only" expected profits. There is evidence in the record that Flota considered its exclusive dealing contract with Panama Ecuador more profitable than would have been a multiple contract with several shippers. [Footnote 26] If Flota did not believe there was an advantage Page 383 U. S. 626 in retaining its exclusive contract with Panama Ecuador, it is reasonable to think that it would have taken the opportunity given it in 1958 by Panama Ecuador to cancel that contract and offer space equitably to all shippers. Furthermore, we think the court below wrongly minimized the sting of losing expected profits resulting from being unjustly and illegally denied shipping space. Such a loss is real, and it is certainly compensable under the Shipping Act. See McLean & Co. v. Denver & Rio Grande R. Co., 203 U. S. 38, 203 U. S. 48-49; Roberto Hernandez, Inc. v. Arnold Bernstein Schiffahrtsgesellschaft, M.B.H., 116 F.2d 849, cert. denied sub nom. Compania Espanola de Navegacion Maritima, S.A. v. Roberto Hernandez, Inc., 313 U.S. 582.Without further belaboring this issue, suffice it to say that there is substantial evidence in the record, considered as a whole, for the Commission to conclude that"Flota initiated and pursued the unlawful act without good cause and without a satisfactory showing of good faith, and we have been unable, except as noted, to find any equity in its contentions, whether viewed separately or together."This being so, it was clear error on the part of the Court of Appeals to reverse the Commission's award of reparations. [Footnote 27]Reversed

U.S. Supreme CourtConsolo v. FMC, 383 U.S. 607 (1966)Consolo v. Federal Maritime CommissionNo. 63Argued December 6-7, 1965Decided March 22, 1966383 U.S. 607SyllabusRespondent Flota, a common carrier by water, made an exclusive contract with Panama Ecuador to transport bananas. The contract was executed after a Federal Maritime Board ruling, later reiterated, that Flota's competitor had violated the Shipping Act, 1916 by its exclusive contracts and refusal to allocate banana shipping space among all qualified shippers. Petitioner, a competitor of Panama Ecuador, demanded a reasonable amount of Flota's banana carrying space under the Board's decisions and threatened litigation if rejected. Flota rejected the demand and brought a proceeding before the Board for declaratory relief exonerating it from liability to petitioner. Petitioner then filed a complaint with the Board asking for damages. The actions were consolidated, and the Board ruled that Flota's exclusive contract violated the Shipping Act, and ordered a fair allocation of banana shipping space. Flota, pursuant to the Administrative Orders Review Act, petitioned the Court of Appeals to set aside the order, and the appeal was stayed pending determination of the reparation proceeding. Following the Board's reparation order, Flota and petitioner each appealed, Flota asking that the award and finding of a Shipping Act violation be set aside, petitioner that the award be increased. After holding that it had jurisdiction over the appeals, the Court of Appeals affirmed the Board's finding of a Shipping Act violation, but remanded the case for the Board to consider whether it was inequitable to make Flota pay reparations. The Federal Maritime Commission (FMC) held that it was not inequitable, but reduced the award. Following renewed appeals, the Court of Appeals reversed and vacated the award as inequitable and an abuse of discretion, in effect on the ground that there was substantial evidence to support a conclusion contrary to that reached by the FMC.Held:1. The Court of Appeals had jurisdiction to consider petitioner shipper's direct appeal challenging the adequacy of the FMC reparation order. Section of the Administrative Orders Review Act in conjunction with Section 31 of the Shipping Act, 1916 provides a procedure for direct review of FMC orders similar to that applicable to ICC orders. Such orders are reviewable on Page 383 U. S. 608 direct appeal by a shipper denied reparations in whole or in part, since the adequacy of a reparation award cannot be challenged in an enforcement proceeding, United States v. Interstate Commerce Comm'n, 337 U. S. 426. Pp. 383 U. S. 612-614.2. Since the jurisdiction of the Court of Appeals had been invoked by the shipper seeking to increase the amount of his damages, that court also had jurisdiction over the carrier's direct review appeal as to the validity of the FMC order and the amount of reparations, whether considered as a consolidated appeal or as an intervenor's cross-claim. ICC v. Atlantic Coast Line R. Co., ante, p. 383 U. S. 576. Pp. 383 U. S. 614-618.3. The FMC's finding that it would not be inequitable to require Flota to pay petitioner reparations was supported by substantial evidence, and must be sustained on review. Pp. 383 U. S. 618-626.(a) A reviewing court is not at liberty to weigh the evidence and substitute its discretion for that of the administrative agency. Pp. 383 U. S. 619-621.(b) In determining whether to exercise its discretion to award reparations to a complainant under the Shipping Act, the FMC may be guided by such factors as whether an award would further the Act's enforcement, injury to the shipper, the carrier's culpability, and whether the award would conform to previous application of the Act. P. 383 U. S. 622.(c) The findings that Flota had unjustly discriminated against petitioner and given undue preference to his competitor in violation of the Shipping Act undercut Flota's claimed equities. Pp. 383 U. S. 622-623.119 U.S.App.D.C. 345, 342 F.2d 924, reversed. Page 383 U. S. 609

1995_94-1654

670 BOARD OF COMM'RS, WABAUNSEE CTY. v. UMBEHRUmbehr's suit concerns the termination or nonrenewal of a pre-existing commercial relationship with the government, this Court need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship. Pp. 685-686.44 F.3d 876, affirmed and remanded.O'CONNOR, J., delivered the opinion of the Court with respect to Parts I, II-A, II-B-2, and III, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and the opinion of the Court with respect to Part II-B-1, in which STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 686.Donald Patterson argued the cause for petitioner. With him on the briefs was Steve R. Fabert.Robert A. Van Kirk argued the cause for respondent.With him on the brief was Richard H. Seaton.Beth S. Brinkmann argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Cornelia T. L. Pillard, William Kanter, and Robert D. Kamenshine.*JUSTICE O'CONNOR delivered the opinion of the Court.t This case requires us to decide whether, and to what extent, the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.IUnder state law, Wabaunsee County, Kansas (County), is obliged to provide for the disposal of solid waste generated*Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Robin L. Dahlbert, Marjorie Heins, and Steven R. Shapiro; and for the Planned Parenthood Federation of America, Inc., by Bruce J. Ennis, Jr., Anthony C. Epstein, Julie M. Carpenter, Nory Miller, Roger K. Evans, Dara Klassel, and Eve W Paul.tTHE CHIEF JUSTICE joins all but Part II -B-1 of this opinion.671within its borders. In 1981, and, after renegotiation, in 1985, the County contracted with respondent U mbehr for him to be the exclusive hauler of trash for cities in the County at a rate specified in the contract. Each city was free to reject or, on 90 days' notice, to opt out of, the contract. By its terms, the contract between U mbehr and the County was automatically renewed annually unless either party terminated it by giving notice at least 60 days before the end of the year or a renegotiation was instituted on 90 days' notice. Pursuant to the contract, U mbehr hauled trash for six of the County's seven cities from 1985 to 1991 on an exclusive and uninterrupted basis.During the term of his contract, U mbehr was an outspoken critic of petitioner, the Board of County Commissioners of Wabaunsee County (Board), the three-member governing body of the County. U mbehr spoke at the Board's meetings, and wrote critical letters and editorials in local newspapers regarding the County's landfill user rates, the cost of obtaining official documents from the County, alleged violations by the Board of the Kansas Open Meetings Act, the County's alleged mismanagement of taxpayers' money, and other topics. His allegations of violation of the Kansas Open Meetings Act were vindicated in a consent decree signed by the Board's members. U mbehr also ran unsuccessfully for election to the Board.The Board's members allegedly took U mbehr's criticism badly, threatening the official county newspaper with censorship for publishing his writings. In 1990, they voted, 2 to 1, to terminate (or prevent the automatic renewal of) Umbehr's contract with the County. That attempt at termination failed because of a technical defect, but in 1991, the Board succeeded in terminating U mbehr's contract, again by a 2 to 1 vote. U mbehr subsequently negotiated new contracts with five of the six cities that he had previously served.In 1992, U mbehr brought this suit against the two majority Board members in their individual and official capacities672under Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983, alleging that they had terminated his government contract in retaliation for his criticism of the County and the Board. The Board members moved for summary judgment. The District Court assumed that U mbehr's contract was terminated in retaliation for his speech, and that he suffered consequential damages. But it held that "the First Amendment does not prohibit [the Board] from considering [U mbehr's] expression as a factor in deciding not to continue with the trash hauling contract at the end of the contract's annual term," because, as an independent contractor, Umbehr was not entitled to the First Amendment protection afforded to public employees. Umbehr v. McClure, 840 F. Supp. 837, 839 (Kan. 1993). It also held that the claims against the Board members in their individual capacities would be barred by qualified immunity, id., at 841, a ruling which was affirmed on appeal and which is not at issue here.The United States Court of Appeals for the Tenth Circuit reversed (except as to qualified immunity), holding that "an independent contractor is protected under the First Amendment from retaliatory governmental action, just as an employee would be," and that the extent of protection is to be determined by weighing the government's interests as contractor against the free speech interests at stake in accordance with the balancing test that we used to determine government employees' First Amendment rights in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). 44 F.3d 876, 883 (CAlO 1995). It therefore remanded the official capacity claims to the District Court for further proceedings, including consideration of whether the termination was in fact retaliatory. The Board members who were the original defendants in this suit subsequently resigned their positions on the Board, so in this Court, the Board was substituted for them as petitioner. See this Court's Rule 35.3.673We granted certiorari to resolve a conflict between the Courts of Appeals regarding whether, and to what extent, independent contractors are protected by the First Amendment. The Fifth and Eighth Circuits agree with the Tenth Circuit. See Blackburn v. Marshall, 42 F.3d 925, 931-935 (CA5 1995); Copsey v. Swearingen, 36 F.3d 1336, 1344 (CA5 1994); North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330 (CA5 1986); Smith v. Cleburne County Hospital, 870 F.2d 1375, 1381 (CA8), cert. denied, 493 U. S. 847 (1989); but see Sweeney v. Bond, 669 F.2d 542 (CA8), cert. denied, 459 U. S. 878 (1982). See also Abercrombie v. Catoosa, 896 F. 2d 1228, 1233 (CAlO 1990) (allowing an independent contractor to sue for termination based on his speech and political activities). The Third and Seventh Circuits have, however, held that an independent contractor who does not have a property interest in his contract with the government has no right not to have that contract terminated in retaliation for his exercise of First Amendment freedoms of political affiliation and participation. See Horn v. Kean, 796 F.2d 668 (CA3 1986) (en banc); O'Hare Truck Service, Inc. v. Northlake, 47 F.3d 883 (CA7 1995), reversed, post, p. 712; Downtown Auto Parks, Inc. v. Milwaukee, 938 F.2d 705 (CA7), cert. denied, 502 U. S. 1005 (1991); Triad Assocs., Inc. v. Chicago Housing Authority, 892 F.2d 583 (CA7 1989), cert. denied, 498 U. S. 845 (1990).We agree with the Tenth Circuit that independent contractors are protected, and that the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of their protection. We therefore affirm.II AThis Court has not previously considered whether, and to what extent, the First Amendment restricts the freedom of674federal, state, or local governments to terminate their relationships with independent contractors because of the contractors' speech. We have, however, considered the same issue in the context of government employees' rights on several occasions. The similarities between government employees and government contractors with respect to this issue are obvious. The government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption. And, absent contractual, statutory, or constitutional restriction, the government is entitled to terminate them for no reason at all. But either type of relationship provides a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech on matters of public concern by those who, because of their dealings with the government, "are often in the best position to know what ails the agencies for which they work," Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion). Because of these similarities, we turn initially to our government employment precedents for guidance.Those precedents have long since rejected Justice Holmes' famous dictum, that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman," McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892). Recognizing that "constitutional violations may arise from the deterrent, or 'chilling,' effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights," Laird v. Tatum, 408 U. S. 1, 11 (1972), our modern "unconstitutional conditions" doctrine holds that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech" even if he has no entitlement to that benefit, Perry v. Sindermann, 408 U. S. 593, 597 (1972). We have held that government workers are constitutionally protected from dismissal for re-675fusing to take an oath regarding their political affiliation, see, e. g., Wieman v. Updegraff, 344 U. S. 183 (1952); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967), for publicly or privately criticizing their employer's policies, see Perry, supra; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977); Givhan v. Western Line Consolo School Dist., 439 U. S. 410 (1979), for expressing hostility to prominent political figures, see Rankin v. McPherson, 483 U. S. 378 (1987), or, except where political affiliation may reasonably be considered an appropriate job qualification, for supporting or affiliating with a particular political party, see, e. g., Branti v. Finkel, 445 U. S. 507 (1980). See also United States v. Treasury Employees, 513 U. S. 454 (1995) (Government employees are protected from undue burdens on their expressive activities created by a prohibition against accepting honoraria); Abood v. Detroit Bd. of Ed., 431 U. S. 209, 234 (1977) (government employment cannot be conditioned on making or not making financial contributions to particular political causes).While protecting First Amendment freedoms, we have, however, acknowledged that the First Amendment does not create property or tenure rights, and does not guarantee absolute freedom of speech. The First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern. See Connick v. Myers, 461 U. S. 138, 146 (1983) (speech on merely private employment matters is unprotected). To prevail, an employee must prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination. If the employee discharges that burden, the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct. See Mt. Healthy, supra, at 287. And even termination because of protected speech may be justified when legitimate countervailing government interests are sufficiently strong.676Government employees' First Amendment rights depend on the "balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U. S., at 568. In striking that balance, we have concluded that "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." Waters, 511 U. S., at 675 (plurality opinion). We have, therefore, "consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large." Id., at 673; accord, Treasury Employees, supra, at 475.The parties each invite us to differentiate between independent contractors and employees. The Board urges us not to "extend" the First Amendment rights of government employees to contractors. Umbehr, joined by the Solicitor General as amicus curiae, contends that, on proof of viewpoint-based retaliation for contractors' political speech, the government should be required to justify its actions as narrowly tailored to serve a compelling state interest.Both parties observe that independent contractors in general, and U mbehr in particular, work at a greater remove from government officials than do most government employees. In the Board's view, the key feature of an independent contractor's contract is that it does not give the government the right to supervise and control the details of how work is done. The Board argues that the lack of day-to-day control accentuates the government's need to have the work done by someone it trusts, cf. Branti, supra, at 518 (certain positions in government employment implicate such a need for trust that their award on the basis of party political affiliation is677justified), and to resort to the sanction of termination for unsatisfactory performance. * U mbehr, on the other hand, argues that the government interests in maintaining harmonious working environments and relationships recognized in our government employee cases are attenuated where the contractor does not work at the government's workplace and does not interact daily with government officers and employees. He also points out that to the extent that he is publicly perceived as an independent contractor, any government concern that his political statements will be confused with the government's political positions is mitigated. The Board and the dissent, post, at 697-699, retort that the cost of fending off litigation, and the potential for government contracting practices to ossify into prophylactic rules to avoid potential litigation and liability, outweigh the interests of independent contractors, who are typically less financially dependent on their government contracts than are government employees.Each of these arguments for and against the imposition of liability has some force. But all of them can be accommodated by applying our existing framework for government employee cases to independent contractors. Mt. Healthy assures the government's ability to terminate contracts so long as it does not do so in retaliation for protected First Amendment activity. Pickering requires a fact-sensitive and deferential weighing of the government's legitimate interests.*The Board also asserts that state and local government decisions on individual contracts are insulated by the Tenth Amendment or legislative immunity from constitutional scrutiny and liability. See Brief for Petitioner 23-26, 37. The Tenth Amendment claim was not raised in its petition, so we do not address it. See this Court's Rule 14.1(a). Because only claims against the Board members in their official capacities are before us, and because immunity from suit under § 1983 extends to public servants only in their individual capacities, see, e. g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 166 (1993), the legislative immunity claim is moot.678The dangers of burdensome litigation and the de facto imposition of rigid contracting rules necessitate attentive application of the Mt. Healthy requirement of proof of causation and substantial deference, as mandated by Pickering, Connick, and Waters, to the government's reasonable view of its legitimate interests, but not a per se denial of liability. Nor can the Board's and the dissent's generalization that independent contractors may be less dependent on the government than government employees, see post, at 696, justify denial of all First Amendment protection to contractors. The tests that we have established in our government employment cases must be judicially administered with sensitivity to governmental needs, but First Amendment rights must not be neglected.U mbehr's claim that speech threatens the government's interests as contractor less than its interests as employer will also inform the application of the Pickering test. U mbehr is correct that if the Board had exercised sovereign power against him as a citizen in response to his political speech, it would be required to demonstrate that its action was narrowly tailored to serve a compelling governmental interest. But in this case, as in government employment cases, the Board exercised contractual power, and its interests as a public service provider, including its interest in being free from intensive judicial supervision of its daily management functions, are potentially implicated. Deference is therefore due to the government's reasonable assessments of its interests as contractor.We therefore see no reason to believe that proper application of the Pickering balancing test cannot accommodate the differences between employees and independent contractors. There is ample reason to believe that such a nuanced approach, which recognizes the variety of interests that may arise in independent contractor cases, is superior to a bright-line rule distinguishing independent contractors from employees. The bright-line rule proposed by the Board and679the dissent would give the government carte blanche to terminate independent contractors for exercising First Amendment rights. And that bright-line rule would leave First Amendment rights unduly dependent on whether state law labels a government service provider's contract as a contract of employment or a contract for services, a distinction which is at best a very poor proxy for the interests at stake. See Comment, Political Patronage in Public Contracting, 51 U. Chi. L. Rev. 518, 520 (1984) ("[N]o legally relevant distinction exists between employees and contractors in terms either of the government's interest in using patronage or of the employee or contractor's interest in free speech"); cf. Perry, 408 U. S., at 597 (the prohibition of unconstitutional conditions on speech applies "regardless of the public employee's contractual or other claim to a job"). Determining constitutional claims on the basis of such formal distinctions, which can be manipulated largely at the will of the government agencies concerned, see Logue v. United States, 412 U. S. 521, 532 (1973) (noting that independent contractors are often employed to perform "tasks that would ... otherwise be performed by salaried Government employees"), is an enterprise that we have consistently eschewed. See, e. g., Lefkowitz v. Turley, 414 U. S. 70, 83 (1973) (in the context of the privilege against self-incrimination, "[w]e fail to see a difference of constitutional magnitude between the threat of job loss to an employee of the State, and a threat of loss of contracts to a contractor"); cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, ante, at 622 (opinion of BREYER, J.) ("[T]he government 'cannot foreclose the exercise of [First Amendment] rights by mere labels''') (quoting NAACP v. Button, 371 U. S. 415, 429 (1963)); Escobedo v. Illinois, 378 U. S. 478, 486 (1964) (declining to "exalt form over substance" in determining the temporal scope of Sixth Amendment protections); Crowell v. Benson, 285 U. S. 22, 53 (1932) ("[R]egard must be had, ... in ... cases where constitutional limits are invoked, not to mere matters of form680but to the substance of what is required"); Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 235 (1897) ("In determining what is due process of law regard must be had to substance, not to form"); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 299 (1989) (O'CONNOR, J., concurring in part and dissenting in part) ("[T]he applicability of a provision of the Constitution has never depended on the vagaries of state or federal law").Furthermore, the arguments made by both parties demonstrate that it is far from clear, as a general matter, whether the balance of interests at stake is more favorable to the government in independent contractor cases than in employee cases. Our unconstitutional conditions precedents span a spectrum from government employees, whose close relationship with the government requires a balancing of important free speech and government interests, to claimants for tax exemptions, Speiser v. Randall, 357 U. S. 513 (1958), users of public facilities, e. g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 390-394 (1993); Healy v. James, 408 U. S. 169 (1972), and recipients of small government subsidies, e. g., FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984), who are much less dependent on the government but more like ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing. The First Amendment permits neither the firing of janitors nor the discriminatory pricing of state lottery tickets based on the government's disagreement with certain political expression. Independent contractors appear to us to lie somewhere between the case of government employees, who have the closest relationship with the government, and our other unconstitutional conditions precedents, which involve persons with less close relationships with the government. The Board's and the dissent's assertion, post, at 687, 696-697, that the decision below represents an unwarranted "extension" of681special protections afforded to government employees is, therefore, not persuasive.B 1The dissent's fears of excessive litigation, see post, at 697699, cannot justify a special exception to our unconstitutional conditions precedent to deprive independent government contractors of protection. Nor can its assertion that the allocation of government contracts on the basis of political bias is a "long and unbroken tradition of our people." Post, at 688. We do not believe that tradition legitimizes patronage contracting, regardless of whether one approaches the role of tradition in First Amendment adjudication from the perspective of Part I of the Rutan dissent, see post, at 687 (quoting Rutan v. Republican Party of Ill., 497 U. S. 62, 95 (1990) (SCALIA, J., dissenting)) (a practice that" 'bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic' " is presumed constitutional) (emphasis added), or from that of Justice Holmes, compare post, at 690 (quoting Holmes' discussion of traditional usage of legal terminology in a tax case) with Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting) (rejecting both the self-interested "logi[c]" and the long history of the suppression of free speech, including the Sedition Act of 1798 and "the common law as to seditious libel," in favor of the true "theory of our Constitution," which values free speech as essential to, not subject to the vicissitudes of, our political system).The examples to which the dissent cites, post, at 688-690, are not, in our view, "'the stuff out of which the Court's principles are to be formed,'" post, at 687 (quoting Rutan, supra, at 96 (SCALIA, J., dissenting)). Consider, for example, the practice of "courtroom patronage," whereby "[e]lected judges, who owe their nomination and election to the party, give the organization lucrative refereeships, trusteeships,682and receiverships which often yield legal fees unjustified by the work required," M. Tolchin & S. Tolchin, To The Victor:Political Patronage from the Clubhouse to the White House 15 (1971); see also Wolfinger, Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics 365, 367, 371 (1972) (similar), or the award of "gift[s]" to political supporters under the guise of research grants, Tolchin, supra, at 61, or the allocation of contracts based on "contributions resulting from the compound of bribery and extortion" and "kickbacks," A. Heard, The Costs of Democracy 143, 144 (1960), or the practice of "'beer politics,'" whereby "wholesale liquor licenses issued by the state were traded for campaign contributions," id., at 144, or the extortion of political support and "campaign contributions" on pain of being branded a "Communist," R. Caro, The Power Broker: Robert Moses and the Fall of New York 726 (1975), or the "favorable consideration in the courts or by public agencies" expected in one city by the clients of "'political' attorneys with part-time public jobs," Wolfinger, supra, at 389, or the question reportedly asked by a party official of a businessman who was reluctant to contribute to a mayoralty campaign, "'Look, you [expletive deleted], do you want a snow-removal contract or don't you?,'" id., at 368. These examples, cited by the dissent, many of which involve patronage in employment and appointments rather than in contracting, cf. Comment, Political Patronage, at 518, n. 4 ("[P]atronage systems have traditionally centered around the distribution of government jobs" (emphasis added)), may suggest that abuses of power in the name of patronage are not "highly unusual," post, at 710. It may also be the case that the victims whose speech is chilled and whose contributions are extracted by such government action are often " 'honorable and prudent businessmen.'" Post, at 689 (quoting Heard, supra, at 145). But the dissent's examples do not establish an "open and unchallenged" tradition of allocating government contracts on the basis of political bias-much683less on the basis of disapproval of political speech. The dissent's own sources note that the patronage practices that they report were denied and disavowed by their alleged practitioners, see Wolfinger, supra, at 367, n. 2, 372-373, n. 11, that they were most significant in secret and specialized contexts such as defense contracting that "operat[e] in an atmosphere uninhibited by the usual challenges of representative government," Tolchin, supra, at 233, and that in many cases they were illegal, see Heard, supra, at 143-144, n.4. We of course agree with the dissent that mere "obnoxious[ness]," post, at 690, and criminality do not make a practice unconstitutional. Nor, however, do the dissent's examples of covert, widely condemned, and sometimes illegal government action legitimize the government discrimination based on the viewpoint of one's speech or one's political affiliations that is involved here.2The dissent's own description of the "lowest-responsiblebidder" and other, similar requirements covering a wide range of government contracts that the Federal Government, all 50 States, and many local government authorities, have voluntarily adopted, see post, at 690-695, at least suggests that government contracting norms incompatible with political bias have proliferated without unduly burdening the government. In fact, lowest- and lowest-responsible-bidder requirements have a long history, as a survey of 19th century state constitutions and federal territorial legislation reveals. See, e. g., Ala. Const., Art. IV, § 30 (1875), in 1 Federal and State Constitutions 161 (F. Thorpe ed. 1909); Civil Government in Alaska Act, Tit. I, § 2 (1900), in id., at 243; Ark. Const., Art. XIX, §§ 15, 16 (1874), in id., at 366; Colo. Const., Art. V, § 29 (1876), in id., at 485; Del. Const., Art. XV; § 8 (1897), in id., at 631; Permanent Government for District of Columbia Act, § 5 (1878), in id., at 645-646; Ill. Const., Art. III, § 39 (1848), in 2 id., at 991; Ill. Const., Art. IV, § 25 (1870), in id., at 1022; Kan. Const., Art. XVI, § 2 (1858), in id., at6841236; Ky. Const., §247 (1890), in 3 id., at 1353; La. Const., Art. 42 (1879), in id., at 1447-1478; La. Const., Art. 44 (1898), in id., at 1529; Mich. Const., Art. IV, § 22 (1850), in 4 id., at 1948-1949; Miss. Const., Art. 4, § 107 (1890), in id., at 2102; Mont. Const., Art. V, § 30 (1889), in id., at 2308; Neb. Const., Art. II, §23 (1866-1867), in id., at 2353; Ohio Const., Art. XV; § 2 (1851), in 5 id., at 2932; Pa. Const., Art. III, § 12 (1873), in id., at 3127; Tex. Const., Art. XVI, § 21 (1876), in 6 id., at 3658-3659; W. Va. Const., Art. VI, § 34 (1872), in 7 id., at 4044; Wis. Const., Art. IV, § 25 (1848), in id., at 4083; Wyo. Const., Art. III, § 31 (1889), in id., at 4124; see also Ky. Const., § 164 (1890), in 3 id., at 1341 ("highest and best bidder" rule for municipal and local franchise awards); Miss. Const., Art. I, § 5 (1817, 1832), in 4 id., at 2033, 2049 ("[N]o person shall be molested for his opinions on any subject whatsoever, nor suffer any civil or political incapacity, or acquire any civil or political advantage, in consequence of such opinions, except in cases provided for in this constitution"). We are aware of no evidence of excessive or abusive litigation under such provisions. And, unlike the dissent, post, at 699-700, we do not believe that a deferentially administered requirement that the government not unreasonably terminate its commercial relationships on the basis of speech or political affiliation poses a greater threat to legitimate government interests than the complex and detailed array of modern statutory and regulatory government contracting rules.In sum, neither the Board nor U mbehr have persuaded us that there is a "difference of constitutional magnitude," Lefkowitz, 414 U. S., at 83, between independent contractors and employees in this context. Independent government contractors are similar in most relevant respects to government employees, although both the speaker's and the government's interests are typically-though not alwayssomewhat less strong in the independent contractor case.685We therefore conclude that the same form of balancing analysis should apply to each.IIIBecause the courts below assumed that U mbehr's termination (or nonrenewal) was in retaliation for his protected speech activities, and because they did not pass on the balance between the government's interests and the free speech interests at stake, our conclusion that independent contractors do enjoy some First Amendment protection requires that we affirm the Tenth Circuit's decision to remand the case. To prevail, U mbehr must show that the termination of his contract was motivated by his speech on a matter of public concern, an initial showing that requires him to prove more than the mere fact that he criticized the Board members before they terminated him. If he can make that showing, the Board will have a valid defense if it can show, by a preponderance of the evidence, that, in light of their knowledge, perceptions, and policies at the time of the termination, the Board members would have terminated the contract regardless of his speech. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977). The Board will also prevail if it can persuade the District Court that the County's legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake. And, if U mbehr prevails, evidence that the Board members discovered facts after termination that would have led to a later termination anyway, and evidence of mitigation of his loss by means of his subsequent contracts with the cities, would be relevant in assessing what remedy is appropriate.Finally, we emphasize the limited nature of our decision today. Because U mbehr's suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.686686 BOARD OF COMM'RS, WABAUNSEE CTY. v. UMBEHRSCALIA, J., dissentingSubject to these limitations and caveats, however, we recognize the right of independent government contractors not to be terminated for exercising their First Amendment rights. The judgment of the Court of Appeals is, therefore, affirmed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1995SyllabusBOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSASv. UMBEHRCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo. 94-1654. Argued November 28, 1995-Decided June 28,1996During the term of his at-will contract with Wabaunsee County, Kansas (County), to haul trash, respondent Umbehr was an outspoken critic of petitioner Board of County Commissioners (Board). After the commissioners voted to terminate (or prevent the automatic renewal of) the contract, allegedly because they took Umbehr's criticism badly, he brought this suit against two of them under 42 U. S. C. § 1983. The District Court granted them summary judgment, but the Tenth Circuit reversed in relevant part and remanded, holding that the First Amendment protects independent contractors from governmental retaliation against their speech, and that the extent of that protection must be determined by weighing the government's interests as contractor against the free speech interests at stake in accordance with the balancing test applied in the government employment context under Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568.Held: The First Amendment protects independent contractors from the termination or prevention of automatic renewal of at-will government contracts in retaliation for their exercise of the freedom of speech, and the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of that protection. Pp. 673-686.(a) Because of the obvious similarities between government employees and government contractors with respect to this issue, the Court is guided by its government employment precedents. Among other things, those precedents have recognized that government workers are constitutionally protected from dismissal for publicly or privately criticizing their employer's policies, see, e. g., Perry v. Sindermann, 408 U. S. 593, but have also acknowledged that the First Amendment does not guarantee absolute freedom of speech, see, e. g., Connick v. Myers, 461 U. S. 138, 146, and have required a fact-sensitive and deferential weighing of the government employer's legitimate interests against its employees' First Amendment rights, see, e. g., Pickering, supra, at 568. The parties' attempts to differentiate between inde-669pendent contractors and government employees are unavailing. Each of their arguments for and against the imposition of liability has some force, but all of them can be accommodated by applying the existing government employee framework. Moreover, application of the nuanced Pickering approach is superior to a bright-line rule giving the government carte blanche to terminate independent contractors for exercising their speech rights. Although both the individual's and the government's interests are typically-though not always-somewhat less strong in an independent contractor case, the fact that such contractors are similar in most relevant respects to government employees compels the conclusion that the same form of balancing analysis should apply to each. Pp. 673-681.(b) Neither the dissent's fears of excessive litigation, nor its assertion that the allocation of government contracts on the basis of political bias is a longstanding tradition, can deprive independent contractors of protection. Its own description of "lowest-responsible-bidder" requirements in a wide range of government contracting laws voluntarily adopted by federal and state authorities suggests that government contracting norms incompatible with political bias have proliferated without unduly burdening the government, and such laws have a long history. Pp. 681-685.(c) Because the courts below assumed that Umbehr's termination (or nonrenewal) was in retaliation for his protected speech activities, and did not pass on the balance between the government's interests and his free speech interests, the conclusion that independent contractors do enjoy some First Amendment protection requires affirmance of the Tenth Circuit's decision to remand the case. To prevail, Umbehr must show initially that the termination of his contract was motivated by his speech on a matter of public concern, see Connick, supra, at 146; he must therefore prove more than the mere fact that he criticized the Board members before he was terminated. If he can do so, the Board will have a valid defense if it can show, by a preponderance of the evidence, that, in light of their knowledge, perceptions, and policies at the time of the termination, the Board members would have terminated the contract regardless of his speech. See Mt. Healthy City Ed. of Ed. v. Doyle, 429 U. S. 274,287. The Board will also prevail if it can demonstrate that the County's legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake. See, e. g., Pickering, supra, at 568. And, if Umbehr prevails, evidence that the Board members discovered facts after termination that would have led to a later termination anyway, and evidence of mitigation of his loss by means of subsequent trash hauling contracts with cities in the County, would be relevant in assessing the appropriate remedy. Because670Full Text of Opinion

1972_71-1255

MR. JUSTICE BLACKMUN delivered the opinion of the Court.In this case, the Court is called upon to decide whether Page 413 U. S. 301 the Sixth Amendment [Footnote 1] grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U.S.App.D.C. 1, 461 F.2d 92 (1972). The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits. [Footnote 2] We granted certiorari Page 413 U. S. 302 to resolve the conflict and to decide this important constitutional question. 407 U.S. 909 (1972). We reverse and remand.IOn the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D.C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later, a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers' drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes.A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February, 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash's picture. At this time, Ash was not in custody, and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this Page 413 U. S. 303 bank robbery, in violation of D.C.Code Ann. § 22901 and 18 U.S.C. § 2113(a).Trial was finally set for May, 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment [Footnote 3] identification provides the basis for respondent Ash's claim that he was denied the right to counsel at a "critical stage" of the prosecution.No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays. [Footnote 4] The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by "clear and convincing" evidence that in-court identifications would be "based on observation of Page 413 U. S. 304 the suspect other than the intervening observation." App. 664.At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey's counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey's counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey's counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point, the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor's request and over the objection of defense counsel. [Footnote 5] Page 413 U. S. 305McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer.The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years.The five-member majority of the Court of Appeals held that Ash's right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May, 1968, before the trial. The majority relied on this Court's lineup cases, United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), and on Stovall v. Denno, 388 U. S. 293 (1967).The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U.S.App.D.C. at 7, 461 F.2d at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id. at 14-15 and nn. 20, 21, 461 F.2d at 105 106 and nn. 20, 21, but expressed doubt that the identifications at the trial had independent origins.Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage" requiring counsel, and criticized the majority's suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id. at 14-43, 461 F.2d at 106-134. Page 413 U. S. 306IIThe Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We reexamine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification. In Powell v. Alabama, 287 U. S. 45, 666 (1932), the Court discussed the English common law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes, and noted that,"in at least twelve of the thirteen colonies, the rule of the English common law, in the respect now under consideration, had been definitely rejected, and the right to counsel fully recognized in all criminal prosecutions save that, in one or two instances, the right was limited to capital offenses or to the more serious crimes."Id. at 287 U. S. 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common law rule. Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but Page 413 U. S. 307 the accused felon, in theory at least, [Footnote 6] could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U.S. at 287 U. S. 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355.A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland's well known observations in Powell bear repeating here:"Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."287 U.S. at 287 U. S. 69. The Court frequently has interpreted the Sixth Amendment Page 413 U. S. 308 to assure that the "guiding hand of counsel" is available to those in need of its assistance. See, for example, Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 344-345 (1963), and Argersinger v. Hamlin, 407 U. S. 25, 407 U. S. 31 (1972).Another factor contributing to the colonial recognition of the accused's right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development:"[E]arly in the eighteenth century, the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe's inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court."F. Heller, The Sixth Amendment 2021 (1951) (footnote omitted). Page 413 U. S. 309 Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 462-463 (138), spoke of this equalizing effect of the Sixth Amendment's counsel guarantee:"It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel."This historical background suggests that the core purpose of the counsel guarantee was to assure "Assistance" at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. [Footnote 7] Later developments have led this Court Page 413 U. S. 310 to recognize that "Assistance" would be less than meaningful if it were limited to the formal trial itself.This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations:"When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' Page 413 U. S. 311 stages of the proceedings."388 U.S. at 388 U. S. 224 (footnote omitted).The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U. S. 52 (1961), and in White v. Maryland, 373 U. S. 59 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U. S. 201 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U. S. 1 (1970), the accused was confronted by his adversary at a "critical stage" preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary.The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade:"The trial which might determine the accused's fate may well not be that in the courtroom but that, at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness -- 'that's the man.'"388 U.S. at 388 U. S. 235-236. Page 413 U. S. 312Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused's right to the "Assistance of Counsel" has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. 368 U.S. at 368 U. S. 54-55; 373 U.S. at 373 U. S. 60. In Massiah, counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution. 377 U.S. at 377 U. S. 205. Cf. Miranda v. Arizona, 384 U. S. 436, 384 U. S. 466 (1966). In Coleman, the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under Alabama law, the accused required "assistance" at that hearing. 399 U.S. at 399 U. S. 9.The function of counsel in rendering "assistance" continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused's memory might be dimmed by "emotional tension," that the accused's credibility at Page 413 U. S. 313 trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United States v. Wade, 388 U.S. at 388 U. S. 230-231. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel.This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals.IIIAlthough the Court of Appeals' majority recognized the argument that"a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone,"the court concluded that "other forms of prejudice," mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U.S.App.D.C. at 10, 461 F.2d at 101. These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display. [Footnote 8] Page 413 U. S. 314We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the "Assistance of Counsel" to preserve the adversary process by compensating for advantages of the prosecuting authorities.The above discussion of Wade has shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed to render "assistance" in counterbalancing any "overreaching" by the prosecution.After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that, if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the "gathering of the prosecution's evidence," such as, for Page 413 U. S. 315 particular example, the taking of fingerprints or blood samples. 388 U.S. at 388 U. S. 227.The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not "critical." Referring to fingerprints, hair, clothing, and other blood samples, the Court explained:"Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts."388 U.S. at 388 U. S. 227-228.The structure of Wade, viewed in light of the careful limitation of the Court's language to "confrontations," [Footnote 9] Page 413 U. S. 316 makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be "critical." The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a "critical" confrontation:"Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as 'critical.'"388 U.S. at 388 U. S. 239 (footnote omitted). See, however, id. at 388 U. S. 262 n. (opinion of Fortas, J.).The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F.2d 888 (1969), recognized that the "criticality" test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel:"None of the classical analyses of the assistance to be given by counsel, Justice Sutherland's in Powell v. Alabama . . . and Justice Black's in Johnson v. Page 413 U. S. 317 Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence, even when, as here, the defendant is under arrest; counsel is, rather, to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side, and to see to it that all available defenses are proffered. Many other aspects of the prosecution's interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense's interviews, notably with alibi witnesses."Id. at 899-900. We now undertake the threshold analysis that must be addressed.IVA substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial.Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor's trial preparation interviews with witnesses. Although photography Page 413 U. S. 318 is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 17th centuries, counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself.That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews. [Footnote 10] No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution. [Footnote 11] Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of Page 413 U. S. 319 a picture of the defendant would be useful to the prosecution. [Footnote 12] In this very case, for example, the initial tender of the photographic display was by Bailey's counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse, [Footnote 13] it does remove any inequality in the adversary process itself, and thereby fully satisfies the historical spirit of the Sixth Amendment's counsel guarantee.The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal, rather than photographic, displays. [Footnote 14] This Court has Page 413 U. S. 320 recognized that improved procedures can minimize the dangers of suggestion. Simmons v. United States, 390 U. S. 377, 390 U. S. 386 n. 6 (1968). Commentators have also proposed more accurate techniques. [Footnote 15]Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways, the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor, [Footnote 16] who, as so often has been said, may "strike hard blows," but not "foul ones." Berger v. United States, 295 U. S. 78, 295 U. S. 88 (1935); Brady v. Maryland, 373 U. S. 83, 373 U. S. 87-88 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U. S. 150 (1972); Mooney v. Holohan, 294 U. S. 103, 294 U. S. 112 (1935); Miller v. Pate, 386 U. S. 1 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973). These same safeguard apply to misuse of photographs. See Simmons v. United States, 390 U.S. at 390 U. S. 384. Page 413 U. S. 321We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in Simmons v. United States, 390 U.S. at 390 U. S. 384, the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U.S.App.D.C. at 7, 461 F.2d at 98. We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals' remand to the District Court.Reversed

U.S. Supreme CourtUnited States v. Ash, 413 U.S. 300 (1973)United States v. AshNo. 71-1255Argued January 10, 1973Decided June 21, 1973413 U.S. 300SyllabusThe Sixth Amendment does not grant an accused the right to have counsel present when the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. A pretrial event constitutes a "critical stage" when the accused requires aid in coping with legal problems or help in meeting his adversary. Since the accused is not present at the time of the photographic display, and, as here, asserts no right to be present, there is no possibility that he might be misled by his lack of familiarity with the law or overpowered by his professional adversary. United States v. Wade, 388 U. S. 218, distinguished. Pp. 413 U. S. 306-321.149 U.S.App.D.C. 1, 461 F.2d 92, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 413 U. S. 321. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 413 U. S. 326.

1970_120

MR. JUSTICE STEWART delivered the opinion of the Court.The question in this case is whether a Selective Service local board must reopen the classification of a registrant who claims that his conscientious objection to war in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date. The petitioner before us made no claim to conscientious objector status until after he received his induction notice. Before the induction date, he then wrote to his local board and asked to be allowed to present his claim. He represented that his views had matured only after the induction notice had made immediate the prospect of military service. After Selective Service proceedings not material here, the petitioner's local board notified him that it had declined to reopen his classification because the crystallization of his conscientious objection did not constitute the "change in the registrant's status resulting from circumstances over which the registrant had no control" required for post-induction notice reopening under a Selective Service regulation. [Footnote 1] The petitioner then refused to submit to induction, and a grand jury in the United States District Court for the Northern District of California indicted him for violation of the Military Selective Service Act of 1967. [Footnote 2] Page 402 U. S. 101The petitioner waived trial by jury, and the District Court, holding that ripening of conscientious objector views could not be a circumstance over which a registrant had no control, found the petitioner guilty. The conviction was affirmed by the United States Court of Appeals for the Ninth Circuit, sitting en banc, and we granted certiorari, 397 U.S. 1074, to resolve a conflict among the circuits over the interpretation of the governing Selective Service regulation. [Footnote 3]A regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would, we think, be perfectly valid, provided that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim. The Military Selective Service Act of 1967 confers on the President authority "to prescribe the necessary rules and regulations to carry out the provisions of this title. . . ." 50 U.S.C.App. § 460(b)(1). To read out of the authority delegated by this section the power to make reasonable timeliness rules would render it impossible to require the submission, before mailing Page 402 U. S. 102 of an induction notice, of a claim matured before that time. The System needs and has the power to make reasonable timeliness rules for the presentation of claims to exemption from service. [Footnote 4]A regulation barring post-induction notice presentation of conscientious objector claims, with the proviso mentioned, would be entirely reasonable as a timeliness rule. Selective Service boards must already handle pre-notice claims, and the military has procedures for processing conscientious objector claims that mature in the service. Allocation of the burden of handling claims that first arise in the brief period between notice and induction seems well within the discretion of those concerned with choosing the most feasible means for operating the Selective Service and military systems. Further, requiring in-service presentation of post-notice claims would deprive no registrant of any legal right, and would not leave a "no man's land" time period in which a claim then arising could not be presented in any forum.The only unconditional right conferred by statute upon conscientious objectors is exemption from combatant training and service. [Footnote 5] The Selective Service law, indeed, provides for noncombatant training and service for those objectors to whose induction there is no obstacle. [Footnote 6] Page 402 U. S. 103 The right to civilian service "in lieu of . . . induction" arises only if a registrant's "claim is sustained by the local board." It does not follow, given the power to make reasonable timeliness rules, that a registrant has an unconditional right to present his claim to the local board before induction, any more than he has such a right after induction. Congress seems rather carefully to have confined the unconditional right created by the statute to immunity from combatant training and service. Consequently, requiring those whose conscientious objection has not crystallized until after their induction notices to present their claims after induction would work no deprivation of statutory rights, so long as the claimants were not subjected to combatant training or service until their claims had been acted upon.That those whose views are late in crystallizing can be required to wait, however, does not mean they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria that must guide the Selective Service System. See Welsh v. United States, 398 U. S. 333. The very assertion of crystallization just before induction might cast doubt upon the Page 402 U. S. 104 genuineness of some claims, but there is no reason to suppose that such claims could not be every bit as bona fide and substantial as the claims of those whose conscientious objection ripens before notice or after induction. It would be wholly arbitrary to deny the late crystallizer a full opportunity to obtain a determination on the merits of his claim to exemption from combatant training and service just because his conscientious scruples took shape during a brief period in legal limbo. [Footnote 7] A system in which such persons could present their claims after induction, with the assurance of no combatant training or service before opportunity for a ruling on the merits, would be wholly consistent with the conscientious objector statute. [Footnote 8]The regulation we must interpret in this case does not unambiguously create such a system. Rather, it bars post-notice reopening"unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control."It is clear that the regulation was meant to cover at least such nonvolitional changes as injury to the registrant or death in his family making him the sole surviving son. The Government urges that Page 402 U. S. 105 the regulation be confined to just such "objectively identifiable" and "extraneous" events and circumstances. The petitioner contends that post-notice crystallization of conscientious objection is both a "circumstance" within the meaning of the regulation and one over which the registrant has no control.We need not take sides in the somewhat theological debates about the nature of "control" over one's own conscience that the phrasing of this regulation has forced upon so many federal courts. Rather, since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government's be such. Immigration Service v. Stanisic, 395 U. S. 62, 395 U. S. 72; Thorpe v. Housing Authority, 393 U. S. 268, 393 U. S. 276; Udall v. Tallman, 380 U. S. 1, 380 U. S. 16-17; Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 325 U. S. 413-414.The Government argues for an interpretation identical in effect with the unambiguous rule hypothecated above, which, we have said, would clearly be a reasonable timeliness rule, consistent with the conscientious objector statute. The Government's interpretation is a plausible construction of the language of the actual regulation, though admittedly not the only possible one. Given the ambiguity of the language, it is wholly rational to confine it to those "objectively identifiable" and "extraneous" circumstances that are most likely to prove manageable without putting undue burdens on the administration of the Selective Service System. It appears, moreover, that this position has been consistently urged by the Government in litigation when it was not foreclosed by adverse local precedent.There remains for consideration whether the conditions for the validity of such a rule, discussed above, are met in practice. It appears undisputed that, when an inductee Page 402 U. S. 106 presents a prima facie claim of conscientious objection that complies with timeliness rules for in service cognizability, he is given duty involving the minimum practicable conflict with his asserted beliefs. [Footnote 9] It is thus evident that armed forces policy substantially meets the requirement of no combat training or service before an opportunity for a ruling on the claim.As for the absence of any no man's land, the pertinent military regulations are somewhat inconsistent in their phrasing, perhaps because of the sharp division among the courts of appeals. They contain language appearing to recognize the obligation of the service to hear the claims of those whose alleged conscientious objection has crystallized between notice and induction, but they also contain formulations seeming to look the other way. [Footnote 10] Page 402 U. S. 107 We are assured, however, by a letter included in the briefs in this case from the General Counsel of the Department of the Army to the Department of Justice, that present practice allows presentation of such claims, and that there thus exists no possibility that late crystallizers will find themselves without a forum in which to press their claims. [Footnote 11] Our conclusion in this case is based upon that assurance. [Footnote 12] For if, contrary to that assurance, a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, see Welsh v. United States, supra, a wholly different case would be presented.Given the prevailing interpretation of the Army regulation, we hold that the Court of Appeals did not misconstrue the Selective Service regulation in holding that Page 402 U. S. 108 it barred presentation to the local board of a claim that allegedly arose between mailing of a notice of induction and the scheduled induction date. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit isAffirmed

U.S. Supreme CourtEhlert v. United States, 402 U.S. 99 (1971)Ehlert v. United StatesNo. 120Argued January 13, 1971Decided April 21, 1971402 U.S. 99SyllabusThe refusal of petitioner's local board to reopen his classification and pass on his conscientious objector claim, made after mailing of his induction notice but before induction, on the basis of a Selective Service regulation that permitted post-induction notice reopening only for a "change in the registrant's status resulting from circumstances over which the registrant had no control," held not unreasonable as a limitation on the time within which a local board must act on such a claim, in light of the Government's assurance that one whose beliefs assertedly crystallize after mailing of an induction notice will have full opportunity to obtain an in-service determination of his claim without having to perform combatant training or service pending such disposition. Pp. 402 U. S. 101-107. 422 F.2d 332, affirmed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACK, HARLAN, WHITE, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 402 U. S. 108. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 402 U. S. 119. Page 402 U. S. 100

1956_619

MR. JUSTICE CLARK delivered the opinion of the Court.This is a habeas corpus proceeding in which petitioner, a soldier, attacks the validity of a sentence of 20 years he is now serving as the result of his conviction by an Army court-martial of the offense of attempted rape. While serving in the United States Army in Korea, he was found guilty by a general court-martial of the separate offenses of premeditated murder and attempted rape of a Korean woman. He was given an aggregate sentence [Footnote 1] of life imprisonment for both offenses. The Army board of review found "incorrect in law and fact" the court-martial finding of guilty on the murder charge, but it approved the guilty finding for attempted rape. As to the sentence, the board found"that only so much of the approved sentence as provides for dishonorable discharge, total forfeitures, and confinement at hard labor for 20 years is correct in law and fact."As so modified, Page 353 U. S. 571 it approved the sentence. United States v. Fowler, 2 C.M.R. 336. The petitioner makes no attack on his original conviction on the attempted rape charge and its affirmance by the board. But he attacks the sentence of the board alleging that"the action of the Review Board in reserving twenty (20) years of the life sentence imposed by the Court-Martial for the crime of murder, even though it had reserved and set aside the conviction, was null and void."The District Court denied the writ and discharged the rule to show cause, Jackson v. Humphrey, 135 F. Supp. 776, holding that the board of review, on reversing the murder conviction, properly modified the sentence, and was not required to order a new trial or to remand the case for resentencing by the general court-martial. The Court of Appeals, in a unanimous opinion, affirmed. Jackson v. Taylor, 234 F.2d 611, 612. It held that the board of review, upon affirming the attempted rape conviction, was authorized to "affirm . . . such part or amount of the sentence, as it finds correct," citing Article 66(c) of the Uniform Code of Military Justice, 64 Stat. 128, 50 U.S.C. § 653(c). We believe the sentence must stand.Petitioner was tried with two other soldiers, and each was convicted of the same offenses, premeditated murder and attempted rape. Each was also sentenced to life imprisonment. The record of the trial was then forwarded to the convening authority, where the convictions and sentences were approved. In accordance with military procedure, the record was then forwarded with the convening authority's approval to a board of review in the office of the Judge Advocate General of the Army. That board, as already stated, found the murder convictions unsupported by the record, and set them aside, but sustained the convictions for attempted rape and modified the sentences. The soldiers then sought further review by petition before the United States Court of Military Page 353 U. S. 572 Appeals. No question regarding the authority of the review board to modify the sentences was raised, and the petition was denied without opinion. United States v. Fowler, 1 U.S.C.M.A. 713. The soldiers, having started to serve their sentences, were held in different prisons. Each filed a writ of habeas corpus in the district in which he was imprisoned, and each raised the same issue of the authority of the board of review to sentence in the manner described. A conflict between the Circuits has resulted, [Footnote 2] and we granted certiorari, limited to the gross sentence question, not only to resolve this conflict, but to settle an important question in the administration of the Uniform Code. 352 U.S. 940.Petitioner claims no deprivation of constitutional rights. He argues only that, under military law, the board of review should have ordered either a rehearing or that he be released, because it was without authority to impose the 20-year sentence.The review board derives its power from Article 66 of the Uniform Code of Military Justice, 64 Stat. 128, 50 U.S.C. § 653. [Footnote 3] We are concerned more particularly with subsection (c) of that section. It provides:"(c) In a case referred to it, the board of review shall act only with respect to the findings and sentence Page 353 U. S. 573 as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses."Here, the board relied on its power to "affirm . . . such part or amount of the sentence, as it finds correct. . . ." Petitioner argues, however, that the 20-year sentence was not a "part or amount" of the sentence imposed by the court-martial. He supports this by reference to the action of the law officer of the court-martial, who, after the findings of guilt were returned, advised its members in open court of the punishment it might impose. In view of the finding on the murder charge, he told the court-martial it had only two alternatives, a death sentence or life imprisonment. Art. of War 92, 62 Stat. 640. He made no reference to the punishment for attempted rape, the maximum for which is 20 years. Since the court-martial was required to impose a single sentence covering both of the guilty findings, [Footnote 4] it entered a life sentence. Petitioner claims there was no sentence on the attempted rape conviction, and, therefore, the entry of a 20-year sentence thereon by the board was an entirely new and independent imposition which was beyond its power. He bases this conclusion wholly on deduction. He contends that, since the law officer advised the court-martial only as to the punishment for murder, it follows that it did not sentence him on the attempted rape charge. But why should the officer go through the useless motion Page 353 U. S. 574 of instructing on the attempted rape when the court-martial, by law, was required to impose a sentence of death or life imprisonment? The sentence could have been no heavier unless it were death. What possible good would it have done for the court-martial, if it had been authorized, to add 20 or any other number of years onto a life sentence? In addition to the fact that the Uniform Code authorizes no such sentence, we should not construe the Act of Congress to require the doing of a useless act.But, the petitioner says, simple arithmetic shows that no sentence was imposed on the attempted rape finding. He reasons that the offense of premeditated murder carries a minimum punishment of life imprisonment, the exact sentence he received. The sentence therefore included no punishment covering the attempted rape finding he claims. It is true that the sentence was not broken down as to offenses. That is not permitted. However, the petitioner in his analysis overlooks entirely the requirement of military law that only the entry of a single gross sentence for both of the offenses is permitted. This Court has approved this practice. Carter v. McClaughry, 183 U. S. 365, 183 U. S. 393 (1902). See also McDonald v. Lee, 217 F.2d 619, 622 (1954); Winthrop, Military Law and Precedents (2d ed. 1920) 404. The sentence here was a gross sentence. It covered both the convictions. What the petitioner would have us do is to strike down this long practice, not only approved over the years by the Congress, but by our cases. This we cannot do.The question remains whether the board had the authority to modify the life sentence to 20 years after the murder conviction was set aside. Reviewing authorities have broad powers under military law. [Footnote 5] Unlike a Page 353 U. S. 575 civilian trial in most jurisdictions, the initial sentence under military law is imposed by the members of the court-martial. Otherwise, the court-martial performs functions more like those of a jury than a court. It is composed of laymen. See Art. 25 of the Uniform Code, 64 Stat. 116, 50 U.S.C. § 589. The powers of review, modification, and sentence adjustment under the Uniform Code rest elsewhere than on this body of laymen.Review of a court-martial conviction is first provided by the convening authority -- the commanding officer who directed that the case be tried before a court-martial. He is empowered to reduce a sentence, though he cannot increase it. He can weigh facts, determine credibility of witnesses, disapprove findings of guilt which he believes erroneous in law or fact, and determine sentence appropriateness without regard to what the court-martial might have done had it considered only the approved findings. Art. 64 of the Uniform Code, 64 Stat. 128, 50 U.S.C. § 651. He has other broad powers. See Manual for Courts-Martial, United States (1951), c. 17. Here, the convening authority approved the action of the court-martial.The next stage of review is that with which we are particularly concerned. It is conducted by the board of review composed of legally trained officers. [Footnote 6] Such boards first received statutory recognition in 1920. Art. of War 50 1/2, 41 Stat. 797-799. At that time, Congress gave them power to review, with the Judge Advocate General, records for legal sufficiency. By 1949, this power Page 353 U. S. 576 was increased to weigh facts, though, as petitioner argues, these boards still did not have power to determine sentence appropriateness. Art. of War 50(g), 62 Stat. 637. Such power was, however, given to the Judge Advocate General and a Judicial Council. [Footnote 7]Against this background of broad powers of review under military law, Congress began the drafting of the new Uniform Code of Military Justice. Their work culminated, so far as we are here concerned, with Article 66(c), supra. Petitioner finds the language of this section ambiguous, and argues that any ambiguity must be resolved in favor of the accused. That would be true if there were ambiguity in the section. But the words are clear. The board may "affirm . . . such part or amount of the sentence as it finds correct. . . ." That is precisely what the review board did here. It affirmed such part, 20 years, of the sentence, life imprisonment, as it found correct in fact and law for the offense of attempted rape. Were the words themselves unclear, the teachings from the legislative history of the section would compel the same result.The Uniform Code was drafted by a committee chairmanned by Professor Edmund M. Morgan, Jr. In testifying before the Senate Subcommittee which considered the bill, Professor Morgan stated with reference to the review board that it now"has very extensive powers. It may review law, facts, and, practically, sentences, because the provisions stipulate that the board of review shall affirm only so much of the sentence as it finds to be justified by the whole record. It gives the board of review . . . the power to review facts, law, and sentence. . . . "Page 353 U. S. 577Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess. 42. Military officials opposed giving the review boards power to alter sentences. Id. at 262, 285. The Subcommittee nevertheless decided the boards should have that power. Id. at 311. The Committee Report to the Senate augments the conclusion that the boards of review were to have the power to alter sentences. [Footnote 8] A study of the legislative history of the Code in the House of Representatives leads to the same conclusion. See H.R.Rep. No. 491, 81st Cong., 1st Sess. 31; 95 Cong.Rec. 5729. Article 66 was enacted in the language approved by the committees. It is manifest, then, that it was the intent of Congress that a board of review should exercise just such authority as was exercised here. [Footnote 9]Boards of review have been altering sentences from the inception of the Code provision. These alterations have been attacked, but have found approval in the courts, as Page 353 U. S. 578 is shown by the list of cases collected in the opinion of Judge Hastie in the Court of Appeals. 234 F.2d at 614, note 3. Petitioner objects, however, that the board of review should not have imposed the maximum sentence for attempted rape because the court-martial might have imposed a lesser sentence had it considered the matter initially. But this is an objection that might properly be addressed to Congress. It has laid down the military law, and it can take it away or restrict it. The Congress could have required a court-martial to enter a sentence on each separate offense, just as is done in the civilian courts. The board of review would then know the attitude of the court-martial as to punishment on each of its findings of guilt. But this the Congress did not do. The argument, therefore, falls since it is based on pure conjecture. No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt, but the sentence as well. Likewise, the apportionment of the sentence that the court-martial intended as between the offenses would be pure speculation. [Footnote 10] But, because of the gross sentence procedure in military law, we need not concern ourselves with these problems. Military law Page 353 U. S. 579 provides that one aggregate sentence must be imposed, and the board of review may modify that sentence in the manner it finds appropriate. To say in this case that a gross sentence was not imposed is to shut one's eyes to the realities of military law and custom.Finally, the petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure, and the petitioner points to none. [Footnote 11] The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone. See United States v. Keith, 1 U.S.C.M.A. 442, 451, 4 C.M.R. 34, 43 (1952). Even petitioner admits that it would now, six years after the trial, be impractical to attempt to reconvene the court-martial that decided the case originally. A court-martial has neither continuity nor situs, and often sits to hear only a single case. Because of the nature of military service, the members of a court-martial may be scattered throughout the world within a short time after a trial is concluded. Recognizing the Page 353 U. S. 580 impossibility of remand to the same court-martial, petitioner suggests as an alternative that the case should be remanded for a rehearing before a new court-martial. [Footnote 12] He admits that it would now be impractical for such a new court-martial to hear all of the evidence, and that the court would have to make its sentence determination on the basis of what it could learn from reading the record. Such a procedure would merely substitute one group of nonparticipants in the original trial for another. Congress thought the board of review could modify sentences when appropriate more expeditiously, more intelligently, and more fairly. Acting on a national basis, the board of review can correct disparities in sentences, and, through its legally trained personnel, determine more appropriately the proper disposition to be made of the cases. Congress must have known of the problems inherent in rehearing and review proceedings for the procedures were adopted largely from prior law. It is not for us to question the judgment of the Congress in selecting the process it chose.Affirmed

U.S. Supreme CourtJackson v. Taylor, 353 U.S. 569 (1957)Jackson v. TaylorNo. 619Argued April 30, 1957Decided June 3, 1957353 U.S. 569SyllabusA general court-martial found a soldier guilty of the separate offenses of premeditated murder and attempted rape and, in accordance with the usual practice, gave him an aggregate sentence of life imprisonment for both offenses. The Army Board of Review set aside the conviction on the murder charge, but it sustained the conviction for attempted rape and reduced the sentence to 20 years' imprisonment, which is the maximum sentence for attempted rape. In a habeas corpus proceeding, the soldier challenged the validity of the reduced sentence.Held: the action of the Board of Review in modifying the sentence to 20 years' imprisonment was authorized by Article 66(c) of the Uniform Code of Military Justice, and it is sustained. Pp. 353 U. S. 570-580.(a) A different result is not required by the facts that the law officer of the court-martial advised the court-martial that, in view of the finding on the murder charge, it had only two alternatives -- a death sentence or life imprisonment -- and that he made no reference to punishment for attempted rape, the maximum for which is 20 years. Pp. 353 U. S. 573-574.(b) The Board of Review had authority under Article 66(c) of the Uniform Code of Military Justice to modify the life sentence to 20 years after the murder conviction was set aside. Pp. 353 U. S. 574-577.(c) In view of the gross sentence practice required in court-martial proceedings and the power vested by law in the Board of Review to correct such a sentence, the Board's action cannot be set aside on the conjecture that the court-martial might have imposed less than the maximum sentence for attempted rape had it considered that offense separately. Pp. 353 U. S. 577-579.(d) The case should not be remanded for a rehearing before the court-martial on the question of sentence, since there is no specific authority for doing so under the Uniform Code of Military Justice, and Congress intended that the Board of Review should exercise this power. P. 353 U. S. 579.(e) Nor should the case be remanded for rehearing before a new court-martial, since the function of reviewing such sentences is vested by law in the Board of Review. Pp. 353 U. S. 579-580. Page 353 U. S. 570(f) Since the sentence here involved was legally imposed by military authorities, its severity is not reviewable on habeas corpus in the civil courts. P. 578, note 10234 F.2d 611 affirmed.

1975_74-1409

MR CHIEF JUSTICE BURGER delivered the opinion of the Court.The question presented in this case is whether an accused, subject to possible imprisonment, is denied due process when tried before a nonlawyer police court judge with a later trial de novo available under a State's two-tier court system; and whether a State denies equal protection by providing law-trained judges for some police courts and lay Judges for others, depending upon the State Constitution's classification of cities according to population.(1)Appellant Lonnie North was arrested in Lynch, Ky., on July 10, 1974, and charged with driving while intoxicated in violation of Ky.Rev.Stat.Ann. § 189.520(2) (1971). If a first offense, a penalty of a fine of from $100 to $500 is provided; if a subsequent offense, the same fine, and imprisonment for not more than six months. [Footnote 1] Ky.Rev.Stat.Ann. § 189.990(10)(a) (1971). Page 427 U. S. 330Appellant's trial was scheduled for July 18, 1974, at 7 p.m., before the Lynch City Police Court. Appellee C. B. Russell, who is not a lawyer, was the presiding judge. Appellant's request for a jury was denied although, under Kentucky law, he was entitled to a jury trial. Ky Const. § 11; Ky.Rev.Stat. Ann §§ 25.014, 26.400 (1971). Appellant pleaded not guilty. Appellant was found guilty and sentenced to 30 days in jail, a fine of § 150, and revocation of his driver's license.Section 156 of the Kentucky Constitution requires cities to be classified according to population size. There are six classes of cities: fifth-class cities have a population of between 1,000 and 3,000; sixth-class cities have a population of less than 1,000. Lynch is a fifth-class city. Ky.Rev.Stat.Ann. § 81.010(5) (1971). A police judge in fifth- and sixth-class cities must, by statute, be a voter and resident of the city for at least one year and be bonded, Ky.Rev.Stat.Ann. § 26.200 (1971); the police judge in such cities need not be a lawyer. Police judges in first-class cities, which have populations of over 100,000, must have the same qualifications as a circuit judge, who must be at least 35 years of age, a citizen of Kentucky, a two-year resident of the district, and a practicing attorney for eight years. [Footnote 2] Ky.Const. § 130; Ky.Rev.Stat.Ann. § 26.140 (1971). Police court judges have terms of four years. Page 427 U. S. 331 In fourth-, fifth-, or sixth-class cities police judges may be either appointed or elected. [Footnote 3] Ky.Const. § 160.Police courts have jurisdiction, concurrent with circuit courts, of penal and misdemeanor cases punishable by a fine of not more than § 500 and/or imprisonment of not more than 12 months. Ky.Rev.Stat.Ann. § 26.010 (1971). Kentucky has a two-tier misdemeanor court system. An appeal of right is provided from the decision of a police judge to the circuit court where all judges are lawyers, and in that court, a jury trial de novo may be had. Ky.Rev.Stat.Ann. § 23.032 (1971); Ky.Rule Crim.Proc. 12.06.Appellant did not appeal to the Kentucky circuit court for a trial de novo to which he was entitled. After being sentenced by appellee judge, appellant challenged the statutory scheme described above by a writ of habeas corpus in the Harlan County Circuit Court, where he was Page 427 U. S. 332 represented by an attorney. Appellant contended that his federal due process and equal protection rights had been abridged because he had been tried and convicted in a court presided over by a judge without legal training, and thus without legal competence. The State Circuit Court issued the writ, granted bail, and held an evidentiary hearing.The Circuit Court noted that appellant was not challenging the adequacy of the proceedings before appellee Russell, and hence rested on the appellant's pleadings, which the court found were purposefully limited to the issue whether appellant could be tried before a judge who was not legally trained when persons similarly situated but residing in larger cities would be tried by a judge trained in the law. The Circuit Court denied relief on the basis of the Kentucky Court of Appeals holding in Ditty v. Hampton, 490 S.W.2d 772 (1972), appeal dismissed, 414 U.S. 885 (1973). The Kentucky Court of Appeals in turn affirmed the denial of relief on the basis of Ditty v. Hampton, supra, noting that appellant could apply for bail in the event of an appeal from the Lynch Police Court judgment. 516 S.W.2d 103 (1974).When this case first came here on appeal we vacated the judgment and remanded it "for further consideration in light of the position presently asserted by the Commonwealth." 419 U.S. 1085 (1974). The Attorney General of Kentucky in his motion to dismiss or affirm had requested that this Court remand the case to the Kentucky Court of Appeals for consideration of violations of state law based on the suggestion that appellee judge had"mistakenly imposed a sentence of imprisonment upon appellant for a first offense of driving while intoxicated, whereas imprisonment is not an authorized punishment for first offenders. . . ."The Page 427 U. S. 333 Kentucky Attorney General conceded that the writ of habeas corpus should have been granted and requested an opportunity to correct the error.On remand, however, the Kentucky Court of Appeals declined to decide the case on the state grounds presented by the Attorney General, noting that the federal constitutional issue "was and is the only issue before us." That court noted that appellant sought only to "test the constitutional status of lay judges in criminal cases." No. 74-723 (Mar. 21, 1975).On the second appeal to this Court we noted probable jurisdiction. 422 U.S. 1040 (1975).(2)Appellant's first claim is that, when confinement is a possible penalty, a law-trained judge is required by the Due Process Clause of the Fourteenth Amendment whether or not a trial de novo before a lawyer-judge is available. [Footnote 4] Page 427 U. S. 334It must be recognized that there is a wide gap between the functions of a judge of a court of general jurisdiction, dealing with complex litigation, and the functions of a local police court judge trying a typical "drunk" driver case or other traffic violations. However, once it appears that confinement is an available penalty, the process commands scrutiny. See Argersinger v. Hamlin, 407 U. S. 25 (1972).Appellant argues that the right to counsel articulated in Argersinger v. Hamlin, supra, and Gideon v. Wainwright, 372 U. S. 335 (1963), is meaningless without a lawyer-judge to understand the arguments of counsel. Appellant also argues that the increased complexity of substantive and procedural criminal law requires that all judges now be lawyers in order to be able to rule correctly on the intricate issues lurking even in some simple misdemeanor cases. In the context of the Kentucky procedures, however, it is unnecessary to reach the question whether a defendant could be convicted and imprisoned after a proceeding in which the only trial afforded is conducted by a lay judge. In all instances, a defendant in Kentucky facing a criminal sentence is afforded an opportunity to be tried de novo in a court presided over by a lawyer-judge, since an appeal automatically vacates the conviction in police court. Ky.Rev.Stat.Ann. § 23.032 (1971); Ky.Rule Crim.Proc. Page 427 U. S. 335 12.06. The trial de novo is available after either a trial or a plea of guilty in the police court; a defendant is entitled to bail while awaiting the trial de novo. 516 S.W.2d 103 (1974).It is obvious that many defendants charged with a traffic violation or other misdemeanor may be uncounseled when they appear before the police court. They may be unaware of their right to a de novo trial after a judgment is entered, since the decision is likely to be prompt. We assume that police court judges recognize their obligation under Argersinger v. Hamlin, supra, to inform defendants of their right to a lawyer if a sentence of confinement is to be imposed. The appellee judge testified that informing defendants of a right to counsel was "the standard procedure." App. 32. We also assume that police court judges in Kentucky recognize their obligation to inform all convicted defendants, including those who waived counsel or for whom imprisonment was not imposed, of their unconditional right to a trial de novo and of the necessity that an "appeal" be filed within 30 days in order to implement that right. Ky.Rule Crim.Proc. 12.04.In Colten v. Kentucky, 407 U. S. 104 (1972), we considered Kentucky's two-tier system there challenged on other grounds. We noted:"The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky.Rule Crim.Proc. 12.06. Prosecution and defense begin anew. . . . The case is to be regarded exactly as if it had been brought there in the first instance."Id. at 407 U. S. 113. We went on to note that the justifications urged by Page 427 U. S. 336 States for continuing such tribunals [Footnote 5] are the "increasing burdens on state judiciaries" and the "interest of both the defendant and the State, to provide speedier and less costly adjudications" than those provided in courts "where the full range of constitutional guarantees is available. . . ." Id. at 407 U. S. 114. Moreover, state policy takes into account that it is a convenience to those charged to be tried in or near their own community, rather than travel to a distant court where a law-trained judge is provided, and to have the option, as here, of a trial after regular business hours. We took note of these practical considerations in Colten:"We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten's case are any evidence, the penalty is not characteristically severe. Such proceedings offer a defendant the opportunity to learn about the prosecution's case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction."Id. at 407 U. S. 118-119. Page 427 U. S. 337Under Ward v. Village of Monroeville, 409 U. S. 57, 409 U. S. 61-62 (1972), appellant argues that he is entitled to a lawyer-judge in the first instance. There the judge was also mayor and the village received a substantial portion of its income from fines imposed by him as judge. Similarly in Tumey v. Ohio, 273 U. S. 510 (1927), the challenge was directed not at the training or education of the judge but at his possible bias due to interest in the outcome of the case, because, as in Monroeville, he was both mayor and judge and received a portion of his compensation directly from the fines. Financial interest in the fines was thought to risk a possible bias in finding guilt and fixing the amount of fines, and the Court found that potential for bias impermissible.Under the Kentucky system, as we noted in Colten, a defendant can have an initial trial before a lawyer-judge by pleading guilty in the police court, thus bypassing that court and seeking the de novo trial, "erasing . . . any consequence that would otherwise follow from tendering the [guilty] plea." 407 U.S. at 407 U. S. 119-120.Our concern in prior cases with judicial functions being performed by nonjudicial officers has also been directed at the need for independent, neutral, and detached judgment, not at legal training. See Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 449-453 (1971). See also, e.g., Whiteley v. Warden, 401 U. S. 560, 401 U. S. 564 (1971); Katz v. United States, 389 U. S. 347, 389 U. S. 356 (1967); Wong Sun v. United States, 371 U. S. 471, 371 U. S. 481-482 (1963). Yet cases such as Shadwick v. City of Tampa, 407 U. S. 345 (1972), are relevant; lay magistrates and other judicial officers empowered to issue warrants must deal with evaluation of such legal concepts as probable cause and the sufficiency of warrant affidavits. Indeed, Page 427 U. S. 338 in Shadwick the probable cause evaluation made by the lay magistrate related to a charge of "impaired driving." [Footnote 6](3)Appellant's second claim is that Kentucky's constitutional provisions classifying cities by population and its statutory provisions permitting lay judges to preside in some cities while requiring law-trained judges in others denies him the equal protection guaranteed by the Fourteenth Amendment. However, all people within a given city and within cities of the same size are treated equally.The Kentucky Court of Appeals in Ditty v. Hampton, supra, articulated reasons for the differing qualifications of police court judges in cities of different size:"1. The greater volume of court business in the larger cities requires that judges be attorneys to enable the courts to operate efficiently and expeditiously (not necessarily with more fairness and impartiality).""2. Lawyers with whom to staff the courts are more available in the larger cities.""3. The larger cities have greater financial resources with which to provide better qualified personnel and better facilities for the courts."490 S.W.2d at 776. That court then noted: "That population and area factors may justify classifications within a court system has long been recognized." Id. at 776-777. The Court of Appeals relied upon Missouri v. Lewis, 101 Page 427 U. S. 339 U.S. 22 (1880), which held that, as long as all people within the classified area are treated equally:"Each State . . . may establish one system of courts for cities and another for rural districts, one system for one portion of its territory and another system for another portion. Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right."Id. at 101 U. S. 30-31. See generally Salsburg v. Maryland, 346 U. S. 545 (1954); Fay v. New York, 332 U. S. 261 (1947); Manes v. Goldin, 400 F. Supp. 23 (EDNY 1975) (three-judge court), summarily aff'd, 423 U. S. 1068 (1976).We conclude that the Kentucky two-tier trial court system, with lay judicial officers in the first tier in smaller cities and an appeal of right with a de novo trial before a traditionally law-trained judge in the second, does not violate either the due process or equal protection guarantees of the Constitution of the United States; accordingly the judgment before us isAffirmed

U.S. Supreme CourtNorth v. Russell, 427 U.S. 328 (1976)North v. RussellNo. 74-1409Argued December 9, 1975Decided June 28, 1976427 U.S. 328SyllabusUnder Kentucky's two-tier court system, police courts (the first tier) have jurisdiction of misdemeanor cases, but an accused has an appeal of right from a police judge's decision to the circuit court (the second tier), where there is a trial de novo. The State Constitution requires cities in Kentucky to be classified according to population size. By statute, judges of police courts in cities of less than a certain population need not be lawyers, but, in larger cities, they must be, and all circuit court judges are lawyers. In this challenge to the constitutionality of the statutory scheme, held:1. An accused, who is charged with a misdemeanor for which he is subject to possible imprisonment, is not denied due process when tried before a nonlawyer police court judge in one of the smaller cities, when a later trial de novo is available in the circuit court. Ward v. Village of Monroeville, 409 U. S. 57; Tumey v. Ohio, 273 U. S. 510, distinguished. Pp. 427 U. S. 333-339.2. Nor does the State deny such an accused equal protection of the laws by providing law-trained judges for some police courts and lay judges for others, depending upon the State Constitution's classification of cities according to population, since, as long as all people within each classified area are treated equally, the different classifications within the court system are justified. Missouri v. Lewis, 101 U. S. 22. Pp. 427 U. S. 338-339.Affirmed.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., concurred in the result. STEWART, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 427 U. S. 339. STEVENS, J., took no part in the consideration or decision of the case. Page 427 U. S. 329

1997_96-1769

purport to create a new "strand" of due process analysis, and it did not rely on the notion of a continuum of due process rights, as respondent claims. There is no such continuum. See, e. g., Murray v. Giarratano, 492 U. S. 1, 9-10. An examination of the function and significance of the discretionary clemency decision at issue here readily shows that it is far different from a first appeal as of right, and thus is not" 'an integral part of the ... system for finally adjudicating ... guilt or innocence,'" as Evitts, supra, at 393, requires. Pp. 279-285.JUSTICE O'CONNOR, joined by JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER, concluded that, because a prisoner under a death sentence has a continuing interest in his life, the question raised is what process is constitutionally necessary to protect that interest. Although due process demands are reduced once society has validly convicted an individual of a crime and therefore established its right to punish, Ford v. Wainwright, 477 U. S. 399, 429 (O'CONNOR, J., concurring in result in part and dissenting in part), the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process. However, a remand to permit the District Court to address respondent's specific allegations of due process violations is not required. The process he received comports with Ohio's regulations and observes whatever limitations the Due Process Clause may impose on clemency proceedings. Pp. 288-290.REHNQUIST, C. J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part III, the opinion of the Court with respect to Part I, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Part II, in which SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 288. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 290.William A. Klatt, First Assistant Attorney General of Ohio, argued the cause for petitioners. With him on the briefs were Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, Simon B. Karas, and Jon C. Walden, Assistant Attorney General.275S. Adele Shank argued the cause for respondent. With her on the brief were David H. Bodiker, by appointment of the Court, 522 U. S. 930, Michael J. Benza, by appointment of the Court, 522 U. S. 804, and Gregory W Meyers.*CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and III, and an opinion with respect to Part II in which JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join.This case requires us to resolve two inquiries as to constitutional limitations on state clemency proceedings. The*Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, William G. Prahl, Supervising Deputy Attorney General, and Ward A. Campbell, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark W Barnett of South Dakota, John Knox Walkup of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Richard Cullen of Virginia, Christine Q Gregoire of Washington, and William U. Hill of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Daniel T. Kobil, Steven R. Shapiro, and Diann Y. Rust-Tierney; and for the National Association of Criminal Defense Lawyers by Andrea D. Lyon and Barbara E. Bergman.Jerome J. Shestack filed a brief for the American Bar Association as amicus curiae.276first is whether an inmate has a protected life or liberty interest in clemency proceedings, under either Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), or Evitts v. Lucey, 469 U. S. 387 (1985). The second is whether giving inmates the option of voluntarily participating in an interview as part of the clemency process violates an inmate's Fifth Amendment rights.We reaffirm our holding in Dumschat, supra, that "pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review." Id., at 464 (footnote omitted). The Due Process Clause is not violated where, as here, the procedures in question do no more than confirm that the clemency and pardon powers are committed, as is our tradition, to the authority of the executive.1 We further hold that a voluntary inmate interview does not violate the Fifth Amendment.IThe Ohio Constitution gives the Governor the power to grant clemency upon such conditions as he thinks proper. Ohio Const., Art. III, § 2. The Ohio General Assembly cannot curtail this discretionary decisionmaking power, but it may regulate the application and investigation process. State v. Sheward, 71 Ohio St. 3d 513, 524-525, 644 N. E. 2d 369, 378 (1994). The General Assembly has delegated in large part the conduct of clemency review to petitioner Ohio Adult Parole Authority (Authority). Ohio Rev. Code Ann. § 2967.07 (1993).In the case of an inmate under death sentence, the Authority must conduct a clemency hearing within 45 days of the scheduled date of execution. Prior to the hearing, the inmate may request an interview with one or more paroleIJUSTICE STEVENS in dissent says that a defendant would be entitled to raise an equal protection claim in connection with a clemency decision. Post, at 292. But respondent has raised no such claim here, and therefore we have no occasion to decide that question.277board members. Counsel is not allowed at that interview. The Authority must hold the hearing, complete its clemency review, and make a recommendation to the Governor, even if the inmate subsequently obtains a stay of execution. If additional information later becomes available, the Authority may in its discretion hold another hearing or alter its recommendation.Respondent Eugene Woodard was sentenced to death for aggravated murder committed in the course of a carjacking. His conviction and sentence were affirmed on appeal, State v. Woodard, 68 Ohio St. 3d 70, 623 N. E. 2d 75 (1993), and this Court denied certiorari, 512 U. S. 1246 (1994). When respondent failed to obtain a stay of execution more than 45 days before his scheduled execution date, the Authority commenced its clemency investigation. It informed respondent that he could have a clemency interview on September 9, 1994, if he wished, and that his clemency hearing would be on September 16, 1994.Respondent did not request an interview. Instead, he objected to the short notice of the interview and requested assurances that counsel could attend and participate in the interview and hearing. When the Authority failed to respond to these requests, respondent filed suit in United States District Court on September 14, alleging under Rev. Stat. § 1979, 42 U. S. C. § 1983, that Ohio's clemency process violated his Fourteenth Amendment right to due process and his Fifth Amendment right to remain silent.The District Court granted the State's motion for judgment on the pleadings. The Court of Appeals for the Sixth Circuit affirmed in part and reversed in part. 107 F.3d 1178 (1997). That court determined that under a "first strand" of due process analysis, arising out of the clemency proceeding itself, respondent had failed to establish a protected life or liberty interest. It noted that our decision in Dumschat, supra, at 464-465, "decisively rejected the argument that278federal law can create a liberty interest in clemency." 107The Court of Appeals further concluded that there was no state-created life or liberty interest in clemency. Id., at 1184-1185. Since the Governor retains complete discretion to make the final decision, and the Authority's recommendation is purely advisory, the State has not created a protected interest. Olim v. Wakinekona, 461 U. S. 238, 249 (1983). The court noted that it would reach the same conclusion under Sandin v. Conner, 515 U. S. 472 (1995), to the extent that decision modified the Olim analysis.The Court of Appeals went on to consider, however, a "second strand" of due process analysis centered on "the role of clemency in the entire punitive scheme." 107 F. 3d, at 1186. The court relied on our statement in Evitts that "if a State has created appellate courts as 'an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant,' ... the procedures used in deciding appeals must comport with the demands of" due process. 469 U. S., at 393 (quoting Griffin v. Illinois, 351 U. S. 12, 18 (1956)). The court thought this reasoning logically applied to subsequent proceedings, including discretionary appeals, postconviction proceedings, and clemency.Due process thus protected respondent's "original" life and liberty interests that he possessed before trial at each proceeding. But the amount of process due was in proportion to the degree to which the stage was an "integral part" of the trial process. Clemency, while not required by the Due Process Clause, was a significant, traditionally available remedy for preventing miscarriages of justice when judicial process was exhausted. It therefore came within the Evitts framework as an "integral part" of the adjudicatory system. However, since clemency was far removed from trial, the process due could be minimal. The Court did not itself decide what that process should be, but remanded to the District Court for that purpose.279Finally, the Court of Appeals also agreed with respondent that the voluntary interview procedure presented him with a "Hobson's choice" between asserting his Fifth Amendment rights and participating in the clemency review process, raising the specter of an unconstitutional condition. 107 F. 3d, at 1189. There was no compelling state interest that would justify forcing such a choice on the inmate. On the other hand, the inmate had a measurable interest in avoiding incrimination in ongoing postconviction proceedings, as well as with respect to possible charges for other crimes that could be revealed during the interview. While noting some uncertainties surrounding application of the unconstitutional conditions doctrine, the Court of Appeals concluded the doctrine could be applied in this case.The dissenting judge would have affirmed the District Court's judgment. Id., at 1194. He agreed with the majority's determination that there was no protected interest under Dumschat. But he thought that the majority's finding of a due process interest under Evitts, supra, was necessarily inconsistent with the holding and rationale of Dumschat. Evitts did not purport to overrule Dumschat. He also concluded that respondent's Fifth Amendment claim was too speculative, given the voluntary nature of the clemency interview. We granted certiorari, 521 U. S. 1117 (1997), and we now reverse.IIRespondent argues first, in disagreement with the Court of Appeals, that there is a life interest in clemency broader in scope than the "original" life interest adjudicated at trial and sentencing. Ford v. Wainwright, 477 U. S. 399 (1986). This continuing life interest, it is argued, requires due process protection until respondent is executed.2 Relying on2 Respondent alternatively tries to characterize his claim as a challenge only to the application process conducted by the Authority, and not to the final discretionary decision by the Governor. Brief for Respondent 8. But, respondent still must have a protected life or liberty interest in the280Eighth Amendment decisions holding that additional procedural protections are required in capital cases, see, e. g., Beck v. Alabama, 447 U. S. 625, 637-638 (1980), respondent asserts that Dumschat does not control the outcome in this case because it involved only a liberty interest. JUSTICE STEVENS' dissent agrees on both counts. Post, at 291-292.In Dumschat, an inmate claimed Connecticut's clemency procedure violated due process because the Connecticut Board of Pardons failed to provide an explanation for its denial of his commutation application. The Court held that "an inmate has 'no constitutional or inherent right' to commutation of his sentence." 452 U. S., at 464. It noted that, unlike probation decisions, "pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review." Ibid. The Court relied on its prior decision in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979), where it rejected the claim "that a constitutional entitlement to release [on parole] exists independently of a right explicitly conferred by the State." Dumschat, 452 U. S., at 463-464. The individual's interest in release or commutation "'is indistinguishable from the initial resistance to being confined,'" and that interest has already been extinguished by the conviction and sentence. Id., at 464 (quoting Greenholtz, supra, at 7). The Court therefore concluded that a petition for commutation, like an appeal for clemency, "is simply a unilateral hope." 452 U. S., at 465.Respondent's claim of a broader due process interest in Ohio's clemency proceedings is barred by Dumschat. The process respondent seeks would be inconsistent with the heart of executive clemency, which is to grant clemency as aapplication process. Otherwise, as the Court of Appeals correctly noted, he is asserting merely a protected interest in process itself, which is not a cognizable claim. 107 F.3d 1178, 1184 (CA6 1997); see also Olim v. Wakinekona, 461 U. S. 238, 249-250 (1983).281matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations. The dissent agrees with respondent that because "a living person" has a constitutionally protected life interest, it is incorrect to assert that respondent's life interest has been "extinguished." Post, at 291. We agree that respondent maintains a residual life interest, e. g., in not being summarily executed by prison guards. However, as Greenholtz helps to make clear, respondent cannot use his interest in not being executed in accord with his sentence to challenge the clemency determination by requiring the procedural protections he seeks. 442 U. S., at 7.3The reasoning of Dumschat did not depend on the fact that it was not a capital case. The distinctions accorded a life interest to which respondent and the dissent point, post, at 291-292, 293-295, are primarily relevant to trial. And this Court has generally rejected attempts to expand any distinctions further. See, e. g., Murray v. Giarratano, 492 U. S. 1, 8-9 (1989) (opinion of REHNQUIST, C. J.) (there is no constitutional right to counsel in collateral proceedings for death row inmates; cases recognizing special constraints on capital proceedings have dealt with the trial stage); Satterwhite v. Texas, 486 U. S. 249, 256 (1988) (applying traditional standard of appellate review to a Sixth Amendment claim in a capital case); Smith v. Murray, 477 U. S. 527, 538 (1986) (applying same standard of review on federal habeas in capi-3 For the same reason, respondent's reliance on Ford v. Wainwright, 477 U. S. 399, 425 (1986), is misplaced. In Ford, the Court held that the Eighth Amendment prevents the execution of a person who has become insane since the time of trial. Id., at 410. This substantive constitutional prohibition implicated due process protections. This protected interest, however, arose subsequent to trial, and was separate from the life interest already adjudicated in the inmate's conviction and sentence. See id., at 425 (Powell, J., concurring). This interest therefore had not been afforded due process protection. The Court's recognition of a protected interest thus did not rely on the notion of a continuing "original" life interest.282tal and noncapital cases); Ford, supra, at 425 (Powell, J., concurring) (noting that the Court's decisions imposing heightened requirements on capital trials and sentencing proceedings do not apply in the postconviction context).4 The Court's analysis in Dumschat, moreover, turned not on the fact that it was a noncapital case, but on the nature of the benefit sought: "In terms of the Due Process Clause, a Connecticut felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope." 452 U. S., at 464 (footnote omitted). A death row inmate's petition for clemency is also a "unilateral hope." The defendant in effect accepts the finality of the death sentence for purposes of adjudication, and appeals for clemency as a matter of grace.Respondent also asserts that, as in Greenholtz, Ohio has created protected interests by establishing mandatory clemency application and review procedures. In Greenholtz, supra, at 11-12, the Court held that the expectancy of release on parole created by the mandatory language of the Nebraska statute was entitled to some measure of constitutional protection.Ohio's clemency procedures do not violate due process.Despite the Authority's mandatory procedures, the ultimate decisionmaker, the Governor, retains broad discretion. Under any analysis, the Governor's executive discretion need not be fettered by the types of procedural protections sought by respondent. See Greenholtz, supra, at 12-16 (recognizing the Nebraska parole statute created a protected liberty4 The dissent provides no basis for its assertion that the special considerations afforded a capital defendant's life interest at the trial stage "apply with special force to the final stage of the decisional process that precedes an official deprivation of life." Post, at 295. This not only ignores our case law to the contrary, supra, at 281 and this page, but also assumes that executive clemency hearings are part and parcel of the judicial process preceding an execution.283interest, yet rejecting a claim that due process necessitated a formal parole hearing and a statement of evidence relied upon by the parole board). There is thus no substantive expectation of clemency. Moreover, under Conner, 515 U. S., at 484, the availability of clemency, or the manner in which the State conducts clemency proceedings, does not impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Ibid.; see 107 F. 3d, at 1185-1186. A denial of clemency merely means that the inmate must serve the sentence originally imposed.Respondent also relies on the "second strand" of due process analysis adopted by the Court of Appeals. He claims that under the rationale of Evitts v. Lucey, 469 U. S. 387 (1985), clemency is an integral part of Ohio's system of adjudicating the guilt or innocence of the defendant and is therefore entitled to due process protection. Clemency, he says, is an integral part of the judicial system because it has historically been available as a significant remedy, its availability impacts earlier stages of the criminal justice system, and it enhances the reliability of convictions and sentences. Respondent further suggests, as did the Sixth Circuit, that Evitts established a due process continuum across all phases of the judicial process.In Evitts, the Court held that there is a constitutional right to effective assistance of counsel on a first appeal as of right. Id., at 396. This holding, however, was expressly based on the combination of two lines of prior decisions. One line of cases held that the Fourteenth Amendment guarantees a criminal defendant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal adequate and effective, including the right to counsel. See Griffin v. Illinois, 351 U. S., at 20; Douglas v. California, 372 U. S. 353 (1963). The second line of cases held that the Sixth Amendment right to counsel at trial comprehended the right to effective assistance of counsel. See Gideon v. Wainwright, 372 U. S. 335, 344 (1963); Cuyler v. Sullivan,284446 U. S. 335, 344 (1980). These two lines of cases justified the Court's conclusion that a criminal defendant has a right to effective assistance of counsel on a first appeal as of right. Evitts, supra, at 394-396.The Court did not thereby purport to create a new "strand" of due process analysis. And it did not rely on the notion of a continuum of due process rights. Instead, the Court evaluated the function and significance of a first appeal as of right, in light of prior cases. Related decisions similarly make clear that there is no continuum requiring varying levels of process at every conceivable phase of the criminal system. See, e. g., Giarratano, 492 U. S., at 9-10 (no due process right to counsel for capital inmates in state postconviction proceedings); Pennsylvania v. Finley, 481 U. S. 551, 555-557 (1987) (no right to counsel in state postconviction proceedings); Ross v. Moffitt, 417 U. S. 600, 610-611 (1974) (no right to counsel for discretionary appeals on direct review).An examination of the function and significance of the discretionary clemency decision at issue here readily shows it is far different from the first appeal of right at issue in Evitts. Clemency proceedings are not part of the trial-or even of the adjudicatory process. They do not determine the guilt or innocence of the defendant, and are not intended primarily to enhance the reliability of the trial process. They are conducted by the executive branch, independent of direct appeal and collateral relief proceedings. Greenholtz, 442 U. S., at 7-8. And they are usually discretionary, unlike the more structured and limited scope of judicial proceedings. While traditionally available to capital defendants as a final and alternative avenue of relief, clemency has not traditionally "been the business of courts." Dumschat, 452 U. S., at 464. Cf. Herrera v. Collins, 506 U. S. 390, 411-415 (1993) (recognizing the traditional availability and significance of clemency as part of executive authority, without suggesting that clemency proceedings are subject to judicial review); Ex285parte Grossman, 267 U. S. 87, 120-121 (1925) (executive clemency exists to provide relief from harshness or mistake in the judicial system, and is therefore vested in an authority other than the courts).Thus, clemency proceedings are not "'an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant,'" Evitts, supra, at 393 (quoting Griffin v. Illinois, supra, at 18). Procedures mandated under the Due Process Clause should be consistent with the nature of the governmental power being invoked. Here, the executive's clemency authority would cease to be a matter of grace committed to the executive authority if it were constrained by the sort of procedural requirements that respondent urges. Respondent is already under a sentence of death, determined to have been lawfully imposed. If clemency is granted, he obtains a benefit; if it is denied, he is no worse off than he was before.5IIIRespondent also presses on us the Court of Appeals' conclusion that the provision of a voluntary inmate interview, without the benefit of counselor a grant of immunity for any statements made by the inmate, implicates the inmate's Fifth and Fourteenth Amendment right not to incriminate himself. Because there is only one guaranteed clemency review, respondent asserts, his decision to participate is not truly voluntary. And in the interview he may be forced to answer questions; or, if he remains silent, his silence may be used against him. Respondent further asserts there is a substantial risk of incrimination since postconviction proceedings are in progress and since he could potentially incriminate himself on other crimes. Respondent therefore concludes that the interview unconstitutionally conditions his assertion5 The dissent mischaracterizes the question at issue as a determination to deprive a person of life. Post, at 290. That determination has already been made with all required due process protections.286of the right to pursue clemency on his waiver of the right to remain silent. While the Court of Appeals accepted respondent's rubric of "unconstitutional conditions," we find it unnecessary to address it in deciding this case. In our opinion, the procedures of the Authority do not under any view violate the Fifth Amendment privilege.The Fifth Amendment protects against compelled selfincrimination. See Baxter v. Palmigiano, 425 U. S. 308, 316-318 (1976). The record itself does not tell us what, if any, use is made by the board of the clemency interview, or of an inmate's refusal to answer questions posed to him at that interview. But the Authority in its brief dispels much of the uncertainty:"Nothing in the procedure grants clemency applicants immunity for what they might say or makes the interview in any way confidential. Ohio has permissibly chosen not to allow the inmate to say one thing in the interview and another in a habeas petition, and no amount of discovery will alter this feature of the procedure." Reply Brief for Petitioners 6.Assuming also that the Authority will draw adverse inferences from respondent's refusal to answer questions-which it may do in a civil proceeding without offending the Fifth Amendment, Palmigiano, supra, at 316-318-we do not think that respondent's testimony at a clemency interview would be "compelled" within the meaning of the Fifth Amendment. It is difficult to see how a voluntary interview could "compel" respondent to speak. He merely faces a choice quite similar to the sorts of choices that a criminal defendant must make in the course of criminal proceedings, none of which has ever been held to violate the Fifth Amendment.Long ago we held that a defendant who took the stand in his own defense could not claim the privilege against selfincrimination when the prosecution sought to cross-examine287him. Brown v. Walker, 161 U. S. 591, 597-598 (1896); Brown v. United States, 356 U. S. 148, 154-155 (1958). A defendant who takes the stand in his own behalf may be impeached by proof of prior convictions without violation of the Fifth Amendment privilege. Spencer v. Texas, 385 U. S. 554, 561 (1967). A defendant whose motion for acquittal at the close of the government's case is denied must then elect whether to stand on his motion or to put on a defense, with the accompanying risk that in doing so he will augment the government's case against him. McGautha v. California, 402 U. S. 183, 215 (1971). In each of these situations, there are undoubted pressures-generated by the strength of the government's case against him-pushing the criminal defendant to testify. But it has never been suggested that such pressures constitute "compulsion" for Fifth Amendment purposes.In Williams v. Florida, 399 U. S. 78 (1970), it was claimed that Florida's requirement of advance notice of alibi from a criminal defendant, in default of which he would be precluded from asserting the alibi defense, violated the privilege. We said:"Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice. That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled selfincrimination transgressing the Fifth and Fourteenth Amendments." Id., at 84-85 (footnote omitted).Here, respondent has the same choice of providing information to the Authority-at the risk of damaging his case for288clemency or for postconviction relief-or of remaining silent. But this pressure to speak in the hope of improving his chance of being granted clemency does not make the interview compelled. We therefore hold that the Ohio clemency interview, even on assumptions most favorable to respondent's claim, does not violate the Fifth Amendment privilege against compelled self-incrimination.IVWe hold that neither the Due Process Clause nor the Fifth Amendment privilege against self-incrimination is violated by Ohio's clemency proceedings. The judgment of the Court of Appeals is thereforeReversed

OCTOBER TERM, 1997SyllabusOHIO ADULT PAROLE AUTHORITY ET AL. v. WOODARDCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 96-1769. Argued December 10, 1997-Decided March 25,1998After respondent Woodard's Ohio murder conviction and death sentence were affirmed on direct appeal and this Court denied certiorari, petitioner Ohio Adult Parole Authority commenced its clemency investigation in accordance with state law, informing respondent that he could have his voluntary interview with Authority members on a particular date, and that his clemency hearing would be held a week later. Respondent filed this suit under 42 U. S. C. § 1983, alleging that Ohio's clemency process violated his Fourteenth Amendment due process right and his Fifth Amendment right to remain silent. The District Court granted judgment on the pleadings to the State, and the Sixth Circuit affirmed in part and reversed in part. Noting that Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458, 464-465, had decisively rejected the argument that federal law can create a liberty interest in clemency, the latter court held that respondent had failed to establish a life or liberty interest protected by due process. The court also held, however, that respondent's "original" pretrial life and liberty interests were protected by a "second strand" of due process analysis under Evitts v. Lucey, 469 U. S. 387, 393, although the amount of process due could be minimal because clemency, while an "integral part" of the adjudicatory system, is far removed from trial. The court remanded for the District Court to decide what that process should be. Finally, the Sixth Circuit concluded that Ohio's voluntary interview procedure presented respondent with a "Hobson's choice" between asserting his Fifth Amendment privilege against self-incrimination and participating in Ohio's clemency review process, thereby raising the specter of an unconstitutional condition.Held: The judgment is reversed. 107 F.3d 1178, reversed.THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III, concluding that giving an inmate the option of voluntarily participating in an interview as part of the clemency process does not violate his Fifth Amendment rights. That Amendment protects against compelled self-incrimination. See Baxter v. Palmigiano, 425273u. S. 308, 316-318. Even on assumptions most favorable to respondent's claim-i. e., that nothing in the clemency procedure grants applicants immunity for what they might say or makes the interview in any way confidential, and that the Authority will draw adverse inferences from respondent's refusal to answer questions-his testimony at a voluntary interview would not be "compelled." He merely faces a choice quite similar to those made by a criminal defendant in the course of criminal proceedings. For example, a defendant who chooses to testify in his own defense abandons the privilege against self-incrimination when the prosecution seeks to cross-examine him, and may be impeached by proof of prior convictions. In these situations, the undoubted pressures to testify that are generated by the strength of the government's case do not constitute "compulsion" for Fifth Amendment purposes. See Williams v. Florida, 399 U. S. 78,84-85. Similarly, respondent here has the choice of providing information to the Authority-at the risk of damaging his case for clemency or for postconviction relief-or of remaining silent, but the pressure to speak does not make the interview compelled. Pp. 285-288.THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS, concluded in Part II that an inmate does not establish a violation of the Due Process Clause in clemency proceedings, under either Dumschat or Evitts, where, as here, the procedures in question do no more than confirm that such decisions are committed, as is the Nation's tradition, to the executive's authority. This Court reaffirms its holding in Dumschat, supra, at 464, that pardon and commutation decisions are rarely, if ever, appropriate subjects for judicial review. Respondent's argument that there is a continuing life interest in clemency that is broader in scope than the "original" life interest adjudicated at trial and sentencing is barred by Dumschat. The process respondent seeks would be inconsistent with the heart of executive clemency, which is to grant clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations. Although respondent maintains a residual life interest, e. g., in not being summarily executed by prison guards, he cannot use that interest to challenge the clemency determination by requiring the procedural protections he seeks. Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1, 7. Also rejected is respondent's claim that clemency is entitled to due process protection under Evitts. Expressly relying on the combination of two lines of cases to justify the conclusion that a criminal defendant has a right to effective assistance of counsel on a first appeal as of right, 469 U. S., at 394-396, the Evitts Court did not274Full Text of Opinion

1977_77-380

MR. JUSTICE MARSHALL. delivered the opinion of the Court.Under the basic federal mining statute, which derives from an 1872 law, [Footnote 1] "all valuable mineral deposits in lands belonging to the United States" are declared "free and open to exploration and purchase." 30 U.S.C. § 22. [Footnote 2] The question presented Page 436 U. S. 606 is whether water is a "valuable mineral" as those words are used in the mining law.IA claim to federal land containing "valuable mineral deposits" may be "located" by complying with certain procedural requisites; one who locates a claim thereby gains the exclusive right to possession of the land, as well as the right to extract minerals from it. See generally 30 U.S.C. §§ 21-54; 1 American Law of Mining § 1.17 (1973). The claim at issue in this case, known as Claim 22, is one of a group of 23 claims near Las Vegas, Nev., that were located in 1942. In 1962, after respondent had purchased these claims, it discovered water on Claim 22 by drilling a well thereon. This water was used to prepare for commercial sale the sand and gravel removed from some of the 23 claims.In 1965, the Secretary of the Interior filed a complaint with the Bureau of Land Management, seeking to have all of these claims declared invalid on the ground that the only minerals discovered on them were "common varieties" of sand and gravel, which had been expressly excluded from the definition of "valuable minerals" by a 1955 statute. § 3, 69 Stat. 368, 30 U.S.C. § 611. [Footnote 3] At the administrative hearing Page 436 U. S. 607 on the Secretary's complaint, the principal issue was whether the sand and ;ravel deposits were "valuable" prior to the effective date of the 1955 legislation, in which case the claims would be valid. [Footnote 4] The Administrative Law Judge concluded after hearing the evidence that respondent had established pre-1955 value only as to Claim 10. On appeals taken by both respondent and the Government, the Interior Board of Land Appeals (IBLA) affirmed the Administrative Law Judge in all respects here relevant. 9 I.B.L.A. 94 (1973). [Footnote 5]Respondent sought review in the United States District Court for the District of Nevada. [Footnote 6] The court concluded that Page 436 U. S. 608 the decisions of the Administrative Law Judge and the IBLA were not supported by the evidence and that "at least" Claims 1 through 16 were valid. App. to Pet. for Cert. 26a. The court further held "that access to claim No. 22 must be permitted so that the water produced from the well on that claim may be made available to the operations on the valid claims." Ibid. The IBLA's decision was accordingly vacated, and the case remanded to the Department of the Interior.On the Government's appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 553 F.2d 1209 (1977). It agreed with the District Court as to Claims 1 Page 436 U. S. 609 through 16, and also agreed that respondent was entitled to access to the water on Claim 22. It grounded the latter conclusion, however, "upon a rationale other than hat relied upon by the District Court," id. at 1215, a rationale that had not been briefed or argued in either the District Court or the Court of Appeals. Noting that, "[s]ince early times, water has been regarded as a mineral," ibid., the appellate court stated that it could not assume "that Congress was not aware of the necessary glove of water for the hand of mining and [that] Congress impliedly intended to reserve water from those minerals allowed to be located and recovered," id. at 1216. Since the water at Claim 22 "has an intrinsic value in the desert area," and has additional value at the particular site "as a washing agent for . . . sand and gravel," the court ruled that respondent's "claim for the extraction of [Claim 22's] water is valid." Ibid. [Footnote 7]The difference between the District Court's and the Court of Appeals' rationales for allowing access to Claim 22 is a significant one. The District Court held only that respondent is entitled to use the water on the claim; the Court of Appeals, by contrast, held that the claim itself is valid. If the claim is indeed valid, respondent is not merely entitled to access to the water thereon, but also has exclusive possessory rights to the land and may keep others from making any use of it. By complying with certain procedures, moreover, respondent could secure a "patent" from the Government conveying fee simple title to the land. See 30 U.S.C. §§ 29, 37; 1 American Law of Mining 1.23 (1973). See generally Union Oil Co. v. Smith, 249 U. S. 337, 249 U. S. 348-349 (1919). In Page 436 U. S. 610 view of the significance of the determination that a mining claim to federal land is valid, the Government sought review here of the Court of Appeals' sua sponte holding regarding Claim 22's validity. The single question presented in the petition is "[w]hether water is a locatable mineral under the mining law of 1872." Pet. for Cert. 2.We granted certiorari, 434 U.S. 964 (1977), and we now reverse.IIWe may assume for purposes of this decision that the Court of Appeals was correct in concluding that water is a "mineral," in the broadest sense of that word, and that it is "valuable." Both of these facts are necessary to a holding that a claimant has located a "valuable mineral deposit" under the 1872 law, 30 U.S.C. § 22, but they are hardly sufficient.This Court long ago recognized that the word "mineral," when used in an Act of Congress, cannot be given its broadest definition. In construing an Act granting certain public lands, except "mineral lands," to a railroad, the Court wrote:"The word 'mineral' is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus the scientific division of all matter into the animal, vegetable or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom. . . . Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as 'any constituent of the earth's crust.' . . ."Northern Pacific R. Co. v. Soderberg, 188 U. S. 526, 188 U. S. 530 (1903). In the context of the 1872 mining law, similar conclusions must be drawn. As one court observed, if the term "mineral" in the statute were construed to encompass all substances that are conceivably mineral, "there would be justification for making mine locations on virtually every part of the earth's Page 436 U. S. 611 surface," since "a very high proportion of the substances of the earth are, in that sense, mineral." Rummell v. Bailey, 7 Utah 2d 137, 140, 320 P.2d 653, 655 (1958). See also Robert L. Beery, 25 I.B.L.A. 287, 294-296 (1976) (noting that "common dirt," while literally a mineral, cannot be considered locatable under the mining law); Holman v. Utah, 41 L.D. 314, 315 (1912); 1 American Law of Mining, supra, § 2.4, p. 168.The fact that water may be valuable or marketable similarly is not enough to support a mining claim's validity based on the presence of water. Many substances present on the land may be of value, and indeed it seems likely that land itself -- especially land located just 15 miles from downtown Las Vegas, see 553 F.2d at 1211 -- has, in the Court of Appeals' words, "an intrinsic value," id. at 1216. Yet the federal mining law surely was not intended to be a general real estate law; as one commentator has written, "the Congressional mandate did not sanction the disposal of federal lands under the mining laws for purposes unrelated to mining." 1 American Law of Mining, supra, § 1.18, p. 56; cf. Holman v. Utah, supra, (distinguishing mining law from homestead and other agricultural entry laws). In order for a claim to be valid, the substance discovered must not only be a "valuable mineral" within the dictionary definition of those words, but must also be the type of valuable mineral that the 1872 Congress intended to make the basis of a valid claim. [Footnote 8]IIIThe 1872 law incorporates two provisions involving water rights that derive from earlier mining Acts. See 17 Stat. 995. In 1866, in Congress' first major effort to regulate Page 436 U. S. 612 mining on federal lands, it provided for the protection of the "vested rights" of "possessors and owners" "to the use of water for mining, agricultural, manufacturing or other purposes," to the extent that these rights derive from "priority of possession" and "are recognized and acknowledged by the local customs, laws, and the decisions of courts." 30 U.S.C. 51. [Footnote 9] In 1870, Congress again emphasized its view that water rights derive from "local" law, not federal law, making"[a]ll patents granted . . . subject to any vested and accrued water rights . . . as may have been acquired under or recognized by [the 1866 provision]."30 U.S.C. § 52. [Footnote 10]In discussing these mining law provisions on the subject of water rights, this Court has often taken note of the history of mining in the arid Western States. In 1879, Mr. Justice Field of California, writing for the Court, described in vivid terms the influx of miners that had shaped the water rights law of his State and its neighbors:"The lands in which the precious metals were found belonged to the United States, and were unsurveyed. . . . Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canons, Page 436 U. S. 613 and probing the earth in all directions for the precious metals. . . . But the mines could not be worked without water. Without water, the gold would remain forever buried in the earth or rock. . . . The doctrines of the common law respecting the rights of riparian owners were not considered as applicable . . . to the condition of miners in the mountains. . . . Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of . . . ditches and flumes, and the protection of rights to water. . . . "Jennison v. Kirk, 98 U. S. 453, 98 U. S. 457-458 (1879). See also Basey v. Gallagher, 20 Wall. 670, 87 U. S. 681-684 (1875) (Field, J.); Atchison v. Peterson, 20 Wall. 507, 87 U. S. 510-515 (1874) (Field, J.). Over a half century later, Mr. Justice Sutherland set out this same history in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 295 U. S. 154-155 (1935). He then explained that the water rights provisions of the 1866 and 1870 laws were intended to"approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain."Id. at 295 U. S. 155.Our opinions thus recognize that, although mining law and water law developed together in the West prior to 1866, with respect to federal lands, Congress chose to subject only mining to comprehensive federal regulation. When it passed the 1866 and 1870 mining laws, Congress clearly intended to preserve "preexisting [water] right[s]." Broder v. Natom Water & Mining Co., 101 U. S. 274, 101 U. S. 276 (1879). Less than 15 years after passage of the 1872 law, the Secretary of the Interior, in two decisions, ruled that water is not a locatable mineral under the law, and that private water rights on federal lands are, instead, "governed by local customs and laws," Page 436 U. S. 614 pursuant to the 1866 and 1870 provisions. Charles Lennig, 5 L.D.190, 191 (1886); see William A. Chessman, 2 L.D. 774, 775 (1883). The Interior Department, which is charged with principal responsibility for "regulating the acquisition of rights in the public lands," Cameron v. United States, 252 U. S. 450, 252 U. S. 460 (1920) has recently reaffirmed this interpretation. Robert L. Beery, 25 I.B.L.A. 287 (1976).In ruling to the contrary, the Court of Appeals did not refer to 30 U.S.C. §§ 51 and 52, which embody the 1866 and 1870 provisions; to our opinions construing these provisions; or to the consistent course of administrative rulings on this question. Instead, without benefit of briefing, the court below decided that "it would be incongruous . . . to hazard that Congress was not aware of the necessary glove of water for the hand of mining." 553 F.2d at 1216. Congress was indeed aware of this, so much aware that it expressly provided a water rights policy in the mining laws. But the policy adopted is a "passive" one, 2 Waters and Water Rights § 102.1, p. 53 (R. Clark ed.1967); Congress three times (in 1866, 1870, and 1872) affirmed the view that private water rights on federal lands were to be governed by state and local law and custom. It defies common sense to assume that Congress, when it adopted this policy, meant at the same time to establish a parallel federal system for acquiring private water rights, and that it did so sub silentio through laws designed to regulate mining. In light of the 1866 and 1870 provisions, the history out of which they arose, and the decisions construing them in the context of the 1872 law, the notion that water is a "valuable mineral" under that law is simply untenable.IVThe conclusion that Congress did not intend water to be locatable under the federal mining law is reinforced by consideration of the practical consequences that could be expected to flow from a holding to the contrary. Page 436 U. S. 615AMany problems would undoubtedly arise simply from the fact of having two overlapping systems for acquisition of private water rights. Under the appropriation doctrine prevailing in most of the Western States, the mere fact that a person controls land adjacent to a body of water means relatively little; instead, water rights belong to "[t]he first appropriator of water for a beneficial use," but only "to the extent of his actual use," California Oregon Power Co. v. Beaver Portland Cement Co., supra at 295 U. S. 154; see Jennison v. Kirk, supra at 98 U. S. 458; W. Hutchins, Selected Problems in the Law of Water Rights in the West 30-32, 389-403 (1942); McGowen, The Development of Political Institutions on the Public Domain, 11 Wyo. L.J. 1, 14 (1957). Failure to use the water to which one is entitled for a certain period of time generally causes one's rights in that water to be deemed abandoned. See generally 2 W. Hutchins, Water Rights Laws in the Nineteen Western States 256-328 (1974).With regard to minerals located under federal law, an entirely different theory prevails. The holder of a federal mining claim, by investing $100 annually in the claim, becomes entitled to possession of the land, and may make any use, or no use, of the minerals involved. See 30 U.S.C. § 28. Once fee title by patent is obtained, see supra at 436 U. S. 609, even the $100 requirement is eliminated.One can readily imagine the legal conflicts that might arise from these differing approaches if ordinary water were treated as a federally cognizable "mineral." A federal claimant could, for example, utilize all of the water extracted from a well like respondent's, without regard for the settled prior appropriation rights of another user of the same water. [Footnote 11] Or Page 436 U. S. 616 he might not use the water at all, and yet prevent another from using it, thereby defeating the necessary Western policy in favor of "actual use" of scarce water resources. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. at 295 U. S. 154. As one respected commentator has written, allowing water to be the basis of a valid mining claim"could revive long abandoned common law rules of ground water ownership and capture, and . . . could raise horrendous problems of priority and extralateral rights. [Footnote 12]"We decline to effect so major an alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.BA final indication that water should not be held to be a locatable mineral derives from Congress' 1955 decision to remove "common varieties" of certain minerals from the coverage of the mining law. 30 U.S.C. § 611; see supra at 436 U. S. 606-607, and n. 5. This decision was made in large part because of"abuses under the general mining laws by . . . persons who locate[d] mining claims on public lands for purposes other than that of legitimate mining activity."H.R.Rep. No. 730, 84th Cong., 1st Sess., 5 (1955); see S.Rep. No. 554, 84th Cong., 1st Sess., 4-5 (1955). Apparently, locating a claim and obtaining a patent to federal land were so inexpensive that many "use[d] the guise of mining locations for nonmining purposes," including the establishment of "filling stations, curio shops, cafes, . . . residence[s] [and] summer camp[s]." H.R.Rep. No. 730, p. 6; see S.Rep. No. 554, p. 5. Page 436 U. S. 617Water, of course, is among the most common of the earth's elements. While it may not be as common in the federal lands subject to the mining law as it is elsewhere, it is nevertheless common enough to raise the possibility of abuse by those less interested in extracting mineral resources than in obtaining title to valuable land. [Footnote 13] See Robert L. Beery, 25 I.B.L.A. at 296-297. Given the unprecedented nature of the Court of Appeals' decision, it is hardly surprising that the 1955 Congress did not include water on its list of "common varieties" of minerals that cannot confer validity on a mining claim. But the concerns that Congress addressed in the 1955 legislation indicate that water, like the listed minerals, should not be considered a locatable mineral under the 1872 mining law.VIt has long been established that, when grants to federal land are at issue, any doubts "are resolved for the Government, not against it." United States v. Union Pacific R. Co., 353 U. S. 112, 353 U. S. 116 (1957). A fortiori, the Government must prevail in a case such as this, when the relevant statutory provisions, their historical context, consistent administrative and judicial decisions, and the practical problems with a contrary holding all weigh in its favor. Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtAndrus v. Charlestone Stone Products Co., 436 U.S. 604 (1978)Andrus v. Charlestone Stone Products Co.,No. 77-380Argued April 18, 1978Decided May 31, 1978436 U.S. 604SyllabusThe basic federal mining statute, 30 U.S.C. § 22, which derives from an 1872 law, provides that "all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase." Respondent, after purchasing a. number of mining claims, discovered water on one of them (Claim 22) and used the water to prepare for commercial sale the sand and gravel removed from the claims. On review of unfavorable administrative decisions against respondent's claims in proceedings challenging their validity, the District Court held, inter alia, that respondent was entitled to access to Claim 22's water, and the Court of Appeals affirmed, adding sua sponte that Claim 22 itself is valid because of the water thereon.Held: Water is not a "valuable mineral" within the meaning of 30 U.S.C. § 22, and hence is not a locatable mineral thereunder. Pp. 436 U. S. 610-617.(a) The fact that water may be a "mineral" in the broadest sense of that word is not sufficient for a holding that a claimant has located a "valuable mineral deposit" under § 22; nor is the fact that water may be valuable or marketable enough to support a mining claim's validity based on the presence of water. In order for a claim to be valid, the substance discovered must not only be a "valuable mineral" within the dictionary definition of those words, it must also be the type of valuable mineral that the 1872 Congress intended to make the basis of a valid claim. Pp. 436 U. S. 610-611.(b) The relevant statutory provisions, which reflect the view that water is not a locatable mineral under the mining statutes and that private water rights on federal lands are to be governed by state and local law and custom; the history out of which such statutes arose; the decisions of the Department of the Interior construing the statutes in line with such view; and the practical problems that would arise if two overlapping systems for acquisition of private water rights were permitted, all support the conclusion that Congress did not intend water to be locatable under the federal mining law. Pp. 436 U. S. 611-617.553 F.2d 1209, reversed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 436 U. S. 605

1965_815

Opinion of the Court by MR. CHIEF JUSTICE WARREN, announced by MR. JUSTICE BRENNAN.Petitioner, Elmer Davis, Jr., was tried before a jury in the Superior Court of Mecklenburg County, North Carolina, on a charge of rape-murder. At trial, a written confession and testimony as to an oral confession were offered in evidence. Defense counsel objected on the ground that the confessions were involuntarily given. The trial judge heard testimony on this issue, ruled that the confessions were made voluntarily, and permitted them to be introduced in evidence. The jury returned a verdict of guilty without a recommendation for life imprisonment, and Davis was sentenced to death.The conviction was affirmed on appeal by the Supreme Court of North Carolina, 253 N.C. 86, 116 S.E.2d 365, and this Court denied certiorari. 365 U.S. 855. Davis then sought a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. The writ was denied without an evidentiary hearing on the basis of the state court record . 196 F. Supp. 488. Page 384 U. S. 739 On appeal, the Court of Appeals for the Fourth Circuit reversed and remanded the case to the District Court for an evidentiary hearing on the issue of the voluntariness of Davis' confessions. 310 F.2d 904. A hearing was held in the District Court, following which the District Judge again held that the confessions were voluntary. 221 F. Supp. 494. The Court of Appeals for the Fourth Circuit, after argument and then resubmission en banc, affirmed with two judges dissenting. 339 F.2d 770. We granted certiorari. 382 U.S. 953.We are not called upon in this proceeding to pass on the guilt or innocence of the petitioner of the atrocious crime that was committed. Nor are we called upon to determine whether the confessions obtained are true or false. Rogers v. Richmond, 365 U. S. 534 (1961). The sole issue presented for review is whether the confessions were voluntarily given or were the result of overbearing by police authorities. Upon thorough review of the record, we have concluded that the confessions were not made freely and voluntarily, but rather that Davis' will was overborne by the sustained pressures upon him. Therefore, the confessions are constitutionally inadmissible, and the judgment of the court below must be reversed.Had the trial in this case before us come after our decision in Miranda v. Arizona, 384 U. S. 436, we would reverse summarily. Davis was taken into custody by Charlotte police and interrogated repeatedly over a period of 16 days. There is no indication in the record that police advised him of any of his rights until after he had confessed orally on the 16th day. [Footnote 1] This would Page 384 U. S. 740 be clearly improper under Miranda. Id. at 384 U. S. 478-479, 384 U. S. 492. Similarly, no waiver of rights could be inferred from this record, since it shows only that Davis was repeatedly interrogated and that he denied the alleged offense prior to the time he finally confessed. Id. at 384 U. S. 476, 384 U. S. 499.We have also held today, in Johnson v. New Jersey, ante, p. 384 U. S. 719, that our decision in Miranda, delineating procedures to safeguard the Fifth Amendment privilege against self-incrimination during in-custody interrogation, is to be applied prospectively only. Thus, the present case may not be reversed solely on the ground that warnings were not given, and waiver not shown. As we pointed out in Johnson, however, the nonretroactivity of the decision in Miranda does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo v. Illinois, 378 U. S. 478 (1964). This Court has undertaken to review the voluntariness of statements obtained by police in state cases since Brown v. Mississippi, 297 U. S. 278 (1936). The standard of voluntariness which has evolved in state cases under the Due Process Clause of the Fourteenth Amendment is the same general standard which applied in federal prosecutions -- a standard grounded in the policies of the privilege against self-incrimination. Malloy v. Hogan, 378 U. S. 1, 378 U. S. 6-8 (1964).The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo and Miranda is not limited in any manner by these decisions. On the contrary, that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made. This factor has been recognized in several of our prior decisions Page 384 U. S. 741 dealing with standards of voluntariness. Haynes v. Washington, 373 U. S. 503, 373 U. S. 510-511 (1963); Culombe v. Connecticut, 367 U. S. 568, 367 U. S. 610 (1961); Turner v. Pennsylvania, 338 U. S. 62, 338 U. S. 64 (1949). See also Gallegos v. Colorado, 370 U. S. 49, 370 U. S. 54, 370 U. S. 55 (1962). Thus, the fact that Davis was never effectively advised of his rights gives added weight to the other circumstances described below which made his confessions involuntary.As is almost invariably so in cases involving confessions obtained through unobserved police interrogation, there is a conflict in the testimony as to the events surrounding the interrogations. Davis alleged that he was beaten, threatened, and cursed by police, and that he was told he would get a hot bath and something to eat as soon as he signed a statement. This was flatly denied by each officer who testified. [Footnote 2] Davis further stated that he had repeatedly asked for a lawyer, and that police refused to allow him to obtain one. This was also denied. Davis' sister testified at the habeas corpus hearing that she twice came to the police station and asked to see him, but that each time police officers told her Davis was not having visitors. Police officers testified that, on the contrary, upon learning of Davis' desire to see his sister, they went to her home to tell her Davis wanted to see her, but she informed them she was busy with her children. These factual allegations were resolved against Davis by the District Court, and we need not review these specific findings here.It is our duty in this case, however, as in all of our prior cases dealing with the question whether a confession was involuntarily given, to examine the entire record Page 384 U. S. 742 and make an independent determination of the ultimate issue of voluntariness. E.g., Haynes v. Washington, 373 U. S. 503, 373 U. S. 515-516 (1963); Blackburn v. Alabama, 361 U. S. 199, 361 U. S. 205 (1960); Ashcraft v. Tennessee, 322 U. S. 143, 322 U. S. 147-148 (1944). Wholly apart from the disputed facts, a statement of the case from facts established in the record, in our view, leads plainly to the conclusion that the confessions were the product of a will overborne.Elmer Davis is an impoverished Negro with a third or fourth grade education. His level of intelligence is such that it prompted the comment by the court below, even while deciding against him on his claim of involuntariness, that there is a moral question whether a person of Davis' mentality should be executed. Police first came in contact with Davis while he was a child, when his mother murdered his father, and thereafter knew him through his long criminal record, beginning with a prison term he served at the age of 15 or 16.In September, 1959, Davis escaped from a state prison camp near Asheville, North Carolina, where he was serving sentences of 17 to 25 years. On September 20, 1959, Mrs. Foy Belle Cooper was raped and murdered in the Elmwood Cemetery in the City of Charlotte, North Carolina. On September 21, police in a neighboring county arrested Davis in Belmont, 12 miles from Charlotte. He was wearing civilian clothes and had in his possession women's undergarments and a billfold with identification papers of one Bishel Buren Hayes. Hayes testified at trial that his billfold and shoes had been taken from him while he lay in a drunken sleep near the Elmwood Cemetery on September 20.Charlotte police learned of Davis' arrest and contacted the warden of the state prison to get permission to take Davis into their custody in connection with the Cooper murder and other felonies. Having obtained permission, Page 384 U. S. 743 they took Davis from Belmont authorities and brought him to the detective headquarters in Charlotte. From the testimony of the officers, it is beyond dispute that the reason for securing Davis was their suspicion that he had committed the murder. [Footnote 3]The second and third floors of the detective headquarters building contain lockup cells used for detention overnight and occasionally for slightly longer periods. It has no kitchen facilities for preparing meals. The cell in which Davis was placed measures 6 by 10 feet, and contains a solid steel bunk with mattress, a drinking fountain, and a commode. It is located on the inside of the building, with no view of daylight. It is ventilated by two exhaust fans located in the ceiling of the top floor of the building. Despite the fact that a county jail equipped and used for lengthy detention is located directly across the street from detective headquarters, Davis was incarcerated in this cell on an upper floor of the building for the entire period until he confessed. [Footnote 4] Police Chief Jesse James testified: "I don't know anybody who has stayed in the city jail as long as this boy."When Davis arrived at the detective headquarters, an arrest sheet was prepared giving various statistics concerning Page 384 U. S. 744 him. On this arrest sheet was typed the following illuminating directive:"HOLD FOR HUCKS & FESPERMAN RE -- MRS. COOPER. ESCAPEE FROM HAYWOOD COUNTY STILL HAS 15 YEARS TO PULL. DO NOT ALLOW ANYONE TO SEE DAVIS. OR ALLOW HIM TO USE TELEPHONE."Both at trial and at the habeas corpus hearing the testimony of police officers on this notation was nearly uniform. Each officer testified that he did not put that directive on the arrest sheet, that he did not know who did, and that he never knew of it. The police captain first testified at trial that there had never been an order issued in the police department that Davis was not to see or talk to anybody. He cited as an example the fact that Davis' sister came to see him (after Davis had confessed). He testified later in the trial, however:"I don't know, it is possible I could have ordered this boy to be held without privilege of communicating with his friends, relatives, and held without the privilege of using the telephone or without the privilege of talking to anybody. . . . No, I did not want him to talk to anybody. For the simple reason he was an escaped convict, and it is the rules and regulations of the penal system that if he is a C grade prisoner, he is not permitted to see anyone alone or write anyone letters, and I was trying to conform to the state regulations. [Footnote 5] "Page 384 U. S. 745The District Court found as a fact that, from September 21 until after he confessed on October 6, neither friend nor relative saw Davis. It concluded, however, that Davis was not held incommunicado, because he would have been permitted visitors had anyone requested to see him. In so finding, the District Court noted specifically the testimony that police officers contacted Davis' sister for him. But the court made no mention whatever of the notation on the arrest sheet or the testimony of the police captain.The stark wording of the arrest sheet directive remains, as does Captain McCall's testimony. The denials and evasive testimony of the other officers cannot wipe this evidence from the record. Even accepting that police would have allowed a person to see Davis had anyone actually come, the directive stands unassailably as an indicium of the purpose of the police in holding Davis. As the dissenting judges below stated:"The instruction not to permit anyone access to Davis and not to allow him to communicate with the outside world can mean only that it was the determination of his custodians to keep him under absolute control where they could subject him to questioning at will in the manner and to the extent they saw fit, until he would confess."339 F.2d at 780. Moreover, the uncontested fact that no one other than the police spoke to Davis during the 16 days of detention and interrogation that preceded his Page 384 U. S. 746 confessions is significant in the determination of voluntariness.During the time Davis was held by Charlotte police, he was fed two sandwiches, described by one officer as "thin" and "dry," twice a day. This fare was occasionally supplemented with peanuts and other "stuff" such as cigarettes brought to him by a police officer. [Footnote 6] The District Court found that the food was the same served prisoners held overnight in the detention jail, and that there was no attempt by police to weaken Davis by inadequate feeding. The State contends that "two sandwiches twice a day supplemented by peanuts "and other stuff" was not such a poor diet, for an idle person doing no work, as to constitute a violation of due process of law." Brief for Respondent, p. 7.We may readily agree that the record does not show any deliberate attempt to starve Davis, compare Payne v. Arkansas, 356 U. S. 560 (1958), and that his diet was not below a minimum necessary to sustain him. Nonetheless, the diet was extremely limited, and may well have had a significant effect on Davis' physical strength, and therefore his ability to resist. There is evidence in the record, not rebutted by the State, that Davis lost 15 pounds during the period of detention.From the time Davis was first brought to the overnight lockup in Charlotte on September 21, 1959, until he confessed on the 16th day of detention, police officers conducted daily interrogation sessions with him in a special interrogation room in the building. [Footnote 7] These sessions each Page 384 U. S. 747 lasted "forty-five minutes or an hour, or maybe a little more," according to one of the interrogating officers. Captain McCall testified that he had assigned his entire force of 26 to 29 men to investigate the case. From this group, Detectives Hucks and Fesperman had primary responsibility for interrogating Davis. These officers testified to interrogating him once or twice each day throughout the 16 days. Three other officers testified that they conducted several interrogation sessions at the request of Hucks and Fesperman. Although the officers denied that Davis was interrogated at night, one testified that the interrogation periods he directed were held some time prior to 11 p.m. [Footnote 8] Captain McCall also interrogated Davis once.According to each of the officers, no mention of the Cooper murder was made in any of the interrogations between September 21 and October 3. Between these dates, they interrogated Davis extensively with respect to the stolen goods in his possession. It is clear from the record, however, that these interrogations were directly related to the murder, and were not simply questioning as to unrelated felonies. The express purpose of this line of questioning was to break down Davis' alibis as to where he had obtained the articles. By destroying Davis' contention that he had taken the items from homes some Page 384 U. S. 748 distance from Charlotte, Davis could be placed at the scene of the crime. [Footnote 9]In order to put pressure on Davis with respect to these alibis police took him from the lockup on October 1 to Page 384 U. S. 749 have him point out where he had stolen the goods. Davis had told the officers that he took the items from houses along the railroad line between Canton and Asheville. To disprove this story, Davis was aroused at 5 a.m. and driven to Canton. There, his leg shackles were removed and he walked on the railroad tracks, handcuffed to an officer, 14 miles to Asheville. When Davis was unable to recognize any landmark along the way or any house that he had burglarized, an officer confronted him with the accusation that his story was a lie. The State points out that Davis was well fed on this day, that he agreed to make the hike, and contends that it was not so physically exhausting as to be coercive. The coercive influence was not, however, simply the physical exertion of the march, but also the avowed purpose of that trek -- to break down his alibis to the crime of murder.On the afternoon of October 3, two officers planned and carried out a ruse to attempt to get Davis to incriminate himself in some manner. They engaged Davis in idle conversation for 10 to 20 minutes and then inquired whether he would like to go out for "some fresh air." They then took Davis from the jail and drove him into Page 384 U. S. 750 the cemetery to the scene of the crime in order to observe his reaction.The purpose of these excursions and of all of the interrogation sessions was known to Davis. On the day of the drive to the cemetery, the interrogators shifted tactics and began questioning Davis specifically about the murder. [Footnote 10] They asked him if he knew why he was being held. He stated that he believed it was with respect to the Cooper murder. Police then pressed him, asking, "Well, did you do it?" He denied it. The interrogation sessions continued through the next two days. Davis consistently denied any knowledge of the crime. [Footnote 11]On October 6, Detectives Hucks and Fesperman interrogated Davis for the final time. Lieutenant Sykes, who had known Davis' family, but who had not taken part in any of the prior interrogation sessions because he had been away on vacation, asked to sit in. During this interrogation, after repeated earlier denials of guilt, Davis refused to answer questions concerning the crime. At about 12:45 p.m., Lieutenant Sykes inquired of Davis if he would like to talk to any of the officers alone about Mrs. Cooper. Davis said he would like to talk to Sykes. The others left the room. Lieutenant Sykes then asked Davis if he had been reading a testament which he was holding. Davis replied that he had. Sykes asked Davis if he had been praying. Davis replied that he did not know how to pray, and agreed he would like Sykes to pray for him. The lieutenant offered a short Page 384 U. S. 751 prayer. At that point, as the dissent below aptly put it, the prayers of the police officer were answered -- Davis confessed. He was driven to the cemetery and asked to reenact the crime. Police then brought him back to the station where he repeated the confession to several of the officers. In the presence of six officers, a two-page statement of the confession Davis had made was transcribed. Although based on the information Davis had given earlier, Captain McCall dictated this statement employing his own choice of format, wording, and content. He paused periodically to ask Davis if he agreed with the statement so far. Each time Davis acquiesced. Davis signed the statement. [Footnote 12] Captain McCall then contacted the press and stated, "He finally broke down today." [Footnote 13]The concluding paragraphs of this confession, dictated by the police, contain, along with the standard disclaimer that the confession was free and voluntary, a statement that unwittingly summarizes the coercive effect on Davis of the prolonged period of detention and interrogation. They read:"In closing, I want to say this. I have known in my own mind that [sic] you people were holding me for, and all the time I have been lying in jail, it has been worrying me, and I knew that sooner or later, I would have to tell you about it.""I have made this statement freely and voluntarily. Captain McCall has dictated this statement Page 384 U. S. 752 in the presence of Detectives W. F. Hucks, E. F. Fesperman, H. C. Gardner, C. E. Davis, and Detective Lieutenant C. L. Sykes. I am glad it is over, because I have been going thru a big strain."The facts established on the record demonstrate that Davis went through a prolonged period in which substantial coercive influences were brought to bear upon him to extort the confessions that marked the culmination of police efforts. Evidence of extended interrogation in such a coercive atmosphere has often resulted in a finding of involuntariness by this Court. E.g., Culombe v. Connecticut, 367 U. S. 568 (1961); Fikes v. Alabama, 352 U. S. 191 (1957); Turner v. Pennsylvania, 338 U. S. 62 (1949). We have never sustained the use of a confession obtained after such a lengthy period of detention and interrogation as was involved in this case.The fact that each individual interrogation session was of relatively short duration does not mitigate the substantial coercive effect created by repeated interrogation in these surroundings over 16 days. So far as Davis could have known, the interrogation in the overnight lockup might still be going on today had he not confessed. Moreover, as we have noted above, the fact that police did not directly accuse him of the crime until after a substantial period of eroding his will to resist by a tangential line of interrogation did not reduce the coercive influence brought to bear upon him. Similarly, it is irrelevant to the consideration of voluntariness that Davis was an escapee from a prison camp. Of course Davis was not entitled to be released. But this does not alleviate the coercive effect of his extended detention and repeated interrogation while isolated from everyone but the police in the police jail.In light of all of the factors discussed above, the conclusion is inevitable -- Davis' confessions were the involuntary end product of coercive influences and are thus constitutionally inadmissible in evidence. Accordingly, Page 384 U. S. 753 the judgment of the Court of Appeals for the Fourth Circuit must be reversed and the case remanded to the District Court. On remand, the District Court should enter such orders as are appropriate and consistent with this opinion, allowing the State a reasonable time in which to retry petitioner.Reversed

U.S. Supreme CourtDavis v. North Carolina, 384 U.S. 737 (1966)Davis v. North CarolinaNo. 815Argued April 28, 1966Decided June 20, 1966384 U.S. 737SyllabusPetitioner, an impoverished Negro of low mentality with a third or fourth grade education, was arrested after his escape from a state prison camp. Charlotte city police took him into custody in connection with a murder investigation, and kept him in a detention cell for 16 days, where he spoke to no one but the police, who interrogated him intermittently each day. He finally confessed to the crime. There is no indication in the record that police advised him of any of his rights until after his confessions. At his trial for rape-murder, a written confession and testimony of an oral confession were introduced in evidence despite counsel's objection that the confessions were involuntary. Petitioner was found guilty and sentenced to death. The conviction was affirmed by the North Carolina Supreme Court. The Federal District Court denied a writ of habeas corpus, but the Court of Appeals reversed and remanded to the District Court for an evidentiary hearing on the voluntariness of the confessions. The District Court, following a hearing, held the confessions voluntary, and the Court of Appeals affirmed.Held: Petitioner's confessions were the involuntary end product of coercive influences, and thus constitutionally inadmissible in evidence. Pp. 384 U. S. 739-753.(a) Had this trial occurred after Miranda v. Arizona, ante, p. 384 U. S. 436, the decision below would be reversed summarily. P. 384 U. S. 739.(b) As Johnson v. New Jersey, ante, p. 384 U. S. 719, points out, the nonretroactivity of Miranda does not affect a court's duty to consider the voluntariness of statements under the standards of voluntariness which had begun to evolve long prior to Miranda and Escobedo v. Illinois, 378 U. S. 478. P. 384 U. S. 740.(c) The fact that a defendant was not advised of his right to remain silent or of his right to counsel at the outset of interrogation, as is now required by Miranda, is significant in considering the voluntariness of later statements. Pp. 384 U. S. 740-741.(d) It is this Court's duty to examine the entire record and make an independent determination of the ultimate issue of voluntariness. Pp. 384 U. S. 741-742. Page 384 U. S. 738(e) The uncontested fact that no one other than the police spoke to petitioner during his 16 days' detention and interrogation is significant in determining voluntariness. Pp. 384 U. S. 745-746.(f) Evidence of extended interrogation in a coercive atmosphere, as here, has often resulted in a finding of involuntariness by this Court, e.g., Fikes v. Alabama, 352 U. S. 191. This Court has never sustained the use of a confession obtained after such a lengthy period of detention and interrogation as occurred here. P. 384 U. S. 752.339 F.2d 770 reversed and remanded.

1987_86-728

JUSTICE BRENNAN delivered the opinion of the Court.As a condition of federal financial assistance, the Education of the Handicapped Act requires States to ensure a "free appropriate public education" for all disabled children within their jurisdictions. In aid of this goal, the Act establishes a comprehensive system of procedural safeguards designed to ensure parental participation in decisions concerning the education of their disabled children, and to provide administrative and judicial review of any decisions with which those parents disagree. Among these safeguards is the so-called "stay-put" provision, which directs that a disabled child "shall remain in [his or her] then current educational placement" pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree. 20 U.S.C. § 1415(e)(3). Today we must decide whether, in the face of this statutory proscription, state or local school authorities may nevertheless unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities. In addition, we are called upon to decide whether a district court may, in the exercise of its equitable powers, order a State to provide educational services directly to a disabled child when the local agency fails to do so. Page 484 U. S. 309IIn the Education of the Handicapped Act (EHA or the Act), 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq., Congress sought"to assure that all handicapped children have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, [and] to assure that the rights of handicapped children and their parents or guardians are protected."§ 1400(c). When the law was passed in 1975, Congress had before it ample evidence that such legislative assurances were sorely needed: 21 years after this Court declared education to be "perhaps the most important function of state and local governments," Brown v. Board of Education, 347 U. S. 483, 347 U. S. 493 (1954), congressional studies revealed that better than half of the Nation's 8 million disabled children were not receiving appropriate educational services. § 1400(b)(3). Indeed, one out of every eight of these children was excluded from the public school system altogether, § 1400(b)(4); many others were simply "warehoused" in special classes or were neglectfully shepherded through the system until they were old enough to drop out. See H.R.Rep. No. 94-332, p. 2 (1975). Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that, for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S.Rep. No. 94-168, p. 8 (1975) (hereinafter S.Rep.).Although these educational failings resulted in part from funding constraints, Congress recognized that the problem reflected more than a lack of financial resources at the state and local levels. Two federal court decisions, which the Senate Report characterized as "landmark," see id. at 6, demonstrated that many disabled children were excluded pursuant to state statutes or local rules and policies, typically without Page 484 U. S. 310 any consultation with, or even notice to, their parents. See Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972); Pennsylvania Assn. for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (ED Pa.1971), and 343 F. Supp. 279 (1972) (PARC). Indeed, by the time of the EHA's enactment, parents had brought legal challenges to similar exclusionary practices in 27 other States. See S.Rep. at 6.In responding to these problems, Congress did not content itself with passage of a simple funding statute. Rather, the EHA confers upon disabled students an enforceable substantive right to public education in participating States, see Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U. S. 176 (1982), [Footnote 1] and conditions federal financial assistance upon a State's compliance with the substantive and procedural goals of the Act. Accordingly, States seeking to qualify for federal funds must develop policies assuring all disabled children the "right to a free appropriate public education," and must file with the Secretary of Page 484 U. S. 311 Education formal plans mapping out in detail the programs, procedures, and timetables under which they will effectuate these policies. 20 U.S.C. §§ 1412(1), 1413(a). Such plans must assure that, "to the maximum extent appropriate," States will "mainstream" disabled children, i.e., that they will educate them with children who are not disabled, and that they will segregate or otherwise remove such children from the regular classroom setting "only when the nature or severity of the handicap is such that education in regular classes . . . cannot be achieved satisfactorily." § 1412(5).The primary vehicle for implementing these congressional goals is the "individualized educational program" (IEP), which the EHA mandates for each disabled child. Prepared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. § 1401(19). The IEP must be reviewed and, where necessary, revised at least once a year in order to ensure that local agencies tailor the statutorily required "free appropriate public education" to each child's unique needs. § 1414(a)(5).Envisioning the IEP as the centerpiece of the statute's education delivery system for disabled children, and aware that schools had all too often denied such children appropriate educations without in any way consulting their parents, Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness. See §§ 1400(c), 1401 (19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and 1415(b)(2). Accordingly, the Act establishes various procedural safeguards that guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right Page 484 U. S. 312 to seek review of any decisions they think inappropriate. These safeguards include the right to examine all relevant records pertaining to the identification, evaluation, and educational placement of their child; prior written notice whenever the responsible educational agency proposes (or refuses) to change the child's placement or program; an opportunity to present complaints concerning any aspect of the local agency's provision of a free appropriate public education; and an opportunity for "an impartial due process hearing" with respect to any such complaints. §§ 1415(b)(1), (2).At the conclusion of any such hearing, both the parents and the local educational agency may seek further administrative review and, where that proves unsatisfactory, may file a civil action in any state or federal court. §§ 1415(c), (e)(2). In addition to reviewing the administrative record, courts are empowered to take additional evidence at the request of either party and to "grant such relief as [they] determine[] is appropriate." § 1415(e)(2). The "stay-put" provision at issue in this case governs the placement of a child while these often lengthy review procedures run their course. It directs that:"During the pendency of any proceedings conducted pursuant to [§ 1415], unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child. . . ."§ 1415(e)(3).The present dispute grows out of the efforts of certain officials of the San Francisco Unified School District (SFUSD) to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. In November, 1980, respondent John Doe assaulted another student at the Louise Lombard School, a developmental center for disabled children. Doe's April, 1980, IEP identified him as a socially and physically awkward 17-year-old who experienced considerable difficulty controlling his impulses and anger. Among the goals set out in his IEP was "[i]mprovement in [his] ability to relate to [his] Page 484 U. S. 313 peers [and to] cope with frustrating situations without resorting to aggressive acts." App. 17. Frustrating situations, however, were an unfortunately prominent feature of Doe's school career: physical abnormalities, speech difficulties, and poor grooming habits had made him the target of teasing and ridicule as early as the first grade, id. at 23; his 1980 IEP reflected his continuing difficulties with peers, noting that his social skills had deteriorated, and that he could tolerate only minor frustration before exploding. Id. at 15-16.On November 6, 1980, Doe responded to the taunts of a fellow student in precisely the explosive manner anticipated by his IEP: he choked the student with sufficient force to leave abrasions on the child's neck, and kicked out a school window while being escorted to the principal's office afterwards. Id. at 208. Doe admitted his misconduct, and the school subsequently suspended him for five days. Thereafter, his principal referred the matter to the SFUSD Student Placement Committee (SPC or Committee) with the recommendation that Doe be expelled. On the day the suspension was to end, the SPC notified Doe's mother that it was proposing to exclude her child permanently from SFUSD, and was therefore extending his suspension until such time as the expulsion proceedings were completed. [Footnote 2] The Committee further advised her that she was entitled to attend the November 25 hearing, at which it planned to discuss the proposed expulsion.After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of local school officials Page 484 U. S. 314 and the State Superintendent of Public Instruction. Alleging that the suspension and proposed expulsion violated the EHA, he sought a temporary restraining order canceling the SPC hearing and requiring school officials to convene an IEP meeting. The District Judge granted the requested injunctive relief, and further ordered defendants to provide home tutoring for Doe on an interim basis; shortly thereafter, she issued a preliminary injunction directing defendants to return Doe to his then current educational placement at Louise Lombard School pending completion of the IEP review process. Doe reentered school on December 15, 5 1/2 weeks and 24 schooldays, after his initial suspension.Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered the second grade in 1976. School records prepared that year indicated that he was unable "to control verbal or physical outburst[s]" and exhibited a "[s]evere disturbance in relationships with peers and adults." Id. at 123. Further evaluations subsequently revealed that he had been physically and emotionally abused as an infant and young child, and that, despite above average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem. Id. at 136, 139, 155, 176. Of particular concern was Smith's propensity for verbal hostility; one evaluator noted that the child reacted to stress by "attempt[ing] to cover his feelings of low self-worth through aggressive behavior[,] . . . primarily verbal provocations." Id. at 136.Based on these evaluations, SFUSD placed Smith in a learning center for emotionally disturbed children. His grandparents, however, believed that his needs would be better served in the public school setting, and, in September, 1979, the school district acceded to their requests and enrolled him at A.P. Giannini Middle School. His February, 1980, IEP recommended placement in a Learning Disability Group, stressing the need for close supervision and a highly structured environment. Id. at 111. Like earlier evaluations, Page 484 U. S. 315 the February, 1980, IEP noted that Smith was easily distracted, impulsive, and anxious; it therefore proposed a half-day schedule, and suggested that the placement be undertaken on a trial basis. Id. at 112, 115.At the beginning of the next school year, Smith was assigned to a full-day program; almost immediately thereafter, he began misbehaving. School officials met twice with his grandparents in October, 1980 to discuss returning him to a half-day program; although the grandparents agreed to the reduction, they apparently were never apprised of their right to challenge the decision through EHA procedures. The school officials also warned them that, if the child continued his disruptive behavior -- which included stealing, extorting money from fellow students, and making sexual comments to female classmates -- they would seek to expel him. On November 14, they made good on this threat, suspending Smith for five days after he made further lewd comments. His principal referred the matter to the SPC, which recommended exclusion from SFUSD. As it did in John Doe's case, the Committee scheduled a hearing and extended the suspension indefinitely pending a final disposition in the matter. On November 28, Smith's counsel protested these actions on grounds essentially identical to those raised by Doe, and the SPC agreed to cancel the hearing and to return Smith to a half-day program at A.P. Giannini or to provide home tutoring. Smith's grandparents chose the latter option and the school began home instruction on December 10; on January 6, 1981, an IEP team convened to discuss alternative placements.After learning of Doe's action, Smith sought and obtained leave to intervene in the suit. The District Court subsequently entered summary judgment in favor of respondents on their EHA claims, and issued a permanent injunction. In a series of decisions, the District Judge found that the proposed expulsions and indefinite suspensions of respondents for conduct attributable to their disabilities deprived Page 484 U. S. 316 them of their congressionally mandated right to a free appropriate public education, as well as their right to have that education provided in accordance with the procedures set out in the EHA. The District Judge therefore permanently enjoined the school district from taking any disciplinary action other than a 2- or 5-day suspension against any disabled child for disability-related misconduct, or from effecting any other change in the educational placement of any such child without parental consent pending completion of any EHA proceedings. In addition, the judge barred the State from authorizing unilateral placement changes, and directed it to establish an EHA compliance-monitoring system or, alternatively, to enact guidelines governing local school responses to disability-related misconduct. Finally, the judge ordered the State to provide services directly to disabled children when, in any individual case, the State determined that the local educational agency was unable or unwilling to do so.On appeal, the Court of Appeals for the Ninth Circuit affirmed the orders with slight modifications. Doe v. Maher, 793 F.2d 1470 (1986). Agreeing with the District Court that an indefinite suspension in aid of expulsion constitutes a prohibited "change in placement" under § 1415(e)(3), the Court of Appeals held that the stay-put provision admitted of no "dangerousness" exception and that the statute therefore rendered invalid those provisions of the California Education Code permitting the indefinite suspension or expulsion of disabled children for misconduct arising out of their disabilities. The court concluded, however, that fixed suspensions of up to 30 schooldays did not fall within the reach of § 1415(e)(3), and therefore upheld recent amendments to the state Education Code authorizing such suspensions. [Footnote 3] Lastly, the court Page 484 U. S. 317 affirmed that portion of the injunction requiring the State to provide services directly to a disabled child when the local educational agency fails to do so.Petitioner Bill Honig, California Superintendent of Public Instruction, [Footnote 4] sought review in this Court, claiming that the Court of Appeals' construction of the stay-put provision conflicted with that of several other Courts of Appeals which had recognized a dangerousness exception, compare Doe v. Maher, supra, (case below), with Jackson v. Franklin County School Board, 765 F.2d 535, 538 (CA5 1985); Victoria L. v. District School Bd. of Lee County, Fla., 741 F.2d 369, 374 (CA11 1984); S-1 v. Turlington, 635 F.2d 342, 348, n. 9 (CA5), cert. denied, 454 U.S. 1030 (1981), and that the direct services ruling placed an intolerable burden on the State. We granted certiorari to resolve these questions, 479 U.S. 1084 (1987), and now affirm.IIAt the outset, we address the suggestion, raised for the first time during oral argument, that this case is moot. [Footnote 5] Under Article III of the Constitution, this Court may only adjudicate actual, ongoing controversies. Nebraska Press Assn. v. Stuart, 427 U. S. 539, 427 U. S. 546 (1976); Preiser v. Newkirk, 422 U. S. 395, 422 U. S. 401 (1975). That the dispute between the parties was very much alive when suit was filed, or at the time the Court of Appeals rendered its judgment, cannot substitute for the actual case or controversy that an exercise of this Court's jurisdiction requires. Steffel v. Thompson, Page 484 U. S. 318 415 U. S. 452, 415 U. S. 459, n. 10 (1974); Roe v. Wade, 410 U. S. 113, 410 U. S. 125 (1973). In the present case, we have jurisdiction if there is a reasonable likelihood that respondents will again suffer the deprivation of EHA-mandated rights that gave rise to this suit. We believe that, at least with respect to respondent Smith, such a possibility does in fact exist, and that the case therefore remains justiciable.Respondent John Doe is now 24 years old and, accordingly, is no longer entitled to the protections and benefits of the EHA, which limits eligibility to disabled children between the ages of 3 and 21. See 20 U.S.C. § 1412(2)(B). It is clear, therefore, that whatever rights to state educational services he may yet have as a ward of the State, see Tr. of Oral Arg. 23, 26, the Act would not govern the State's provision of those services, and thus the case is moot as to him. Respondent Jack Smith, however, is currently 20, and has not yet completed high school. Although, at present, he is not faced with any proposed expulsion or suspension proceedings, and indeed no longer even resides within the SFUSD, he remains a resident of California and is entitled to a "free appropriate public education" within that State. His claims under the EHA, therefore, are not moot if the conduct he originally complained of is "capable of repetition, yet evading review.'" Murphy v. Hunt, 455 U. S. 478, 455 U. S. 482 (1982). Given Smith's continued eligibility for educational services under the EHA, [Footnote 6] the nature of his disability, and petitioner's Page 484 U. S. 319 insistence that all local school districts retain residual authority to exclude disabled children for dangerous conduct, we have little difficulty concluding that there is a "reasonable Page 484 U. S. 320 expectation," ibid., that Smith would once again be subjected to a unilateral "change in placement" for conduct growing out of his disabilities were it not for the statewide injunctive relief issued below.Our cases reveal that, for purposes of assessing the likelihood that state authorities will reinflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury. See Los Angeles v. Lyons, 461 U. S. 95, 461 U. S. 105-106 (1983) (no threat that party seeking injunction barring police use of chokeholds would be stopped again for traffic violation or other offense, or would resist arrest if stopped); Murphy v. Hunt, supra, at 455 U. S. 484 (no reason to believe that party challenging denial of pretrial bail "will once again be in a position to demand bail"); O'shea v. Littleton, 414 U. S. 488, 414 U. S. 497 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws). No such reluctance, however, is warranted here. It is respondent Smith's very inability to conform his conduct to socially acceptable norms that renders him "handicapped" within the meaning of the EHA. See 20 U.S.C. § 1401(1); 34 CFR § 300.5(b)(8) (1987). As noted above, the record is replete with evidence that Smith is unable to govern his aggressive, impulsive behavior -- indeed, his notice of suspension acknowledged that "Jack's actions seem beyond his control." App. 152. In the absence of any suggestion that respondent has overcome his earlier difficulties, it is certainly reasonable to expect, based on his prior history of behavioral problems, that he will again engage in classroom misconduct. Nor is it reasonable to suppose that Smith's future educational placement will so perfectly suit his emotional and academic needs that further disruptions on his part are improbable. Although JUSTICE SCALIA suggests in his dissent, post at 484 U. S. 338, that school officials are unlikely to place Smith in a setting where they cannot control his misbehavior, any efforts Page 484 U. S. 321 to ensure such total control must be tempered by the school system's statutory obligations to provide respondent with a free appropriate public education in "the least restrictive environment," 34 CFR § 300.552(d) (1987); to educate him, "to the maximum extent appropriate," with children who are not disabled, 20 U.S.C. § 1412(5); and to consult with his parents or guardians, and presumably with respondent himself, before choosing a placement. §§ 1401 (19), 1415 (b). Indeed, it is only by ignoring these mandates, as well as Congress' unquestioned desire to wrest from school officials their former unilateral authority to determine the placement of emotionally disturbed children, see infra at 484 U. S. 323-324, that the dissent can so readily assume that respondent's future placement will satisfactorily prevent any further dangerous conduct on his part. Overarching these statutory obligations, moreover, is the inescapable fact that the preparation of an IEP, like any other effort at predicting human behavior, is an inexact science, at best. Given the unique circumstances and context of this case, therefore, we think it reasonable to expect that respondent will again engage in the type of misconduct that precipitated this suit.We think it equally probable that, should he do so, respondent will again be subjected to the same unilateral school action for which he initially sought relief. In this regard, it matters not that Smith no longer resides within the SFUSD. While the actions of SFUSD officials first gave rise to this litigation, the District Judge expressly found that the lack of a state policy governing local school responses to disability-related misconduct had led to, and would continue to result in, EHA violations, and she therefore enjoined the state defendant from authorizing, among other things, unilateral placement changes. App. 247-248. She of course also issued injunctions directed at the local defendants, but they did not seek review of those orders in this Court. Only petitioner, the State Superintendent of Public Instruction, has invoked our jurisdiction, and he now urges us to hold that Page 484 U. S. 322 local school districts retain unilateral authority under the EHA to suspend or otherwise remove disabled children for dangerous conduct. Given these representations, we have every reason to believe that, were it not for the injunction barring petitioner from authorizing such unilateral action, respondent would be faced with a real and substantial threat of such action in any California school district in which he enrolled. Cf. Los Angeles v. Lyons, supra, at 461 U. S. 106 (respondent lacked standing to seek injunctive relief because he could not plausibly allege that police officers choked all persons whom they stopped, or that the city "authorized police officers to act in such manner" (emphasis added)). Certainly, if the SFUSD's past practice of unilateral exclusions was at odds with state policy and the practice of local school districts generally, petitioner would not now stand before us seeking to defend the right of all local school districts to engage in such aberrant behavior. [Footnote 7]We have previously noted that administrative and judicial review under the EHA is often "ponderous," Burlington School Committee v. Massachusetts Dept. of Education, 471 U. S. 359, 471 U. S. 370 (1985), and this case, which has taken seven years to reach us, amply confirms that observation. For obvious reasons, the misconduct of an emotionally disturbed or otherwise disabled child who has not yet reached adolescence typically will not pose such a serious threat to the wellbeing of other students that school officials can only ensure classroom safety by excluding the child. Yet, the adolescent student improperly disciplined for misconduct that does pose such a threat will often be finished with school or otherwise Page 484 U. S. 323 ineligible for EHA protections by the time review can be had in this Court. Because we believe that respondent Smith has demonstrated both "a sufficient likelihood that he will again be wronged in a similar way," Los Angeles v. Lyons, 461 U.S. at 461 U. S. 111, and that any resulting claim he may have for reIief will surely evade our review, we turn to the merits of his case.IIIThe language of § 1415(e)(3) is unequivocal. It states plainly that, during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, "the child shall remain in the then current educational placement." § 1415(e)(3) (emphasis added). Faced with this clear directive, petitioner asks us to read a "dangerousness" exception into the stay-put provision on the basis of either of two essentially inconsistent assumptions: first, that Congress thought the residual authority of school officials to exclude dangerous students from the classroom too obvious for comment; or second, that Congress inadvertently failed to provide such authority, and this Court must therefore remedy the oversight. Because we cannot accept either premise, we decline petitioner's invitation to rewrite the statute.Petitioner's arguments proceed, he suggests, from a simple, common sense proposition: Congress could not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent or dangerous students to school while the often lengthy EHA proceedings run their course. We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to "self-help," and directed Page 484 U. S. 324 that, in the future, the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts.As noted above, Congress passed the EHA after finding that school systems across the country had excluded one out of every eight disabled children from classes. In drafting the law, Congress was largely guided by the recent decisions in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (1972), and PARC, 343 F. Supp. 279 (1972), both of which involved the exclusion of hard-to-handle disabled students. Mills, in particular, demonstrated the extent to which schools used disciplinary measures to bar children from the classroom. There, school officials had labeled four of the seven minor plaintiffs "behavioral problems," and had excluded them from classes without providing any alternative education to them or any notice to their parents. 348 F. Supp. at 869-870. After finding that this practice was not limited to the named plaintiffs, but affected in one way or another an estimated class of 12,000 to 18,000 disabled students, id. at 868-869, 875, the District Court enjoined future exclusions, suspensions, or expulsions "on grounds of discipline." Id. at 880.Congress attacked such exclusionary practices in a variety of ways. It required participating States to educate all disabled children, regardless of the severity of their disabilities, 20 U.S.C. § 1412(2)(C), and included within the definition of "handicapped" those children with serious emotional disturbances. § 1401(1). It further provided for meaningful parental participation in all aspects of a child's educational placement, and barred schools, through the stay-put provision, from changing that placement over the parent's objection until all review proceedings were completed. Recognizing that those proceedings might prove long and tedious, the Act's drafters did not intend § 1415(e)(3) to operate inflexibly, see 121 Cong.Rec. 37412 (1975) (remarks of Sen. Stafford), and they therefore allowed for interim placements where parents Page 484 U. S. 325 and school officials are able to agree on one. Conspicuously absent from § 1415(e)(3), however, is any emergency exception for dangerous students. This absence is all the more telling in light of the injunctive decree issued in PARC, which permitted school officials unilaterally to remove students in "extraordinary circumstances.'" 343 F. Supp. at 301. Given the lack of any similar exception in Mills and the close attention Congress devoted to these "landmark" decisions, see S.Rep. at 6, we can only conclude that the omission was intentional; we are therefore not at liberty to engraft onto the statute an exception Congress chose not to create.Our conclusion that § 1415(e)(3) means what it says does not leave educators hamstrung. The Department of Education has observed that,"[w]hile the [child's] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others."Comment following 34 CFR § 300.513 (1987). Such procedures may include the use of study carrels, timeouts, detention, or the restriction of privileges. More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 schooldays. [Footnote 8] This authority, which respondent Page 484 U. S. 326 in no way disputes, not only ensures that school administrators can protect the safety of others by promptly removing the most dangerous of students, it also provides a "cooling down" period during which officials can initiate IEP review and seek to persuade the child's parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under § 1415(e)(2), which empowers courts to grant any appropriate reliefPetitioner contends, however, that the availability of judicial relief is more illusory than real, because a party seeking review under § 1415(e)(2) must exhaust time-consuming administrative remedies, and because, under the Court of Appeals' construction of § 1415(e)(3), courts are as bound by the stay-put provision's "automatic injunction," 793 F.2d at 1486, as are schools. [Footnote 9] It is true that judicial review is normally Page 484 U. S. 327 not available under § 1415(e)(2) until all administrative proceedings are completed, but, as we have previously noted, parents may bypass the administrative process where exhaustion would be futile or inadequate. See Smith v. Robinson, 468 U. S. 992, 468 U. S. 1014, n. 17 (1984) (citing cases); see also 121 Cong.Rec. 37416 (1975) (remarks of Sen. Williams) ("[E]xhaustion . . . should not be required . . . in cases where such exhaustion would be futile either as a legal or practical matter"). While many of the EHA's procedural safeguards protect the rights of parents and children, schools can and do seek redress through the administrative review process, and we have no reason to believe that Congress meant to require schools alone to exhaust in all cases, no matter how exigent the circumstances. The burden in such cases, of course, rests with the school to demonstrate the futility or inadequacy of administrative review, but nothing in § 1415(e)(2) suggests that schools are completely barred from attempting to make such a showing. Nor do we think that § 1415(e)(3) operates to limit the equitable powers of district courts such that they cannot, in appropriate cases, temporarily enjoin a dangerous disabled child from attending school. As the EHA's legislative history makes clear, one of the evils Congress sought to remedy was the unilateral exclusion of disabled children by schools, not courts, and one of the purposes of § 1415(e)(3), therefore, was"to prevent school officials from removing a child from the regular public school classroom over the parents' objection pending completion of the review proceedings."Burlington School Committee v. Massachusetts Dept. of Education, 471 U.S. at 471 U. S. 373 (emphasis added). The stay-put provision in no way purports to limit or preempt the authority conferred on courts by § 1415(e)(2), see Doe v. Brookline School Committee, 722 F.2d 910, 917 (CA1 1983); indeed, it says nothing whatever about judicial power. Page 484 U. S. 328In short, then, we believe that school officials are entitled to seek injunctive relief under § 1415(e)(2) in appropriate cases. In any such action, § 1415(e)(3) effectively creates a presumption in favor of the child's current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself or to others. In the present case, we are satisfied that the District Court, in enjoining the state and local defendants from indefinitely suspending respondent or otherwise unilaterally altering his then current placement, properly balanced respondent's interest in receiving a free appropriate public education in accordance with the procedures and requirements of the EHA against the interests of the state and local school officials in maintaining a safe learning environment for all their students. [Footnote 10]IVWe believe the courts below properly construed and applied § 1415(e)(3), except insofar as the Court of Appeals held that a suspension in excess of 10 schooldays does not constitute Page 484 U. S. 329 a "change in placement." [Footnote 11] We therefore affirm the Court of Appeals' judgment on this issue, as modified herein. Because we are equally divided on the question whether a court may order a State to provide services directly to a disabled child where the local agency has failed to do so, we affirm the Court of Appeals' judgment on this issue as well.Affirmed

U.S. Supreme CourtHonig v. Doe, 484 U.S. 305 (1988)Honig v. DoeNo. 86-728Argued November 9, 1987Decided January 20, 1988484 U.S. 305SyllabusIn order to assure that States receiving federal financial assistance will provide a "free appropriate public education" for all disabled children, including those with serious emotional disturbances, the Education of the Handicapped Act (EHA or Act) establishes a comprehensive system of procedural safeguards designed to provide meaningful parental participation in all aspects of a child's educational placement, including an opportunity for an impartial due process hearing with respect to any complaints such parents have concerning their child's placement, and the right to seek administrative review of any decisions they think inappropriate. If that review proves unsatisfactory, either the parents or the local educational agency may file a civil action in any state or federal court for "appropriate" relief. 20 U.S.C. § 1415(e)(2). The Act's "stay-put" provision directs that a disabled child "shall remain in [his or her] then current educational placement" pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree. § 1415(e)(3). Respondents Doe and Smith, who were emotionally disturbed students, were suspended indefinitely for violent and disruptive conduct related to their disabilities, pending the completion of expulsion proceedings by the San Francisco Unified School District (SFUSD). After unsuccessfully protesting the action against him, Doe filed a suit in Federal District Court, in which Smith intervened, alleging that the suspension and proposed expulsion violated the EHA, and seeking injunctive relief against SFUSD officials and petitioner, the State Superintendent of Public Instruction. The court entered summary judgment for respondents on their EHA claims and issued a permanent injunction. The Court of Appeals affirmed with slight modifications.Held:1. The case is moot as to respondent Doe, who is now 24 years old, since the Act limits eligibility to disabled children between the ages of 3 and 21. However, the case is justiciable with respect to respondent Smith, who continues to be eligible for EHA educational services, since he is currently only 20 and has not yet completed high school. This Court has jurisdiction, since there is a reasonable likelihood that Smith Page 484 U. S. 306 will again suffer the deprivation of EHA-mandated rights that gave rise to this suit. Given the evidence that he is unable to conform his conduct to socially acceptable norms, and the absence of any suggestion that he has overcome his behavioral problems, it is reasonable to expect that he will again engage in aggressive and disruptive classroom misconduct. Moreover, it is unreasonable to suppose that any future educational placement will so perfectly suit his emotional and academic needs that further disruptions on his part are improbable. If Smith does repeat the objectionable conduct, it is likely that he will again be subjected to the same type of unilateral school action in any California school district in which he is enrolled, in light of the lack of a state-wide policy governing local school responses to disability-related misconduct, and petitioner's insistence that all local school districts retain residual authority to exclude disabled children for dangerous conduct. In light of the ponderousness of review procedures under the Act, and the fact that an aggrieved student will often be finished with school or otherwise ineligible for EHA protections by the time review can be had in this Court, the conduct Smith complained of is "capable of repetition, yet evading review." Thus, his EHA claims are not moot. Pp. 484 U. S. 317-323.2. The "stay-put" provision prohibits state or local school authorities from unilaterally excluding disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities during the pendency of review proceedings. Section 1415(e)(3) is unequivocal in its mandate that "the child shall remain in the then current educational placement" (emphasis added), and demonstrates a congressional intent to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. This Court will not rewrite the statute to infer a "dangerousness" exception on the basis of obviousness or congressional inadvertence, since, in drafting the statute, Congress devoted close attention to Mills v. Board of Education of District of Columbia, 348 F. Supp. 866, and Pennsylvania Assn. for Retarded Children v. Pennsylvania, 334 F. Supp. 1257, and 343 F. Supp. 279, thereby establishing that the omission of an emergency exception for dangerous students was intentional. However, Congress did not leave school administrators powerless to deal with such students, since implementing regulations allow the use of normal, nonplacement-changing procedures, including temporary suspensions for up to 10 schooldays for students posing an immediate threat to others' safety, while the Act allows for interim placements where parents and school officials are able to agree, and authorizes Page 484 U. S. 307 officials to file a § 1415(e)(2) suit for "appropriate" injunctive relief where such an agreement cannot be reached. In such a suit, § 1415(e)(3) effectively creates a presumption in favor of the child's current educational placement which school officials can rebut only by showing that maintaining the current placement is substantially likely to result in injury to the student or to others. Here, the District Court properly balanced respondents' interests under the Act against the state and local school officials' safety interest, and both lower courts properly construed and applied § 1415(e)(3), except insofar as the Court of Appeals held that a suspension exceeding 10 schooldays does not constitute a prohibited change in placement. The Court of Appeals' judgment is modified to that extent. Pp. 484 U. S. 323-328.3. Insofar as the Court of Appeals' judgment affirmed the District Court's order directing the State to provide services directly to a disabled child where the local agency has failed to do so, that judgment is affirmed by an equally divided Court. Pp. 484 U. S. 328-329.793 F.2d 1470, affirmed.BRENNAN, J., delivered the opinion of the Court as to holdings number 1 and 2 above, in which REHNQUIST, C.J., and WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, C.J., filed a concurring opinion, post, p. 484 U. S. 329. SCALIA, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 484 U. S. 332. Page 484 U. S. 308

1966_428

MR. JUSTICE HARLAN delivered the opinion of the Court.This action was initiated by the Securities and Exchange Commission to enjoin respondent (United) from offering its "Flexible Fund Annuity" contract without undertaking the registration required by § 5 of the Securities Act of 1933, [Footnote 1] and to compel United to register the "Flexible Fund" itself as an "investment company" pursuant to § 8 of the Investment Company Act of 1940. [Footnote 2]The "Flexible Fund Annuity" is a deferred, or optional, annuity plan having characteristics somewhat similar to those of the variable annuities this Court held, in S.E.C. v. Variable Annuity Life Insurance Co., 359 U. S. 65 (VALIC), to be subject to the Securities Act. Like the variable annuity, it is a recent effort to meet the challenge of inflation by allowing the purchaser to reap the benefits of a professional investment program while at the same time gaining the security of an insurance annuity. [Footnote 3] There are, however, significant differences between the "Flexible Fund" contract and the variable annuity, and it is claimed that these differences suffice to bring the "Flexible Fund" contract within the "optional annuity contract" exemption of § 3(a)(8) of the Securities Act, [Footnote 4] and to bring the "Flexible Fund" itself within Page 387 U. S. 205 the "insurance company" exemption of § 3(c)(3) of the Investment Company Act, 54 Stat. 798, 15 U.S.C. § 80a-3(c)(3).The purchaser of a "Flexible Fund" annuity agrees to pay a fixed monthly premium for a number of years before a specified maturity date. That premium, less a deduction for expenses (the net premium), is placed in a "Flexible Fund" account which United maintains separately from its other funds, pursuant to Nebraska law. Neb.Rev.Stat. § 44-310.06 (1963 Cum.Supp.). United undertakes to invest the "Flexible Fund" with the object of producing capital gains as well as an interest return, and the major part of the fund is invested in common stocks. The purchaser, at all times before maturity, is entitled to his proportionate share of the total fund, and may withdraw all or part of this interest. The purchaser is also entitled to an alternative cash value measured by a percentage of his net premiums which gradually increases from 50% of that sum in the first year to 100% after 10 years. Other features, common to conventional annuity contracts, are also incorporated in United's plan. [Footnote 5]At maturity, the purchaser may elect to receive the cash value of his policy, measured either by his interest in the fund or by the net premium guarantee, whichever is larger. He may also choose to convert his interest into a life annuity under conditions specified in the Page 387 U. S. 206 "Flexible Fund" contract. These conditions relate future benefits to dollars available at maturity, so the dollar benefits to be received will vary with the cash value at maturity. However, the net premium guarantee is, because of this conversion system, also a guarantee that a certain amount of fixed amount payment life annuity will be available at maturity.After maturity, the policyholder has no further interest in the "Flexible Fund." He has either received the value of his interest in cash or converted to a fixed-payment annuity, in which case his interest has been transferred from the "Flexible Fund" to the general reserves of the company and mingled, on equal terms per dollar of cash value, with the interests of holders of conventional deferred annuities.Because of the termination of interest in the "Flexible Fund" at maturity, the SEC contended that the portion of the "Flexible Fund" contract which dealt with the pre-maturity period was separable, and a "security" within the meaning of the Securities Act. It was agreed that the provisions dealing with the operation of the fixed-payment annuity were purely conventional insurance provisions, and thus beyond the purview of the SEC. The District Court held that the guarantee of a fixed-payment annuity of a substantial amount gave the entire contract the character of insurance. The Court of Appeals for the District of Columbia Circuit affirmed. 123 U.S.App.D.C. 305, 359 F.2d 619. That court rejected "the SEC's basic premise that the contract should be fragmented and the risk during the deferred period only should be considered." Considering the contract as a whole, it found, as the SEC had urged, that this Court's decision in VALIC, supra, was controlling. But it read that decision to hold only"that a company must bear a substantial part of the investment risk associated with the contract . . . in order to qualify its Page 387 U. S. 207 products as 'insurance.'"123 U.S.App.D.C. at 308, 359 F.2d at 622. Because of the net premium guarantee and the conversion to payments which included an interest element during the fixed-payment period, the court concluded that the "Flexible Fund" met this test. Because of the importance of the issue, and the need for clarifying the implications of the VALIC decision, we granted certiorari, 385 U.S. 918. We now reverse for reasons given below.First, we do not agree with the Court of Appeals that the "Flexible Fund" contract must be characterized in its entirety. Two entirely distinct promises are included in the contract, and their operation is separated at a fixed point in time. In selling a deferred annuity contract of any type, United must first decide what amount of annuity payment is to be allowed for each dollar paid into the annuity fund at maturity. [Footnote 6] In making that calculation, United must analyze expected mortality, interest, and expenses of administration. The outcome of that calculation is shown in the conversion table which is included in the "Flexible Fund" contract.The second problem United must face in a deferred annuity is to determine what amount will be available for the annuity fund at maturity. In a conventional annuity, where a fixed amount of benefits is stipulated, it is essential that the premiums both cover expenses and produce a fund sufficient to support the promised benefits. [Footnote 7] In fixing the necessary premium, mortality Page 387 U. S. 208 experience is a subordinate factor, and the planning problem is to decide what interest and expense rates may be expected. There is some shifting of risk from policyholder to insurer, but no pooling of risks among policyholders. In other words, the insurer is acting in a role similar to that of a savings institution, and state regulation is adjusted to this role. [Footnote 8] The policyholder has no direct interest in the fund, [Footnote 9] and the insurer has a dollar target to meet.The "Flexible Fund" program completely reverses the role of the insurer during the accumulation period. Instead of promising to the policyholder an accumulation to a fixed amount of savings at interest, the insurer promises to serve as an investment agency and allow the policyholder to share in its investment experience. The insurer is obligated to produce no more than the guaranteed minimum at maturity, and this amount is substantially less than that guaranteed by the same premiums in a conventional deferred annuity contract. [Footnote 10] The fixed-payment benefits are adjusted to reflect the number of dollars available, as opposed to the conventional annuity, where the amount available is planned to reflect the promised benefits.The insurer may plan to meet the minimum guarantee by split funding -- that is, treating part of the net premium Page 387 U. S. 209 as it would a premium under a conventional deferred annuity contract with a cash value at maturity equal to the minimum guarantee and investing only the remainder [Footnote 11] -- or by setting the minimum low enough that the risk of not being able to meet it through investment is insignificant. The latter is the course United seems to have pursued. [Footnote 12] In either case, the guarantee cannot be said to integrate the pre-maturity operation into the post-maturity benefit scheme. United could as easily attach a "Flexible Fund" option to a deferred life insurance contract or any other benefit which could otherwise be provided by a single payment. And the annuity portion of the contract could be offered independently of the "Flexible Fund." [Footnote 13] We therefore conclude that we must assess independently the operation of the "Flexible Fund" contract during the deferred period to determine whether that separable portion of the contract falls within the class of those exempted by Congress from the requirements of the Securities Act, and, if not, whether the contract constitutes a "security" within § 2 of that Act, 48 Stat. 74, 15 U.S.C. § 77b.The provisions to be examined are less difficult of classification than the ones presented to us in VALIC. There, it was held that the entire plan under which benefits continued to fluctuate with the fortunes of the fund Page 387 U. S. 210 after maturity, was not a contract of insurance within the § 3(a) exemption. A pooling of mortality risk was operative during the payment period, and the contract was one of insurance under state law, but a majority of this Court held that "the meaning of "insurance" . . . under these Federal Acts is a federal question," 359 U.S. at 359 U. S. 69, and "that the concept of insurance' involves some investment risk-taking on the part of the company." Id. at 359 U. S. 71. The argument"that the existence of adequate state regulation was the basis for the exemption [the position taken by four dissenting Justices] . . . was conclusively rejected . . . in VALIC for the reason that variable annuities are 'securities,' and involve considerations of investment not present in the conventional contract of insurance."Prudential Insurance Co. v. S.E.C., 326 F.2d 383, 388. It was implied in the majority opinion in VALIC and made explicit by the two concurring Justices [Footnote 14] that the exemption was to be considered a congressional declaration"that there then was a form of 'investment' known as insurance (including 'annuity contracts') which did not present very squarely the sort of problems that the Securities Act . . . [was] devised to deal with, and which were, in many details, subject to a form of state regulation of a sort which made the federal regulation even less relevant."VALIC, at 359 U. S. 75 (opinion of BRENNAN, J.). In considering VALIC to have turned solely on the absence of any substantial investment risk-taking on the part of the insurer there, we think that the Court of Appeals in the present case viewed that decision too narrowly.Approaching the accumulation portion of this contract in this light, we have little difficulty in concluding that it does not fall within the insurance exemption of Page 387 U. S. 211 § 3(a) of the Securities Act. "Flexible Fund" arrangements require special modifications of state law, and are considered to appeal to the purchaser not on the usual insurance basis of stability and security but on the prospect of "growth" through sound investment management. [Footnote 15] And while the guarantee of cash value based on net premiums reduces substantially the investment risk of the contract holder, the assumption of an investment risk cannot, by itself, create an insurance provision under the federal definition. Helvering v. Le Gierse, 312 U. S. 531, 312 U. S. 542. The basic difference between a contract which to some degree is insured and a contract of insurance must be recognized.We find it equally clear that the accumulation provisions constitute an "investment contract" within the terms of § 2 of the Securities Act. As the Court said in S.E.C. v. Joiner Leasing Corp., 320 U. S. 344, 320 U. S. 352-353,"The test . . . is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect. In the enforcement of an act such as this, it is not inappropriate that promoters' offerings be judged as being what they were represented to be."Contracts such as the "Flexible Fund" offer important competition to mutual funds, see Johnson, The Variable Annuity -- Insurance, Investment, or Both?, 48 Geo.L.J. 641, and are pitched to the same consumer interest in growth through professionally managed investment. It seems eminently fair that a purchaser of such a plan be afforded the same advantages of disclosure which inure to a mutual fund purchaser under § 5 of the Securities Act."At the state level the Uniform Securities Act makes Page 387 U. S. 212 explicit what seems to be the view of the great majority of blue sky administrators to the effect that variable annuities are securities. . . ."1 Loss, Securities Regulation 499. Given VALIC, we hold that, for the purposes of the Securities Act, these contracts are also to be considered nonexempt securities, and cannot be offered to the public without conformity to the registration requirements of § 5.Because the courts below considered the contract itself to be exempt, they did not reach the question whether the "Flexible Fund" was an "investment company" under the Investment Company Act of 1940. In VALIC, the sole business of the insurer was the issuance of the contracts held to be securities, and thus the Court held the insurer to be an investment company. It is clear, however, that United, in the main, is an insurance company exempt from the requirements of the Investment Company Act. Moreover, the provisions of that Act are substantive, and go well beyond the disclosure requirements of the Securities Act. Thus, the question whether the fund may be separated from United's other activities and considered an investment company is a difficult one. See Comment, 61 Mich.L.Rev. 1374; Note, Regulation of Variable Annuity Sales: The Aftermath of SEC v. VALIC, 1959 Wash.U.L.Q. 206. An investigation into the relationship between the "Flexible Fund" and United's insurance business, as well as an investigation of the possible conflicts between state and federal regulation, is required for a proper resolution. The SEC has requested us to remand the case for further consideration of this issue, and in view of its complexity, we deem this the wisest course.The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtSEC v. United Benefit Life Ins. Co., 387 U.S. 202 (1967)Securities and Exchange Commission v. United Benefit Life Ins. Co.No. 428Argued April 10, 1967Decided May 22, 1967387 U.S. 202SyllabusPetitioner, the Securities and Exchange Commission (SEC), brought this action to enjoin respondent, United Benefit Life Insurance Co. (United), from offering its "Flexible Fund Annuity" contract without meeting the registration requirements of the Securities Act of 1933, and to compel United to register the "Flexible Fund" as an "investment company" pursuant to § 8 of the Investment Company Act of 1940. The "Flexible Fund" contract is a deferred, or optional, annuity plan, under which the purchaser agrees to pay a fixed monthly premium for a certain number of years. United maintains the Fund consisting of the purchasers' premiums less expenses in a separate account invested mostly in common stocks to produce capital gains as well as interest return. The cash value of a purchaser's interest, which is measured by and varies with the investment experience of the "Flexible Fund" account, may be withdrawn before maturity, or, at maturity (when the purchaser's interest in the Fund ends), it may be used to purchase a conventional fixed dollar annuity. The contract also contains a provision for a guaranteed minimum cash value ranging from 50% of net premiums the first year to 100% after 10 years which is available before or at maturity. United features the program as an investment opportunity to gain through common stock investment. The SEC contended that the pre-maturity phase of the contract was separable, and constituted a "security" under the Securities Act. The Court of Appeals upheld the District Court's conclusion that the contract should be considered in its entirety, and, thus viewed, had the character of insurance and came within the optional annuity exemption in § 3(a) of the Securities Act. Though the Court of Appeals acknowledged as controlling S.E.C. v. Variable Annuity Life Insurance Co., 359 U. S. 65 (VALIC), which held that a variable annuity contract was an investment contract and not exempt from the securities laws as insurance, it read the decision only as holding that a company, in order to qualify its products as insurance, must bear a substantial part of the investment risk associated with the contract. The court felt that test was satisfied here by the Page 387 U. S. 203 net premium guarantee and conversion to payments which included an interest element. Consequently, the question whether the "Flexible Fund" was an investment company under the Investment Company Act was not reached.Held:1. The operation of the "Flexible Fund" contract during the pre-maturity period during which the insurer promises to serve as an investment agency is distinctly separable from the post-maturity benefit scheme which is exempted from the Securities Act. Pp. 387 U. S. 207-209.2. The "Flexible Fund" contract does not come within the insurance exemption of § 3(a) of the Securities Act, since the appeal to the purchaser is not on the usual basis of stability and security, but on the prospect of "growth" through sound investment management. United's assumption of an investment risk by its guarantee of cash value based on net premiums (a factor given undue weight by the Court of Appeals in considering VALIC) cannot, by itself, create an insurance provision under the federal definition. Pp. 387 U. S. 209-211.3. The accumulation provisions of the "Flexible Fund" contract constitute an investment contract under § 2 of the Securities Act under the test that the terms of the offer shape the character of the instrument under the Act, the contract here being offered to purchasers in competition with mutual funds. Pp. 387 U. S. 211-212.4. The question whether the "Flexible Fund" may be separated from United's insurance activities and considered an investment company under the Investment Company Act is remanded to the Court of Appeals for further consideration. P. 387 U. S. 212.123 U.S.App.D.C. 305, 359 F.2d 619, reversed and remanded. Page 387 U. S. 204

1986_85-1277

JUSTICE BRENNAN delivered the opinion of the Court.Section 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794 (Act), prohibits a federally funded state program from discriminating against a handicapped individual solely by reason of his or her handicap. This case presents the questions whether a person afflicted with tuberculosis, a contagious disease, may be considered a "handicapped individual" within the meaning of § 504 of the Act, and, if so, whether such an individual is "otherwise qualified" to teach elementary school. Page 480 U. S. 276IFrom 1966 until 1979, respondent Gene Arline taught elementary school in Nassau County, Florida. She was discharged in 1979 after suffering a third relapse of tuberculosis within two years. After she was denied relief in state administrative proceedings, she brought suit in federal court, alleging that the school board's decision to dismiss her because of her tuberculosis violated § 504 of the Act. [Footnote 1]A trial was held in the District Court, at which the principal medical evidence was provided by Marianne McEuen, M.D., an assistant director of the Community Tuberculosis Control Service of the Florida Department of Health and Rehabilitative Services. According to the medical records reviewed by Dr. McEuen, Arline was hospitalized for tuberculosis in 1957. App. 11-12. For the next 20 years, Arline's disease was in remission. Id. at 32. Then, in 1977, a culture revealed that tuberculosis was again active in her system; cultures taken in March, 1978, and in November, 1978, were also positive. Id. at 12.The superintendent of schools for Nassau County, Craig Marsh, then testified as to the school board's response to Arline's medical reports. After both her second relapse, in the spring of 1978 and her third relapse in November 1978, the school board suspended Arline with pay for the remainder of the school year. Id. at 49-51. At the end of the 1978-1979 school year, the school board held a hearing, after which it discharged Arline, "not because she had done anything wrong," but because of the "continued reoccurence [sic] of tuberculosis." Id. at 49-52.In her trial memorandum, Arline argued that it was"not disputed that the [school board dismissed her] solely on the basis of her illness. Since the illness in this case qualifies the Page 480 U. S. 277 Plaintiff as a 'handicapped person,' it is clear that she was dismissed solely as a result of her handicap in violation of Section 504."Record 119. The District Court held, however, that, although there was "[n]o question that she suffers a handicap," Arline was nevertheless not "a handicapped person under the terms of that statute." App. to Pet. for Cert. C-2. The court found it "difficult . . . to conceive that Congress intended contagious diseases to be included within the definition of a handicapped person." The court then went on to state that, "even assuming" that a person with a contagious disease could be deemed a handicapped person, Arline was not "qualified" to teach elementary school. Id. at C-2-C-3.The Court of Appeals reversed, holding that "persons with contagious diseases are within the coverage of section 504," and that Arline's condition "falls . . . neatly within the statutory and regulatory framework" of the Act. 772 F.2d 759, 764 (CA11 1985). The court remanded the case"for further findings as to whether the risks of infection precluded Mrs. Arline from being 'otherwise qualified' for her job and, if so, whether it was possible to make some reasonable accommodation for her in that teaching position"or in some other position. Id. at 765 (footnote omitted). We granted certiorari, 475 U. S. 1118 (1986), and now affirm.IIIn enacting and amending the Act, Congress enlisted all programs receiving federal funds in an effort"to share with handicapped Americans the opportunities for an education, transportation, housing, health care, and jobs that other Americans take for granted."123 Cong.Rec. 13515 (1977) (statement of Sen. Humphrey). To that end, Congress not only increased federal support for vocational rehabilitation, but also addressed the broader problem of discrimination against the handicapped by including § 504, an antidiscrimination provision patterned after Title VI of the Civil Rights Page 480 U. S. 278 Act of 1964. [Footnote 2] Section 504 of the Rehabilitation Act reads in pertinent part:"No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ."29 U.S.C. § 794. In 1974, Congress expanded the definition of "handicapped individual" for use in § 504 to read as follows: [Footnote 3] Page 480 U. S. 279"[A]ny person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."29 U.S.C. § 706(7)(B). The amended definition reflected Congress' concern with protecting the handicapped against discrimination stemming not only from simple prejudice, but also from "archaic attitudes and laws" and from"the fact that the American people are simply unfamiliar with and insensitive to the difficulties confront[ing] individuals with handicaps."S.Rep. No. 93-1297, p. 50 (1974). To combat the effects of erroneous but nevertheless prevalent perceptions about the handicapped, Congress expanded the definition of "handicapped individual" so as to preclude discrimination against "[a] person who has a record of, or is regarded as having, an impairment.[but who] may at present have no actual incapacity at all." Southeastern Community College v. Davis, 442 U. S. 397, 442 U. S. 405-406, n. 6 (1979). [Footnote 4]In determining whether a particular individual is handicapped as defined by the Act, the regulations promulgated by the Department of Health and Human Services are of significant assistance. As we have previously recognized, these regulations were drafted with the oversight and approval of Congress, see Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 465 U. S. 634-635, and nn. 14-16 (1984); they provide "an important source of guidance on the meaning of § 504." Alexander v. Choate, 469 U. S. 287, 469 U. S. 304, n. 24 (1985). The Page 480 U. S. 280 regulations are particularly significant here because they define two critical terms used in the statutory definition of handicapped individual. [Footnote 5] "Physical impairment" is defined as follows:"[A]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine."45 CFR § 84.3(j)(2)(i) (1985). In addition, the regulations define "major life activities" as"functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."§ 84.3(j)(2)(ii).IIIWithin this statutory and regulatory framework, then, we must consider whether Arline can be considered a handicapped individual. According to the testimony of Dr. Page 480 U. S. 281 McEuen, Arline suffered tuberculosis "in an acute form in such a degree that it affected her respiratory system," and was hospitalized for this condition. App. 11. Arline thus had a physical impairment as that term is defined by the regulations, since she had a "physiological disorder or condition . . . affecting [her] . . . respiratory [system]." 45 CFR § 84.3(j)(2)(i) (1985). This impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment. Thus, Arline's hospitalization for tuberculosis in 1957 suffices to establish that she has a "record of . . . impairment" within the meaning of 29 U.S.C. § 706(7)(B)(ii), and is therefore a handicapped individual.Petitioners concede that a contagious disease may constitute a handicapping condition to the extent that it leaves a person with "diminished physical or mental capabilities," Brief for Petitioners 15, and concede that Arline's hospitalization for tuberculosis in 1957 demonstrates that she has a record of a physical impairment, see Tr. of Oral Arg. 52-53. Petitioners maintain, however, that Arline's record of impairment is irrelevant in this case, since the school board dismissed Arline not because of her diminished physical capabilities, but because of the threat that her relapses of tuberculosis posed to the health of others. [Footnote 6] Page 480 U. S. 282We do not agree with petitioners that, in defining a handicapped individual under § 504, the contagious effects of a disease can be meaningfully distinguished from the disease's physical effects on a claimant in a case such as this. Arline's contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment. [Footnote 7]Nothing in the legislative history of § 504 suggests that Congress intended such a result. That history demonstrates that Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual. Congress extended coverage, in 29 U.S.C. § 706(7)(B)(iii), to those individuals who are simply "regarded as having" a physical or mental impairment. [Footnote 8] The Senate Report provides as an example of a person who would be covered under this subsection "a person with some kind of visible physical impairment which in fact does not substantially limit that person's functioning." S.Rep. No. 93-1297, at 64. [Footnote 9] Page 480 U. S. 283 Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment. [Footnote 10] Page 480 U. S. 284Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of "handicapped individual" to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. [Footnote 11] Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. [Footnote 12] Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. [Footnote 13] The Act is Page 480 U. S. 285 carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of "handicapped individual" is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were "otherwise qualified." Rather, they would be vulnerable to discrimination on the basis of mythology -- precisely the type of injury Congress sought to prevent. [Footnote 14] We conclude that Page 480 U. S. 286 the fact that a person with a record of a physical impairment is also contagious does not suffice to remove that person from coverage under § 504. [Footnote 15] Page 480 U. S. 287IVThe remaining question is whether Arline is otherwise qualified for the job of elementary schoolteacher. To answer this question in most cases, the district court will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks. [Footnote 16] The basic factors to be considered in conducting this inquiry are well established. [Footnote 17] In the context Page 480 U. S. 288 of the employment of a person handicapped with a contagious disease, we agree with amicus American Medical Association that this inquiry should include"[findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm."Brief for American Medical Association as Amicus Curiae 19. In making these findings, courts normally should defer to the reasonable medical judgments of public health officials. [Footnote 18] The next step in the "otherwise-qualified" inquiry is for the court to evaluate, in light of these medical findings, whether the employer could reasonably accommodate the employee under the established standards for that inquiry. See n 17, supra.Because of the paucity of factual findings by the District Court, we, like the Court of Appeals, are unable at this stage of the proceedings to resolve whether Arline is "otherwise qualified" for her job. The District Court made no findings as to the duration and severity of Arline's condition, nor as to the probability that she would transmit the disease. Nor did the court determine whether Arline was contagious at the time she was discharged, or whether the School Board could Page 480 U. S. 289 have reasonably accommodated her. [Footnote 19] Accordingly, the resolution of whether Arline was otherwise qualified requires further findings of fact.VWe hold that a person suffering from the contagious disease of tuberculosis can be a handicapped person within the meaning of § 504 of the Rehabilitation Act of 1973, and that respondent Arline is such a person. We remand the case to the District Court to determine whether Arline is otherwise qualified for her position. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtSchool Bd. of Nassau County v. Arline, 480 U.S. 273 (1987)School Board of Nassau County, Florida v. ArlineNo. 85-1277Argued December 3, 1986Decided March 3, 1987480 U.S. 273SyllabusSection 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Act), provides, inter alia, that no "otherwise qualified handicapped individual," as defined in 29 U.S.C. § 706(7), shall, solely by reason of his handicap, be excluded from participation in any program receiving federal financial assistance. Section 706(7)(B) defines "handicapped individual" to mean any person who"(i) has a physical . . . impairment which substantially limits one or more of [his] major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."Department of Health and Human Services (HHS) regulations define "physical impairment" to mean, inter alia, any physiological disorder affecting the respiratory system, and define "major life activities" to include working. Respondent was hospitalized for tuberculosis in 1957. The disease went into remission for the next 20 years, during which time respondent began teaching elementary school in Florida. In 1977, March, 1978, and November, 1978, respondent had relapses, after the latter two of which she was suspended with pay for the rest of the school year. At the end of the 1978-1979 school year, petitioners discharged her after a hearing because of the continued recurrence of tuberculosis. After she was denied relief in state administrative proceedings, she brought suit in Federal District Court, alleging a violation of § 504. The District Court held that she was not a "handicapped person" under the Act, but that, even assuming she were, she was not "qualified" to teach elementary school. The Court of Appeals reversed, holding that persons with contagious diseases are within § 504's coverage, and remanded for further findings as to whether respondent was "otherwise qualified" for her job.Held:1. A person afflicted with the contagious disease of tuberculosis may be a "handicapped individual" within the meaning of § 504. Pp. 480 U. S. 280-286.(a) Respondent is a "handicapped individual" as defined in § 706 (7)(B) and the HHS regulations. Her hospitalization in 1957 for a disease that affected her respiratory system and that substantially limited "one or more of [her] major life activities" establishes that she has a "record of . . . impairment." Pp. 480 U. S. 280-281. Page 480 U. S. 274(b) The fact that a person with a record of impairment is also contagious does not remove that person from § 504's coverage. To allow an employer to justify discrimination by distinguishing between a disease's contagious effects on others and its physical effects on a patient would be unfair, would be contrary to § 706(7)(B)(iii) and the legislative history, which demonstrate Congress' concern about an impairment's effect on others, and would be inconsistent with § 504's basic purpose to ensure that handicapped individuals are not denied jobs because of the prejudice or ignorance of others. The Act replaces such fearful, reflexive reactions with actions based on reasoned and medically sound judgments as to whether contagious handicapped persons are "otherwise qualified" to do the job. Pp. 480 U. S. 281-286.2. In most cases, in order to determine whether a person handicapped by contagious disease is "otherwise qualified" under § 504, the district court must conduct an individualized inquiry and make appropriate findings of fact, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (e.g., how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties), and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm. In making these findings, courts normally should defer to the reasonable medical judgments of public health officials. Courts must then determine, in light of these findings, whether any "reasonable accommodation" can be made by the employer under the established standards for that inquiry. Pp. 480 U. S. 287-288.3. Because the District Court did not make appropriate findings, it is impossible for this Court to determine whether respondent is "otherwise qualified" for the job of elementary school teacher, and the case is remanded for additional findings of fact. Pp. 480 U. S. 288-289.772 F.2d 759, affirmed.BRENNAN, J delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST, C.J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 480 U. S. 289. Page 480 U. S. 275

1997_96-8986

which is hereby overruled. The Eight Circuit's decision is vacated in light of the Solicitor General's position in this Court. Pp. 241-253.99 F.3d 892, vacated and remanded.KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, post, p. 253. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and THOMAS, JJ., joined, post, p. 254.Eileen Penner argued the cause for petitioner. With her on the briefs was Alan Untereiner.Matthew D. Roberts argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.Jeffrey S. Sutton, by invitation of the Court, 522 U. S. 944, argued the cause and filed a brief as amicus curiae. *JUSTICE KENNEDY delivered the opinion of the Court. We granted certiorari to determine whether the Court has jurisdiction to review decisions of the courts of appeals deny-*Briefs of amici curiae were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George H. Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, and Eric L. Christoffersen and Ward A. Campbell, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Winston Bryant of Arkansas, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Margery S. Bronster of Hawaii, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Richard P. Ieyoub of Louisiana, Michael C. Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Barnett of South Dakota, John Knox Walkup of Tennessee, Jan Graham of Utah, Mark L. Earley of Virginia, and William U Hill of Wyoming; and for the National Association of Criminal Defense Lawyers by Edward M. Chikofsky and Lisa Kemler.239ing applications for certificates of appealability. The Court, we hold, does have jurisdiction.IIn 1992, petitioner Arnold Hohn was charged with a number of drug-related offenses, including the use or carrying of a firearm during and in relation to a drug trafficking offense, 18 U. S. C. § 924(c)(1). Over defense counsel's objection, the District Court instructed the jury that "use" of a firearm meant having the firearm "available to aid in the commission of" the offense. App. 7, 32. The jury convicted Hohn on all counts. Hohn did not challenge the instruction in his direct appeal, and the Court of Appeals affirmed. United States v. Hohn, 8 F.3d 1301 (CA8 1993).Two years after Hohn's conviction became final, we held the term "use" in § 924(c)(1) required active employment of the firearm. Proximity and accessibility alone were not sufficient. Bailey v. United States, 516 U. S. 137 (1995). Hohn filed a pro se motion under 28 U. S. C. § 2255 to vacate his 18 U. S. C. § 924(c)(1) conviction in light of Bailey on the grounds the evidence presented at his trial was insufficient to prove use of a firearm. Although the Government conceded the jury instruction given at Hohn's trial did not comply with Bailey, the District Court denied relief because, in its view, Hohn had waived the claim by failing to challenge the instruction on direct appeal.While Hohn's motion was pending before the District Court, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Section 102 of AEDPA amends the statutory provision which had required state prisoners to obtain a certificate of probable cause before appealing the denial of a habeas petition. The amended provision provides:"Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-240"(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or"(B) the final order in a proceeding under section2255." 28 U. S. C. § 2253(c)(1) (1994 ed., Supp. II).Certificates of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2).Hohn filed a notice of appeal on July 29, 1996, three months after AEDPA's enactment. The Court of Appeals treated the notice of appeal as an application for a certificate of appealability and referred it to a three-judge panel. The panel decided Hohn's application did not meet the standard for a § 2253(c) certificate. In the panel's view, "Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution." 99 F.3d 892, 893 (CA8 1996). Given this determination, the panel declined to issue a certificate of appealability.Judge McMillian dissented. In his view, Bailey cast doubt on whether Hohn's conduct in fact violated 18 U. S. C. § 924(c)(1). The Due Process Clause, he reasoned, does not "tolerat[e] convictions for conduct that was never criminal," so Hohn had made a sufficient showing of a constitutional deprivation. 99 F. 3d, at 895. When the Court of Appeals denied Hohn's rehearing petition and a suggestion for rehearing en banc, four judges noted they would have granted the suggestion.Hohn petitioned this Court for a writ of certiorari to review the denial of the certificate, seeking to invoke our jurisdiction under 28 U. S. C. § 1254(1). The Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature. It asked us to vacate the judgment and remand so the Court of Appeals could reconsider in light of this concession. We may not vacate and remand, of course, unless we first have jurisdiction over the241case; and since Hohn and the Government both argue in favor of our jurisdiction, we appointed an amicus curiae to argue the contrary position. 522 U. S. 944 (1997).IITitle 28 U. S. C. § 1254 is the statute most often invoked for jurisdiction in this Court. It provides in relevant part:"Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:"(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree."The first phrase of the quoted statute confines our jurisdiction to "[c]ases in" the courts of appeals. Nixon v. Fitzgerald, 457 U. S. 731, 741-742 (1982). The question is whether an application for a certificate meets the description.There can be little doubt that Hohn's application for a certificate of appealability constitutes a case under § 1254(1). As we have noted, "[t]he words 'case' and 'cause' are constantly used as synonyms in statutes ... , each meaning a proceeding in court, a suit, or action." Blyew v. United States, 13 Wall. 581, 595 (1872). The dispute over Hohn's entitlement to a certificate falls within this definition. It is a proceeding seeking relief for an immediate and redressable injury, i. e., wrongful detention in violation of the Constitution. There is adversity as well as the other requisite qualities of a "case" as the term is used in both Article III of the Constitution and the statute here under consideration. This is significant, we think, for cases are addressed in the ordinary course of the judicial process, and, as a general rule, when the district court has denied relief and applicable requirements of finality have been satisfied, the next step is review in the court of appeals. That the statute permits the certificate to be issued by a "circuit justice or judge" does not mean the action of the circuit judge in denying the cer-242tificate is his or her own action, rather than the action of the court of appeals to whom the judge is appointed.The course of events here illustrates the point. The application moved through the Eighth Circuit in the same manner as cases in general do. The matter was entered on the docket of the Court of Appeals, submitted to a panel, and decided in a published opinion, including a dissent. App. 4-5. The court entered judgment on it, issued a mandate, and entertained a petition for rehearing and suggestion for rehearing en banco Id., at 5-6. The Eighth Circuit has since acknowledged its rejection of Hohn's application made Circuit law. United States v. Apker, 101 F.3d 75 (CA8 1996), cert. pending, No. 97-5460. One judge specifically indicated he was bound by the decision even though he believed it was wrongly decided. 101 F. 3d, at 75-76 (Henley, J., concurring in result). These factors suggest Hohn's certificate application was as much a case in the Court of Appeals as are the other matters decided by it.We also draw guidance from the fact that every Court of Appeals except the Court of Appeals for the District of Columbia Circuit has adopted Rules to govern the disposition of certificate applications. E. g., Rules 22, 22.1 (CA1 1998); Rules 22, 27(b) and (f) (CA2 1998); Rules 3.4, 22.1, ll1.3(b) and (c), ll1.4(a) and (b)(vii) (CA3 1998); Rules 22(a) and (b)(3)(g), 34(b) (CA4 1998); Rules 8.1(g), 8.6, 8.10, 22, 27.2.3 (CA5 1998); Rules 28(f), (g), and (j) (CA6 1998); Rules 22(a)(2), (h)(2), and (h)(3)(i), 22.1 (CA7 1998); Rules 22A(d), 27B(b)(2) and (c)(2) (CA8 1998); Rules 3-1(b), 22-2, 22-3(a)(3) and (b)(4), 22-4(c), 22-5(c), (d)(l), (d)(3), and (e) (CA9 1998); Rules 11.2(b), 22.1, 22.2.3 (CAlO 1998); Rules 22-1, 22-3(a)(3), (a)(4), (a)(6), and (a)(7), and (b), 27-1(d)(3) (CAll 1998). We also note the Internal Operating Procedures for the Court of Appeals for the Eighth Circuit require certificate applications to be heard as a general matter by three-judge administrative panels. Internal Operating Procedures, pt. LD.3 (1998); see also Interim Processing Guidelines for Certifi-243cates of Appealability under 28 U. S. C. § 2253 and for Motions under 28 U. S. C. § 2244, pt. I (CA1), 28 U. S. C. A., p. 135 (1998 Pamphlet); Internal Operating Procedures 10.3.2, 15.1 (CA3 1998); Criminal Justice Act Implementation Plan, pt. 1.2 (CA4), 28 U. S. C. A., p. 576 (1998 Pamphlet); Internal Operating Procedures l(a)(l) and (c)(7) (CA7 1998); Rule 27-1, Advisory Committee Note (1) (CA9), 28 U. S. C. A., p. 290 (1998 Pamphlet); Emergency General Order in re Procedures Regarding the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act (CAlO), 28 U. S. C. A., p. 487 (1998 Pamphlet); Internal Operating Procedure 11, following Rule 47-6 (CAll 1998). These directives would be meaningless if applications for certificates of appealability were not matters subject to the control and disposition of the courts of appeals.It is true the President appoints "circuit judges for the several circuits," 28 U. S. C. § 44, but it is true as well the court of appeals "consist[s] of the circuit judges of the circuit in regular active service," § 43. In this instance, as in all other cases of which we are aware, the order denying the certificate was issued in the name of the court and under its seal. That is as it should be, for the order was judicial in character and had consequences with respect to the finality of the order of the District Court and the continuing jurisdiction of the Court of Appeals.The Federal Rules of Appellate Procedure make specific provision for consideration of applications for certificates of appealability by the entire court. Rule 22(b) states:"In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code .... If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit244judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals."On its face, the Rule applies only to state, and not federal, prisoners. It is nonetheless instructive on the proper construction of § 2253(c).Rule 22(b) by no means prohibits application to an individual judge, nor could it, given the language of the statute. There would be incongruity, nevertheless, were the same ruling deemed in one instance the order of a judge acting ex curia and in a second the action of the court, depending upon the caption of the application or the style of the order.Our conclusion is further confirmed by Federal Rule ofAppellate Procedure 27(c). It states:"In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court."As the Rule makes clear, even when individual judges are authorized under the Rules to entertain certain requests for relief, the court may review their decisions. The Eighth Circuit's Rules are even more explicit, specifically listing grants of certificates of probable cause by an individual judge as one of the decisions subject to revision by the court under Federal Rule 27(c). Rule 27B(b)(2) (CA8 1998). The recog-245nition that decisions made by individual circuit judges remain subject to correction by the entire court of appeals reinforces our determination that decisions with regard to an application for a certificate of appealability should be regarded as an action of the court itself and not of the individual judge. We must reject the suggestion contained in the Advisory Committee's Notes on Federal Rule of Appellate Procedure 22(b) that "28 U. S. C. § 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause." 28 U. S. C. App., p. 609. It is more consistent with the Federal Rules and the uniform practice of the courts of appeals to construe § 2253(c)(1) as conferring the jurisdiction to issue certificates of appealability upon the court of appeals rather than by a judge acting under his or her own seal. See In re Burwell, 350 U. S. 521, 522 (1956).Some early cases from this Court acknowledged a distinction between acting in an administrative and a judicial capacity. When judges perform administrative functions, their decisions are not subject to our review. United States v. Ferreira, 13 How. 40, 51-52 (1852); see also Gordon v. United States, 117 U. S. Appx. 697, 702, 704 (1864). Those opinions were careful to say it was the nonjudicial character of the judges' actions which deprived this Court of jurisdiction. Ferreira, supra, at 46-47 (tribunal not judicial when the proceedings were ex parte and did not involve the issuance of process, summoning of witnesses, or entry of a judgment); Gordon, supra, at 699, 702 (tribunal not judicial when it lacks power to enter and enforce judgments). Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here. App. 4-6. Construing the issuance of a certificate of appealability as an administrative function, moreover, would suggest an entity not wielding judicial power might review the246decision of an Article III court. In light of the constitutional questions which would surround such an arrangement, see Gordon, supra; Hayburn's Case, 2 Dall. 409 (1792), we should avoid any such implication.We further disagree with the contention, advanced by the dissent and by Court-appointed amicus, that a request to proceed before a court of appeals should be regarded as a threshold inquiry separate from the merits which, if denied, prevents the case from ever being in the court of appeals. Precedent forecloses this argument. In Ex parte Quirin, 317 U. S. 1 (1942), we confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then-extant statute governing court of appeals review of district court decisions. See 28 U. S. C. § 225(a) First (1940 ed.) (courts of appeals had jurisdiction to review final decisions "[i]n the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court"). We held the request for leave constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, "[p]resentation of the petition for judicial action is the institution of a suit. Hence the denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals." 317 U. S., at 24.We reached a similar conclusion in Nixon v. Fitzgerald.There President Nixon sought to appeal an interlocutory District Court order rejecting his claim of absolute immunity. The Court of Appeals summarily dismissed the appeal because, in its view, the order failed to present a "serious and unsettled question" of law sufficient to bring the case within the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 547 (1949). Because the Court of Appeals had dismissed for failure to247satisfy this threshold jurisdictional requirement, respondent Fitzgerald argued, "the District Court's order was not an appealable 'case' properly 'in' the Court of Appeals within the meaning of § 1254." 457 U. S., at 742. Turning aside this argument, we ruled "petitioner did present a 'serious and unsettled' and therefore appealable question to the Court of Appeals. It follow[ed] that the case was 'in' the Court of Appeals under § 1254 and properly within our certiorari jurisdiction." Id., at 743. We elaborated: "There can be no serious doubt concerning our power to review a court of appeals' decision to dismiss for lack of jurisdiction .... If we lacked authority to do so, decisions to dismiss for want of jurisdiction would be insulated entirely from review by this Court." Id., at 743, n. 23; see also United States v. Nixon, 418 U. S. 683, 692 (1974) (holding appeal of District Court's denial of motion to quash subpoena duces tecum was in the Court of Appeals for purposes of § 1254(1)).We have shown no doubts about our jurisdiction to review dismissals by the Courts of Appeals for failure to file a timely notice of appeal under § 1254(1). The filing of a proper notice of appeal is mandatory and jurisdictional. Torres v. Oakland Scavenger Co., 487 U. S. 312, 315 (1988); United States v. Robinson, 361 U. S. 220, 224 (1960); Advisory Committee's Notes on Fed. Rule App. Proc. 3, 28 U. S. C. App., p. 589. The failure to satisfy this jurisdictional prerequisite has not kept the case from entering the Court of Appeals, however. We have reviewed these dismissals often and without insisting the petitioner satisfy the requirements for an extraordinary writ and without suggesting our lack of jurisdiction to do so. E. g., Houston v. Lack, 487 U. S. 266 (1988); Torres, supra; Fallen v. United States, 378 U. S. 139 (1964); United States v. Robinson, supra; Leishman v. Associated Wholesale Elec. Co., 318 U. S. 203 (1943).We have also held that § 1254(1) permits us to review denials of motions for leave to intervene in the Court of Appeals in proceedings to review the decision of an administra-248tive agency. Automobile Workers v. Scofield, 382 U. S. 205, 208-209 (1965); see also Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 30 (1993) (per curiam). Together these decisions foreclose the proposition that the failure to satisfy a threshold prerequisite for court of appeals jurisdiction, such as the issuance of a certificate of appealability, prevents a case from being in the court of appeals for purposes of § 1254(1).It would have made no difference had the Government declined to oppose Hohn's application for a certificate of appealability. In Scofield, we held that § 1254(1) gave us jurisdiction to review the Court of Appeals' denial of a motion for leave to intervene despite the fact that neither the agency nor any of the other parties opposed intervention. 382 U. S., at 207. In the same manner, petitions for certiorari to this Court are often met with silence or even acquiescence; yet no one would suggest this deprives the petitions of the adversity needed to constitute a case. Assuming, of course, the underlying action satisfies the other requisites of a case, including injury in fact, the circumstance that the question before the court is a preliminary issue, such as the denial of a certificate of appealability or venue, does not oust appellate courts of the jurisdiction to review a ruling on the matter. For instance, a case does not lack adversity simply because the remedy sought from a particular court is dismissal for improper venue rather than resolution of the merits. Federal Rule of Civil Procedure 12(b)(3) specifically permits a party to move to dismiss for improper venue before joining issue on any substantive point through the filing of a responsive pleading, and we have long treated appeals of dismissals for improper venue as cases in the courts of appeals, see, e. g., Radzanower v. Touche Ross & Co., 426 U. S. 148, 151 (1976); Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706, 707 (1972); Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260, 261 (1961); Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 223 (1957); Mis-249sissippi Publishing Corp. v. Murphree, 326 U. S. 438, 440 (1946). It is true we have held appellate jurisdiction improper when district courts have denied, rather than granted, motions to dismiss for improper venue. The jurisdictional problem in those cases, however, was the interlocutory nature of the appeal, not the absence of a proper case. Lauro Lines s.r.l. v. Chasser, 490 U. S. 495 (1989); Van Cauwenberghe v. Biard, 486 U. S. 517 (1988). In any event, concerns about adversity are misplaced in this case. Here the Government entered an appearance in response to the initial application and filed a response opposing Hohn's petition for rehearing and suggestion for rehearing en banco App. 4, 5.The argument that this Court lacks jurisdiction under § 1254(1) to review threshold jurisdictional inquiries is further refuted by the recent amendment to 28 U. S. C. § 2244(b)(3). The statute requires state prisoners filing second or successive habeas applications under § 2254 to first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U. S. C. § 2244(b)(3)(A) (1994 ed., Supp. II). The statute further provides "[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E). It would have been unnecessary to include a provision barring certiorari review if a motion to file a second or successive application would not otherwise have constituted a case in the court of appeals for purposes of 28 U. S. C. § 1254(1). We are reluctant to adopt a construction making another statutory provision superfluous. See, e. g., Kawaauhau v. Geiger, 523 U. S. 57, 62 (1998); United States v. Menasche, 348 U. S. 528, 538-539 (1955).Inclusion of a specific provision barring certiorari review of denials of motions to file second or successive applications is instructive for another reason. The requirements for cer-250tificates of appealability and motions for second or successive applications were enacted in the same statute. The clear limit on this Court's jurisdiction to review denials of motions to file second or successive petitions by writ of certiorari contrasts with the absence of an analogous limitation to certiorari review of denials of applications for certificates of appealability. True, the phrase concerning the grant or denial of second or successive applications refers to an action "by a court of appeals"; still, we think a Congress concerned enough to bar our jurisdiction in one instance would have been just as explicit in denying it in the other, were that its intention. See, e. g., Bates v. United States, 522 U. S. 23, 29-30 (1997) (" '[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''') (quoting Russello v. United States, 464 U. S. 16, 23 (1983) (other internal quotation marks omitted)). The dissent claims the absence of similar language in § 2253(c) can be explained by Congress' reliance on the rule holding certificate applications unreviewable under § 1254(1). Post, at 261-262. As we later discuss, any such reliance is lessened by the Court's consistent practice of treating denials of certificate applications as falling within its statutory certiorari jurisdiction. See infra, at 252.Today's holding conforms our commonsense practice to the statutory scheme, making it unnecessary to invoke our extraordinary jurisdiction in routine cases, which present important and meritorious claims. The United States does not dispute that Hohn's claim has considerable merit and acknowledges that the trial court committed an error of constitutional magnitude. The only contested issue is whether the constitutional violation was a substantial one. Brief in Opposition 7-8. Were we to adopt the position advanced by the dissent, the only way we could consider his meritorious claim would be through the All Writs Act, 28 U. S. C.251§ 1651(a). Our rule permits us to carry out our normal function of reviewing possible misapplications of law by the courts of appeals without having to resort to extraordinary remedies.Our decision, we must acknowledge, is in direct conflict with the portion of our decision in House v. Mayo, 324 U. S. 42, 44 (1945) (per curiam), holding that we lack statutory certiorari jurisdiction to review refusals to issue certificates of probable cause. Given the number and frequency of the cases, and the difficulty of reconciling our practice with a requirement that only an extraordinary writ can be used to address them, we do not think stare decisis concerns require us to adhere to that decision. Its conclusion was erroneous, and it should not be followed.Stare decisis is "the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U. S. 808, 827 (1991). "Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done." Patterson v. McLean Credit Union, 491 U. S. 164, 172-173 (1989).We have recognized, however, that stare decisis is a "principle of policy" rather than "an inexorable command." Payne, supra, at 828. For example, we have felt less constrained to follow precedent where, as here, the opinion was rendered without full briefing or argument. Gray v. Mississippi, 481 U. S. 648, 651, n. 1 (1987) (questioning the precedential value of Davis v. Georgia, 429 U. S. 122 (1976) (per curiam)). The role of stare decisis, furthermore, is "somewhat reduced ... in the case of a procedural rule ... which does not serve as a guide to lawful behavior." United States v. Gaudin, 515 U. S. 506, 521 (1995) (citing Payne, supra, at252828). Here we have a rule of procedure that does not alter primary conduct. And what is more, the rule of procedure announced in House v. Mayo has often been disregarded in our own practice. Both Hohn and the United States cite numerous instances in which we have granted writs of certiorari to review denials of certificate applications without requiring the petitioner to move for leave to file for an extraordinary writ, as previously required by our rules, and without requiring any extraordinary showing or exhibiting any doubts about our jurisdiction to do so. 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4036, pp. 15-16 (2d ed. 1988) (collecting cases). Included among these examples are several noteworthy decisions which resolved significant issues of federal law. See, e. g., Allen v. Hardy, 478 U. S. 255, 257-258 (1986) (per curiam) (refusing to permit retroactive application of Batson v. Kentucky, 476 U. S. 79 (1986), on collateral attack); Lynce v. Mathis, 519 U. S. 433, 436 (1997) (holding the cancellation of early release credits violated the Ex Post Facto Clause). These deviations have led litigants and the legal community to question the vitality of the rule announced in House v. Mayo. As commentators have observed: "More recent cases ... have regularly granted certiorari following denial of leave to proceed in forma pauperis, or refusal to certify probable cause, without any indication that review was by common law writ rather than statutory certiorari. At least as to these two questions, statutory certiorari should be available." Wright, Miller, & Cooper, supra, at 15-16 (footnotes omitted). Our frequent disregard for the rule announced in House v. Mayo weakens the suggestion that Congress could have placed significant reliance on it, especially in light of the commentary on our practice in the legal literature.This is not to say opinions passing on jurisdictional issues sub silentio may be said to have overruled an opinion addressing the issue directly. See, e. g., United States v. More, 3 Cranch 159, 172 (1805) (Marshall, C. J.). Our decisions re-253main binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). Once we have decided to reconsider a particular rule, however, we would be remiss if we did not consider the consistency with which it has been applied in practice. Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965); see also Brown Shoe Co. v. United States, 370 U. S. 294, 307 (1962). This consideration, when combined with our analysis of the legal issue in question, convinces us the contrary holding of House v. Mayo cannot stand.We hold this Court has jurisdiction under § 1254(1) to review denials of applications for certificates of appealability by a circuit judge or a panel of a court of appeals. The portion of House v. Mayo holding this Court lacks statutory certiorari jurisdiction over denials of certificates of probable cause is overruled. In light of the position asserted by the Solicitor General in the brief for the United States filed August 18, 1997, the judgment of the Court of Appeals is vacated, and the case is remanded for further consideration consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusHOHN v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 96-8986. Argued March 3, 1998-Decided June 15, 1998Petitioner Hohn filed a motion under 28 U. S. C. § 2255 to vacate his conviction for "use" of a firearm during a drug trafficking offense, 18 U. S. C. § 924(c)(I), claiming the evidence was insufficient to prove such "use" under this Court's intervening decision in Bailey v. United States, 516 U. S. 137. While the motion was pending, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, § 102 of which amends the statutory provision which had required state prisoners to obtain a certificate of probable cause before appealing the denial of a habeas petition. The amended provision specifies, inter alia, that an appeal may not be taken to a court of appeals from the final order in a § 2255 proceeding, § 2253(c)(I)(B), unless a circuit justice or judge issues a certificate of appealability, § 2253(c)(I), upon a substantial showing of the denial of a constitutional right, § 2253(c)(2). The District Court denied Hohn's motion, and he filed a notice of appeal, which the Eighth Circuit treated as an application for a certificate of appealability. A three-judge panel declined to issue a certificate, ruling that Hohn did not satisfy § 2253(c)(2). In the panel's view, Bailey simply interpreted § 924(c)(I), and a district court's incorrect application of a statute does not violate the Constitution. Hohn then petitioned for review of the certificate denial under 28 U. S. C. § 1254(1), which provides in relevant part that "[c]ases in the courts of appeals may be reviewed by the Supreme Court" "[b]y writ of certiorari." The Government now says that Hohn's claim was, in fact, constitutional in nature and asks the Court to vacate the judgment and remand so the Eighth Circuit can reconsider in light of this concession. Since both parties argue that this Court has jurisdiction, an amicus curiae was appointed to argue the contrary position.Held: This Court has jurisdiction under § 1254(1) to review denials of applications for certificates of appealability by a circuit judge or a court of appeals panel. Hohn's certificate application is a "case in" the Court of Appeals under § 1254(1) because the word "case," as used in a statute, means a court proceeding, suit, or action, Blyew v. United States, 13 Wall. 581, 595; the dispute here is a proceeding seeking relief for an immediate and redressable injury, i. e., wrongful detention in violation of the Constitution; and there is adversity as well as the other requisite237qualities of a "case." That § 2253(c)(I) permits the certificate to be issued by a "circuit justice or judge" does not mean the judge's denial of a certificate is his or her own action, rather than the court's. The fact that Hohn's application moved through the Eighth Circuit in the same manner as cases in general do, yielding a decision that has been regarded in that court as precedential, suggests the application was as much a case in the Court of Appeals as any other matter. This conclusion is also confirmed by the adoption by every Court of Appeals but one of rules governing the disposition of certificate applications; by the issuance of the order denying Hohn's certificate in the name of the court and under its seal; by Federal Rule of Appellate Procedure 22(b), which specifically provides for consideration of certificate applications by the entire court of appeals; by Federal Rule 27(c), which authorizes the court of appeals to review decisions that individual judges are authorized to make on their own; by Eighth Circuit Rule 27B(b)(2), which lists grants of probable cause certificates by individual judges as reviewable decisions under Rule 27(c); and by the uniform practice of the courts of appeals, see In re Burwell, 350 U. S. 521, 522. Early cases acknowledging that this Court may not review a federal judge's actions performed in an administrative, as opposed to a judicial, capacity, see, e. g., United States v. Ferreira, 13 How. 40, 51-52, are inapposite because certificate application decisions are judicial in nature. The contention of the dissent and the Court-appointed amicus that the failure to satisfy a threshold prerequisite for court of appeals jurisdiction, such as the issuance of a certificate of appealability, prevents a case from ever being "in" that court under § 1254(1) is foreclosed by precedent. See, e. g., Ex parte Quirin, 317 U. S. 1,24; Nixon v. Fitzgerald, 457 U. S. 731, 742-743, and n. 23; and Automobile Workers v. Scofield, 382 U. S. 205, 208-209. The argument is also refuted by the recent amendment to § 2244(b)(3)(E) barring certiorari review of court of appeals denials of motions to file second or successive habeas applications, which would have been superfluous were such a motion not a case in the court of appeals for § 1254(1) purposes, see, e. g., Kawaauhau v. Geiger, 523 U. S. 57, 62, and which contrasts tellingly with the absence of an analogous limitation on certiorari review of denials of appealability certificate applications, see, e. g., Bates v. United States, 522 U. S. 23, 29-30. Today's holding conforms the Court's commonsense practice to the statutory scheme, making it unnecessary to invoke the Court's extraordinary jurisdiction in routine cases, which present important and meritorious claims such as Hohn's. Although the decision directly conflicts with the portion of House v. Mayo, 324 U. S. 42,48 (per curiam), holding this Court lacks statutory certiorari jurisdiction to review denials of certificates of probable cause, stare decisis does not require adherence to that erroneous conclusion,238Full Text of Opinion

1974_74-362

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Section 13 of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1432, 33 U.S.C. § 913, provided:"The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury."We must decide in this case whether § 22 of the same Act, as amended, 33 U.S.C. § 922, bars consideration of a claim timely filed under § 13, which has not been the subject of an order by the deputy commissioner within one year after the cessation of voluntary compensation payments.Petitioners in the instant case are Intercounty Construction Corp., an employer, and Hartford Accident and Indemnity Co., its insurance carrier. Respondents are Noah C. A. Walter, a deputy commissioner of the Bureau of Employees' Compensation which was charged with administration of the Act, [Footnote 1] and Mary Jones, an intervenor below who is the personal representative of Charles Jones, an employee claimant under the Act. Claimant was injured in 1960 while working for the employer in the District of Columbia. [Footnote 2] Shortly thereafter, well within the one-year statute of limitations established by § 13 of the Act, [Footnote 3] he filed a claim for total Page 422 U. S. 4 permanent disability with the Bureau of Employees' Compensation. The insurance carrier, admitting claimant's injury in the course of employment while denying permanent disability to the extent stated in the claim, filed notice that it had begun payment of $54 per week, the amount payable for total disability, in advance of an award by the deputy commissioner. [Footnote 4]In 1965, the carrier filed notice that it was controverting the pending claim on the ground, inter alia, of extent of disability and that it was reducing claimant's weekly compensation to $27 per week, the rate for 50% temporary disability. In 1966, a claims examiner from the Bureau held a hearing on the pending claim for total permanent disability benefits, but the hearing was adjourned without action on the claim. On January 23, 1968, the carrier stopped payment of compensation to the claimant, since its payments to claimant totaled $17,280, its maximum liability under the Act at the time for any condition other than permanent total disability Page 422 U. S. 5 or death. On February 11, 1970, two years after his last receipt of a voluntary payment of compensation from the carrier, claimant requested a hearing on his previously filed claim for total permanent disability. Although the claim had been pending since its timely filing in 1960, neither the carrier nor the claimant had requested action by the Bureau in the intervening 10 years to adjudicate its merits, and no order or award had been entered during this period resolving it. [Footnote 5]Deputy Commissioner Walter, reversing his own initial determination that the claim was time-barred under § 22 of the Act, concluded that § 22 was not applicable to this claim, and entered an order awarding claimant compensation for permanent total disability. Petitioners then brought this suit under 33 U.S.C. § 921(b) against respondent Walter to enjoin enforcement of the award. The United States District Court for the District of Columbia granted summary judgment for the petitioners, holding that § 22 of the Act barred the claim. [Footnote 6] On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed, holding that § 22 of the Act, applicable only to the power of the deputy commissioner to modify prior orders, erected no barrier to consideration of claims which had not been the subject of a prior order by the deputy commissioner. [Footnote 7]Because of the conflict between the holding of the Court of Appeals in this case and that of the United States Court of Appeals for the Fifth Circuit in Strachan Shipping Co. v. Hollis, 460 F.2d 1108, cert. denied sub nom. Lewis v. Strachan Shipping Co., 409 U.S. 887 (1972), we granted certiorari. 419 U.S. 1119 (1975). Page 422 U. S. 6Section 22 of the Act, as amended, provides:"Modification of awards""Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in section 919 of this title, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the deputy commissioner with the approval of the Secretary."Petitioners urge, and the Fifth Circuit in Strachan Shipping Co. held, that this provision superimposes on the express statute of limitations contained in § 13 of the Act, providing a time period for the filing of claims, an additional limitations period requiring action by the deputy commissioner on pending claims within one year after the date of the last voluntary payment of compensation Page 422 U. S. 7 where such payments have been made. In their view, since no action was taken on the pending claim in the instant case until more than one year after the claimant's last receipt of a voluntary compensation payment, the claim was time-barred under § 22.In contrast, respondents argue, and the Court of Appeals for the District of Columbia Circuit held, that § 22 is applicable only to the power of the deputy commissioner to modify prior orders and awards issued by him. In their view, it has no application to timely filed claims on which no prior action has been taken by the deputy commissioner. In this case, they say that, since the timely filed and still-pending 1960 claim had never been the subject of action by the Deputy Commissioner prior to the order here in issue, § 22 has no application to it.We agree with the Court of Appeals for the District of Columbia Circuit that § 22 speaks ambiguously to the question before us. The statutory references to "new order," "new compensation order," and "the rejection of a claim," and the limitation of the granted authority to "a change in conditions or because of a mistake in a determination of fact by the deputy commissioner" support an interpretation of the section's one-year time limit as applicable only to the power of the deputy commissioner to modify previously entered orders. Such an interpretation would make the section inapplicable to the authority of the deputy commissioner to enter an initial order with respect to a claim timely filed. On the other hand, the language "whether or not a compensation order has been issued" points to the applicability of the section's one-year time limit to all previously filed claims, even though not the subject of any prior order by the deputy commissioner. Strachan Shipping Co. v. Hollis, 460 F.2d at 1116. This phrase might also merely mean, when read in context, that the time limit established by Page 422 U. S. 8 this provision, applicable only to the modification of previously entered orders, runs from the date of the last voluntary payment even though the order sought to be modified is entered after receipt of the last voluntary payment. 163 U.S.App.D.C. at 150, 500 F.2d at 818; Strachan Shipping Co. v. Hollis, supra at 1117 (Ainsworth, J., dissenting). These conflicting indicia are not completely reconcilable if the language in the statute is considered alone, and so we must resort to the legislative history of the provision.Section 22 was first enacted as part of the original Longshoremen's and Harbor Workers' Compensation Act in 1927. 44 Stat. 1424-1446. As petitioners concede, the provision as originally drafted applied only to the modification of orders previously entered by the deputy commissioner:"MODIFICATION OF AWARDS" "SEC. 22. Upon his own initiative, or upon application of any party in interest, on the ground of a change in conditions, the deputy commissioner may at any time during the term of an award and after the compensation order in respect of such award has become final, review such order in accordance with the procedure prescribed in respect of claims in section 19, and in accordance with such section issue a new compensation order which may terminate, continue, increase, or decrease such compensation. Such new order shall not affect any compensation paid under authority of the prior order."Id. at 1437.As originally adopted, § 22 provided power to the deputy commissioner to modify a prior order only "during the term of an award," and the provision was construed to constrict the power to modify a previous order to the period of payments pursuant to an award. Cf. Page 422 U. S. 9 F. Jarka Co. v. Monahan, 29 F.2d 741, 742 (Mass.1928). The United States Employees' Compensation Commission (USECC), then charged with the administration of the Act, repeatedly recommended that § 22 be amended to allow continuing review of previously entered orders. 14th Ann.Rep. USECC 75 (1930); 15th Ann.Rep. USECC 77 (1931); 16th Ann.Rep. USECC 49 (1932); 17th Ann.Rep. USECC 18 (1933). See Banks v. Chicago Grain Trimmers, 390 U. S. 459, 390 U. S. 463-465 (1968). In none of the annual reports of the USECC is there any indication that amendment of this provision was sought for any purpose other than broadening the length of time during which the deputy commissioner could exercise his power to modify previously entered orders.In 1934, Congress responded by amending this provision to read:"MODIFICATION OF COMPENSATION CASES" "SEC. 22. Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, review a compensation case in accordance with the procedure prescribed in respect of claims in section 19, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and if any part of the compensation due or to become due Page 422 U. S. 10 is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the deputy commissioner with the approval of the commission."48 Stat. 807.This amendment inserted the phrase "whether or not a compensation order has been issued," the phrase upon which the petitioners' statutory claim rests, and they naturally urge that it was intended to apply the one-year time limit of § 22, formerly applicable only to the modification of previously entered orders, to all pending claims. But the legislative history does not bear out petitioners' contention.The committee reports of both Houses of Congress accompanying this change explain it in the following language:"[This bill] amends section 22 of the existing act so as to broaden the grounds on which a deputy commissioner can modify an award, and also, while strictly limiting the period, extends the time within which such modification may be made. . . .""The amendment is in line with the recommendation of the [USECC] except that it limits to 1 year after the date of the last payment of compensation the time during which such modification may be made."S.Rep. No. 588, 73d Cong., 2d Sess., 3-4 (1934); H.R.Rep. No. 1244, 73d Cong., 2d Sess., 4 (1934). As we similarly stated in Banks v. Chicago Grain Trimmers, supra at 390 U. S. 464: "The purpose of this amendment was to broaden the grounds on which a deputy commissioner can modify an award.'" See, e.g., 404 U. S. Aerojet Page 422 U. S. 11 General Shipyards, 404 U. S. 254, 404 U. S. 255-256 (1971). There is no indication that Congress sought by this amendment to superimpose a new statute of limitations, in addition to the required period for filing provided by § 13, on all claims filed under the Act upon which payments are made. Taken in historical and statutory context, the phrase "whether or not a compensation order has been issued" is properly interpreted to mean merely that the one-year time limit imposed on the power of the deputy commissioner to modify existing orders runs from the date of final payment of compensation even if the order sought to be modified is actually entered only after such date.Section 22 was amended in 1938 to read as it presently does. 52 Stat. 1167. The chief change was permitting the deputy commissioner to review a case "at any time prior to one year after the rejection of a claim." Such amendment would have been largely superfluous if Congress, in 1934, had already extended this provision to cover claims whether or not previously disposed of by the deputy commissioner. And, in fact, the legislative history surrounding the 1938 amendment reveals a clear congressional understanding that § 22 applied only to modification of prior orders of the deputy commissioner. Thus, for example, the House Report accompanying the 1938 amendment stated that"[t]he purpose of this amendment is to extend to such cases the same provisions which now apply in connection with other cases finally acted upon by the deputy commissioner."H.R.Rep. No.1945, 75th Cong., 3d Sess., 9 (1938). (Emphasis added.) See also H.R.Rep. No. 1807, 74th Cong., 1st Sess., 5 (1935); S.Rep. No. 1199, 74th Cong., 1st Sess., 4 (1935); H.R.Rep. No. 2237, 74th Cong., 2d Sess., 5 (1936); S.Rep. No.1988, 75th Cong., 3d Sess., 8-9 (1938). Regulations issued under the Act by the USECC, Page 422 U. S. 12 contemporaneously with passage of the 1938 amendment, reflect an administrative understanding that § 22 governed "application[s] to the deputy commissioner for review of a compensation case for modification of an award." 20 CFR § 31.15 (1938); 20 CFR § 31.16 (1949).The Fifth Circuit, in Strachan Shipping Co. v. Hollis, supra, indicated its belief that the absence of a procedure for orderly conclusion of compensation cases was incompatible with a scheme of cooperation and voluntary payments by employers and insurers envisaged by the Act. 460 F.2d at 1116. The court below disagreed, indicating its belief that the present procedures giving a carrier the right to compel the deputy commissioner to adjudicate claims eliminate any unfairness which might result from the absence of a fixed conclusion to such cases. 163 U.S.App.D.C. at 152, 500 F.2d at 820. Cf. 33 U.S.C. § 919(c); 5 U.S.C. § 706(1); Atlantic & Gulf Stevedores, Inc. v. Donovan, 274 F.2d 794 (CA5 1960). Whatever the merits of a fixed period for resolution of pending compensation claims not previously the subject of an order, Congress did not, in § 22, establish such a period. The decision of the United States Court of Appeals for the District of Columbia Circuit is thereforeAffirmed

U.S. Supreme CourtIntercounty Constr. Corp. v. Walter, 422 U.S. 1 (1975)Intercounty Construction Corp. v. WalterNo. 74-362Argued April 23, 1975Decided June 16, 1975422 U.S. 1SyllabusSection 13 of the Longshoremen's and Harbor Workers' Compensation Act provides that the right to compensation for disability under the Act shall be barred unless a claim therefor is filed within one year after the injury. Section 22 provides that, upon his own initiative or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in his determination of fact, the Deputy Commissioner of the Bureau of Employees' Compensation (the agency charged with administering the Act) may,"at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim,"review a compensation case and issue a "new compensation order" which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. A claimant, who was injured in 1960 while working for petitioner employer, filed a claim for total permanent disability within § 13's one-year statute of limitations. Petitioner insurance carrier, in advance of an award by the Deputy Commissioner, first paid the weekly amount for total disability, though denying Page 422 U. S. 2 the extent of disability, but, in 1965 ,filed notice that it was contesting the extent of disability and was reducing the weekly compensation to the amount for 50% temporary disability, and, in 1968, stopped payment of compensation after reaching the maximum of its liability for any condition other than permanent disability or death. In 1970, two years after his last receipt of a voluntary compensation payment, the claimant requested a hearing on his claim for permanent disability, this being the first requested action to adjudicate the merits of the claim by either him or the carrier in the 10 years following the filing of the claim, and no order or award having been entered during this period. Respondent Deputy Commissioner then entered an award for permanent total disability, and petitioners brought suit to enjoin its enforcement. The District Court held that § 22 barred the claim, but the Court of Appeals reversed.Held: While the language of § 22 is ambiguous, the section's legislative history, including the history of the amendment inserting the phrase "whether or not a compensation order has been issued," shows that the section's one-year time limit was meant to apply only to the Deputy Commissioner's power to modify previously entered orders, and that therefore the section does not bar consideration of a claim timely filed under § 13, which has not been the subject of prior action by the Deputy Commissioner, and with respect to which the Deputy Commissioner took no action until more than one year after the claimant's last receipt of a voluntary compensation payment. Taken in its historical and statutory context, the phrase "whether or not a compensation order has been issued" is properly interpreted to mean merely that the one-year time limit imposed on the Deputy Commissioner's power to modify existing orders runs from the date of final payment of compensation even if the order sought to be modified is actually entered only after such date. Pp. 422 U. S. 6-12.163 U.S.App.D.C. 147, 500 F.2d 815, affirmed.REHNQUIST, J., delivered the opinion for a unanimous Court. Page 422 U. S. 3

1983_82-1031

O'CONNOR, Page 466 U. S. 4 J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 466 U. S. 32.JUSTICE STEVENS delivered the opinion of the Court.At issue in this case is the validity of an exclusive contract between a hospital and a firm of anesthesiologists. We must decide whether the contract gives rise to a per se violation of § 1 of the Sherman Act [Footnote 1] because every patient undergoing Page 466 U. S. 5 surgery at the hospital must use the services of one firm of anesthesiologists, and, if not, whether the contract is nevertheless illegal because it unreasonably restrains competition among anesthesiologists.In July, 1977, respondent Edwin G. Hyde, a board-certified anesthesiologist, applied for admission to the medical staff of East Jefferson Hospital. The credentials committee and the medical staff executive committee recommended approval, but the hospital board denied the application because the hospital was a party to a contract providing that all anesthesiological services required by the hospital's patients would be performed by Roux & Associates, a professional medical corporation. Respondent then commenced this action seeking a declaratory judgment that the contract is unlawful and an injunction ordering petitioners to appoint him to the hospital staff. [Footnote 2] After trial, the District Court denied relief, finding that the anticompetitive consequences of the Roux contract were minimal, and outweighed by benefits in the form of improved patient care. 513 F. Supp. 532 (ED La.1981). The Court of Appeals reversed because it was persuaded that the contract was illegal "per se." 686 F.2d 286 (CA5 1982). We granted certiorari, 460 U.S. 1021 (1983), and now reverse.IIn February, 1971, shortly before East Jefferson Hospital opened, it entered into an "Anesthesiology Agreement" with Roux & Associates (Roux), a firm that had recently been organized by Dr. Kermit Roux. The contract provided that any anesthesiologist designated by Roux would be admitted to the hospital's medical staff. The hospital agreed to Page 466 U. S. 6 provide the space, equipment, maintenance, and other supporting services necessary to operate the anesthesiology department. It also agreed to purchase all necessary drugs and other supplies. All nursing personnel required by the anesthesia department were to be supplied by the hospital, but Roux had the right to approve their selection and retention. [Footnote 3] The hospital agreed to"restrict the use of its anesthesia department to Roux & Associates and [that] no other persons, parties or entities shall perform such services within the Hospital for the ter[m] of this contract."App.19. [Footnote 4]The 1971 contract provided for a 1-year term automatically renewable for successive 1-year periods unless either party elected to terminate. In 1976, a second written contract was executed containing most of the provisions of the 1971 agreement. Its term was five years, and the clause excluding other anesthesiologists from the hospital was deleted; [Footnote 5] the hospital nevertheless continued to regard itself as committed to a closed anesthesiology department. Only Roux was permitted to practice anesthesiology at the hospital. At the Page 466 U. S. 7 time of trial the department included four anesthesiologists. The hospital usually employed 13 or 14 certified registered nurse anesthetists. [Footnote 6]The exclusive contract had an impact on two different segments of the economy: consumers of medical services, and providers of anesthesiological services. Any consumer of medical services who elects to have an operation performed at East Jefferson Hospital may not employ any anesthesiologist not associated with Roux. No anesthesiologists except those employed by Roux may practice at East Jefferson.There are at least 20 hospitals in the New Orleans metropolitan area, and about 70 percent of the patients living in Jefferson Parish go to hospitals other than East Jefferson. Because it regarded the entire New Orleans metropolitan area as the relevant geographic market in which hospitals compete, this evidence convinced the District Court that East Jefferson does not possess any significant "market power"; therefore it concluded that petitioners could not use the Roux contract to anticompetitive ends. [Footnote 7] The same evidence led the Court of Appeals to draw a different conclusion. Noting that 30 percent of the residents of the parish go to East Jefferson Hospital, and that, in fact, "patients tend to choose hospitals by location, rather than price or quality," the Court of Page 466 U. S. 8 Appeals concluded that the relevant geographic market was the East Bank of Jefferson Parish. 686 F.2d at 290. The conclusion that East Jefferson Hospital possessed market power in that area was buttressed by the facts that the prevalence of health insurance eliminates a patient's incentive to compare costs, that the patient is not sufficiently informed to compare quality, and that family convenience tends to magnify the importance of location. [Footnote 8]The Court of Appeals held that the case involves a "tying arrangement" because the"users of the hospital's operating rooms (the tying product) are also compelled to purchase the hospital's chosen anesthesia service (the tied product)."Id. at 289. Having defined the relevant geographic market for the tying product as the East Bank of Jefferson Parish, the court held that the hospital possessed "sufficient market power in the tying market to coerce purchasers of the tied product." Id. at 291. Since the purchase of the tied product constituted a "not insubstantial amount of interstate commerce," under the Court of Appeals' reading of our decision in Northern Pacific R. Co. v. United States, 356 U. S. 1, 356 U. S. 11 (1958), the tying arrangement was therefore illegal "per se." [Footnote 9] Page 466 U. S. 9IICertain types of contractual arrangements are deemed unreasonable as a matter of law. [Footnote 10] The character of the restraint produced by such an arrangement is considered a sufficient basis for presuming unreasonableness without the necessity of any analysis of the market context in which the arrangement may be found. [Footnote 11] A price-fixing agreement between competitors is the classic example of such an arrangement. Arizona v. Maricopa County Medical Society, 457 U. S. 332, 457 U. S. 343-348 (1982). It is far too late in the history of our antitrust jurisprudence to question the proposition that certain tying arrangements pose an unacceptable risk of stifling competition, and therefore are unreasonable "per se." [Footnote 12] The rule was first enunciated in International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 396 (1947), [Footnote 13] and has been endorsed Page 466 U. S. 10 by this Court many times since. [Footnote 14] The rule also reflects congressional policies underlying the antitrust laws. In enacting § 3 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 14, Congress expressed great concern about the anticompetitive character of tying arrangements. See H.R.Rep. No. 627, 63d Cong., 2d Sess., 10-13 (1914); S.Rep. No. 698, 63d Cong., 2d Sess., 6-9 (1914). [Footnote 15] While this case Page 466 U. S. 11 does not arise under the Clayton Act, the congressional finding made therein concerning the competitive consequences of tying is illuminating, and must be respected. [Footnote 16]It is clear, however, that not every refusal to sell two products separately can be said to restrain competition. If each of the products may be purchased separately in a competitive market, one seller's decision to sell the two in a single package imposes no unreasonable restraint on either market, particularly Page 466 U. S. 12 if competing suppliers are free to sell either the entire package or its several parts. [Footnote 17]For example, we have written that,"if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar, it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself."Northern Pacific R. Co. v. United States, 356 U.S. at 7. [Footnote 18] Buyers often find package sales attractive; a seller's decision to offer such packages can merely be an attempt to compete effectively -- conduct that is entirely consistent with the Sherman Act. See Fortner Enterprises v. United States Steel Corp., 394 U. S. 495, 394 U. S. 517-518 (1969) (Fortner I) (WHITE, J., dissenting); id. at 394 U. S. 524-525 (Fortas, J., dissenting).Our cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all or might have preferred to purchase elsewhere on different terms. When such "forcing" is present, competition on the merits in the market for the tied item is restrained, and the Sherman Act is violated."Basic to the faith that a free economy best promotes the public weal is that goods must stand the cold test of competition; that the public, acting through the market's impersonal judgment, shall allocate the Nation's resources, and thus direct the course its economic development will take. . . . By conditioning his sale of one commodity on Page 466 U. S. 13 the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the 'tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the 'tied' product would convince freely choosing buyers to select it over others anyway."Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 345 U. S. 605 (1953). [Footnote 19]Accordingly, we have condemned tying arrangements when the seller has some special ability -- usually called "market Page 466 U. S. 14 power" -- to force a purchaser to do something that he would not do in a competitive market. See United States Steel Corp. v. Fortner Enterprises, 429 U. S. 610, 429 U. S. 620 (1977) (Fortner II); Fortner I, 394 U.S. at 394 U. S. 503-504; United States v. Loew's Inc., 371 U. S. 38, 371 U. S. 45, 371 U. S. 48, n. 5 (1962); Northern Pacific R. Co. v. United States, 356 U.S. at 6-7. [Footnote 20] When "forcing" occurs, our cases have found the tying arrangement to be unlawful.Thus, the law draws a distinction between the exploitation of market power by merely enhancing the price of the tying product, on the one hand, and by attempting to impose restraints on competition in the market for a tied product, on the other. When the seller's power is just used to maximize its return in the tying product market, where presumably its product enjoys some justifiable advantage over its competitors, the competitive ideal of the Sherman Act is not necessarily compromised. But if that power is used to impair competition on the merits in another market, a potentially inferior product may be insulated from competitive pressures. [Footnote 21] This impairment could either harm existing competitors or create barriers to entry of new competitors in the market for the tied product, Fortner I, 394 U.S. at 509, [Footnote 22] and can increase Page 466 U. S. 15 the social costs of market power by facilitating price discrimination, thereby increasing monopoly profits over what they would be absent the tie, Fortner II, 429 U.S. at 617. [Footnote 23] And from the standpoint of the consumer -- whose interests the statute was especially intended to serve -- the freedom to select the best bargain in the second market is impaired by his need to purchase the tying product, and perhaps by an inability to evaluate the true cost of either product when they are available only as a package. [Footnote 24] In sum, to permit restraint of competition on the merits through tying arrangements would be, as we observed in Fortner II, to condone "the existence of power that a free market would not tolerate." 429 U.S. at 429 U. S. 617 (footnote omitted).Per se condemnation -- condemnation without inquiry into actual market conditions -- is only appropriate if the existence of forcing is probable. [Footnote 25] Thus, application of the per se rule Page 466 U. S. 16 focuses on the probability of anticompetitive consequences. Of course, as a threshold matter, there must be a substantial potential for impact on competition in order to justify per se condemnation. If only a single purchaser were "forced" with respect to the purchase of a tied item, the resultant impact on competition would not be sufficient to warrant the concern of antitrust law. It is for this reason that we have refused to condemn tying arrangements unless a substantial volume of commerce is foreclosed thereby. See Fortner I, 394 U.S. at 394 U. S. 501-502; Northern Pacific R. Co. v. United States, 356 U.S. at 356 U. S. 6-7; Times-Picayune, 345 U.S. at 345 U. S. 608-610; International Salt, 332 U.S. at 332 U. S. 396. Similarly, when a purchaser is "forced" to buy a product he would not have otherwise bought even from another seller in the tied-product market, there can be no adverse impact on competition, because no portion of the market which would otherwise have been available to other sellers has been foreclosed.Once this threshold is surmounted, per se prohibition is appropriate if anticompetitive forcing is likely. For example, if the Government has granted the seller a patent or similar monopoly over a product, it is fair to presume that the inability to buy the product elsewhere gives the seller market power. United States v. Loew's Inc., 371 U.S. at 371 U. S. 45-47. Any effort to enlarge the scope of the patent monopoly by using the market power it confers to restrain competition in the market for a second product will undermine competition on the merits in that second market. Thus, the sale or lease of a patented item on condition that the buyer make all his purchases of a separate tied product from the patentee is unlawful. See United States v. Paramount Pictures, Inc., 334 U. S. 131, 334 U. S. 156-159 (1948); International Salt, 332 Page 466 U. S. 17 U.S. at 332 U. S. 395-396; International Business Machines Corp. v. United States, 298 U. S. 131 (1936).The same strict rule is appropriate in other situations in which the existence of market power is probable. When the seller's share of the market is high, see Times-Picayune Publishing Co. v. United States, 345 U.S. at 345 U. S. 611-613, or when the seller offers a unique product that competitors are not able to offer, see Fortner I, 394 U.S. at 394 U. S. 504-506, and n. 2, the Court has held that the likelihood that market power exists and is being used to restrain competition in a separate market is sufficient to make per se condemnation appropriate. Thus, in Northern Pacific R. Co. v. United States, 356 U. S. 1 (1958), we held that the railroad's control over vast tracts of western real estate, although not itself unlawful, gave the railroad a unique kind of bargaining power that enabled it to tie the sales of that land to exclusive, long-term commitments that fenced out competition in the transportation market over a protracted period. [Footnote 26] When, however, the Page 466 U. S. 18 seller does not have either the degree or the kind of market power that enables him to force customers to purchase a second, unwanted product in order to obtain the tying product, an antitrust violation can be established only by evidence of an unreasonable restraint on competition in the relevant market. See Fortner I, 394 U.S. at 394 U. S. 499-500; Times-Picayune Publishing Co. v. United States, 345 U.S. at 345 U. S. 614-615.In sum, any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold, for that is where the anticompetitive forcing has its impact. Thus, in this case, our analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services. In making that analysis, we must consider whether petitioners are selling two separate products that may be tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement.IIIThe hospital has provided its patients with a package that includes the range of facilities and services required for a variety of surgical operations. [Footnote 27] At East Jefferson Hospital, the package includes the services of the anesthesiologist. [Footnote 28] Petitioners argue that the package does not involve a tying arrangement Page 466 U. S. 19 at all -- that they are merely providing a functionally integrated package of services. [Footnote 29] Therefore, petitioners contend that it is inappropriate to apply principles concerning tying arrangements to this case.Our cases indicate, however, that the answer to the question whether one or two products are involved turns not on the functional relation between them, but rather on the character of the demand for the two items. [Footnote 30] In Times-Picayune Publishing Co. v. United States, 345 U. S. 594 (1953), the Court held that a tying arrangement was not present because the arrangement did not link two distinct markets for products that were distinguishable in the eyes of buyers. [Footnote 31] In Page 466 U. S. 20 Fortner I, the Court concluded that a sale involving two independent transactions, separately priced and purchased from the buyer's perspective, was a tying arrangement. [Footnote 32] These Page 466 U. S. 21 cases make it clear that a tying arrangement cannot exist unless two separate product markets have been linked.The requirement that two distinguishable product markets be involved follows from the underlying rationale of the rule against tying. The definitional question depends on whether the arrangement may have the type of competitive consequences addressed by the rule. [Footnote 33] The answer to the question whether petitioners have utilized a tying arrangement must be based on whether there is a possibility that the economic effect of the arrangement is that condemned by the rule against tying -- that petitioners have foreclosed competition on the merits in a product market distinct from the market for the tying item. [Footnote 34] Thus, in this case, no tying arrangement can exist unless there is a sufficient demand for the purchase of anesthesiological services separate from hospital services Page 466 U. S. 22 to identify a distinct product market in which it is efficient to offer anesthesiological services separately from hospital services. [Footnote 35]Unquestionably, the anesthesiological component of the package offered by the hospital could be provided separately and could be selected either by the individual patient or by one of the patient's doctors if the hospital did not insist on including anesthesiologcal services in the package it offers to its customers. As a matter of actual practice, anesthesiological services are billed separately from the hospital services petitioners provide. There was ample and uncontroverted testimony that patients or surgeons often request specific anesthesiologists to come to a hospital and provide anesthesia, and that the choice of an individual anesthesiologist separate from the choice of a hospital is particularly frequent in respondent's specialty, obstetric anesthesiology. [Footnote 36] The District Page 466 U. S. 23 Court found that "[t]he provision of anesthesia services is a medical service separate from the other services provided by the hospital." 613 F. Supp. at 540. [Footnote 37] The Court of Appeals agreed with this finding, and went on to observe:"[A]n anesthesiologist is normally selected by the surgeon, rather than the patient, based on familiarity gained through a working relationship. Obviously, the surgeons who practice at East Jefferson Hospital do not gain familiarity with any anesthesiologists other than Roux and Associates."686 F.2d at 291. [Footnote 38] The record amply supports the conclusion that consumers differentiate between anesthesiological services and the other hospital services provided by petitioners. [Footnote 39] Page 466 U. S. 24Thus, the hospital's requirement that its patients obtain necessary anesthesiological services from Roux combined the purchase of two distinguishable services in a single transaction. [Footnote 40] Nevertheless, the fact that this case involves a required Page 466 U. S. 25 purchase of two services that would otherwise be purchased separately does not make the Roux contract illegal. As noted above, there is nothing inherently anticompetitive about packaged sales. Only if patients are forced to purchase Roux's services as a result of the hospital's market power would the arrangement have anticompetitive consequences. If no forcing is present, patients are free to enter a competing hospital and to use another anesthesiologist instead of Roux. [Footnote 41] The fact that petitioners' patients are required to purchase two separate items is only the beginning of the appropriate inquiry. [Footnote 42] Page 466 U. S. 26IVThe question remains whether this arrangement involves the use of market power to force patients to buy services they would not otherwise purchase. Respondent's only basis for invoking the per se rule against tying, and thereby avoiding analysis of actual market conditions, is by relying on the preference of persons residing in Jefferson Parish to go to East Jefferson, the closest hospital. A preference of this kind, however, is not necessarily probative of significant market power.Seventy percent of the patients residing in Jefferson Parish enter hospitals other than East Jefferson. 513 F. Supp. at 539. Thus, East Jefferson's "dominance" over persons residing in Jefferson Parish is far from overwhelming. [Footnote 43] The Page 466 U. S. 27 fact that a substantial majority of the parish's residents elect not to enter East Jefferson means that the geographic data do not establish the kind of dominant market position that obviates the need for further inquiry into actual competitive conditions. The Court of Appeals acknowledged as much; it recognized that East Jefferson's market share alone was insufficient as a basis to infer market power, and buttressed its conclusion by relying on "market imperfections" [Footnote 44] that permit petitioners to charge noncompetitive prices for hospital services: the prevalence of third-party payment for health care costs reduces price competition, and a lack of adequate information renders consumers unable to evaluate the quality of the medical care provided by competing hospitals. 686 F.2d at 290. [Footnote 45] While these factors may generate "market power" in some abstract sense, [Footnote 46] they do not generate the kind of market power that justifies condemnation of tying.Tying arrangements need only be condemned if they restrain competition on the merits by forcing purchases that would not otherwise be made. A lack of price or quality Page 466 U. S. 28 competition does not create this type of forcing. If consumers lack price consciousness, that fact will not force them to take an anesthesiologist whose services they do not want -- their indifference to price will have no impact on their willingness or ability to go to another hospital where they can utilize the services of the anesthesiologist of their choice. Similarly, if consumers cannot evaluate the quality of anesthesiological services, it follows that they are indifferent between certified anesthesiologists even in the absence of a tying arrangement -- such an arrangement cannot be said to have foreclosed a choice that would have otherwise been made "on the merits."Thus, neither of the "market imperfections" relied upon by the Court of Appeals forces consumers to take anesthesiological services they would not select in the absence of a tie. It is safe to assume that every patient undergoing a surgical operation needs the services of an anesthesiologist; at least this record contains no evidence that the hospital "forced" any such services on unwilling patients. [Footnote 47] The record therefore Page 466 U. S. 29 does not provide a basis for applying the per se rule against tying to this arrangement.VIn order to prevail in the absence of per se liability, respondent has the burden of proving that the Roux contract violated the Sherman Act because it unreasonably restrained competition. That burden necessarily involves an inquiry into the actual effect of the exclusive contract on competition among anesthesiologists. This competition takes place in a market that has not been defined. The market is not necessarily the same as the market in which hospitals compete in offering services to patients; it may encompass competition among anesthesiologists for exclusive contracts such as the Roux contract and might be statewide or merely local. [Footnote 48] There is, however, insufficient evidence in this record to provide a basis for finding that the Roux contract, as it actually operates in the market, has unreasonably restrained competition. Page 466 U. S. 30 The record sheds little light on how this arrangement affected consumer demand for separate arrangements with a specific anesthesiologist. [Footnote 49] The evidence indicates that some surgeons and patients preferred respondent's services to those of Roux, but there is no evidence that any patient who was sophisticated enough to know the difference between two anesthesiologists was not also able to go to a hospital that would provide him with the anesthesiologist of his choice. [Footnote 50]In sum, all that the record establishes is that the choice of anesthesiologists at East Jefferson has been limited to one of the four doctors who are associated with Roux and therefore have staff privileges. [Footnote 51] Even if Roux did not have an exclusive contract, the range of alternatives open to the patient would be severely limited by the nature of the transaction and the hospital's unquestioned right to exercise some control over the identity and the number of doctors to whom it accords staff privileges. If respondent is admitted to the staff of East Jefferson, the range of choice will be enlarged from Page 466 U. S. 31 four to five doctors, but the most significant restraints on the patient's freedom to select a specific anesthesiologist will nevertheless remain. [Footnote 52] Without a showing of actual adverse effect on competition, respondent cannot make out a case under the antitrust laws, and no such showing has been made.VIPetitioners' closed policy may raise questions of medical ethics [Footnote 53] and may have inconvenienced some patients who would prefer to have their anesthesia administered by someone other than a member of Roux & Associates, but it does not have the obviously unreasonable impact on purchasers that has characterized the tying arrangements that this Court has branded unlawful. There is no evidence that the price, the quality, or the supply or demand for either the "tying product" or the "tied product" involved in this case has been adversely affected by the exclusive contract between Roux and the hospital. It may well be true that the contract made it necessary for Dr. Hyde and others to practice elsewhere, rather than at East Jefferson. But there has been no showing that the market as a whole has been affected at all by the contract. Indeed, as we previously noted, the record tells us very little about the market for the services of anesthesiologists. Page 466 U. S. 32 Yet that is the market in which the exclusive contract has had its principal impact. There is simply no showing here of the kind of restraint on competition that is prohibited by the Sherman Act. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. [Footnote 54]It is so ordered

U.S. Supreme CourtJefferson Parish Hosp. Dist. v. Hyde, 466 U.S. 2 (1984)Jefferson Parish Hospital District No. 2 v. HydeNo. 82-1031Argued November 2, 1983Decided March 27, 1984466 U.S. 2SyllabusA hospital governed by petitioners has a contract with a firm of anesthesiologists requiring all anesthesiological services for the hospital's patients to be performed by that firm. Because of this contract, respondent anesthesiologist's application for admission to the hospital's medical staff was denied. Respondent then commenced an action in Federal District Court, claiming that the exclusive contract violated § 1 of the Sherman Act, and seeking declaratory and injunctive relief. The District Court denied relief, finding that the anticompetitive consequences of the contract were minimal, and outweighed by benefits in the form of improved patient care. The Court of Appeals reversed, finding the contract illegal "per se." The court held that the case involved a "tying arrangement" because the users of the hospital's operating rooms (the tying product) were compelled to purchase the hospital's chosen anesthesiological services (the tied product), that the hospital possessed sufficient market power in the tying market to coerce purchasers of the tied product, and that, since the purchase of the tied product constituted a "not insubstantial amount of interstate commerce," the tying arrangement was therefore illegal "per se."Held: The exclusive contract in question does not violate § 1 of the Sherman Act. 466 U. S. 9-32.(a) Any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold, for that is where the anticompetitive forcing has its impact. Thus, in this case, the analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services. In making that analysis, consideration must be given to whether petitioners are selling two separate products that may be tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement. Pp. 466 U. S. 9-18.(b) No tying arrangement can exist here unless there is a sufficient demand for the purchase of anesthesiological services separate from hospital services to identify a distinct product market in which it is efficient to offer anesthesiological services separately from hospital services. The Page 466 U. S. 3 fact that the exclusive contract requires purchase of two services that would otherwise be purchased separately does not make the contract illegal. Only if patients are forced to purchase the contracting firm's services as a result of the hospital's market power would the arrangement have anticompetitive consequences. If no forcing is present, patients are free to enter a competing hospital and to use another anesthesiologist instead of the firm. 466 U. S. 18-25.(c) The record does not provide a basis for applying the per se rule against tying to the arrangement in question. While such factors as the Court of Appeals relied on in rendering its decision -- the prevalence of health insurance as eliminating a patient's incentive to compare costs, and patients' lack of sufficient information to compare the quality of the medical care provided by competing hospitals -- may generate "market power" in some abstract sense, they do not generate the kind of market power that justifies condemnation of tying. Tying arrangements need only be condemned if they restrain competition on the merits by forcing purchases that would not otherwise be made. The fact that patients of the hospital lack price consciousness will not force them to take an anesthesiologist whose services they do not want. Similarly, if the patients cannot evaluate the quality of anesthesiological services, it follows that they are indifferent between certified anesthesiologists even in the absence of a tying arrangement. Pp. 466 U. S. 26-29.(d) In order to prevail in the absence of per se liability, respondent has the burden of showing that the challenged contract violated the Sherman Act because it unreasonably restrained competition, and no such showing has been made. The evidence is insufficient to provide a basis for finding that the contract, as it actually operates in the market, has unreasonably restrained competition. All the record establishes is that the choice of anesthesiologists at the hospital has been limited to one of the four doctors who are associated with the contracting firm. If respondent were admitted to the hospital's staff, the range of choice would be enlarged, but the most significant restraints on the patient's freedom to select a specific anesthesiologist would nevertheless remain. There is no evidence that the price, quality, or supply or demand for either the "tying product" or the "tied product" has been adversely affected by the exclusive contract, and no showing that the market as a whole has been affected at all by the contract. Pp. 466 U. S. 29-32.686 F.2d 286, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 466 U. S. 32. O'CONNOR, Page 466 U. S. 4 J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 466 U. S. 32.

1974_73-2055

MR. JUSTICE MARSHALL delivered the opinion of the Court.The Securities Investor Protection Corp. (SIPC) was established by Congress as a nonprofit membership corporation for the purpose, inter alia, of providing financial relief to the customers of failing broker-dealers with whom they had left cash or securities on deposit. The question presented by this case is whether such customers have an implied private right of action under the Securities Investor Protection Act of 1970 (Act or SIPA), 84 Stat. 1636, 15 U.S.C. § 78aaa et seq., Page 421 U. S. 414 to compel the SIPC to exercise its statutory authority for their benefit.IIn December, 1970, the Securities and Exchange Commission (SEC) filed a complaint in District Court against Guaranty Bond and Securities Corp., a registered broker-dealer, to enjoin continued violation of the Commission's net capital and other rules. On January 6, 1971, the District Court issued a preliminary injunction, and, on January 29, it granted the Commission's motion for appointment of a receiver to wind up the affairs of Guaranty Bond. James C. Barbour (hereafter respondent) was appointed receiver.On April 6, 1972, respondent, alleging that customers of Guaranty Bond would sustain a loss at least equal to the costs of administering the receivership, obtained from the court an order directing the SEC and SIPC to show cause "why the remedies afforded by the [SIPA] should not be made available in this proceeding." In its answer, the SEC took the position that respondent had not demonstrated that Guaranty's customers would, in fact, sustain any loss, since it appeared that the receiver would have a cause of action for damages or restitution against Guaranty's parent company and principals. The SIPC, on the other hand, challenged the receiver's standing to maintain an action to compel its intervention, and, in direct opposition to the position of the SEC, argued that Guaranty's insolvency prior to the December 30, 1970, date on which the SIPA took effect meant that application of the Act to this case would give it an unlawful retroactive effect.The District Court upheld the receiver's right of action, but denied relief on the ground that Guaranty's hopeless insolvency prior to the effective date of the SIPA rendered the Act inapplicable. The Court of Appeals for Page 421 U. S. 415 the Sixth Circuit reversed. Since Guaranty had conducted 101 transactions after December 30, and the SEC did not move to prevent its carrying on business as a broker-dealer until January 6, it held that Guaranty qualified as a broker-dealer on the effective date of the Act. The court then rejected the SIPC's argument that the provision for SEC enforcement actions to compel the SIPC to perform its functions was meant to be exclusive of such actions by protected customers or their representative, and remanded the case for further proceedings. We granted certiorari, limited to the questions whether customers have an implied right of action to compel the SIPC to act, and, if so, whether a receiver has standing to maintain it. 419 U.S. 894 (1974). Since we now reverse the Court of Appeals on the ground that no implied right of action exists, we do not address the second question.IIFollowing a period of great expansion in the 1960's, the securities industry experienced a business contraction that led to the failure or instability of a significant number of brokerage firms. Customers of failed firms found their cash and securities on deposit either dissipated or tied up in lengthy bankruptcy proceedings. In addition to its disastrous effects on customer assets and investor confidence, this situation also threatened a "domino effect" involving otherwise solvent brokers that had substantial open transactions with firms that failed. Congress enacted the SIPA to arrest this process, restore investor confidence in the capital markets, and upgrade the financial responsibility requirements for registered brokers and dealers. S.Rep. No. 91-1218, pp. 2-4 (1970); H.R.Rep. No. 91-1613, pp. 2-4 (1970).The Act apportions responsibility for these tasks among the SEC, the securities industry self-regulatory Page 421 U. S. 416 organizations, and the SIPC, a nonprofit, private membership corporation to which most registered brokers and dealers are required to belong. 15 U.S.C. § 78ccc. Most important for present purposes, the Act creates a new form of liquidation proceeding, applicable only to member firms, designed to accomplish the completion of open transactions and the speedy return of most customer property.To this end, the SIPC is required to establish and maintain a fund for customer protection by laying assessments on the annual gross revenues of its members. The SEC and the securities industry self-regulatory organizations are required to notify the SIPC whenever it appears that a member is in or approaching financial difficulty. If the SIPC determines that a member has failed or is in danger of failing to meet its obligations to customers, and finds any one of five specified conditions suggestive of financial irresponsibility, then it"may apply to any court of competent jurisdiction . . . for a decree adjudicating that customers of such member are in need of the protection provided by [the Act]."§ 78eee(a)(2).The mere filing of an SIPC application gives the court in which it is filed exclusive jurisdiction over the member and its property, wherever located, and requires the court to stay"any pending bankruptcy, mortgage foreclosure, equity receivership, or other proceeding to reorganize, conserve, or liquidate the [member] or its property and any other suit against any receiver conservator, or trustee of the [member] or its property."§ 78eee(b)(2). If the SEC has pending any action against the member, it may, with the Commission's consent, be combined with the SIPC proceeding. If no such action is pending, the SEC may intervene as a party to the SIPC proceeding.If the court finds any of the five conditions on which Page 421 U. S. 417 an SIPC application may be based, it must grant the application and issue the decree, and appoint as trustee for the liquidation of the business and as attorney for the trustee, "such persons as SIPC shall specify." §§ 78eee(b)(1), (3).The trustee is empowered and directed by the Act to return customer property, complete open transactions, enforce rights of subrogation, and liquidate the business of the member, § 78fff(a); he is not empowered to reorganize or rehabilitate the business. The SIPC is required to advance him such sums as are necessary to complete open transactions, and to accomplish the return of customer property up to a value of $50,000. § 78fff(f).The role of the SEC in this scheme, insofar as relevant to the present case, is one of "plenary authority" to supervise the SIPC. S.Rep. No. 91-1218, supra at 1; see H.R.Rep. No. 91-1613, supra at 12. For example, it may disapprove in whole or in part any bylaw or rule adopted by the Board of Directors of the SIPC, or require the adoption of any rule it deems appropriate, in order to promote the public interest and the purposes of the Act. 15 U.S.C. § 78ccc(e). It may inspect and examine the SIPC's records and require that any information it deems appropriate be furnished to it, and it receives the corporation's annual report for inspection and transmission, with its comments, to the President and Congress. § 78ggg(c). It may participate in any liquidation proceeding initiated by the SIPC, but, even more important, § 7(b) of the Act, § 78ggg(b), provides:"Enforcement of actions. -- In the event of the refusal of SIPC to commit its funds or otherwise to act for the protection of customers of any member of SIPC, the Commission may apply to the district court of the United States in which the principal Page 421 U. S. 418 office of SIPC is located for an order requiring SIPC to discharge its obligations under [the Act] and for such other relief as the court may deem appropriate to carry out the purposes of [the Act]."It is against this background relationship between the SIPC and the SEC that we must approach the question whether, in addition to the Commission, a member's customers or their representative may seek in district court to compel the SIPC "to commit its funds or otherwise to act for the protection" of such customers.IIIThe respondent contends that, since the SIPA does not, in terms, preclude a private cause of action at the instance of a member broker's customers, and since such customers are the intended beneficiaries of the Act, the Court should imply a right of action by which customers can compel the SIPC to discharge its obligations to them. As we said only last Term in analyzing a similar contention:"It goes without saying . . . that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act."Passenger Corp. v. Passengers Assn., 414 U. S. 453, 414 U. S. 457-458 (1974) (hereinafter Amtrak).In Amtrak itself, the petitioner was a corporation created by Congress to assume from private railroads certain inter-city rail passenger service responsibilities. The respondent passenger association brought an action to enjoin the discontinuance of a particular service as announced by the corporation pursuant to its authority under § 404(b)(2) of the Rail Passenger Service Act of 1970 (Amtrak Act), 45 U.S.C. § 564(b)(2). That Act made express provision for suits against Amtrak to enforce its duties and obligations only "upon petition of the Page 421 U. S. 419 Attorney General of the United States or, in a case involving a labor agreement, upon petition of any employee affected" by the agreement. 45 U.S.C. § 547(a). There, as here, the plaintiff respondent argued that statutory authorization for one type of action against the congressionally created corporation did not preclude another at the instance of the intended beneficiaries of the law.The Court's analysis of the claim in Amtrak began with the observation that express statutory provision for one form of proceeding ordinarily implies that no other means of enforcement was intended by the Legislature. That implication would yield, however, to "clear contrary evidence of legislative intent," 414 U.S. at 414 U. S. 458, for which we turned to the legislative history and the overall structure of the Amtrak Act.Inspection revealed that the legislative history of the Amtrak Act was entirely consonant with the implication of the statutory language that no private right of action was intended. [Footnote 1] The general structure and purpose of the Act gave further support to that conclusion. Congress had expected that, in creating an economically viable rail passenger system, some rail service would have to be discontinued by Amtrak; it had provided an efficient and expeditious means to that end, which seemed incompatible with an intent to allow a private action by any passenger affected by a discontinuance decision. [Footnote 2] Page 421 U. S. 420 Nor would the absence of a private right of action leave Amtrak free to disregard the public interest in its decisionmaking. In addition to investing the Attorney General with "authority to police the Amtrak system and to enforce the various duties and obligations imposed by the Act" by court action, Congress provided for "substantial scrutiny" over Amtrak's operations by requiring it to make periodic reports to Congress and the President and to open its books to the Comptroller General for auditing. 414 U.S. at 414 U. S. 464.The similarities between the present case and Amtrak are undeniable, and, for the respondent, we think, insurmountable. As with Amtrak, so with the SIPC, Congress has created a corporate entity to solve a public problem; it has provided for substantial supervision of its operations by an agency charged with protection of the public interest -- here, the SEC -- and for enforcement by that agency in court of the obligations imposed upon the corporation. The corporation is required to report to Congress and the President, and to open its books and records to the SEC and the Comptroller General. Further, Congress has chartered the SIPC, unlike Amtrak, as a nonprofit corporation, and it has put its direction in the hands of a publicly chosen board of directors.Beyond the inference to be drawn from the structure of the SIPC, there is no extrinsic evidence that Congress intended to allow an action such as that before us. [Footnote 3] As Page 421 U. S. 421 the respondent concedes, there is no indication in the legislative history of the SIPA that Congress ever contemplated a private right of action parallel to that expressly given to the SEC. Additionally, as in Amtrak, it is clear that the overall structure and purpose of the SIPC scheme are incompatible with such an implied right.Congress' primary purpose in enacting the SIPA and creating the SIPC was, of course, the protection of investors. It does not follow, however, that an implied right of action by investors who deem themselves to be in need of the Act's protection is either necessary to, or indeed capable of, furthering that purpose.The SIPC properly treats an application for the appointment of a receiver and liquidation of a brokerage firm as a last resort. It maintains an early warning system, and monitors the affairs of any firm that it is given reason to believe may be in danger of failure. Its experience to date demonstrates that, more often than not, an endangered firm will avoid collapse by infusion of new capital or merger with a stronger firm. [Footnote 4] Even failing Page 421 U. S. 422 those alternatives, a firm may be able to liquidate under the supervision of one of the self-regulatory organizations, or the district court, without danger of loss to customers. The SIPC's policy, therefore, is to defer intervention "until there appear[s] to be no reasonable doubt that customers would need the protection of the Act." SIPC 1973 Annual Report 7 (1974). By this policy, the SIPC avoids unnecessarily engendering the costs of precipitate liquidations -- the costs not only of administering the liquidation but also of customer illiquidity and additional loss of confidence in the capital markets -- without sacrifice of any customer protection that may ultimately prove necessary. A customer, by contrast, cannot be expected to consider, or have adequate information to consider, these public interests in timing his decision to apply to the courts.The respondent in this case does not, of course, claim any right to make the decision that a firm should be liquidated; the Act makes that a judicial decision. He seeks only the right to ask the District Court to make that decision when both the SIPC and the SEC have refused or simply failed to do so. In practical effect, however, the difference is slight. Except with respect to the solidest of houses, the mere filing of an action predicated upon allegations of financial insecurity might often prove fatal. [Footnote 5] Other customers could not be expected to leave Page 421 U. S. 423 their cash and securities on deposit, nor other brokers to initiate new transactions that the firm might not be able to cover when due if a receiver is appointed, nor would suppliers be likely to continue dealing with such a firm. These consequences are too grave, and, when unnecessary, too inimical to the purposes of the Act, for the Court to impute to Congress an intent to grant to every member of the investing public control over their occurrence. On the contrary, they seem to be the very sorts of considerations that motivated Congress to put the SIPC in the hands of a public board of directors, responsible to an agency experienced in regulation of the securities markets. [Footnote 6]We need not pause long over the distinctions between this case and those, such as J. I. Case Co. v. Borak, 377 U. S. 426 (1964), and Allen v. State Board of Elections, 393 U. S. 544 (1969), in which the Court held that an implied private cause of action was maintainable.In J. I. Case, a stockholder sought damages against his corporation for its alleged misrepresentations, violative of § 14(a) of the Securities Exchange Act of 1934, in soliciting proxy votes for the approval of a merger. In light of the "broad remedial purposes" of the Act and the SEC's representation that private enforcement was necessary to effectuate those purposes, the Court held that the action for damages could be maintained. Page 421 U. S. 424The Court first concluded that it was "clear that private parties have a right under § 27 [of the Act] to bring suit for violation of § 14(a)," since § 27 specifically granted the district courts jurisdiction over "all suits in equity and actions at law brought to enforce any liability or duty created'" under the Act. 377 U.S. at 377 U. S. 430-431. The more difficult question was whether the private parties, once in court, could seek damages as well as equitable relief. On this point, the Court agreed with the SEC that private enforcement of the proxy rules was a necessary supplement to SEC enforcement. Since there was no contrary indication from Congress, the Court so held, relying on the statement from Bell v. Hood, 327 U. S. 678, 327 U. S. 684 (1946) that,"where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done."Unlike the Securities Exchange Act, the SIPA contains no standards of conduct that a private action could help to enforce, and it contains no general grant of jurisdiction to the district courts. As in Amtrak, a private right of action under the SIPA would be consistent neither with the legislative intent nor with the effectuation of the purposes it is intended to serve.The Allen case arose under the Voting Rights Act of 1965. The question there was whether a private citizen could sue to set aside a state or local election law on the ground of its repugnancy to the Act. The federal statute provided that the Attorney General may bring such suits, but was silent as to the rights of others. It was clear to the Court -- and to the Attorney General -- that the Act would be practically unenforceable against the many local governments subject to its strictures if only the Attorney General were authorized to sue. We thus found it "consistent with the broad purpose of the Act to allow Page 421 U. S. 425 the individual citizen standing to insure that his city or county government complies with" its requirements. 393 U.S. at 393 U. S. 557.There is not the slightest reason to think that the SIPA, in contrast to the Voting Rights Act, imposes such burdens on the parties charged with its administration that Congress must either have intended their efforts to be supplemented by those of private investors or enacted a statute incapable of achieving its purpose. Instead of enlisting the aid of investors in achieving that purpose, Congress imposed upon the SEC, the exchanges, and the self-regulatory organizations the obligation to report to the SIPC any situation that might call for its intervention.For these reasons, we are unable to agree with the proposition that the customers of a member broker may sue to compel the SIPC to perform its statutory functions. [Footnote 7] The Judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with instructions that the receiver's petition for an order to show cause be dismissed.It is so ordered

U.S. Supreme CourtSIPC v. Barbour, 421 U.S. 412 (1975)SIPC v. BarbourNo. 73-2055Argued March 17-18, 1975Decided May 19, 1975421 U.S. 412SyllabusPetitioner Securities Investor Protection Corp. (SIPC) was established by Congress under the Securities Investor Protection Act of 1970 (SIPA) as a nonprofit membership corporation, to provide, inter alia, financial relief to the customers of failing broker-dealers with whom the customers had left cash or securities on deposit. The SIPA creates procedures for the orderly liquidation of financially troubled member firms under which the SIPC is required, by assessing members, to maintain a fund for customer protection. The SIPC may file an application with a court for a decree initiating liquidation proceedings if it determines that a member has failed or is in danger of failing to meet its obligations to customers, and that any one of five specified conditions indicating financial difficulty exist, and the filing of the application vests the court with exclusive jurisdiction over the member and its property. If the court finds the existence of a specified condition, it must grant the application, issue the decree, and appoint the SIPC's designee as trustee to liquidate the business, and the SIPC is obligated, if necessary, to advance funds to meet certain customer claims. The Securities and Exchange Commission (SEC) is given "plenary authority" to supervise the SIPC, and is specifically authorized to apply to a district court for an order requiring the SIPC to discharge its statutory obligations. This action was brought by respondent receiver appointed to wind up the affairs of Guaranty Bond, an insolvent registered broker-dealer, to compel the SIPC to exercise its statutory authority for the benefit of Guaranty Bond's customers. The District Court denied relief. The Court of Appeals reversed.Held: Customers of failing broker-dealers have no implied right of action under the SIPA to compel the SIPC to act for their benefit, the SEC's statutory authority to compel the SIPC to discharge its obligations being the exclusive means by which the SIPC can be forced to act. Pp. 418-425.(a) The express statutory provision for one form of proceeding ordinarily implies that no other enforcement means was intended Page 421 U. S. 413 by the legislature, and here the SIPA's legislative history was entirely consonant with the implication of the statutory language that no private right of action was intended. Cf. Passenger Corp. v. Passengers Assn., 414 U. S. 453. Pp. 421 U. S. 418-420.(b) The overall structure and purpose of the SIPC scheme are incompatible with an implied private right of action, which might well precipitate liquidations that the SIPC, which treat that approach as a last resort, might be able to avoid. Pp. 421 U. S. 420-423.(c) The SIPA contains no standards of conduct that a private action could implement. J. I. Case Co. v. Borak, 377 U. S. 426; Allen v. State Board of Elections, 393 U. S. 544, distinguished. Pp. 421 U. S. 423-425.496 F.2d 145, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE:, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., dissented.

1984_83-6607

JUSTICE MARSHALL delivered the opinion of the Court, except as to Part IV-A.This case presents the issue whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury, but with the appellate court which later reviews the case. In this case, a prosecutor urged the jury not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the State Supreme Court. We granted certiorari, 469 U.S. 879 (1984), to consider petitioner's contention that the prosecutor's argument rendered the capital sentencing proceeding inconsistent with the Eighth Amendment's heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 305 (1976) (plurality opinion). Agreeing with the contention, we vacate the sentence. [Footnote 1] Page 472 U. S. 324IPetitioner shot and killed the owner of a small grocery store in the course of robbing it. In a bifurcated proceeding conducted pursuant to Mississippi's capital punishment statute, petitioner was convicted of capital murder and sentenced to death.In their case for mitigation, petitioner's lawyers put on evidence of petitioner's youth, family background, and poverty, as well as general character evidence. In their closing arguments, they referred to this evidence and then asked the jury to show mercy. The arguments were in large part pleas that the jury confront both the gravity and the responsibility of calling for another's death, even in the context of a capital sentencing proceeding."[E]very life is precious, and as long as there's life in the soul of a person, there is hope. There is hope, but life is one thing, and death is final. So I implore you to think deeply about this matter. It is his life or death -- the decision you're going to have to make, and I implore you to exercise your prerogative to spare the life of Bobby Caldwell. . . . I'm sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It's going to be your decision. I don't know what else I can say to you, but we live in a society where we are taught that an eye for an eye is not the solution. . . . You are the judges, and you will have to decide his fate. It is an awesome responsibility, I know -- an awesome responsibility."App. 18-19. Page 472 U. S. 325In response, the prosecutor sought to minimize the jury's sense of the importance of its role. Indeed, the prosecutor forcefully argued that the defense had done something wholly illegitimate in trying to force the jury to feel a sense of responsibility for its decision. The prosecutor's argument, defense counsel's objection, and the trial court's ruling were as follows:"ASSISTANT DISTRICT ATTORNEY: Ladies and gentlemen, I intend to be brief. I'm in complete disagreement with the approach the defense has taken. I don't think it's fair. I think it's unfair. I think the lawyers know better. Now, they would have you believe that you're going to kill this man, and they know -- they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet they . . .""COUNSEL FOR DEFENDANT: Your Honor, I'm going to object to this statement. It's out of order.""ASSISTANT DISTRICT ATTORNEY: Your Honor, throughout their argument, they said this panel was going to kill this man. I think that's terribly unfair.""THE COURT: Alright, go on and make the full expression so the Jury will not be confused. I think it proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.""ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said 'Thou shalt not kill.' If that applies to him, it applies to you, insinuating that your decision is the final decision, and that they're gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up, and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically Page 472 U. S. 326 reviewable by the Supreme Court. Automatically, and I think it's unfair, and I don't mind telling them so."Id. at 21-22.On review, the Mississippi Supreme Court unanimously affirmed the conviction, but divided 4-4 on the validity of the death sentence, thereby affirming the sentence by an equally divided court. 443 So. 2d 806 (1983). Relying on this Court's decision in California v. Ramos, 463 U. S. 992 (1983), the prevailing opinion flatly rejected the contention that the prosecutor's comments could constitute a violation of the Eighth Amendment: "By [Ramos'] reasoning, states may decide whether it is error to mention to jurors the matter of appellate review." 443 So. 2d at 806. The dissent did not dispute this view of Ramos, but did argue that, as a matter of state law the prosecutor's argument was sufficiently unfair as to require that the death sentence be vacated. 443 So. 2d at 815 (Lee, J., dissenting). The prevailing justices, however, found no basis in state law for disturbing the sentence. Id. at 806-807. Petitioner argues to this Court, as he argued below, that Ramos does not control this case, and that the prosecutor's comments violated the Eighth Amendment.IIRespondent first argues that this Court lacks jurisdiction to decide this issue because the decision of the Mississippi Supreme Court rests on adequate and independent state grounds. See Herb v. Pitcairn, 324 U. S. 117 (1945). Although petitioner interposed a contemporaneous objection to the prosecutor's argument, he did not initially assign the issue as error on appeal. Under Mississippi rules,"[n]o error not distinctly assigned shall be argued by counsel, except upon request of the Court, but the Court may, at its option, notice a plain error not assigned or distinctly specified."Miss.Sup.Ct.Rule 6(b) (1976). In this case, the State Supreme Court raised the issue of the prosecutor's Page 472 U. S. 327 comments sua sponte. It was discussed at oral argument, in postargument briefs submitted by both sides, and in the opinion of the State Supreme Court. Respondent nevertheless argues that the decision below rests on the state law ground of failure to comply with Rule 6.The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case. See Ulster County Court v. Allen, 442 U. S. 140, 442 U. S. 152-154 (1979). Moreover, we will not assume that a state court decision rests on adequate and independent state grounds when the"state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion."Michigan v. Long, 463 U. S. 1032, 463 U. S. 1040-1041 (1983)."If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision."Id. at 463 U. S. 1041An examination of the decision below reveals that it contains no clear or express indication that "separate, adequate, and independent" state law grounds were the basis for the court's judgment. Indeed, the reference to the waiver issue in the prevailing opinion below, although somewhat cryptic, argues against the position urged by respondent. The State Supreme Court stated:"Prueitt v. State, 261 So. 2d 119 (Miss.1972), is a case in which we dealt with the situation where counsel sought to argue a question not raised by the assignment of error. Writing for the Court in that case, Justice Jones states 'We do not deem these matters [those not assigned] plain error. . . .' Bell v. State, 360 So. 2d 1206 (Miss.1978) . . . is analogous to the present case, in Page 472 U. S. 328 that Bell dealt with errors 'not urged or argued in the briefs. . . .'"443 So. 2d at 814.Prueitt was a noncapital case decided by the Mississippi Supreme Court on the basis of procedural bar. But in Bell, a capital case, that court refused to rest on the procedural bar, raising on its own motion certain claims not assigned as error on appeal. It then decided those claims on the merits, explicitly holding that they were unmeritorious. 360 So. 2d at 1215. Because Bell explicitly rested on the merits, and because the court below described Bell as "analogous to the present case in that that [it] dealt with errors not urged or argued in the briefs,'" 443 So. 2d at 814 (emphasis added), we can read the opinion below only as meaning that procedural waiver was not the basis of the decision.This conclusion is substantially bolstered by the fact that the Mississippi court discussed the challenge to the prosecutor's argument at some length, evaluating it as a matter of both federal and state law before rejecting it as unmeritorious. Moreover, this conclusion is consistent with the Mississippi Supreme Court's behavior in other capital cases, where it has a number of times declined to invoke procedural bars. See, e.g., Williams v. State, 445 So. 2d 798, 810 (1984) (explicitly citing Bell as authority for the proposition that "we have in death penalty cases the prerogative of relaxing our contemporaneous objection and plain error rules when the interests of justice so require"); Culberson v. State, 379 So. 2d 499, 506 (1979) (reaching merits "only because this is a capital case" where counsel failed to follow Rule requiring prior objections to jury instructions). Given the standards of Michigan v. Long and Ulster County Court, it is apparent that we have jurisdiction.IIIAOn reaching the merits, we conclude that it is constitutionally impermissible to rest a death sentence on a determination Page 472 U. S. 329 made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. This Court has repeatedly said that, under the Eighth Amendment,"the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination."California v. Ramos, 463 U.S. at 463 U. S. 998-999. Accordingly, many of the limits that this Court has placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion. See, e.g., Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion); Gardner v. Florida, 430 U. S. 349 (1977) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280 (1976). [Footnote 2]In evaluating the various procedures developed by States to determine the appropriateness of death, this Court's Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State. Thus, as long ago as the pre-Furman case of McGautha v. California, 402 U. S. 183 (1971), Justice Harlan, writing for the Court, upheld a capital sentencing scheme in spite of its reliance on jury discretion. The sentencing scheme's premise, he assumed, was"that jurors confronted with the truly awesome responsibility of decreeing Page 472 U. S. 330 death for a fellow human will act with due regard for the consequences of their decision. . . ."Id. at 402 U. S. 208. Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an "awesome responsibility" has allowed this Court to view sentencer discretion as consistent with -- and indeed as indispensable to -- the Eighth Amendment's "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, supra, at 428 U. S. 305 (plurality opinion). See also Eddings v. Oklahoma, supra; Lockett v. Ohio, supra.BIn the capital sentencing context, there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.(1)Bias against the defendant clearly stems from the institutional limits on what an appellate court can do -- limits that jurors often might not understand. The "delegation" of sentencing responsibility that the prosecutor here encouraged would thus not simply postpone the defendant's right to a fair determination of the appropriateness of his death; rather, it would deprive him of that right, for an appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance. Whatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record. This inability to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of what this Court has termed "[those] compassionate or mitigating factors stemming from the diverse frailties of humankind." Woodson supra, at 428 U. S. 304. When we held that a defendant has a constitutional right to the consideration of such factors, Eddings, supra; Lockett, supra, we Page 472 U. S. 331 clearly envisioned that that consideration would occur among sentencers who were present to hear the evidence and arguments and see the witnesses. As the dissenters below noted:"The [mercy] plea is made directly to the jury, as only they may impose the death sentence. Under our standards of appellate review, mercy is irrelevant. There is no appellate mercy. Therefore, the fact that review is mandated is irrelevant to the thought processes required to find that an accused should be denied mercy and sentenced to die."443 So. 2d at 817 (Lee, J., joined by Patterson, C.J., and Prather and Robertson, JJ., dissenting).Given these limits, most appellate courts review sentencing determinations with a presumption of correctness. This is the case in Mississippi, where, as the dissenters below pointed out:"Even a novice attorney knows that appellate courts do not impose a death penalty, they merely review the jury's decision and that review is with a presumption of correctness."Id. at 816 (Lee, J., joined by Patterson, C.J., and Prather and Robertson, JJ., dissenting). See also Miss.Code Ann. § 99-19-105 (Supp.1984) (defining scope of appellate review of capital sentencing).(2)Writing on this kind of prosecutorial argument in a prior case, JUSTICE STEVENS noted another reason why it presents an intolerable danger of bias toward a death sentence: even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to "send a message" of extreme disapproval for the defendant's acts. This desire might make the jury very receptive to the prosecutor's assurance that it can more freely "err because the error may be corrected on appeal." Maggio v. Williams, 464 U. S. 46, 464 U. S. 54-55 (1983) (concurring in judgment). A defendant might thus be executed, although no Page 472 U. S. 332 sentencer had ever made a determination that death was the appropriate sentence.(3)Bias could similarly stem from the fact that some jurors may correctly assume that a sentence of life in prison could not be increased to a death sentence on appeal. See Arizona v. Rumsey, 467 U. S. 203, 467 U. S. 211 (1984). The chance that this will be the assumption of at least some jurors is increased by the fact that, in an argument like the one in this case, appellate review is only raised as an issue with respect to the reviewability of a death sentence. If the jury understands that only a death sentence will be reviewed, it will also understand that any decision to "delegate" responsibility for sentencing can only be effectuated by returning that sentence. But for a sentencer to impose a death sentence out of a desire to avoid responsibility for its decision presents the specter of the imposition of death based on a factor wholly irrelevant to legitimate sentencing concerns. The death sentence that would emerge from such a sentencing proceeding would simply not represent a decision that the State had demonstrated the appropriateness of the defendant's death. [Footnote 3] This would thus also create the danger of a defendant's being executed in the absence of any determination that death was the appropriate punishment.(4)In evaluating the prejudicial effect of the prosecutor's argument, we must also recognize that the argument offers jurors a view of their role which might frequently be highly Page 472 U. S. 333 attractive. A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community. Moreover, they are given only partial guidance as to how their judgment should be exercised, leaving them with substantial discretion. See, e.g., Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978); Woodson v. North Carolina, 428 U. S. 280 (1976). Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will, in fact, choose to minimize the importance of its role. Indeed, one can easily imagine that, in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in.This problem is especially serious when the jury is told that the alternative decisionmakers are the justices of the state supreme court. It is certainly plausible to believe that many jurors will be tempted to view these respected legal authorities as having more of a "right" to make such an important decision than has the jury. Given that the sentence will be subject to appellate review only if the jury returns a sentence of death, the chance that an invitation to rely on that review will generate a bias toward returning a death sentence is simply too great.CIt is, therefore, not surprising that legal authorities almost uniformly have strongly condemned the sort of argument offered by the prosecutor here. For example, this has been the view of almost all of the State Supreme Courts that have dealt with this question since Furman v. Georgia, 408 Page 472 U. S. 334 U.S. 238 (1972). [Footnote 4] Indeed, even before Furman, the sort of argument offered by the prosecutor here was viewed as clearly improper by most state courts, whether in capital or noncapital cases. [Footnote 5] The American Bar Association, in its standards for prosecutorial conduct, agrees with this judgment. [Footnote 6] And even the Mississippi Supreme Court, since deciding Caldwell, has adopted the position that arguments very similar to that used here are sufficiently improper to merit vacating a death sentence. See Wiley v. State, 449 So. 2d 756 (1984); Williams v. State, 445 So. 2d 798 (1984). Page 472 U. S. 335IVThe State advances three arguments for why the death sentence should be upheld despite the prosecutor's comments. First, the State argues that, under California v. Ramos, 463 U. S. 992 (1983), each State may decide for itself the extent to which a capital sentencing jury should know of postsentencing proceedings. Second, it defends the prosecutor's comments as "invited," in the sense that they were a reasonable response to defense counsel's arguments. Last, the State asserts that an application of this Court's decision in Donnelly v. DeChristoforo, 416 U. S. 637 (1974), precludes a finding of constitutional error based on the sort of impropriety that the state prosecutor's comments are said to contain. None of these arguments is persuasive.ABoth respondent and the prevailing justices of the Mississippi Supreme Court interpreted California v. Ramos, supra, as if it had held that States are free to expose capital sentencing juries to any information and argument concerning postsentencing procedures. This is too broad a view of Ramos.Ramos concerned the constitutionality of California's statutory requirement that capital sentencing juries be informed that the State Governor could commute a sentence of life imprisonment without possibility of parole into a lesser sentence that included the possibility of parole. In upholding this requirement, the Court rested on a determination that this instruction was both accurate and relevant to a legitimate state penological interest -- that interest being a concern for the future dangerousness of the defendant should he ever return to society. 463 U.S. at 463 U. S. 1001-1006. The Court concluded that this legitimate sentencing concern gave the jury a valid interest in accurate information on the possibility of parole. Page 472 U. S. 336In contrast, the argument at issue here cannot be said to be either accurate or relevant to a valid state penological interest. The argument was inaccurate, both because it was misleading as to the nature of the appellate court's review and because it depicted the jury's role in a way fundamentally at odds with the role that a capital sentencer must perform. Similarly, the prosecutor's argument is not linked to any arguably valid sentencing consideration. That appellate review is available to a capital defendant sentenced to death is no valid basis for a jury to return such a sentence if otherwise it might not. It is simply a factor that, in itself, is wholly irrelevant to the determination of the appropriate sentence. The argument here urged the jurors to view themselves as taking only a preliminary step toward the actual determination of the appropriateness of death -- a determination which would eventually be made by others and for which the jury was not responsible. Creating this image in the minds of the capital sentencers is not a valid state goal, and Ramos is not to the contrary. Indeed, Ramos itself never questioned the indispensability of sentencers who "appreciat[e] . . . the gravity of their choice and . . . the moral responsibility reposed in them as sentencers." Id. at 463 U. S. 1011.BRespondent next defends the view of the Mississippi Supreme Court that the prosecutor's argument must be understood as a response to the defense counsel's argument, and that it was not unreasonable in that context. But neither respondent nor the court below explains how the prosecutor's argument was less likely to have distorted the jury's deliberations because of anything defense counsel said.The Mississippi Supreme Court was less than clear as to the theory of "context" it embraced. The prevailing justices commented on two aspects of the defense's arguments. First,"during defense counsel's argument, . . . he inaccurately sought to convince the jury that, if they meted out a life sentence, the defendant would remain in prison the remainder Page 472 U. S. 337 of his life. He left them with the impression that there would be no parole or commutation of sentence."443 So. 2d at 814. Second, the opinion noted that "[defense counsel had] emphasized his pitch for mercy by referring to the Ten Commandments, Jesus and the Heavenly Father." Ibid.The first of these arguments, of course, recalls Ramos, in which the Court stated that an instruction describing the alternative to a death sentence as"'life imprisonment without possibility of parole' may generate the misleading impression that the Governor could not commute this sentence to one that included the possibility of parole."463 U.S. at 463 U. S. 1004-1005, n.19. But although in Ramos the Court concluded that this possible misimpression underscored a valid sentencing need to give more information on the Governor's power to commute life sentences, there is no rational link between the possibility of this specific misimpression and the argument used by the prosecutor in this case. The prosecutor's argument simply had nothing to do with the consequences that would flow from the life sentence mentioned by defense counsel.The connection between defense counsel's references to religious themes and texts and the prosecutor's arguments regarding appellate review is similarly unclear. As the dissenting justices noted:"Assuming without accepting the majority's position that the defense counsel's argument invited error, it did not invite this error. Asking the jury to show mercy does not invite comment on the system of appellate review. This is true whether the plea for mercy discusses Christian, Judean or Buddhist philosophies, quotes Shakespeare, or refers to the heartache suffered by the accused's mother."443 So. 2d at 817.CThe State seeks to bolster its argument regarding the context of the prosecutor's comments by arguing that, under this Court's decision in Donnelly v. DeChristoforo, supra, the comments of a state prosecutor should rarely be considered Page 472 U. S. 338 violative of federal constitutional rights. The State points out that Donnelly stands for the proposition that"not every trial error or infirmity which might on direct appeal of a federal conviction call for an application of a federal appellate court's . . . supervisory powers correspondingly constitute the denial of due process."Brief for Respondent 25. But although Donnelly does clearly warn against holding every improper and unfair argument of a state prosecutor to be a federal due process violation, it does not insulate all prosecutorial comments from federal constitutional objections. For a number of reasons, this case is substantially different from Donnelly.Donnelly was a first-degree murder case in which a state prosecutor responded to defense counsel's expression of hope that the jury would return a verdict of not guilty by saying"I quite frankly think that [the defendant and his attorney] hope that you find him guilty of something a little less than first-degree murder."416 U.S. at 416 U. S. 640. DeChristoforo's attorney objected, and the trial judge later gave this curative instruction:"Closing arguments are not evidence for your consideration. . . .""Now in his closing, the District Attorney, I noted made a statement:""I don't know what they want you to do by way of a verdict. They said they hope that you find him not guilty. I quite frankly think that they hope you find him guilty of something a little less than first-degree murder.""There is no evidence of that whatsoever, of course, you are instructed to disregard that statement made by the District Attorney.""Consider the case as though no such statement was made."Id. at 416 U. S. 641."The Supreme Judicial Court of Massachusetts viewed the prosecutor's comment as improper, but""held that it was not so prejudicial as to require a mistrial, and further stated that the trial judge's instruction 'was sufficient to safeguard the Page 472 U. S. 339 defendant's rights.'"Ibid. Although the District Court denied habeas relief, the Court of Appeals granted it. This Court reversed because an "examination of the entire proceedings" did not support the contention that the "prosecutor's remark . . . , by itself, so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 416 U. S. 643.Two important factors, both emphasized in Donnelly, distinguish Donnelly from Caldwell's case. Most important, the trial judge in Donnelly, who observed the prosecutor's remarks as well as the whole of the trial, had agreed that those remarks were improper, had believed that the unfairness was correctable through an instruction, and had in fact given the jury a strong curative instruction. As this Court said:"[T]he trial court took special pains to correct any impression that the jury could consider the prosecutor's statements as evidence in the case. The prosecutor, as is customary, had previously told the jury that his argument was not evidence, and the trial judge specifically reemphasized that point. Then the judge directed the jury's attention to the remark particularly challenged here, declared it to be unsupported, and admonished the jury to ignore it. Although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character."Id. at 416 U. S. 644 (footnotes omitted). The trial judge in this case not only failed to correct the prosecutor's remarks, but in fact openly agreed with them; he stated to the jury that the remarks were proper and necessary, strongly implying that the prosecutor's portrayal of the jury's role was correct.Second, the prosecutor's remarks in Donnelly were quite different from the remarks challenged here. The Donnelly Court emphasized that the prosecutor's comment was "admittedly Page 472 U. S. 340 an ambiguous one," id. at 416 U. S. 645, and declared that the case was not one"in which the prosecutor's remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right."Id. at 416 U. S. 643 (citing Griffin v. California, 380 U. S. 609 (1965)). Here, in contrast, the prosecutor's remarks were quite focused, unambiguous, and strong. They were pointedly directed at the issue that this Court has described as "the principal concern" of our jurisprudence regarding the death penalty, the "procedure by which the State imposes the death sentence." California v. Ramos, 463 U.S. at 463 U. S. 999. In this case, the prosecutor's argument sought to give the jury a view of its role in the capital sentencing procedure that was fundamentally incompatible with the Eighth Amendment's heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. at 428 U. S. 305 (plurality opinion). Such comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment. [Footnote 7] Page 472 U. S. 341VThis Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its "truly awesome responsibility." In this case, the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated. Accordingly, the judgment is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings.It is so ordered

U.S. Supreme CourtCaldwell v. Mississippi, 472 U.S. 320 (1985)Caldwell v. MississippiNo. 83-6607Argued February 25, 1985Decided June 11, 1985472 U.S. 320SyllabusIn a bifurcated proceeding conducted pursuant to Mississippi's capital punishment statute, petitioner was convicted of murder and sentenced to death. Petitioner's lawyers, in their closing argument at the sentencing stage, referred to petitioner's youth, family background, and poverty, as well as to general character evidence, and they asked the jury to show mercy, emphasizing that the jury should confront the gravity and responsibility of calling for another's death. In response, the prosecutor urged the jury not to view itself as finally determining whether petitioner would die, because a death sentence would be reviewed for correctness by the Mississippi Supreme Court. That court unanimously affirmed the conviction, but affirmed the death sentence by an equally divided court, rejecting, in reliance on California v. Ramos, 463 U. S. 992, the contention that the prosecutor's comments violated the Eighth Amendment.Held: The death sentence is vacated.443 So. 2d 806, reversed in part and remanded.JUSTICE MARSHALL delivered the opinion of the Court with respect to all but Part IV-A, concluding that:1. Where an examination of the decision below as to the issue of the prosecutor's comments does not indicate that it rested on adequate and independent state grounds, namely, petitioner's failure to comply with a Mississippi procedural rule as to raising the issue on appeal, this Court does not lack jurisdiction to decide the issue. Pp. 472 U. S. 326-328.2. It is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe, as the jury was in this case, that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an "awesome responsibility" has allowed this Court to view sentencer discretion as consistent with and indispensable to the Eighth Amendment's "need for reliability in the determination that death is appropriate punishment in a specific case." Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 305 (plurality opinion). Pp. 472 U. S. 328-330.3. There are several reasons to fear substantial unreliability, as well as bias in favor of death sentences, when there are state-induced suggestions Page 472 U. S. 321 that the sentencing jury may shift its sense of responsibility to an appellate court. Pp. 472 U. S. 330-334.(a) The "delegation" of sentencing responsibility that the prosecutor here encouraged would not simply postpone petitioner's right to a fair determination of the appropriateness of his death; rather, it would deprive him of that right, for an appellate court, unlike the sentencing jury, is ill-suited to evaluate the appropriateness of death in the first instance. Pp. 472 U. S. 330-331.(b) Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to "send a message" of extreme disapproval for the defendant's acts. This desire might make the jury very receptive to the prosecutor's assurance that it can err because the error can be corrected on appeal. A defendant might then be executed, although no sentencer had ever determined that death was the appropriate sentence. Pp. 472 U. S. 331-332.(c) If a jury understands that only a death sentence, and not a life sentence, will be reviewed, it will also understand that any decision to "delegate" responsibility for sentencing can only be effectuated by returning a death sentence. This presents the specter of the imposition of death based on an irrelevant factor, and would also create the danger of a defendant's being executed without any determination that death was the appropriate punishment. P. 472 U. S. 332.(d) The uncorrected suggestion that the jury's responsibility for any ultimate determination of death will rest with others presents the danger that the jury will choose to minimize the importance of its role, especially where, as here, the jury is told that the alternative decisionmaker is the State's highest court. Pp. 472 U. S. 332-333.4. As to the State's contention that the prosecutor's argument was an "invited" response to defense counsel's argument, and thus was not unreasonable, neither the State nor the court below explains how the prosecutor's argument was less likely to have distorted the jury's deliberations because of anything defense counsel said. Pp. 472 U. S. 336-337.5. Donnelly v. DeChristoforo, 416 U. S. 637, does not preclude a finding of constitutional error based on the sort of impropriety that the prosecutor's argument contains. Although that case warned against holding every improper and unfair argument of a state prosecutor to be a federal constitutional violation, it did not insulate all prosecutorial comments from federal constitutional objections. Pp. 472 U. S. 337-340.JUSTICE MARSHALL, joined by JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS, delivered an opinion with respect to Part IV-A, concluding that California v. Ramos, supra, is not authority for holding that States are free to expose capital sentencing juries to any Page 472 U. S. 322 information and argument concerning postsentencing procedures. In Ramos, the Court, in upholding a state statutory requirement that capital sentencing juries be instructed that the Governor could commute a life sentence without possibility of parole into a lesser sentence, rested on a determination that the instruction was both accurate and relevant to a legitimate state penological interest. In contrast, here the argument was neither accurate nor relevant to such an interest, but was misleading and was not linked to any valid sentencing consideration. Pp. 472 U. S. 335-336.JUSTICE O'CONNOR, being of the view that the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility, concluded that Ramos, supra, does not sanction a misleading picture of the jury's role, nor does it suggest that the Constitution prohibits the giving of accurate and nonmisleading instructions regarding postsentencing procedures. Pp. 472 U. S. 341-342.MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, IV-B, IV-C, and V, in which BRENNAN, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Part IV-A, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 472 U. S. 341. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and WHITE, J., joined, post, p. 472 U. S. 343. POWELL, J., took no part in the decision of the case. Page 472 U. S. 323

1982_81-1271

JUSTICE BLACKMUN delivered the opinion of the Court.Section 2(b) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(b), provides that a defendant may rebut a prima facie showing of illegal price discrimination by establishing that its lower price to any purchaser or purchasers "was made in good faith to meet an equally low price of a competitor." [Footnote 1] The United States Court of Appeals for the Seventh Circuit has concluded that the "meeting-competition" defense of § 2(b) is available only if the defendant sets its lower price on a customer-by-customer basis and creates the price discrimination by lowering, rather than by raising, prices. We conclude that § 2(b) is not so inflexible.IFrom July 1, 1972, through November 30, 1978, petitioner Falls City Industries, Inc., sold beer f.o.b. its Louisville, Ky., brewery to wholesalers throughout Indiana, Kentucky, and 11 other States. Respondent Vanco Beverage, Inc., was the sole wholesale distributor of Falls City beer in Vanderburgh County, Ind. That county includes the city of Evansville. Directly across the state line from Vanderburgh County is Henderson County, Ky., where Falls City's only wholesale distributor was Dawson Springs, Inc. The city of Henderson, Ky., located in Henderson County, is less than 10 miles from Evansville. The two cities are connected by a four-lane interstate highway. The two counties generally are considered to be a single metropolitan area. App. 124. Page 460 U. S. 432Vanco and Dawson Springs each purchased beer from Falls City and other brewers and resold it to retailers in Vanderburgh County and Henderson County, respectively. The two distributors did not compete for sales to the same retailers. This was because Indiana wholesalers were prohibited by state law from selling to out-of-state retailers, Ind.Code § 7.1-3-3-5 (1982), and Indiana retailers were not permitted to purchase beer from out-of-state wholesalers. See § 7.1-3-4-6. Indiana law also affected beer sales in two other ways relevant to this case. First, Indiana required brewers to sell to all Indiana wholesalers at a single price. § 7.1-5-5-7. Second, although it was ignored and virtually unenforced, see Tr. 122-123, 135-136, state law prohibited consumers from importing alcoholic beverages without a permit. § 7.1-5-11-1.In December, 1976, Vanco sued Falls City in the United States District Court for the Southern District of Indiana, alleging, among other things, that Falls City had discriminated in price against Vanco, in violation of § 2(a) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a), [Footnote 2] by charging Vanco a higher price than it charged Dawson Springs. Vanco also claimed that Falls City had violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, by conspiring with other brewers and unnamed wholesalers to maintain higher prices in Indiana than in Kentucky.After trial, the District Court dismissed Vanco's Sherman Act claims, finding no evidence to support the allegations of Page 460 U. S. 433 conspiracy or monopolization.1980-2 Trade Cases � 63,357, pp. 75,809, 75,820. The court held, however, that Vanco had made out a prima facie case of price discrimination under the Robinson-Patman Act. The District Court found that Vanco competed in a geographic market that spanned the state border and included Vanderburgh and Henderson Counties. Id. at 75,813-75,814. Although Vanco and Dawson Springs did not sell to the same retailers, they "competed for sale of [Falls City's] beer to . . . consumers of beer from retailers situated in [that] market area." Id. at 75,814. Falls City charged a higher price for beer sold to Indiana distributors than it charged for the same beer sold to distributors in other States, including Kentucky. Ibid. [Footnote 3] This pricing policy resulted in lower retail prices for Falls City beer in Kentucky than in Indiana, because Kentucky distributors passed on their savings to retailers who, in turn, passed them on to consumers. Finding that many customers living in the Indiana portion of the geographic market ignored state law to purchase cheaper Falls City beer from Henderson County retailers, the court concluded that Falls City's pricing policies prevented Vanco from competing effectively with Dawson Springs, id. at 75,815-75,816, and caused it to sell less beer to Indiana retailers. Id. at 75,814-75,817, 75,818. [Footnote 4] Page 460 U. S. 434The District Court rejected Falls City's § 2(b) meeting-competition defense. The court reasoned that, instead of reducing its prices to meet those of a competitor, Falls City had created the price disparity by raising its prices to Indiana wholesalers more than it had raised its Kentucky prices. Instead of "adjusting prices on a customer to customer basis to meet competition from other brewers," id. at 75,822, Falls City charged a single price throughout each State in which it sold beer. The court concluded that Falls City's higher Indiana price was not set in good faith; instead, it was raised "for the sole reason that it followed the other brewers . . . for its profit." Ibid.The United States Court of Appeals for the Seventh Circuit, by a divided vote, affirmed the finding of liability. 654 F.2d 1224 (1981). [Footnote 5] The court held that Vanco had established a prima facie case of illegal price discrimination, and that Falls City had not demonstrated that the discrimination "was a good faith effort to defend against competitors." Id. at 1230. We granted certiorari to review the Court of Appeals' holdings respecting injury to competition and the "meeting-competition" defense. 455 U.S. 988 (1982).IITo establish a prima facie violation of § 2(a), one of the elements a plaintiff must show is a reasonable possibility that a Page 460 U. S. 435 price difference may harm competition. Corn Products Refining Co. v. FTC, 324 U. S. 726, 324 U. S. 742 (1945). In keeping with the Robinson-Patman Act's prophylactic purpose, § 2(a) "does not require that the discriminations must in fact have harmed competition.'" J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S. 557, 451 U. S. 562 (1981), quoting Corn Products, 324 U.S. at 324 U. S. 742. This reasonable possibility of harm is often referred to as competitive injury. Unless rebutted by one of the Robinson-Patman Act's affirmative defenses, a showing of competitive injury as part of a prima facie case is sufficient to support injunctive relief, and to authorize further inquiry by the courts into whether the plaintiff is entitled to treble damages under § 4 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 15 (1976 ed., Supp. V). J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. at 451 U. S. 562. [Footnote 6]Falls City contends that the Court of Appeals erred in relying on FTC v. Morton Salt Co., 334 U. S. 37 (1948), to uphold the District Court's finding of competitive injury. In Morton Salt, this Court held that, for the purposes of § 2(a), injury to competition is established prima facie by proof of a substantial price discrimination between competing purchasers over time. 334 U.S. at 334 U. S. 46, 50-51; see id. at 334 U. S. 60 (Jackson, J., dissenting in part). In the absence of direct evidence of displaced sales, this inference may be overcome by evidence breaking the causal connection between a price differential and lost sales or profits. F. Rowe, Price Discrimination Under the Robinson-Patman Act 182 (1962) (Rowe); see Chrysler Credit Corp. v. J. Truett Payne Co., 670 F.2d 575, 581 (CA5 1982). Page 460 U. S. 436According to Falls City, the Morton Salt rule should be applied only in cases involving "large buyer preference or seller predation." Brief for Petitioner 31. Falls City does not, however, suggest any economic reason why Morton Salt's "self-evident" inference, 334 U.S. at 334 U. S. 50, should not apply when the favored competitor is not extraordinarily large. Although concerns about the excessive market power of large purchasers were primarily responsible for passage of the Robinson-Patman Act, see generally Rowe at 3-23; U.S. Dept. of Justice, Report on the Robinson-Patman Act 101-139 (1977) (1977 Report), the Act "is of general applicability and prohibits discriminations generally," FTC v. Sun Oil Co., 371 U. S. 505, 371 U. S. 522 (1963). The determination whether to alter the scope of the Act must be made by Congress, not this Court, as is recognized by the commentators on which Falls City relies. See 1977 Report at 221-228 and 290-291; ABA Antitrust Section, Monograph No. 4, The Robinson-Patman Act: Policy and Law, Vol. I, 102-103 (1980).The Morton Salt rule was not misapplied in this case. In a strictly literal sense, this case differs from Morton Salt because Vanco and Dawson Springs did not compete with each other at the wholesale level; Vanco sold only to Indiana retailers, and Dawson Springs sold only to Kentucky retailers. But the competitive injury component of a Robinson-Patman Act violation is not limited to the injury to competition between the favored and the disfavored purchaser; it also encompasses the injury to competition between their customers -- in this case, the competition between Kentucky retailers and Indiana retailers, who, under a District Court finding not challenged in this Court, were selling in a single, interstate retail market. [Footnote 7] Page 460 U. S. 437After observing that Falls City had maintained a substantial price difference between Vanco and Dawson Springs over a significant period of time, the Court of Appeals, like the District Court, considered the evidence that Vanco's loss of Falls City beer sales was attributable to factors other than the price difference, particularly the market-wide decline of Falls City beer. Both courts found it likely that this overall decline accounted for some -- or even most -- of Vanco's lost sales. Nevertheless, if some of Vanco's injury was attributable to the price discrimination, Falls City is responsible to that extent. See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 392 U. S. 144 (1968) (WHITE, J., concurring).The Court of Appeals agreed with the District Court's findings that "the major reason for the higher Indiana retail beer prices was the higher prices charged Indiana distributors," and"the lower retail prices in Henderson County attracted Indiana customers away from Indiana retailers, thereby causing the retailers to curtail purchases from Vanco."654 F.2d at 1229. These findings were supported by direct evidence of diverted sales, [Footnote 8] and more than established the competitive Page 460 U. S. 438 injury required for a prima facie case under § 2(a). See J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. at 451 U. S. 561-562; Morton Salt, 334 U.S. at 334 U. S. 50-51. We therefore turn to Falls City's "meeting-competition" defense.IIIWhen proved, the meeting-competition defense of § 2(b) exonerates a seller from Robinson-Patman Act liability. Standard Oil Co. v. FTC, 340 U. S. 231, 340 U. S. 246-247 (1951). This Court consistently has held that the meeting-competition defense"'at least requires the seller, who has knowingly discriminated in price, to show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor.'"United States v. United States Gypsum Co., 438 U. S. 422, 438 U. S. 451 (1978), quoting FTC v. A. E. Staley Mfg. Co., 324 U. S. 746, 324 U. S. 759-760 (1945); see Great A&P Tea Co. v. FTC, 440 U. S. 69, 440 U. S. 82 (1979). The seller must show that, under the circumstances, it was reasonable to believe that the quoted price or a lower one was available to the favored purchaser or purchasers from the seller's competitors. See United States Gypsum Co., 438 U.S. at 438 U. S. 451. Neither the District Court nor the Court of Appeals addressed the question whether Falls City had shown information that would have led a reasonable and prudent person to believe that its lower Kentucky price would meet competitors' equally low prices there; indeed, no findings whatever were made regarding competitors' Kentucky prices, or Page 460 U. S. 439 the information available to Falls City about its competitors' Kentucky prices.Instead, the Court of Appeals reasoned that Falls City had otherwise failed to show that its pricing "was a good faith effort" to meet competition. 654 F.2d at 1230. The Court of Appeals considered it sufficient to defeat the defense that the price difference "resulted from price increases in Indiana, not price decreases in Kentucky," ibid., and that the higher Indiana price was the result of Falls City's policy of following the Indiana prices of its larger competitors in order to enhance its profits. The Court of Appeals also suggested that Falls City's defense failed because it adopted a "general system of competition," rather than responding to "individual situations." Ibid. The court believed that FTC v. A. E. Staley Mfg. Co., supra, supported this holding. 654 F.2d at 1230.AOn its face, § 2(b) requires more than a showing of facts that would have led a reasonable person to believe that a lower price was available to the favored purchaser from a competitor. The showing required is that the "lower price . . . was made in good faith to meet" the competitor's low price. 15 U.S.C. § 13(b) (emphasis added). Thus, the defense requires that the seller offer the lower price in good faith for the purpose of meeting the competitor's price, that is, the lower price must actually have been a good faith response to that competing low price. See Rowe, at 234-235. See generally Kuenzel & Schiffres, Making Sense of Robinson-Patman: The Need to Revitalize Its Affirmative Defenses, 62 Va.L.Rev. 1211, 1237-1255 (1976). In most situations, a showing of facts giving rise to a reasonable belief that equally low prices were available to the favored purchaser from a competitor will be sufficient to establish that the seller's lower price was offered in good faith to meet that price. In others, however, despite the availability from other sellers of a low price, it may be apparent that the defendant's low offer was not a good faith response. Page 460 U. S. 440In Staley, this Court applied that principle. The Federal Trade Commission (FTC) had proceeded against Staley and six competing manufacturers of glucose, all of whom adhered to the same Chicago basing-point pricing system. See C. Edwards, Price Discrimination Law 372-379 (1959). See generally FTC Policy Toward Geographic Pricing Practices, 1 CCH Trade Reg.Rep. �� 3601.27, 3601.40-3601.42, pp. 5346, 5351-5352 (10th ed.1959). Like its competitors, Staley, whose plant was located in Decatur, Ill., sold glucose to candy and syrup manufacturers at a delivered price that included the freight rate from Chicago to the point of delivery. Purchasers nearer Decatur thus were charged an element of "phantom" freight, while Staley "absorbed" an element of freight in sales to buyers nearer Chicago. 324 U.S. at 324 U. S. 749. Customers located near Staley's Decatur plant were harmed because, despite being located closer to the plant, they were forced to pay more for glucose than did their Chicago area competitors. Id. at 756.The FTC eventually charged all seven manufacturers individually with price discrimination and jointly under the Federal Trade Commission Act with price fixing. See Corn Products Refining Co., 47 F.T.C. 587 (1950). At the time of the Staley decision, both the FTC and this Court had determined that use of the pricing system by Staley's competitors was illegal under § 2(a). See Corn Products Refining Co. v. FTC, 324 U.S. at 324 U. S. 732, 324 U. S. 737-739. And although neither the FTC nor this Court directly relied on the fact in finding price discrimination, Staley itself had been found to be a party to an interseller conspiracy aimed at maintaining "oppressive and uniform net delivered prices" throughout the country. See A. E. Staley Mfg. Co. v. FTC, 4 F.T.C. Stat. & Dec. 795, 805 (1943).The Court observed that § 2(b) could exonerate Staley only if that section permitted a seller to establish "an otherwise unlawful system of discriminatory prices" in order to benefit from "a like unlawful system maintained by his competitors." Page 460 U. S. 441 324 U.S. at 324 U. S. 753. Staley could not claim that its low Chicago prices were set for the purpose of meeting the equally low prices of competitors there; the Chicago prices could be seen only as part of a collusive pricing system designed to exact artificially high prices throughout the country. Since the low prices were set "in order to establish elsewhere the artificially high prices whose discriminatory effect permeates respondents' entire pricing system," id. at 324 U. S. 756, the Court sustained the FTC's finding "that respondents' price discriminations were not made to meet a lower' price, and consequently were not in good faith," id. at 324 U. S. 758.Thus, even had Staley been able to show that its prices throughout the country did not undercut those of its competitors, its lower price in the Chicago area was not a good faith response to the lower prices there. Staley had not priced in response to competitors' discrete pricing decisions, but from the outset had followed an industry-wide practice of setting its prices according to a single, arbitrary scheme that, by its nature, precluded independent pricing in response to normal competitive forces.BAlmost 20 years ago, the FTC set forth the standard that governs the requirement of a "good faith response":"At the heart of Section 2(b) is the concept of 'good faith.' This is a flexible and pragmatic, not a technical or doctrinaire, concept. The standard of good faith is simply the standard of the prudent businessman responding fairly to what he reasonably believes is a situation of competitive necessity."Continental Baking Co., 63 F.T.C. 2071, 2163 (1963). Whether this standard is met depends on "the facts and circumstances of the particular case, not abstract theories or remote conjectures.'" United States v. United States Gypsum Co., 438 U.S. at 438 U. S. 454, quoting Continental Baking Co., 63 F.T.C. at 2163. Page 460 U. S. 442The "facts and circumstances" present in Staley differ markedly from those present here. Although the District Court characterized the Indiana prices charged by Falls City and its competitors as "artificially high," there is no evidence that Falls City's lower prices in Kentucky were set as part of a plan to obtain artificially high profits in Indiana, rather than in response to competitive conditions in Kentucky. Falls City did not adopt an illegal system of prices maintained by its competitors. [Footnote 9] The District Court found that Falls City's prices rose in Indiana in response to competitors' price increases there; it did not address the crucial question whether Falls City's Kentucky prices remained lower in response to competitors' prices in that State.Vanco attempts to liken this case to Staley by arguing that the existence of industry-wide price discrimination within the single geographic retail market itself indicates "tacit or explicit collusion, or . . . market power" inconsistent with a good faith response. Brief for Respondent 39. By its terms, however, the meeting-competition defense requires a seller to justify only its lower price. See Staley, 324 U.S. at 324 U. S. 753. Thus, although the Sherman Act would provide a remedy if Falls City's higher Indiana price were set collusively, collusion is relevant to Vanco's Robinson-Patman Act claim only if it affected Falls City's lower Kentucky price. If Falls City set its lower price in good faith to meet an equally low price of a competitor, it did not violate the Robinson-Patman Act. Page 460 U. S. 443Moreover, the collusion argument founders on a complete lack of proof. Persistent industry-wide price discrimination within a geographic market should certainly alert a court to a substantial possibility of collusion. [Footnote 10] See Posner, Oligopoly and the Antitrust Laws: A Suggested Approach, 21 Stan.L.Rev. 1562, 1578-1579 (1969). Here, however, the persistent interstate price difference could well have been attributable not to Falls City, but to extensive state regulation of the sale of beer. Indiana required each brewer to charge a single price for its beer throughout the State, and barred direct competition between Indiana and Kentucky distributors for sales to retailers. In these unusual circumstances, the prices charged to Vanco and other wholesalers in Vanderburgh County may have been influenced more by market conditions in distant Gary and Fort Wayne than by conditions in nearby Henderson County, Ky. Moreover, wholesalers in Henderson County competed directly, and attempted to price competitively, with wholesalers in neighboring Kentucky counties. App. 52-53. A separate pricing structure might well have evolved in the two States without collusion, notwithstanding Page 460 U. S. 444 the existence of a common retail market along the border. Thus, the sustained price discrimination does not itself demonstrate that Falls City's Kentucky prices were not a good faith response to competitors' prices there.CThe Court of Appeals explicitly relied on two other factors in rejecting Falls City's meeting-competition defense: the price discrimination was created by raising, rather than lowering, prices, and Falls City raised its prices in order to increase its profits. Neither of these factors is controlling. Nothing in § 2(b) requires a seller to lower its price in order to meet competition. On the contrary, § 2(b) requires the defendant to show only that its "lower price . . . was made in good faith to meet an equally low price of a competitor." A seller is required to justify a price difference by showing that it reasonably believed that an equally low price was available to the purchaser and that it offered the lower price for that reason; the seller is not required to show that the difference resulted from subtraction, rather than addition.A different rule would not only be contrary to the language of the statute, but also might stifle the only kind of legitimate price competition reasonably available in particular industries. In a period of generally rising prices, vigorous price competition for a particular customer or customers may take the form of smaller price increases, rather than price cuts. Thus, a price discrimination created by selective price increases can result from a good faith effort to meet a competitor's low price.Nor is the good faith with which the lower price is offered impugned if the prices raised, like those kept lower, respond to competitors' prices and are set with the goal of increasing the seller's profits. A seller need not choose between"ruinously cutting its prices to all its customers to match the price offered to one, [and] refusing to meet the competition and Page 460 U. S. 445 then ruinously raising its prices to its remaining customers to cover increased unit costs."Standard Oil Co. v. FTC, 340 U.S. at 340 U. S. 250. Nor need a seller choose between keeping all its prices ruinously low to meet the price offered to one, and ruinously raising its prices to all customers to a level significantly above that charged by its competitors. A seller is permitted"to retain a customer by realistically meeting in good faith the price offered to that customer, without necessarily changing the seller's price to its other customers."Ibid. The plain language of § 2(b) also permits a seller to retain a customer by realistically meeting in good faith the price offered to that customer, without necessarily freezing his price to his other customers.Section 2(b) does not require a seller, meeting in good faith a competitor's lower price to certain customers, to forgo the profits that otherwise would be available in sales to its remaining customers. The very purpose of the defense is to permit a seller to treat different competitive situations differently. The prudent businessman responding fairly to what he believes in good faith is a situation of competitive necessity might well raise his prices to some customers to increase his profits, while meeting competitors' prices by keeping his prices to other customers low.The Court in Staley said that the meeting-competition defense"presupposes that the person charged with violating the Act would, by his normal, nondiscriminatory pricing methods, have reached a price so high that he could reduce it in order to meet the competitor's equally low price."324 U.S. at 324 U. S. 754. In that case, however, the Court was not dealing with a seller whose "normal, nondiscriminatory pricing methods" called for a price increase, but who wished to exempt certain customers from the increase in order to meet prices, lower than the increased price, available to those customers from competitors. Of course, a seller could accomplish the same result within the guidelines the Court of Appeals Page 460 U. S. 446 would impose by instituting across-the-board price increases followed by selective reductions. But far from being flexible and pragmatic, a rule requiring such costly behavior would be nonsensical. [Footnote 11]DVanco also contends that Falls City did not satisfy § 2(b) because its price discrimination "was not a defensive response to competition." Brief for Respondent 47 (emphasis supplied). According to Vanco, the Robinson-Patman Act permits price discrimination only if its purpose is to retain a customer. Id. at 32-33. We agree that a seller's response must be defensive, in the sense that the lower price must be calculated and offered in good faith to "meet not beat" the competitor's low price. See United States Gypsum Co., 438 U.S. at 438 U. S. 454. Section 2(b), however, does not distinguish between one who meets a competitor's lower price to retain an old customer and one who meets a competitor's lower price in an attempt to gain new customers. [Footnote 12] See Stevens, Defense of Meeting the Lower Price of a Competitor, in Summer Institute on International and Comparative Law, University of Michigan Law School, Lectures on Federal Antitrust Laws 129, 135-136 (1953). Such a distinction would be Page 460 U. S. 447 inconsistent with that section's language and logic, see Sunshine Biscuits, Inc. v. FTC, 306 F.2d 48, 51-52 (CA7 1962),"would not be in keeping with elementary principles of competition, and would in fact foster tight and rigid commercial relationships by insulating them from market forces."1955 Report at 18; see 1977 Report at 26, 265. [Footnote 13]IVThe Court of Appeals also relied on Staley for the proposition that the meeting-competition defense "places emphasis on individual [competitive] situations, rather than upon a general system of competition,'" 554 F.2d at 1230 (quoting Staley, 324 U.S. at 324 U. S. 753), and "does not justify the maintenance of discriminatory pricing among classes of customers that results merely from the adoption of a competitor's discriminatory pricing structure," 654 F.2d at 1230. The Court of Appeals was apparently invoking the District Court's findings that Falls City set prices statewide, rather than on a "customer to customer basis," and the District Court's conclusion that this practice disqualified Falls City from asserting the meeting-competition defense. 1980-2 Trade Cases at 75,817. At least two other Courts of Appeals have read Staley to hold that the defense is unavailable to sellers pricing on other than a customer-by-customer basis, while two Courts of Appeals have held that a customer-by-customer response is not required. [Footnote 14] Page 460 U. S. 448There is no evidence that Congress intended to limit the availability of § 2(b) to customer-specific responses. Section 2(b)'s predecessor, § 2 of the original Clayton Act, stated that "nothing herein contained shall prevent . . . discrimination in price in the same or different communities made in good faith to meet competition." 38 Stat. 730. The Judiciary Committee of the House of Representatives, which drafted the clause that became the current § 2(b), see Standard Oil Co. v. FTC, 340 U.S. at 340 U. S. 247-248, n. 14, explained the new section's anticipated function:"It should be noted that, while the seller is permitted to meet local competition, [§ 2(b)] does not permit him to cut local prices until his competitor has first offered lower prices, and then he can go no further than to meet those prices."H.R.Rep. No. 2287, 74th Cong., 2d Sess., 16 (1936) (emphasis supplied). Congress intended to allow reasonable pricing responses on an area-specific basis where competitive circumstances warrant them. The purpose of the amendment was to "restric[t] the proviso to price differentials occurring in actual competition." Standard Oil Co. v. FTC, 340 U.S. at 340 U. S. 242. We conclude that Congress did not intend to bar territorial price differences that are in fact responses to competitive conditions.Section 2(b) specifically allows a "lower price . . . to any purchaser or purchasers" made in good faith to meet a competitor's equally low price. A single low price surely may be extended to numerous purchasers if the seller has a reasonable basis for believing that the competitor's lower price is available to them. [Footnote 15] Beyond the requirement that the lower Page 460 U. S. 449 price be reasonably calculated to "meet not beat" the competition, Congress intended to leave it a "question of fact . . . whether the way in which the competition was met lies within the latitude allowed." 80 Cong.Rec. 9418 (1936) (remarks of Rep. Utterback). Once again, this inquiry is guided by the standard of the prudent businessman responding fairly to what he reasonably believes are the competitive necessities.A seller may have good reason to believe that a competitor or competitors are charging lower prices throughout a particular region. See William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1046 (CA9 1981), cert. denied, 459 U.S. 825 (1982); Balian Ice Cream Co. v. Arden Farms Co., 231 F.2d 356, 366 (CA9 1955), cert. denied, 350 U.S. 991 (1956); Rowe at 235-236. In such circumstances, customer-by-customer negotiations would be unlikely to result in prices different from those set according to information relating to competitors' territorial prices. A customer-by-customer requirement might also make meaningful price competition unrealistically expensive for smaller firms such as Falls City, which was attempting to compete with larger national breweries in 13 separate States. Cf. Callaway Mills Co. v. FTC, 362 F.2d 435, 442 (CA5 1966) (in some circumstances, requirement of customer-by-customer pricing "would be burdensome, unreasonable, and practically unfeasible").In Staley, 324 U.S. at 324 U. S. 753, as in each of the later cases in which this Court has contrasted a "general system of competition" with "individual competitive situations," see, e.g., FTC v. National Lead Co., 352 U. S. 419, 352 U. S. 431 (1957); FTC v. Cement Institute, 333 U. S. 683, 333 U. S. 708 (1948), the seller's lower Page 460 U. S. 450 price was quoted not "because of lower prices by a competitor," but "because of a preconceived pricing scale which [was] operative regardless of variations in competitor's prices." Rowe at 234 (emphasis in original). In those cases, the contested lower prices were not truly "responsive to rivals' competitive prices," ibid. (emphasis in original), and therefore were not genuinely made to meet competitors' lower prices. Territorial pricing, however, can be a perfectly reasonable method -- sometimes the most reasonable method -- of responding to rivals' low prices. [Footnote 16] We choose not to read into § 2(b) a restriction that would deny the meeting-competition defense to one whose area-wide price is a well-tailored response to competitors' low prices.Of course, a seller must limit its lower price to that group of customers reasonably believed to have the lower price available to it from competitors. A response that is not reasonably tailored to the competitive situation as known to the seller, or one that is based on inadequate verification, would not meet the standard of good faith. Similarly, the response may continue only as long as the competitive circumstances justifying it, as reasonably known by the seller, persist. [Footnote 17] One choosing to price on a territorial basis, rather than on a Page 460 U. S. 451 customer-by-customer basis, must show that this decision was a genuine, reasonable response to prevailing competitive circumstances. See International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714, 725-726 (CA5 1975), cert. denied, 424 U.S. 943 (1976); Callaway Mills Co. v. FTC, 362 F.2d at 441-442. See generally 1977 Report at 265. Unless the circumstances call into question the seller's good faith, this burden will be discharged by showing that a reasonable and prudent businessman would believe that the lower price he charged was generally available from his competitors throughout the territory and throughout the period in which he made the lower price available. See William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d at 1045-1046.VIn summary, the meeting-competition defense requires the seller at least to show the existence of facts that would lead a reasonable and prudent person to believe that the seller's lower price would meet the equally low price of a competitor; it also requires the seller to demonstrate that its lower price was a good faith response to a competitor's lower price.Falls City contends that it has established its meeting-competition defense as a matter of law. In the absence of further findings, we do not agree. The District Court and the Court of Appeals did not decide whether Falls City had shown facts that would have led a reasonable and prudent person to conclude that its lower price would meet the equally low price of its competitors in Kentucky throughout the period at issue in this suit. Nor did they apply the proper standards to the question whether Falls City's decision to set a single statewide price in Kentucky was a good faith, well-tailored response to the competitive circumstances prevailing there. The absence of allegations to the contrary is not controlling; the statute places the burden of establishing the defense on Falls City, not Vanco. There is evidence Page 460 U. S. 452 in the record that might support an inference that these requirements were met, [Footnote 18] but whether to draw that inference is a question for the trier of fact, not this Court.Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtFalls City Indus., Inc. v. Vanco Beverage, Inc., 460 U.S. 428 (1983)Falls City Industries, Inc. v. Vanco Beverage, Inc.No. 81-1271Argued October 13, 1982Decided March 22, 1983460 U.S. 428SyllabusDuring a certain period from 1972 through 1978, petitioner sold its beer to respondent, the sole wholesale distributor for petitioner's beer in Vanderburgh County, Ind., at a higher price than petitioner charged its only wholesale distributor in Henderson County, Ky., the two counties forming a single metropolitan area across the state line. Under Indiana law, brewers were required to sell to all Indiana wholesalers at a single price, Indiana wholesalers were prohibited from selling to out-of-state retailers, and Indiana retailers were not permitted to purchase beer from out-of-state wholesalers. Respondent filed suit in Federal District Court, alleging that petitioner's price discrimination violated § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. After trial, the court held that respondent had established a prima facie case of price discrimination, finding that, although respondent and petitioner's Kentucky wholesaler did not sell to the same retailers, they competed for sale of petitioner's beer to consumers of beer from retailers in the market area; that petitioner's pricing policy resulted in lower retail prices for its beer in Kentucky than in Indiana; that many customers living in the Indiana portion of the market ignored Indiana law to purchase petitioner's beer more cheaply from Kentucky retailers; and that petitioner's pricing policy thus prevented respondent from competing effectively with petitioner's Kentucky wholesaler, and caused respondent to sell less beer to Indiana retailers. The court rejected petitioner's "meeting competition" defense under § 2(b) of the Clayton Act, which provides that a defendant may rebut a prima facie showing of illegal price discrimination by establishing that its lower price to any purchaser or purchasers "was made in good faith to meet an equally low price of a competitor." The court reasoned that, instead of reducing its prices to meet those of a competitor, petitioner had created the price disparity by raising its prices to Indiana wholesalers more than it had raised its Kentucky prices; that, instead of adjusting prices on a customer-to-customer basis to meet competition from other brewers, petitioner charged a single price throughout each State; and that the higher Indiana price was not set in good faith, but instead was raised solely to allow petitioner to follow other brewers to enhance its profits. The Court of Appeals affirmed. Page 460 U. S. 429Held:1. The District Court's findings, supported by direct evidence of diverted sales, more than established the "competitive injury" (the reasonable possibility that a price difference may harm competition) required to establish a prima facie violation of § 2(a). For § 2(a)'s purposes, injury to competition is established prima facie by proof of a substantial price discrimination between competing purchasers over time, although the inference of competitive injury may be overcome by evidence breaking the causal connection between the price differential and lost sales or profits. This rule is not limited to cases where the favored competitor is extraordinarily large. Nor is the competitive injury component of a Robinson-Patman Act violation limited to the injury to competition between the favored and the disfavored purchaser; it also encompasses the injury to competition between their customers. Pp. 460 U. S. 434-438.2. Petitioner's meeting-competition defense under § 2(b) is not defeated on the theory that the price difference resulted from price increases in Indiana, rather than price decreases in Kentucky, and that the higher Indiana price resulted from petitioner's policy of following the Indiana prices of its larger competitors in order to enhance its profits. FTC v. A. E. Staley Mfg. Co., 324 U. S. 746, distinguished. Pp. 460 U. S. 438-447.(a) The meeting-competition defense at least requires the seller to show the existence of facts that would lead a reasonable and prudent person to believe that the seller's lower price to the favored purchaser or purchasers would meet the equally low price of a competitor. The defense also requires the seller to demonstrate that its lower price was actually a good faith response to that competing low price. Pp. 460 U. S. 439-441.(b) The standard governing the requirement of a "good faith response" is the standard of a prudent businessman responding fairly to what he reasonably believes is a situation of competitive necessity. Here, the District Court did not address the crucial question whether petitioner's Kentucky prices remained lower than its Indiana prices in response to competitors' prices in Kentucky. If petitioner set its lower price in good faith to meet an equally low price of a competitor, it did not violate the Robinson-Patman Act. Moreover, the existence of industry-wide price discrimination within the geographic retail market did not itself establish collusion inconsistent with a good faith response, particularly since the interstate price difference could well have been attributable not to petitioner, but to Indiana's extensive regulation of the sale of beer. Pp. 460 U. S. 441-444.(c) Nothing in § 2(b) requires a seller to lower its prices in order to meet competition. On the contrary, § 2(b) requires the defendant to show only that its lower price was made in good faith to meet a competitor's Page 460 U. S. 430 equally low price. A price discrimination created by selective smaller price increases can result from a good faith effort to meet a competitor's low price. Nor is the good faith with which the lower price is offered impugned if the prices raised, like those kept lower, respond to competitors' prices and are set with the goal of increasing the seller's profits. Pp. 460 U. S. 444-446.(d) The meeting-competition defense is not limited to price discrimination for the purpose of retaining a customer. A seller's price discrimination must be a defensive response to competition, in the sense that the lower price must be calculated and offered in good faith to "meet not beat" the competitor's low price, but § 2(b) does not distinguish between meeting a competitor's lower price to retain an old customer and meeting a competitor's lower price in an attempt to gain new customers. Pp. 460 U. S. 446-447.3. Petitioner's meeting-competition defense is not defeated on the theory that § 2(b) applies only where the defendant sets its lower price on a customer-by-customer basis ,rather than, as here, by the defendant's use of area-wide pricing. Congress did not intend to limit the availability of § 2(b) to customer-specific responses, but also intended to allow reasonable pricing responses on an area-specific basis where competitive circumstances warrant them. A seller choosing to price on a territorial basis must show that the decision was a genuine, reasonable response to prevailing competitive circumstances. Pp. 460 U. S. 447-451.4. In the absence of further findings, petitioner has not established its meeting-competition defense as a matter of law. While there is evidence in the record that might support an inference that petitioner's decision to set a lower statewide price in Kentucky was a good faith, well-tailored response to the competitive circumstances prevailing there, the question whether to draw such inference is for the trier of fact, not this Court. Pp. 460 U. S. 451-452. Page 460 U. S. 431

1968_488

MR. JUSTICE BRENNAN delivered the opinion of the Court.Petitioners, Negro residents of Little Rock, Arkansas, brought this class action in the District Court for the Eastern District of Arkansas to enjoin respondent from denying them admission to a recreational facility called Lake Nixon Club, owned and operated by respondent, Euell Paul, and his wife. The complaint alleged that Lake Nixon Club was a "public accommodation" subject to the provisions of Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a et seq., and that respondent violated the Act in refusing petitioners admission solely on racial grounds. [Footnote 1] After trial, the District Court, although finding that respondent had refused petitioners admission solely because they were Negroes, [Footnote 2] Page 395 U. S. 301 dismissed the complaint on the ground that Lake Nixon Club was not within any of the categories of "public accommodations" covered by the 1964 Act. 263 F. Supp. 412 (1967). The Court of Appeals for the Eighth Circuit affirmed, one judge dissenting. 395 F.2d 118 (1968). We granted certiorari. 393 U.S. 975 (1968). We reverse.Lake Nixon Club, located 12 miles west of Little Rock, is a 232-acre amusement area with swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar. The Pauls purchased the Lake Nixon site in 1962, and subsequently operated this amusement business there in a racially segregated manner.Title II of the Civil Rights Act of 1964 enacted a sweeping prohibition of discrimination or segregation on the ground of race, color, religion, or national origin at places of public accommodation whose operations affect commerce. [Footnote 3] This prohibition does not extend to discrimination or segregation at private clubs. [Footnote 4] But, as both courts below properly found, Lake Nixon is not a private club. It is simply a business operated for a profit, with none of the attributes of self-government and member ownership traditionally associated with private clubs. It is true that, following enactment of the Civil Rights Act of 1964, the Pauls began to refer to the establishment as a private club. They even began to require Page 395 U. S. 302 patrons to pay a 25-cent "membership" fee, which gains a purchaser a "membership" card entitling him to enter the Club's premises for an entire season, and, on payment of specified additional fees, to use the swimming, boating, and miniature golf facilities. But this "membership" device seems no more than a subterfuge designed to avoid coverage of the 1964 Act. White persons are routinely provided "membership" cards, and some 100,000 whites visit the establishment each season. As the District Court found, Lake Nixon is "open in general to all of the public who are members of the white race." 263 F. Supp. at 418. Negroes, on the other hand, are uniformly denied "membership" cards, and thus admission, because of the Pauls' fear that integration would "ruin" the "business." The conclusion of the courts below that Lake Nixon is not a private club is plainly correct -- indeed, respondent does not challenge that conclusion here.We therefore turn to the question whether Lake Nixon Club is "a place of public accommodation" as defined by § 201(b) of the 1964 Act, and, if so, whether its operations "affect commerce" within the meaning of § 201(c) of that Act.Section 201(b) defines four categories of establishments as covered public accommodations. Three of these categories are relevant here:"Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce. . . .""* * * *" "(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such Page 395 U. S. 303 facility located on the premises of any retail establishment; or any gasoline station;""(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and""(4) any establishment (A) . . . (ii) within the premises of which is physically located any such covered establishment, and (b) which holds itself out as serving patrons of such covered establishment."Section 201(c) sets forth standards for determining whether the operations of an establishment in any of these categories affect commerce within the meaning of Title II:"The operations of an establishment affect commerce within the meaning of this title if . . . (2) in the case of an establishment described in paragraph (2) [set out supra] . . . , it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) [set out supra] . . . , it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce, and (4) in the case of an establishment described in paragraph (4) [set out supra] . . . , there is physically located within its premises an establishment the operations of which affect commerce within the meaning of this subsection. For purposes of this section, 'commerce' means travel, trade, traffic, commerce, transportation, or communication among the several States. . . ."Petitioners argue first that Lake Nixon's snack bar is a covered public accommodation under §§ 201(b)(2) and 201(c)(2), and that, as such, it brings the entire establishment Page 395 U. S. 304 within the coverage of Title II under §§ 201(b)(4) and 201(c)(4). Clearly, the snack bar is "principally engaged in selling food for consumption on the premises." Thus, it is a covered public accommodation if "it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce." We find that the snack bar is a covered public accommodation under either of these standards.The Pauls advertise the Lake Nixon Club in a monthly magazine called "Little Rock Today," which is distributed to guests at Little Rock hotels, motels, and restaurants, to acquaint them with available tourist attractions in the area. Regular advertisements for Lake Nixon were also broadcast over two area radio stations. In addition, Lake Nixon has advertised in the "Little Rock Air Force Base," a monthly newspaper published at the Little Rock Air Force Base, in Jacksonville, Arkansas. This choice of advertising media leaves no doubt that the Pauls were seeking broad-based patronage from an audience which they knew to include interstate travelers. Thus, the Lake Nixon Club unquestionably offered to serve out-of-state visitors to the Little Rock area. And it would be unrealistic to assume that none of the 100,000 patrons actually served by the Club each season was an interstate traveler. [Footnote 5] Since the Lake Nixon Club offered to serve and served out-of-state persons, and since the Club's snack bar was established to serve all patrons of the entire facility, we must conclude that the snack bar offered to serve and served out-of-state persons. See Hamm v. Rock Hill, 379 U. S. 306, 379 U. S. 309 (1964); see also Wooten v. Moore, 400 F.2d 239 (C.A.4th Cir.1968). Page 395 U. S. 305The record, although not as complete on this point as might be desired, also demonstrates that a "substantial portion of the food" served by the Lake Nixon Club snack bar has moved in interstate commerce. The snack bar serves a limited fare -- hot dogs and hamburgers on buns, soft drinks, and milk. The District Court took judicial notice of the fact that the "principal ingredients going into the bread were produced and processed in other States," and that "certain ingredients [of the soft drinks] were probably obtained . . . from out-of-State sources." 263 F. Supp. at 418. Thus, at the very least, three of the four food items sold at the snack bar contain ingredients originating outside of the State. There can be no serious doubt that a "substantial portion of the food" served at the snack bar has moved in interstate commerce. See Katzenbach v. McClung, 379 U. S. 294, 379 U. S. 296-297 (1964); Gregory v. Meyer, 376 F.2d 509, 511, n. 1 (C.A. 5th Cir.1967).The snack bar's status as a covered establishment automatically brings the entire Lake Nixon facility within the ambit of Title II. Civil Rights Act of 1964, §§ 201(b)(4) and 201(c)(4), set out supra; see H.R.Rep. No. 914, 88th Cong., 1st Sess., 20; Fazzio Real Estate Co. v. Adams, 396 F.2d 146 (C.A. 5th Cir.1968). [Footnote 6]Petitioners also argue that the Lake Nixon Club is a covered public accommodation under §§ 201(b)(3) and 201(c)(3) of the 1964 Act. These sections proscribe discrimination by "any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment" which"customarily presents films, performances, athletic teams, Page 395 U. S. 306 exhibitions, or other sources of entertainment which move in commerce."Under any accepted definition of "entertainment," the Lake Nixon Club would surely qualify as a "place of entertainment." [Footnote 7] And indeed it advertises itself as such. [Footnote 8] Respondent argues, however, that, in the context of § 201(b)(3), "place of entertainment" refers only to establishments where patrons are entertained as spectators or listeners, rather than those where entertainment takes the form of direct participation in some sport or activity. We find no support in the legislative history for respondent's reading of the statute. The few indications of legislative intent are to the contrary.President Kennedy, in submitting to Congress the public accommodations provisions of the proposed Civil Rights Act, emphasized that"no action is more contrary to the spirit of our democracy and Constitution -- or more rightfully resented by a Negro citizen who seeks only equal treatment -- than the barring of that citizen from restaurants, hotels, theatres, recreational areas and other public accommodations and facilities [Footnote 9]"(Emphasis added.) While Title II was being considered by the Senate, a civil rights demonstration occurred at a Maryland amusement park. The then Assistant Majority Leader of the Senate, Hubert Humphrey, took note of the demonstration and opined that such an amusement Page 395 U. S. 307 park would be covered by the provisions which were eventually enacted as Title II:"In this particular instance, I am confident that merchandise and facilities used in the park were transported across State lines.""* * * *" "The spectacle of national church leaders being hauled off to jail in a paddy wagon demonstrates the absurdity of the present situation regarding equal access to public facilities in Maryland and the absurdity of the arguments of those who oppose title II of the President's omnibus civil rights bill."109 Cong.Rec. 12276 (1963). Senator Magnuson, floor manager of Title II, spoke in a similar vein. [Footnote 10]Admittedly, most of the discussion in Congress regarding the coverage of Title II focused on places of spectator entertainment, rather than recreational areas. But it does not follow that the scope of § 201(b)(3) should be restricted to the primary objects of Congress' concern when a natural reading of its language would call for broader coverage. In light of the overriding purpose of Title II"to remove the daily affront and humiliation involved in discriminatory denials of access to facilities Page 395 U. S. 308 ostensibly open to the general public,"H.R.Rep. No. 914, 88th Cong., 1st Sess., 18, we agree with the en banc decision of the Court of Appeals for the Fifth Circuit in Miller v. Amusement Enterprises, Inc., 394 F.2d 342 (1968), that the statutory language "place of entertainment" should be given full effect according to its generally accepted meaning and applied to recreational areas.The remaining question is whether the operations of the Lake Nixon Club "affect commerce" within the meaning of 201(c)(3). We conclude that they do. Lake Nixon's customary "sources of entertainment . . . move in commerce." The Club leases 15 paddle boats on a royalty basis from an Oklahoma company. Another boat was purchased from the same company. The Club's juke box was manufactured outside Arkansas, and plays records manufactured outside the State. The legislative history indicates that mechanical sources of entertainment such as these were considered by Congress to be "sources of entertainment" within the meaning of § 201(c)(3). [Footnote 11]Reversed

U.S. Supreme CourtDaniel v. Paul, 395 U.S. 298 (1969)Daniel v. PaulNo. 488Argued March 24-25, 1969Decided June 2, 1969395 U.S. 298SyllabusLake Nixon Club is an amusement place owned by respondent and his wife, located 12 miles from Little Rock, Ark. It has recreation facilities, including swimming, boating, and dancing, and a snack bar serving four food items, at least three of which contain ingredients coming from outside the State. The Club leases 15 paddle boats on a royalty basis from an Oklahoma company (from which it purchased one boat) and operates a juke box which, along with records it plays, is manufactured outside Arkansas. The Club is advertised in a monthly magazine distributed at Little Rock hotels, motels, and restaurants, in a monthly newspaper published at a nearby Air Force base, and over two area radio stations. Approximately 100,000 whites patronize the establishment each season and are routinely furnished "membership" cards in the "club," on payment of a 25� fee. Negroes are denied admission. Petitioners, Negro residents of Little Rock, brought this class action to enjoin respondent from denying them admission to the Lake Nixon Club, alleging that it is a "public accommodation" subject to the provisions of Title II of the Civil Rights Act of 1964, and that respondent violated the Act by refusing petitioners admission solely on racial grounds. Title II prohibits racial discrimination at places of public accommodation whose operations affect commerce. The District Court, though finding that petitioners had been refused admission solely because they were Negroes and that the Lake Nixon Club is not a private club (to which Title II does not apply), dismissed the complaint on the ground that the establishment is not a "public accommodation" within the meaning of the Act. The Court of Appeals affirmed. Section 201(b) of the Act includes among the categories of covered public accommodations: "(2) any restaurant, . . . lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises . . . ," "(3) any . . . place of . . . entertainment," and "(4) any establishment . . . within the premises of which is physically located any such covered establishment, and . . . which holds itself out as serving patrons of such covered establishment." Under § 201(c), a place of public accommodation Page 395 U. S. 299 affects commerce if "(2). . . [it is an establishment described in § 201(b)(2) and] serves or offers to serve interstate travelers or a substantial portion of the food it serves . . . has moved in commerce; (3) [it is an establishment described in § 201(b)(3) and] customarily presents films, performances, . . . or other sources of entertainment which move in commerce;" or "(4) [it is an establishment described in § 201(b)(4) and] there is physically located within its premises, an establishment the operations of which affect commerce. . . ."Held:1. Lake Nixon Club, as the courts below correctly held, is not a private club, since it routinely affords "membership" to all whites, and has none of the attributes of self-government and member ownership traditionally associated with private clubs. Pp. 395 U. S. 301-302.2. The Lake Nixon Club's snack bar is a "place of public accommodation" under § 201(b)(2) of the Act, since it is "principally engaged in selling food for consumption on the premises." Pp. 395 U. S. 302-304.3. The operations of the snack bar "affect commerce" under § 201(c)(2) of the Act. P. 395 U. S. 304.(a) The owners' choice of advertising media leaves no doubt that they seek a broad-based patronage from an audience they know includes interstate travelers, and it would be unrealistic to assume that none of the 100,000 patrons served each season is an interstate traveler. P. 395 U. S. 304.(b) A "substantial portion of the food" served at the snack bar has moved in interstate commerce. P. 395 U. S. 305.4. The snack bar's status as a covered establishment automatically brings the entire Lake Nixon Club facility within the coverage of Title II of the Act by virtue of §§ 201(b)(4) and 201(c)(4). P. 395 U. S. 305.5. The Lake Nixon Club is a covered accommodation under §§ 201(b)(3) and 201(c)(3) of the Act, as it is a "place of entertainment," which, in the light of the overriding purpose of Title II to remove discriminatory denials of access to public facilities, includes recreational areas, and is not, as respondent argues, limited to spectator entertainment. Pp. 395 U. S. 305-308.6. The Club's operations clearly "affect commerce" within the meaning of § 201(c)(3), since the paddle boats and the juke box and its records are "sources of entertainment [that] move in commerce." P. 395 U. S. 308.395 F.2d 118, reversed. Page 395 U. S. 300

1960_182

MR. JUSTICE WHITTAKER delivered the opinion of the Court.Respondents, who are federal narcotics agents, arrested petitioner without a warrant in Cook County, Illinois, and, in the course of an incidental search, found narcotic drugs on his person which they seized. Respondents then delivered petitioner to the Cook County authorities, who confined him in the county jail. In due course, the county grand jury returned an indictment charging petitioner with possessing the narcotics in violation of an Illinois statute. Soon after his arraignment and plea of "not guilty," petitioner moved the court for an order suppressing the use of the narcotics as evidence in his impending criminal trial. After a full hearing, including the taking of evidence (not contained in this record), the court denied the motion.Before the case was reached for trial, petitioner brought the present action against respondents in the Federal District Court in Chicago to impound the narcotics (though he did not allege that respondents have possession of them) and to enjoin their use, and the respondents from testifying at the trial of the criminal case in the state court. The very meager complaint alleged, in addition to the facts we have stated, only a few of the facts relating to petitioner's arrest, [Footnote 1] and that he believes"respondents Page 365 U. S. 383 will be called to testify in [the state criminal] case that the petitioner unlawfully had in his possession the narcotic drugs seized by the respondents. . . ."It concluded with a prayer for the relief stated.Respondents moved to dismiss the complaint for failure to state a claim upon which relief could be granted. After a hearing, the District Court granted the motion and dismissed the action. On appeal, the Seventh Circuit affirmed. 275 F.2d 932. To consider petitioner's claim that the judgment is repugnant to controlling rules and decisions of this Court, we granted certiorari. 363 U.S. 840.We have concluded that the action was properly dismissed, and that the judgment must be affirmed.Although the complaint alleged that the arrest was made without a warrant, there was no allegation that it was made without probable cause. In the absence of such an allegation, the courts below could not, nor can we, assume that respondents arrested petitioner without probable cause to believe that he had committed or was committing a narcotics offense. And if they had such probable cause, the arrest, though without a warrant, was lawful, and the subsequent search of petitioner's person and the seizure of the found narcotics were validly made incidentally to a lawful arrest. Weeks v. United States, 232 U. S. 383, 232 U. S. 392; Carroll v. United States, 267 U. S. 132, 267 U. S. 158; Agnello v. United States, 269 U. S. 20, 269 U. S. 30; Giordenello v. United States, 357 U. S. 480, 357 U. S. 483; Draper v. Page 365 U. S. 384 United States, 358 U. S. 307, 358 U. S. 310-311. [Footnote 2] For this reason alone, the complaint failed to state a claim upon which relief could be granted.Nor did the complaint allege, even in conclusional terms, that petitioner does not have a plain and adequate remedy at law in the state court to redress any possible illegality in the arrest and incidental search and seizure. Indeed, the allegations of the complaint affirmatively show that petitioner does have such a remedy in the Illinois court, and that he has actually prosecuted it there, but only to the point of an adverse interlocutory order. That court, whose jurisdiction first attached, retains jurisdiction over this matter to the exclusion of all other courts -- certainly to the exclusion of the Federal District Court -- until its duty has been fully performed, Harkrader v. Wadley, 172 U. S. 148, 172 U. S. 164; [Footnote 3] Peck v. Jenness, 7 How. 612, 48 U. S. 624-625, [Footnote 4] and Page 365 U. S. 385 it can determine this matter as well as, if not better than, the federal court. If, at the criminal trial, the Illinois court adheres to its interlocutory order on the suppression issue to petitioner's prejudice, he has an appeal to the Supreme Court of that State, and a right if need be to petition for "review by this Court of any federal questions involved." Douglas v. City of Jeannette, 319 U. S. 157, 319 U. S. 163. It is therefore clear that petitioner has a plain and adequate remedy at law in the criminal case pending against him in the Illinois court.There is still another cardinal reason why it was proper for the District Court to dismiss the complaint. We live in the jurisdiction of two sovereignties. Each has its own system of courts to interpret and enforce its laws, although in common territory. These courts could not perform their respective functions without embarrassing conflicts unless rules were adopted to avoid them. Such rules have been adopted. One of them is that an accused"should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other unless the necessary operation of such machinery prevents his having a fair trial."Ponzi v. Fessenden, 258 U. S. 254, 258 U. S. 260. Another is that federal courts should not exercise their discretionary power"to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent. . . ."Douglas v. City of Jeannette, supra, at 319 U. S. 163.By this action, petitioner not only seeks to interfere with and embarrass the state court in his criminal case, but he also seeks completely to thwart its judgment by relitigating in a trial de novo in a federal court the very issue that he has already litigated in the state court."If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Page 365 U. S. 386 Every question of procedural due process of law -- with its far-flung and undefined range -- would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court [and, we may add, in the ruling of motions to suppress evidence, and in ruling the competency of witnesses and their testimony] -- all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution."Stefanelli v. Minard, 342 U. S. 117, 342 U. S. 123-124.Notwithstanding all of this, petitioner contends that the averments of his complaint were sufficient to entitle him to the relief prayed under the principles announced in Rea v. United States, 350 U. S. 214. But it is plain that the averments of this complaint do not invoke or even approach the principles of the Rea case. That case did not hold, as petitioner's contention assumes, that narcotic drugs lawfully seized by federal officers are inadmissible, or that such officers may not testify about their seizure, in state prosecutions. Such a concept would run counter to the express command of Congress that federal officers shall cooperate with the States in such investigations and prosecutions. See 21 U.S.C. § 198(a). Indeed, the situation here is just the reverse of the situation in Rea. There, the accused had been indicted in a federal court for the unlawful acquisition of marihuana, and had moved in that court, under Rule 41(e) of the Federal Rules of Criminal Procedure (18 U.S.C. Rule 41(e)) for an order suppressing the use of the marihuana as evidence Page 365 U. S. 387 at the trial. After hearing, the District Court, finding that the accused's arrest and search had been made by federal officers under an illegal warrant issued by a United States Commissioner, granted the motion to suppress. The effect of that order, under the express provisions of that Rule, was that the suppressed property "shall not be admissible in evidence at any hearing or trial." Cf. Reina v. United States, 364 U. S. 507, 364 U. S. 510-511. Despite that order, one of the arresting federal officers thereafter caused the accused to be rearrested and charged, in a state court, with possession of the same marihuana in violation of the State's statute, and threatened to make the State's case by his testimony and the use of the marihuana that the federal court had earlier suppressed under Rule 41(e). Thereupon, to prevent the thwarting of the federal suppression order, petitioner moved the federal court to enjoin that conduct. That court denied the motion and its judgment was affirmed on appeal. On certiorari, this Court, acting under its supervisory power over the federal rules, which extends "to policing [their] requirements and making certain that they are observed," 350 U.S. at 350 U. S. 217, reversed the judgment, because"A federal agent [had] violated [and was about further to violate] the federal Rules governing searches and seizures -- Rules prescribed by this Court and made effective after submission to the Congress. See 327 U.S. 821 et seq."350 U.S. at 350 U. S. 217.How different are the facts in the present case! Here, there is no allegation or showing that any proceedings ever were taken against petitioner under any federal rule or in any federal court. There has been no finding that petitioner's arrest was unlawful, or that the search of his person which yielded the narcotics was not incident to a lawful arrest, and therefore proper. The state court's finding -- the only court involved and the only finding on the matter -- is the other way. Nor is there even any Page 365 U. S. 388 allegation in the complaint that the arrest was not made upon probable cause, although it is admitted that the search was made incident to the arrest.It is clear that the complaint was properly dismissed.Affirmed

U.S. Supreme CourtWilson v. Schnettler, 365 U.S. 381 (1961)Wilson v. SchnettlerNo. 182Argued December 15, 1960Decided February 27, 1961365 U.S. 381SyllabusRespondents, who are federal agents, arrested petitioner without a warrant and seized narcotics which they found on his person in the course of an incidental search. They then delivered him to state authorities, who confined him in jail. After a state grand jury had indicted petitioner for possessing narcotics in violation of state law, he moved in a state court for an order suppressing use of the narcotics as evidence in his impending trial, and the state court denied the motion. Petitioner then sued in a federal district court to impound the narcotics, to enjoin their use in evidence, and to enjoin respondents from testifying at petitioner's trial in the state court. Although his complaint alleged that the arrest was made without a warrant, there was no allegation that it was made without probable cause.Held: dismissal of the complaint for failure to state a claim upon which relief could be granted is sustained. Pp. 365 U. S. 382-388.(a) Since the complaint did not allege that the arrest was without probable cause, and since the arrest and incidental search and seizure were lawful if respondents had probable cause to make the arrest, the complaint failed to state a claim upon which relief could be granted. Pp. 365 U. S. 383-384.(b) Petitioner had a plain and adequate remedy at law in the criminal case pending against him in the state court. Pp. 365 U.S. 384-385.(c) By this action in the federal court, petitioner sought not only to interfere with and embarrass the state court in the impending criminal case, but also completely to thwart its judgment by relitigating in a trial de novo the very issue that he had already litigated unsuccessfully in the state court, and that is not permissible. Pp. 365 U. S. 385-386.(d) Rea v. United States, 350 U. S. 214, distinguished. Pp. 365 U. S. 387-388.275 F.2d 932, affirmed. Page 365 U. S. 382

1999_98-1109

case. They themselves foreclose distinctions based upon the "potential future" versus "actual present" nature of the claim, the "general legal" versus the "fact-specific" nature of the challenge, the "collateral" versus the "noncollateral" nature of the issues, or the "declaratory" versus "injunctive" nature of the relief sought. Nor can the Court accept a distinction that limits § 405(h)'s scope to claims for monetary benefits or that involve "amounts," as neither the language nor the purposes of §405 support such a distinction. Neither McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, nor Mathews v. Eldridge, 424 U. S. 319, supports the Council's effort to distinguish Salfi and Ringer. The Court's approval of a § 1331 suit against the Immigration and Naturalization Service in McNary rested on the different language of the immigration statute. And Eldridge was a case in which the respondent had complied with, not disregarded, the Social Security Act's special review procedures-specifically the nonwaivable and nonexcusable requirement that an individual present a claim to the agency before raising it in court. The upshot is that the Council's argument must rest primarily upon Michigan Academy. Pp. 11-15.(c) Michigan Academy did not, contrary to the Court of Appeals' holding, modify the Court's earlier holdings by limiting § 405(h)'s scope, as incorporated by § 1395ii, to "amount determinations." That case involved the lawfulness of HHS regulations governing procedures used to calculate Medicare Part B benefits; and the Medicare statute, as it then existed, did not provide for § 405(g) review of such decisions. The Court ruled that this silence did not itself foreclose § 1331 review. In response to the argument that § 405(h) barred § 1331 review, the Court declined to pass in the abstract on the meaning of § 405(h) because that section was made applicable to the Medicare Act "to the same extent as" it is applicable to the Social Security Act by virtue of 42 U. S. C. § 1395ii. The Court interpreted that phrase to foreclose application of § 405(h) where its application would preclude judicial review rather than channel it through the agency. As limited by the Court of Appeals, Michigan Academy would have overturned or dramatically limited earlier precedents such as Salfi and Ringer, and would have created a hardly justifiable distinction between "amount determinations" and many similar HHS determinations. This Court does not normally overturn, or so dramatically limit, earlier authority sub silentio, and it did not do so here. Pp. 15-20.(d) The Council's argument that it falls within the Michigan Academy exception because it can obtain no review at all unless it can obtain § 1331 review is unconvincing. It argues that review is available only after the Secretary terminates a home's provider agreement. But in4Syllabusher brief and regulations, the Secretary offers a legally permissible interpretation of the statute: that it permits a dissatisfied nursing home to have an administrative hearing on a determination that it has failed to comply substantially with the statute, agreements, or regulations, whether termination or some other remedy is imposed. See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. The Secretary also denies that she engages in any practice that forces a home to submit a corrective plan and sacrifice appeal rights in order to avoid termination, or that penalizes more severely a home that chooses to appeal. Because the Council offers no convincing reason to doubt her description of the agency's practice, the Court need not decide whether a practice that forced homes to abandon legitimate challenges could amount to the practical equivalent of a total denial of judicial review. If, as the Council argues, the regulations unlawfully limit the extent to which the agency will provide the administrative review channel leading to judicial review, its members remain free, after following the special review route, to contest in court the lawfulness of the relevant regulation or statute. That is true even if the agency does not or cannot resolve the particular contention, because it is the "action" arising under the Medicare Act that must be channeled through the agency. The Council finally argues that, as an association speaking on behalf of its injured members, it has no standing to take advantage of the special review channel. However, it is the members' rights to review that are at stake, and the statutes creating the special review channel adequately protect those rights. Pp. 20-24.143 F.3d 1072, reversed.BREYER, J., delivered the OpInIOn of the Court, in which REHNQUIST, C. J., and O'CONNOR, SOUTER, and GINSBURG, JJ., joined. STEVENS, J., post, p. 30, and SCALIA, J., post, p. 31, filed dissenting opinions. THOMAS, J., filed a dissenting opinion, in which STEVENS and KENNEDY, JJ., joined, and in which SCALIA, J., joined except as to Part III, post, p.32.Jeffrey A. Lamken argued the cause for petitioners.With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Barbara C. Biddle, Jeffrey Clair, Harriet S. Rabb, and Jeffrey Golland.5Kimball R. Anderson argued the cause for respondent.With him on the brief were Charles P. Sheets, Bruce R. Braun, and Brian E. Neuffer. *JUSTICE BREYER delivered the opinion of the Court.The question before us is one of jurisdiction. An association of nursing homes sued, inter alios, the Secretary of Health and Human Services (HHS) and another federal party (hereinafter Secretary) in Federal District Court claiming that certain Medicare-related regulations violated various statutes and the Constitution. The association invoked the court's federal-question jurisdiction, 28 U. S. C. § 1331. The District Court dismissed the suit on the ground that it lacked jurisdiction. It believed that a set of special statutory provisions creates a separate, virtually exclusive, system of administrative and judicial review for denials of Medicare claims; and it held that one of those provisions explicitly barred a § 1331 suit. See 42 U. S. C. § 1395ii (incorporating into the Medicare Act 42 U. S. C. § 405(h), which provides that "[n]o action ... to recover on any claim" arising under the Medicare laws shall be "brought under section 1331 ... of title 28"). The Court of Appeals, however, reversed.We conclude that the statutory provision at issue, § 405(h), as incorporated by § 1395ii, bars federal-question jurisdiction here. The association or its members must proceed instead through the special review channel that the Medicare statutes create. See 42 U. S. C. §§ 1395cc(h), (b)(2)(A), 1395ii; §§ 405(b), (g), (h).*Briefs of amici curiae urging affirmance were filed for the American Association of Homes and Services for the Aging by Mark H. Gallant; for the American Health Care Association et al. by Thomas C. Fox and Harvey M. Tettlebaum; for the American Hospital Association by Charles G. Curtis, Jr., and Edward J. Green; and for the American Medical Association et al. by Paul M. Smith, Robert M. Portman, Michael L. Ile, Leonard A. Nelson, Richard N Peterson, Ann E. Allen, Stuart M. Gerson, Saul J. Morse, and Robert J. Kane.6I AWe begin by describing the regulations that the association's lawsuit attacks. Medicare Act Part A provides payment to nursing homes which provide care to Medicare beneficiaries after a stay in a hospital. To receive payment, a home must enter into a provider agreement with the Secretary of HHS, and it must comply with numerous statutory and regulatory requirements. State and federal agencies enforce those requirements through inspections. Inspectors report violations, called "deficiencies." And "deficiencies" lead to the imposition of sanctions or "remedies." See generally § § 1395i-3, 1395cc.The regulations at issue focus on the imposition of sanctions or remedies. They were promulgated in 1994, 59 Fed. Reg. 56116, pursuant to a 1987 law that tightened the substantive standards that Medicare (and Medicaid) imposed upon nursing homes and that significantly broadened the Secretary's authority to impose remedies upon violators. Omnibus Budget Reconciliation Act of 1987, §§ 4201-4218, 101 Stat. 1330-160 to 1330-221 (codified as amended at 42 U. S. C. § 1395i-3 (1994 ed. and Supp. II!)).The remedial regulations (and a related manual) in effect tell Medicare-administering agencies how to impose remedies after inspectors find that a nursing home has violated substantive standards. They divide a nursing home's deficiencies into three categories of seriousness depending upon a deficiency's severity, its prevalence at the home, its relation with other deficiencies, and the home's compliance history. Within each category they list a set of remedies that the agency may, or must, impose. Where, for example, deficiencies "immediately jeopardize the health or safety of ... residents," the Secretary must terminate the home's provider agreement or appoint new, temporary management. Where deficiencies are less serious, the Secretary7may impose lesser remedies, such as civil penalties, transfer of residents, denial of some or all payment, state monitoring, and the like. Where a nursing home, though deficient in some respects, is in "[s]ubstantial compliance," i. e., where its deficiencies do no more than create a "potential for [causing] minimal harm," the Secretary will impose no sanction or remedy at all. See generally 42 U. S. C. § 1395i-3(h); 42 CFR § 488.301 (1998); § 488.400 et seq.; App. 54, 66 (Manual). The statute and regulations also create various review procedures. 42 U. S. C. §§ 1395cc(b)(2)(A), (h); 42 CFR § 431.151 et seq. (1998); § 488.408(g); 42 CFR pt. 498 (1998).The association's complaint filed in Federal District Court attacked the regulations as unlawful in four basic ways. In its view: (1) certain terms, e. g., "substantial compliance" and "minimal harm," are unconstitutionally vague; (2) the regulations and manual, particularly as implemented, violate statutory requirements seeking enforcement consistency, 42 U. S. C. § 1395i-3(g)(2)(D), and exceed the legislative mandate of the Medicare Act; (3) the regulations create administrative procedures inconsistent with the Federal Constitution's Due Process Clause; and (4) the manual and other agency publications create legislative rules that were not promulgated consistent with the Administrative Procedure Act's demands for "notice and comment" and a statement of "basis and purpose," 5 U. S. C. § 553. See App. 18-19,27-38, 43-49 (Amended Complaint).BWe next describe the two competing jurisdictional routes through which the association arguably might seek to mount its legal attack. The route it has followed, federal-question jurisdiction, is set forth in 28 U. S. C. § 1331, which simply states that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The route that it did not follow, the special Medicare review route, is set forth in a complex8set of statutory provisions, which must be read together. See Appendix, infra. The Medicare Act says that a home"dissatisfied with a determination described in sub section (b)(2) ... shall be entitled to a hearing ... to the same extent as is provided in [the Social Security Act, 42 U. S. C. § ]405(b) ... and to judicial review of the Secretary's final decision after such hearing as is provided in section 405(g) .... " 42 U. S. C. § 1395cc(h)(1) (emphasis added).The cross-referenced subsection (b)(2) gives the Secretary power to terminate an agreement where, for example, the Secretary"has determined that the provider fails to comply substantially with the provisions [of the Medicare Act] and regulations thereunder .... " § 1395cc(b)(2)(A) (emphasis added).The cross-referenced § 405(b) describes the nature of the administrative hearing to which the Medicare Act entitles a home that is "dissatisfied" with the Secretary's "determination." The cross-referenced § 405(g) provides that a "dissatisfied" home may obtain judicial review in federal district court of "any final decision of the [Secretary] made after a hearing .... " Separate statutes provide for administrative and judicial review of civil monetary penalty assessments. § 1395i-3(h)(2)(B)(ii); §§ 1320a-7a(c)(2), (e).A related Social Security Act provision, § 405(h), channels most, if not all, Medicare claims through this special review system. It says:"(h) Finality of [Secretary's] decision."The findings and decision of the [Secretary] after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the [Secretary] shall be reviewed by any person, tribunal, or governmental agency except as herein pro-9vided. No action against the United States, the [Secretary], or any officer or employee thereof shall be brought under section 1331 or 13.1,6 [federal defendant jurisdiction] of title 28 to recover on any claim arising under this subchapter." (Emphasis added.)Section 1395ii makes § 405(h) applicable to the Medicare Act "to the same extent as" it applies to the Social Security Act.CThe case before us began when the Illinois Council on Long Term Care, Inc. (Council), an association of about 200 Illinois nursing homes participating in the Medicare (or Medicaid) program, filed the complaint we have described, supra, at 7, in Federal District Court. (Medicaid is not at issue in this Court.) The District Court, as we have said, dismissed the complaint for lack of federal-question jurisdiction. No. 96 C 2953 (ND Ill., Mar. 31, 1997), App. to Pet. for Cert. 13a, 15a. In doing so, the court relied upon § 405(h) as interpreted by this Court in Weinberger v. Salfi, 422 U. S. 749 (1975), and Heckler v. Ringer, 466 U. S. 602 (1984). App. to Pet. for Cert. 15a-19a.The Court of Appeals reversed the dismissal. 143 F. 3d 1072 (CA7 1998). In its view, a later case, Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 (1986), had significantly modified this Court's earlier case law. Other Circuits have understood Michigan Academy differently. See Michigan Assn. of Homes and Servs. for the Aging v. Shalala, 127 F.3d 496, 500-501 (CA6 1997); American Academy of Dermatology v. HHS, 118 F.3d 1495,14991501 (CAll 1997); St. Francis Medical Center v. Shalala, 32 F.3d 805, 812-813 (CA3 1994), cert. denied, 514 U. S. 1016 (1995); Farkas v. Blue Cross & Blue Shield, 24 F.3d 853, 855-860 (CA6 1994); Abbey v. Sullivan, 978 F.2d 37, 41-44 (CA2 1992); National Kidney Patients Assn. v. Sullivan, 958 F.2d 1127, 1130-1134 (CADC 1992), cert. denied,10506 U. S. 1049 (1993). We granted certiorari to resolve those differences.IISection 405(h) purports to make exclusive the judicial review method set forth in § 405(g). Its second sentence says that "[n]o findings of fact or decision of the [Secretary] shall be reviewed by any person, tribunal, or governmental agency except as herein provided." § 405(h). Its third sentence, directly at issue here, says that "[n]o action against the United States, the [Secretary], or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter." (Emphasis added.)The scope of the italicized language "to recover on any claim arising under" the Social Security (or, as incorporated through § 1395ii, the Medicare) Act is, if read alone, uncertain. Those words clearly apply in a typical Social Security or Medicare benefits case, where an individual seeks a monetary benefit from the agency (say, a disability payment, or payment for some medical procedure), the agency denies the benefit, and the individual challenges the lawfulness of that denial. The statute plainly bars § 1331 review in such a case, irrespective of whether the individual challenges the agency's denial on evidentiary, rule-related, statutory, constitutional, or other legal grounds. But does the statute's bar apply when one who might later seek money or some other benefit from (or contest the imposition of a penalty by) the agency challenges in advance (in a § 1331 action) the lawfulness of a policy, regulation, or statute that might later bar recovery of that benefit (or authorize the imposition of the penalty)? Suppose, as here, a group of such individuals, needing advance knowledge for planning purposes, together bring a § 1331 action challenging such a rule or regulation on general legal grounds. Is such an action one "to recover on any claim arising under" the Social Security or Medicare Acts? That, in effect, is the question before us.11IIIIn answering the question, we temporarily put the case on which the Court of Appeals relied, Michigan Academy, supra, to the side. Were we not to take account of that case, § 405(h) as interpreted by the Court's earlier cases of Weinberger v. Salfi, supra, and Heckler v. Ringer, supra, would clearly bar this § 1331 lawsuit.In Salfi, a mother and a daughter, filing on behalf of themselves and a class of individuals, brought a § 1331 action challenging the constitutionality of a statutory provision that, if valid, would deny them Social Security benefits. See 42 U. S. C. §§ 416(c)(5), (e)(2) (imposing a duration-ofrelationship Social Security eligibility requirement for surviving wives and stepchildren of deceased wage earners). The mother and daughter had appeared before the agency but had not completed its processes. The class presumably included some who had, and some who had not, appeared before the agency; the complaint did not say. This Court held that § 405(h) barred § 1331 jurisdiction for all members of the class because "it is the Social Security Act which provides both the standing and the substantive basis for the presentation of thee] constitutional contentions." Salfi, supra, at 760-761. The Court added that the bar applies "irrespective of whether resort to judicial processes is necessitated by discretionary decisions of the Secretary or by his nondiscretionary application of allegedly unconstitutional statutory restrictions." 422 U. S., at 762. It also pointed out that the bar did not "preclude constitutional challenges," but simply "require[d] that they be brought" under the same "jurisdictional grants" and "in conformity with the same standards" applicable "to nonconstitutional claims arising under the Act." Ibid.We concede that the Court also pointed to certain special features of the case not present here. The plaintiff class had asked for relief that included a direction to the Secretary to pay Social Security benefits to those entitled to them but for12the challenged provision. See id., at 761. And the Court thought this fact helped make clear that the action arose "under the Act whose benefits [were] sought." Ibid. But in a later case, Ringer, the Court reached a similar result despite the absence of any request for such relief. See 466 U. S., at 616, 623.In Ringer, four individuals brought a § 1331 action challenging the lawfulness (under statutes and the Constitution) of the agency's determination not to provide Medicare Part A reimbursement to those who had undergone a particular medical operation. The Court held that § 405(h) barred § 1331 jurisdiction over the action, even though the challenge was in part to the agency's procedures, the relief requested amounted simply to a declaration of invalidity (not an order requiring payment), and one plaintiff had as yet no valid claim for reimbursement because he had not even undergone the operation and would likely never do so unless a court set aside as unlawful the challenged agency "no reimbursement" determination. See id., at 614-616, 621-623. The Court reiterated that § 405(h) applies where "both the standing and the substantive basis for the presentation" of a claim is the Medicare Act, id., at 615 (quoting Salfi, 422 U. S., at 760-761) (internal quotation marks omitted), adding that a "claim for future benefits" is a § 405(h) "claim," 466 U. S., at 621-622, and that "all aspects" of any such present or future claim must be "channeled" through the administrative process, id., at 614. See also Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U. S. 449, 456 (1999); Califano v. Sanders, 430 U. S. 99, 103-104, n. 3 (1977).As so interpreted, the bar of § 405(h) reaches beyond ordinary administrative law principles of "ripeness" and "exhaustion of administrative remedies," see Salfi, supra, at 757-doctrines that in any event normally require channeling a legal challenge through the agency. See Abbott Laboratories v. Gardner, 387 U. S. 136, 148-149 (1967) (ripeness); McKart v. United States, 395 U. S. 185, 193-196 (1969) (ex-13haustion). Indeed, in this very case, the Seventh Circuit held that several of respondent's claims were not ripe and remanded for ripeness review of the remainder. 143 F. 3d, at 1077-1078. Doctrines of "ripeness" and "exhaustion" contain exceptions, however, which exceptions permit early review when, for example, the legal question is "fit" for resolution and delay means hardship, see Abbott Laboratories, supra, at 148-149, or when exhaustion would prove "futile," see McCarthy v. Madigan, 503 U. S. 140, 147-148 (1992); McKart, supra, at 197-201. (And sometimes Congress expressly authorizes preenforcement review, though not here. See, e. g., 15 U. S. C. § 2618(a)(1)(A) (Toxic Substances Control Act).)Insofar as § 405(h) prevents application of the "ripeness" and "exhaustion" exceptions, i. e., insofar as it demands the "channeling" of virtually all legal attacks through the agency, it assures the agency greater opportunity to apply, interpret, or revise policies, regulations, or statutes without possibly premature interference by different individual courts applying "ripeness" and "exhaustion" exceptions case by case. But this assurance comes at a price, namely, occasional individual, delay-related hardship. In the context of a massive, complex health and safety program such as Medicare, embodied in hundreds of pages of statutes and thousands of pages of often interrelated regulations, any of which may become the subject of a legal challenge in any of several different courts, paying this price may seem justified. In any event, such was the judgment of Congress as understood in Salfi and Ringer. See Ringer, supra, at 627; Salfi, supra, at 762.Despite the urging of the Council and supporting amici, we cannot distinguish Salfi and Ringer from the case before us. Those cases themselves foreclose distinctions based upon the "potential future" versus the "actual present" nature of the claim, the "general legal" versus the "factspecific" nature of the challenge, the "collateral" versus14"noncollateral" nature of the issues, or the "declaratory" versus "injunctive" nature of the relief sought. Nor can we accept a distinction that limits the scope of § 405(h) to claims for monetary benefits. Claims for money, claims for other benefits, claims of program eligibility, and claims that contest a sanction or remedy may all similarly rest upon individual fact-related circumstances, may all similarly dispute agency policy determinations, or may all similarly involve the application, interpretation, or constitutionality of interrelated regulations or statutory provisions. There is no reason to distinguish among them in terms of the language or in terms of the purposes of § 405(h). Section 1395ii's blanket incorporation of that provision into the Medicare Act as a whole certainly contains no such distinction. Nor for similar reasons can we here limit those provisions to claims that involve "amounts."The Council cites two other cases in support of its efforts to distinguish Salfi and Ringer: McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 (1991), and Mathews v. Eldridge, 424 U. S. 319 (1976). In Haitian Refugee Center, the Court held permissible a § 1331 challenge to "a group of decisions or a practice or procedure employed in making decisions" despite an immigration statute that barred § 1331 challenges to any Immigration and Naturalization Service "'determination respecting an application for adjustment of status'" under the Special Agricultural Workers' program. 498 U. S., at 491-498. Haitian Refugee Center's outcome, however, turned on the different language of that different statute. Indeed, the Court suggested that statutory language similar to the language at issue here-any claim "arising under" the Medicare or Social Security Acts, § 405(h)would have led it to a different legal conclusion. See id., at 494 (using as an example a statute precluding review of " 'all causes ... arising under any of'" the immigration statutes).In Eldridge, the Court held permissible a District Court lawsuit challenging the constitutionality of agency proce-15dures authorizing termination of Social Security disability payments without a pretermination hearing. See 424 U. S., at 326-332. Eldridge, however, is a case in which the Court found that the respondent had followed the special review procedures set forth in § 405(g), thereby complying with, rather than disregarding, the strictures of § 405(h). See id., at 326-327 (holding jurisdiction available only under § 405(g)). The Court characterized the constitutional issue the respondent raised as "collateral" to his claim for benefits, but it did so as a basis for requiring the agency to excuse, where the agency would not do so on its own, see Salfi, 422 U. S., at 766-767, some (but not all) of the procedural steps set forth in § 405(g). 424 U. S., at 329-332 (identifying collateral nature of the claim and irreparable injury as reasons to excuse § 405(g)'s exhaustion requirements); see also Bowen v. City of New York, 476 U. S. 467, 483-485 (1986) (noting that Eldridge factors are not to be mechanically applied). The Court nonetheless held that § 405(g) contains the nonwaivable and nonexcusable requirement that an individual present a claim to the agency before raising it in court. See Ringer, supra, at 622; Eldridge, supra, at 329; Salfi, supra, at 763-764. The Council has not done so here, and thus cannot establish jurisdiction under § 405(g).The upshot is that without Michigan Academy the Council cannot win. Its precedent-based argument must rest primarily upon that case.IVThe Court of Appeals held that Michigan Academy modified the Court's earlier holdings by limiting the scope of "[§]1395ii and therefore § 405(h)" to "amount determinations." 143 F. 3d, at 1075-1076. But we do not agree. Michigan Academy involved a § 1331 suit challenging the lawfulness of HHS regulations that governed procedures used to calculate benefits under Medicare Part B-which Part provides voluntary supplementary medical insurance, e. g., for doctors' fees. See 476 U. S., at 674-675; United16States v. Erika, Inc., 456 U. S. 201, 202-203 (1982). The Medicare statute, as it then existed, provided for only limited review of Part B decisions. It allowed the equivalent of § 405(g) review for "eligibility" determinations. See 42 U. S. C. § 1395ff(b)(1)(B) (1982 ed.). It required private insurance carriers (administering the Part B program) to provide a "fair hearing" for disputes about Part B "amount determinations." § 1395u(b)(3)(C). But that was all.Michigan Academy first discussed the statute's total silence about review of "challenges mounted against the method by which ... amounts are to be determined." 476 U. S., at 675. It held that this silence meant that, although review was not available under §J,05(g), the silence did not itself foreclose other forms of review, say, review in a court action brought under § 1331. See id., at 674-678. Cf. Erika, supra, at 208 (holding that the Medicare Part B statute's explicit reference to carrier hearings for amount disputes does foreclose all further agency or court review of "amount determinations").The Court then asked whether § 405(h) barred 28 U. S. C. § 1331 review of challenges to methodology. Noting the Secretary's Salfi/Ringer-based argument that § 405(h) barred § 1331 review of all challenges arising under the Medicare Act and the respondents' counterargument that § 405(h) barred challenges to "methods" only where § 405(g) review was available, see Michigan Academy, 476 U. S., at 679, the Court wrote:"Whichever may be the better reading of Salfi and Ringer, we need not pass on the meaning of § 405(h) in the abstract to resolve this case. Section 405(h) does not apply on its own terms to Part B of the Medicare program, but is instead incorporated mutatis mutandis by § 1395ii. The legislative history of both the statute establishing the Medicare program and the 1972 amendments thereto provides specific evidence of Congress' intent to foreclose review only of 'amount determina-17tions'-i. e., those [matters] ... remitted finally and exclusively to adjudication by private insurance carriers in a 'fair hearing.' By the same token, matters which Congress did not delegate to private carriers, such as challenges to the validity of the Secretary's instructions and regulations, are cognizable in courts of law." Id., at 680 (footnote omitted).The Court's words do not limit the scope of § 405(h) itself to instances where a plaintiff, invoking § 1331, seeks review of an "amount determination." Rather, the Court said that it would "not pass on the meaning of § 405(h) in the abstract." Ibid. (emphasis added). Instead it focused upon the Medicare Act's cross-referencing provision, § 1395ii, which makes § 405(h) applicable "to the same extent as" it is "applicable" to the Social Security Act. (Emphasis added.) It interpreted that phrase as applying § 405(h) "mutatis mutandis," i. e., "[a]ll necessary changes having been made." Black's Law Dictionary 1039 (7th ed. 1999). And it applied § 1395ii with one important change of detail-a change produced by not applying § 405(h) where its application to a particular category of cases, such as Medicare Part B "methodology" challenges, would not lead to a channeling of review through the agency, but would mean no review at all. The Court added that a "'serious constitutional question' ... would arise if we construed § 1395ii to deny a judicial forum for constitutional claims arising under Part B." 476 U. S., at 681, n. 12 (quoting Salfi, 422 U. S., at 762 (citing Johnson v. Robison, 415 U. S. 361, 366-367 (1974))).More than that: Were the Court of Appeals correct in believing that Michigan Academy limited the scope of § 405(h) itself to "amount determinations," that case would have significantly affected not only Medicare Part B cases but cases arising under the Social Security Act and Medicare Part A as well. It accordingly would have overturned or dramatically limited this Court's earlier precedents, such as Salfi and Ringer, which involved, respectively, those programs.18It would, moreover, have created a hardly justifiable distinction between "amount determinations" and many other similar HHS determinations, see supra, at 14. And we do not understand why Congress, as JUSTICE STEVENS believes, post, at 30-31 (dissenting opinion), would have wanted to compel Medicare patients, but not Medicare providers, to channel their claims through the agency. Cf. Brief for Respondent 7-8, 18-21, 30-31 (apparently conceding the point). This Court does not normally overturn, or so dramatically limit, earlier authority sub silentio. And we agree with those Circuits that have held the Court did not do so in this instance. See Michigan Assn. of Homes and Servs., 127 F. 3d, at 500-501; American Academy of Dermatology, 118 F. 3d, at 1499-1501; St. Francis Medical Center, 32 F. 3d, at 812; Farkas, 24 F. 3d, at 855-861; Abbey, 978 F. 2d, at 41-44; National Kidney Patients Assn., 958 F. 2d, at 1130-1134.JUSTICE THOMAS maintains that Michigan Academy "must have established," by way of a new interpretation of § 1395ii, the critical distinction between a dispute about an agency determination in a particular case and a more general dispute about, for example, the agency's authority to promulgate a set of regulations, i. e., the very distinction that this Court's earlier cases deny. Post, at 38 (dissenting opinion). He says that, in this respect, we have mistaken Michigan Academy's "reasoning" (the presumption against preclusion of judicial review) for its "holding." Post, at 39-40. And, he finds the holding consistent with earlier cases such as Ringer because, he says, in Ringer everyone simply assumed without argument that § 1395ii's channeling provision fully incorporated the whole of § 405(h). Post, at 40-42.For one thing, the language to which JUSTICE THOMAS points simply says that "Congres[s] inten[ded] to foreclose review only of 'amount determinations'" and not "matters which Congress did not delegate to private carriers, such as challenges to the validity of the Secretary's instructions and regulations," Michigan Academy, supra, at 680 (emphasis19added). That language refers to particular features of the Medicare Part B program-"private carriers" and "amount determinations"-which are not here before us. And its reference to "foreclosure" of review quite obviously cannot be taken to refer to § 1395ii because, as we have explained, § 1395ii is a channeling requirement, not a foreclosure provision-of "amount determinations" or anything else. In short, it is difficult to reconcile JUSTICE THOMAS' characterization of Michigan Academy as a holding that § 1395ii is "trigger[ed]" only by "challenges to ... particular determinations," post, at 40, with the Michigan Academy language to which he points.Regardless, it is more plausible to read Michigan Academy as holding that § 1395ii does not apply § 405(h) where application of § 405(h) would not simply channel review through the agency, but would mean no review at all. And contrary to JUSTICE SCALIA'S suggestion, post, at 31-32 (dissenting opinion), that single rule applies to Medicare Part A as much as to Medicare Part B. This latter holding, as we have said, has the virtues of consistency with Michigan Academy's actual language; consistency with the holdings of earlier cases such as Ringer; and consistency with the distinction that this Court has often drawn between a total preclusion of review and postponement of review. See, e. g., Salfi, supra, at 762 (distinguishing § 405(h)'s channeling requirement from the complete preclusion of judicial review at issue in Robison, supra, at 373); Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 207, n. 8 (1994) (strong presumption against preclusion of review is not implicated by provision postponing review); Haitian Refugee Center, 498 U. S., at 496-499 (distinguishing between Ringer and Michigan Academy and finding the case governed by the latter because the statute precluded all meaningful judicial review). JUSTICE THOMAS refers to an "antichanneling" presumption (a "presumption in favor of preenforcement review," post, at 46-47). But any such presumption must be far weaker than a pre-20sumption against preclusion of all review in light of the traditional ripeness doctrine, which often requires initial presentation of a claim to an agency. As we have said, supra, at 13, Congress may well have concluded that a universal obligation to present a legal claim first to HHS, though postponing review in some cases, would produce speedier, as well as better, review overall. And this Court crossed the relevant bridge long ago when it held that Congress, in both the Social Security Act and the Medicare Act, insisted upon an initial presentation of the matter to the agency. Ringer, 466 U. S., at 627; Salfi, 422 U. S., at 762. Michigan Academy does not require that we reconsider that longstanding interpretation.vThe Council argues that in any event it falls within the exception that Michigan Academy creates, for here as there, it can obtain no review at all unless it can obtain judicial review in a § 1331 action. In other words, the Council contends that application of § 1395ii's channeling provision to the portion of the Medicare statute and the Medicare regulations at issue in this case will amount to the "practical equivalent of a total denial of judicial review." Haitian Refugee Center, supra, at 497. The Council, however, has not convinced us that is so.The Council says that the special review channel that the Medicare statutes create applies only where the Secretary terminates a home's provider agreement; it is not available in the more usual case involving imposition of a lesser remedy, say, the transfer of patients, the withholding of payments, or the imposition of a civil monetary penalty.We have set forth the relevant provisions, supra, at 8-9; Appendix, infra. The specific judicial review provision, § 405(g), authorizes judicial review of "any final decision of the [Secretary] made after a [§ 405(b)] hearing." A further relevant provision, § 1395cc(h)(1), authorizes a § 405(b) hearing whenever a home is "dissatisfied ... with a determi-21nation described in subsection (b)(2)." (Emphasis added.) And subsection (b)(2) authorizes the Secretary to terminate an agreement, whenever she "has determined that the provider fails to comply substantially with" statutes, agreements, or "regulations." § 1395cc(b)(2)(A) (emphasis added).The Secretary states in her brief that the relevant "determination" that entitles a "dissatisfied" home to review is any determination that a provider has failed to comply substantially with the statute, agreements, or regulations, whether termination or "some other remedy is imposed." Reply Brief for Petitioners 14 (emphasis added). The Secretary's regulations make clear that she so interprets the statute. See 42 CFR §§ 498.3(b)(12), 498.1(a)-(b) (1998). The statute's language, though not free of ambiguity, bears that interpretation. And we are aware of no convincing countervailing argument. We conclude that the Secretary's interpretation is legally permissible. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984); Your Home Visiting Nurse Services, 525 U. S., at 453; see also 42 U. S. C. § 1395i-3(h)(2)(B)(ii) (providing a different channel for administrative and judicial review of decisions imposing civil monetary penalties.)The Council next argues that the regulations, as implemented by the enforcement agencies, deny review in practice by (1) insisting that a nursing home with deficiencies present a corrective plan, (2) imposing no further sanction or remedy if it does so, but (3) threatening termination if it does not. See 42 CFR §§ 488.402(d), 488.456(b)(ii) (1998). Because a home cannot risk termination, the Council adds, it must always submit a plan, thereby avoiding imposition of a remedy, but simultaneously losing its opportunity to contest the lawfulness of any remedy-related rules or regulations. See § 498.3(b)(12). And, the Council's amici assert, compliance actually harms the home by subjecting it to increased sanctions later on by virtue of the unreviewed deficiency findings,22and because the agency makes deficiency findings public on the Internet, § 488.325.The short, conclusive answer to these contentions is that the Secretary denies any such practice. She states in her brief that a nursing home with deficiencies can test the lawfulness of her regulations simply by refusing to submit a plan and incurring a minor penalty. Minor penalties, she says, are the norm, for "terminations from the program are rare and generally reserved for the most egregious recidivist institutions." Reply Brief for Petitioners 18; ibid. (HHS reports that only 25 out of more than 13,000 nursing homes were terminated in 1995-1996). She adds that the "remedy imposed on a facility that fails to submit a plan of correction or to correct a deficiency-and appeals the deficiency-is no different than the remedy the Secretary ordinarily would impose in the first instance." Ibid. Nor do the regulations "cause providers to suffer more severe penalties in later enforcement actions based on findings that are unreviewable." Ibid. The Secretary concedes that a home's deficiencies are posted on the Internet, but she notes that a home can post a reply. See id., at 20, n. 20.The Council gives us no convincing reason to doubt the Secretary's description of the agency's general practice. We therefore need not decide whether a general agency practice that forced nursing homes to abandon legitimate challenges to agency regulations could amount to the "practical equivalent of a total denial of judicial review," Haitian Refugee Center, 498 U. S., at 497. Contrary to what JusTICE THOMAS says, post, at 42-43,51-52, we do not hold that an individual party could circumvent § 1395ii's channeling requirement simply because that party shows that postponement would mean added inconvenience or cost in an isolated, particular case. Rather, the question is whether, as applied generally to those covered by a particular statutory provision, hardship likely found in many cases turns what ap-23pears to be simply a channeling requirement into complete preclusion of judicial review. See Haitian Refugee Center, supra, at 496-497. Of course, individual hardship may be mitigated in a different way, namely, through excusing a number of the steps in the agency process, though not the step of presentment of the matter to the agency. See supra, at 14-15; infra, at 24. But again, the Council has not shown anything other than potentially isolated instances of the inconveniences sometimes associated with the postponement of judicial review.The Council complains that a host of procedural regulations unlawfully limit the extent to which the agency itself will provide the administrative review channel leading to judicial review, for example, regulations insulating from review decisions about a home's level of noncompliance or a determination to impose one, rather than another, penalty. See 42 CFR §§ 431.153(b), 488.408(g)(2), 498.3(d)(10)(ii) (1998). The Council's members remain free, however, after following the special review route that the statutes prescribe, to contest in court the lawfulness of any regulation or statute upon which an agency determination depends. The fact that the agency might not provide a hearing for that particular contention, or may lack the power to provide one, see Sanders, 430 U. S., at 109 ("Constitutional questions obviously are unsuited to resolution in administrative hearing procedures ... "); Salfi, 422 U. S., at 764; Brief for Petitioners 45, is beside the point because it is the "action" arising under the Medicare Act that must be channeled through the agency. See Salfi, supra, at 762. After the action has been so channeled, the court will consider the contention when it later reviews the action. And a court reviewing an agency determination under § 405(g) has adequate authority to resolve any statutory or constitutional contention that the agency does not, or cannot, decide, see Thunder Basin Coal, 51024u. S., at 215, and n. 20; Haitian Refugee Center, supra, at 494; Ringer, 466 U. S., at 617; Salfi, supra, at 762, including, where necessary, the authority to develop an evidentiary record.Proceeding through the agency in this way provides the agency the opportunity to reconsider its policies, interpretations, and regulations in light of those challenges. Nor need it waste time, for the agency can waive many of the procedural steps set forth in § 405(g), see Salfi, supra, at 767, and a court can deem them waived in certain circumstances, see Eldridge, 424 U. S., at 330-331, even though the agency technically holds no "hearing" on the claim. See Salfi, supra, at 763-767 (holding that Secretary's decision not to challenge the sufficiency of the appellees' exhaustion was in effect a determination that the agency had rendered a "final decision" within the meaning of § 405(g)); Eldridge, supra, at 331-332, and n.11 (invoking practical conception of finality to conclude that collateral nature of claim and potential irreparable injury from delayed review satisfy the "final decision" requirement of § 405(g)). At a minimum, however, the matter must be presented to the agency prior to review in a federal court. This the Council has not done.Finally, the Council argues that, because it is an association, not an individual, it cannot take advantage of the special review channel, for the statute authorizes review through that channel only at the request of a "dissatisfied" "institution or agency." 42 U. S. C. § 1395cc(h)(1). The Council speaks only on behalf of its member institutions, and thus has standing only because of the injury those members allegedly suffer. See Arizonans for Official English v. Arizona, 520 U. S. 43, 65-66 (1997); Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 343 (1977). It is essentially their rights to review that are at stake. And the statutes that create the special review channel adequately protect those rights.25VIFor these reasons, this case cannot fit within Michigan Academy's exception. The bar of § 405(h) applies. The judgment of the Court of Appeals isReversed

CASES ADJUDGEDIN THESUPREME COURT OF THE UNITED STATESATOCTOBER TERM, 1999SyllabusSHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. ILLINOIS COUNCIL ON LONG TERM CARE, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 98-1109. Argued November 8, 1999-Decided February 29, 2000Under the Medicare Act's special review provisions, a nursing home that is "dissatisfied ... with a determination described in subsection (b)(2)" is "entitled to a hearing ... to the same extent as is provided in" the Social Security Act, 42 U. S. C. § 405(b), "and to judicial review of the Secretary's final decision after such hearing as is provided in section 405(g) .... " 42 U. S. C. § 1395cc(h)(1) (emphasis added). The crossreferenced subsection (b)(2) gives petitioner Secretary of Health and Human Services (HHS) power to terminate a provider agreement with a home where, for example, she determines that a home has failed to comply substantially with the statute and the regulations. The crossreferenced § 405(b) describes the administrative hearing to which a "dissatisfied" home is entitled, and the cross-referenced § 405(g) provides that the home may obtain federal district court review of the Secretary's "final decision ... made after a hearing .... " Section 405(h), a provision of the Social Security Act incorporated into the Medicare Act by 42 U. S. C. § 1395ii, provides that "[n]o action ... to recover on any claim arising under" the Medicare laws shall be "brought under [28 U. S. C. § ]1331." It channels most, if not all, Medicare claims through this special review system. Respondent, the Illinois Council on Long Term Care, Inc. (Council), an association of nursing homes,2Syllabusdid not rely on these provisions when it filed suit against, inter alios, petitioners (hereinafter Secretary), challenging the validity of Medicare regulations that impose sanctions or remedies on nursing homes that violate certain substantive standards. Rather, it invoked federalquestion jurisdiction, 28 U. S. C. § 1331. In dismissing for lack of jurisdiction, the Federal District Court found that 42 U. S. C. § 405(h), as interpreted in Weinberger v. Salfi, 422 U. S. 749, and Heckler v. Ringer, 466 U. S. 602, barred a § 1331 suit. The Seventh Circuit reversed, holding that Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, had significantly modified such earlier case law.Held: Section 405(h), as incorporated by § 1395ii, bars federal-question jurisdiction here. pp. 10-25.(a) Section 405(h) purports to make exclusive § 405(g)'s judicial review method. While its "to recover on any claim arising under" language plainly bars § 1331 review where an individual challenges on any legal ground the agency's denial of a monetary benefit under the Social Security and Medicare Acts, the question here is whether an anticipatory challenge to the lawfulness of a policy, regulation, or statute that might later bar recovery or authorize imposition of a penalty is also an action "to recover on any claim arising under" those Acts. P.lO.(b) Were the Court not to take account of Michigan Academy, § 405(h), as interpreted in Salfi and Ringer, would clearly bar this § 1331 lawsuit. The Court found in the latter cases that § 405(h) applies where "both the standing and the substantive basis for the presentation" of a claim is the Social Security Act, Salfi, supra, at 760-761, or the Medicare Act, Ringer, 466 U. S., at 615. All aspects of a present or future benefits claim must be channeled through the administrative process. Id., at 621-622. As so interpreted, §405(h)'s bar reaches beyond ordinary administrative law principles of "ripeness" and "exhaustion of administrative remedies"-doctrines that normally require channeling a legal challenge through the agency-by preventing the application of exceptions to those doctrines. This nearly absolute channeling requirement assures the agency greater opportunity to apply, interpret, or revise policies, regulations, or statutes without possibly premature interference by individual courts applying "ripeness" and "exhaustion" exceptions case by case. The assurance comes at the price of occasional individual, delay-related hardship, but paying such a price in the context of a massive, complex health and safety program such as Medicare was justified in the judgment of Congress as understood in Salfi and Ringer. Salfi and Ringer cannot be distinguished from the instant3Full Text of Opinion

1974_73-1923

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether a federal court may enjoin the issuance by Congress of a subpoena duces tecum that directs a bank to produce the bank records of an organization which claims a First Amendment Page 421 U. S. 493 privilege status for those records on the ground that they are the equivalent of confidential membership lists. The Court of Appeals for the District of Columbia Circuit held that compliance with the subpoena "would invade the constitutional rights" of the organization, and that judicial relief is available to prevent implementation of the subpoena.IIn early 1970, the Senate Subcommittee on Internal Security was given broad authority by the Senate to"make a complete and continuing study and investigation of . . . the administration, operation, and enforcement of the Internal Security Act of 1950. . . ."S.Res. 341, 91st Cong., 2d Sess. (1970). The authority encompassed discovering the "extent, nature, and effect of subversive activities in the United States," and the resolution specifically directed inquiry concerning "infiltration by persons who are or may be under the domination of the foreign government. . . ." Ibid. See also S.Res. 366, 81st Cong., 2d Sess. (1950). Pursuant to that mandate the Subcommittee began an inquiry into the activities of respondent United States Servicemen's Fund, Inc. (USSF).USSF describes itself as a nonprofit membership corporation supported by contributions. [Footnote 1] Its stated purpose is "to further the welfare of persons who have served or are presently serving in the military." To accomplish its declared purpose, USSF has engaged in various activities [Footnote 2] directed at United States servicemen. Page 421 U. S. 494 It established "coffee houses" near domestic military installations, and aided the publication of "underground" newspapers for distribution on American military installations throughout the world. The coffeehouses were meeting places for servicemen, and the newspapers were specialized publications which USSF claims dealt with issues of concern to servicemen. Through these operations, USSF attempted to communicate to servicemen its philosophy and attitudes concerning United States involvement in Southeast Asia. USSF claims the coffee houses and newspapers became "the focus of dissent and expressions of opposition within the military toward the war in [Southeast Asia]." [Footnote 3]In the course of its investigation of USSF, the Subcommittee concluded that a prima facie showing had been made of the need for further investigation, and it resolved that appropriate subpoenas, including subpoenas duces tecum, could be issued. Petitioner Eastland, a United States Senator, is, as he was then, Chairman of the Subcommittee. On May 28, 1970, pursuant to the above authority, he signed a subpoena duces tecum, issued on behalf of the Subcommittee, to the bank where USSF then had an account. The subpoena commanded the bank to produce by June 4, 1970:"any and all records appertaining to or involving the account or accounts of [USSF]. Such records to comprehend papers, correspondence, statements, checks, deposit slips and supporting documentation, or microfilm thereof within [the bank's] control or custody or within [its] means to produce."From the record, it appears the subpoena was never actually served on the bank. [Footnote 4] In any event, before the Page 421 U. S. 495 return date, USSF and two of its members brought this action to enjoin implementation of the subpoena duces tecum.The complaint named as defendants Chairman Eastland, nine other Senators, the Chief Counsel to the Subcommittee, and the bank. [Footnote 5] The complaint charged that the authorizing resolutions and the Subcommittee's actions implementing them were an unconstitutional abuse of the legislative power of inquiry, that the "sole purpose" of the Subcommittee investigation was to force "public disclosure of beliefs, opinions, expressions and associations of private citizens which may be unorthodox or unpopular," and that the "sole purpose" of the subpoena was to"harass, chill, punish and deter [USSF and its members] in their exercise of their rights and duties under the First Amendment, and particularly to stifle the freedom of the press and association guaranteed by that amendment. [Footnote 6]"The subpoena was issued to the bank, rather than to USSF and its members, the complaint claimed,"in order to deprive [them] of their rights to protect their private records, such as the sources of their contributions, as they would be entitled to do if the subpoenas had been issued against them directly."The complaint further claimed that financial support to Page 421 U. S. 496 USSF is obtained exclusively through contributions from private individuals, and, if the bank records are disclosed, "much of that financial support will be withdrawn, and USSF will be unable to continue its constitutionally protected activities." [Footnote 7]For relief, USSF and its members, the respondents, sought a permanent injunction restraining the Members of the Subcommittee and its Chief Counsel from trying to enforce the subpoena by contempt of Congress or other means and restraining the bank from complying with the subpoena. [Footnote 8] Respondents also sought a declaratory judgment declaring the subpoena and the Senate resolutions void under the Constitution. No damages claim was made.Since the return date on the subpoena was June 4, 1970, three days after the action was begun, enforcement of the subpoena was stayed [Footnote 9] in order to avoid mootness and to prevent possible irreparable injury. The District Court then held hearings and took testimony on the matter. That court ultimately held [Footnote 10] that respondents Page 421 U. S. 497 had not made a sufficient showing of irreparable injury to warrant an injunction. The court also purported to strike a balance between the legislative interest and respondents' asserted First Amendment rights, NAACP v. Alabama, 357 U. S. 449 (1958). It concluded that a valid legislative purpose existed for the inquiry because Congress was pursuing its functions, under Art. I, § 8, of raising and supporting an army, and had a legitimate interest in "scrutiniz[ing] closely possible infiltration of subversive elements into an organization which directly affects the armed forces of this country." [Footnote 11] Relying on Barenblatt v. United States, 360 U. S. 109 (1959), the District Court concluded that the legislative interest must prevail over respondents' asserted rights, and denied respondents' motions for preliminary and permanent injunctions. It also dismissed as to the petitioner Senators after concluding that the Speech or Debate Clause immunizes them from suit. Dombrowski v. Eastland, 387 U. S. 82 (1967).The Court of Appeals reversed, holding first that, although courts should hesitate to interfere with congressional actions even where First Amendment rights clearly are implicated, such restraint could not preclude judicial review where no alternative avenue of relief is available other than "through the equitable powers of the court." 159 U.S.App.D.C. 352, 359, 488 F.2d 1252, 1259 (1973). Here, the subpoena was directed to a third party which could not be expected to refuse Page 421 U. S. 498 compliance; unless respondents could obtain judicial relief, the bank might comply, the case would become moot, and the asserted violation of respondents' constitutional rights would be irreparable. Because the subpoena was not directed to respondents, the Court of Appeals noted, the traditional route for raising their defenses by refusing compliance and testing the legal issues in a contempt proceeding was not available to them. Ansara v. Eastland, 143 U.S.App.D.C. 29, 442 F.2d 751 (1971).Second, the Court of Appeals concluded that, if the subpoena were obeyed, respondents' First Amendment rights would be violated. The court said:"The right of voluntary associations, especially those engaged in activities which may not meet with popular favor, to be free from having either state or federal officials expose their affiliation and membership absent a compelling state or federal purpose has been made clear a number of times. See NAACP v. Alabama, 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293 (1961); Gibson v. Florida Legislative Committee, 372 U. S. 539 (1962); Pollard v. Roberts, 393 U. S. 14 (1968), affirming the judgment of the three-judge district court for the Eastern District of Arkansas, 283 F. Supp. 248 (1968)."159 U.S. App.D.C. at 364, 488 F.2d at 1264. In this case, that right would be violated, the Court of Appeals held, because discovery of the identities of donors was the admitted goal of the subpoena, id. at 367, 488 F.2d at 1267, and that information could be gained as easily from bank records as from membership lists. Moreover, if donors' identities were revealed, or if donors reasonably feared that result, USSF's contributions would Page 421 U. S. 499 decrease substantially, as had already occurred merely because of the threat posed by the subpoena. [Footnote 12]The Court of Appeals then fashioned a remedy to deal with the supposed violation of rights. It ordered the District Court to "consider the extent to which committee counsel should properly be required to give evidence as to matters without the legislative sphere.'" Id. at 370, 488 F.2d at 1270. [Footnote 13] It also ordered that the court should "be liberal in granting the right of amendment" to respondents to add other parties if thereby "the case can better proceed to a decision on the validity of the subpoena." Ibid. Members of Congress could be added as parties, the Court of Appeals said, if their presence is "unavoidable if a valid order is to be entered by the court to vindicate rights which would otherwise go unredressed." Ibid. The Court of Appeals concluded that Page 421 U. S. 500 declaratory relief against Members is "preferable" to "any coercive order." Ibid. The clear implication is that the District Court was authorized to enter a "coercive order" which, in context, could mean that the Subcommittee could be prevented from pursuing its inquiry by use of a subpoena to the bank.One judge dissented on the ground that the membership list cases were distinguishable because in none of them was there a "showing that the lists were requested for a proper purpose." Id. at 377, 488 F.2d at 1277. Here, on the other hand, the dissenting judge concluded, "there is a demonstrable relationship between the information sought and the valid legislative interest of the federal Congress" in discovering whether any money for USSF activities "came from foreign sources or subversive organizations," id. at 377, 378, 488 F.2d at 1277, 1278; whether USSF activities may have constituted violations of 18 U.S.C. § 2387(a), which prohibits interference with the loyalty, discipline, or morale of the Armed Services; or whether the anonymity of USSF donors might have disguised persons who had not complied with the Foreign Agents Registration Act of 1938, 22 U.S.C. § 611 et seq. Finally, he noted that the prime purpose of the Subcommittee's inquiry was to investigate application of the Internal Security Act of 1950, 50 U.S.C. § 781 et seq., and that, too, provided a legitimate congressional interest.The dissenting judge then balanced the congressional interests against private rights, Barenblatt v. United States, supra; Watkins v. United States, 354 U. S. 178, 354 U. S. 198 (1957), and struck the balance in favor of the investigative role of Congress. He reasoned that there is no right to secrecy which can frustrate a legitimate congressional inquiry into an area where legislation may be had. 159 U.S.App.D.C. at 378-379, 382, 488 F.2d at 1278-1279, Page 421 U. S. 501 1282. Absent a showing that the information sought could not be used in the legislative sphere, he concluded, judicial interference was unwarranted.We conclude that the actions of the Senate Subcommittee, the individual Senators, and the Chief Counsel are protected by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1, and are therefore immune from judicial interference. We reverse.IIThe question [Footnote 14] to be resolved is whether the actions of the petitioners fall within the "sphere of legitimate legislative activity." If they do, the petitioners "shall not be questioned in any other Place" about those activities, since the prohibitions of the Speech or Debate Clause are absolute, Doe v. McMillan, 412 U. S. 306, 412 U. S. 312-313 (1973); United States v. Brewster, 408 U. S. 501, 408 U. S. 516 (1972); Gravel v. United States, 408 U. S. 606, 408 U. S. 623 n. 14 (1972); Powell v. McCormack, 395 U. S. 486, 395 U. S. 502-503 (1969); Dombrowski v. Eastland, 387 U.S. at 387 U. S. 84-85; United States v. Johnson, 383 U. S. 169, 383 U. S. 184-185 (1966); Barr v. Matteo, 360 U. S. 564, 360 U. S. 569 (1959).Without exception, our cases have read the Speech or Debate Clause broadly to effectuate its purposes. Kilbourn Page 421 U. S. 502 v. Thompson, 103 U. S. 168, 103 U. S. 204 (1881); United States v. Johnson, supra, at 383 U. S. 179; Powell v. McCormack, supra, at 395 U. S. 502-503; United States v. Brewster, supra, at 408 U. S. 508-509; Gravel v. United States, supra, at 408 U. S. 617-618; cf. Tenney v. Brandhove, 341 U. S. 367, 341 U. S. 376-378 (1951). The purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently."The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators."United States v. Brewster, supra, at 408 U. S. 507. In our system "the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders." United States v. Johnson, supra, at 383 U. S. 178.The Clause is a product of the English experience. Kilbourn v. Thompson, supra; United States v. Johnson, supra, at 383 U. S. 177-179. Due to that heritage, our cases make it clear that the "central role" of the Clause is to"prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U. S. 169, 383 U. S. 181 (1966),"Gravel v. United States, supra, at 408 U. S. 617. That role is not the sole function of the Clause, however, and English history does not totally define the reach of the Clause. Rather, it "must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government. . . ." United States v. Brewster, supra, at 408 U. S. 508. Thus, we have long held that, when it applies, the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals Page 421 U. S. 503 as well as those initiated by the Executive Branch. Kilbourn v. Thompson, supra; Tenney v. Brandhove, supra; Doe v. McMillan, supra; Dombrowski v. Eastland, supra.The applicability of the Clause to private civil actions is supported by the absoluteness of the term "shall not be questioned," and the sweep of the term "in any other Place." In reading the Clause broadly, we have said that legislators acting within the sphere of legitimate legislative activity "should be protected not only from the consequences of litigation's results, but also from the burden of defending themselves." Dombrowski v. Eastland, supra, at 387 U. S. 85. Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled. We reaffirm that, once it is determined that Members are acting within the "legitimate legislative sphere" the Speech or Debate Clause is an absolute bar to interference. Doe v. McMillan, 412 U.S. at 412 U. S. 314.IIIIn determining whether particular activities other than literal speech or debate fall within the "legitimate legislative sphere," we look to see whether the activities took place "in a session of the House by one of its members in relation to the business before it." Kilbourn v. Page 421 U. S. 504 Thompson, 103 U.S. at 103 U. S. 204. More specifically, we must determine whether the activities are"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."Gravel v. United States, 408 U.S. at 408 U. S. 625. See Doe v. McMillan, supra, at 412 U. S. 313.The power to investigate and to do so through compulsory process plainly falls within that definition. This Court has often noted that the power to investigate is inherent in the power to make laws because"[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change."McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 175 (1927). See Anderson v. Dunn, 6 Wheat. 204 (1821); United States v. Rumely, 345 U. S. 41, 345 U. S. 46 (1953). [Footnote 15] Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate. Watkins v. United States, 354 U.S. at 354 U. S. 188."[W]here the legislative body does not itself posses Page 421 U. S. 505 the requisite information -- which not infrequently is true -- recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed."McGrain v. Daugherty, supra, at 273 U. S. 175. It also has been held that the subpoena power may be exercised by a committee acting, as here, on behalf of one of the Houses. Id. at 273 U. S. 158. Cf. Tenney v. Brandhove, 341 U.S. at 341 U. S. 377-378. Without such power, the Subcommittee may not be able to do the task assigned to it by Congress. To conclude that the power of inquiry is other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause in derogation of the "integrity of the legislative process." United States v. Brewster, 408 U.S. at 408 U. S. 524, and United States v. Johnson, 383 U.S. at 383 U. S. 172. We have already held that the act "of authorizing an investigation pursuant to which . . . materials were gathered" is an integral part of the legislative process. Doe v. McMillan, 412 U.S. at 412 U. S. 313. The issuance of a subpoena pursuant to an authorized investigation is similarly an indispensable ingredient of lawmaking; without it, our recognition that the act "of authorizing" is protected would be meaningless. To hold that Members of Congress are protected for authorizing an investigation, but not for issuing a subpoena in exercise of that authorization, would be a contradiction denigrating the power granted to Congress in Art. I, and would indirectly impair the deliberations of Congress. Gravel, supra, at 408 U. S. 625.The particular investigation at issue here is related to and in furtherance of a legitimate task of Congress. Page 421 U. S. 506 Watkins v. United States, 354 U.S. at 354 U. S. 187. On this record, the pleadings show that the actions of the Members and the Chief Counsel fall within the "sphere of legitimate legislative activity." The Subcommittee was acting under an unambiguous resolution from the Senate authorizing it to make a complete study of the "administration, operation, and enforcement of the Internal Security Act of 1950. . . ." S.Res. 341, 91st Cong., 2d Sess. (1970). That grant of authority is sufficient to show that the investigation upon which the Subcommittee had embarked concerned a subject on which "legislation could be had." McGrain v. Daugherty, 273 U.S. at 273 U. S. 177; see Communist Party v. Control Board, 367 U. S. 1 (1961).The propriety of making USSF a subject of the investigation and subpoena is a subject on which the scope of our inquiry is narrow. Hutcheson v. United States, 369 U. S. 599, 369 U. S. 618-619 (1962). See Sinclair v. United States, 279 U. S. 263, 279 U. S. 294-295 (1929). "The courts should not go beyond the narrow confines of determining that a committee's inquiry may fairly be deemed within its province." Tenney v. Brandhove, supra, at 341 U. S. 378. Cf. Doe v. McMillan, 412 U.S. at 412 U. S. 316 n. 10. Even the most cursory look at the facts presented by the pleadings reveals the legitimacy of the USSF subpoena. Inquiry into the sources of funds used to carry on activities suspected by a subcommittee of Congress to have a potential for undermining the morale of the Armed Forces is within the legitimate legislative sphere. Indeed, the complaint here tells us that USSF operated on or near military and naval bases, and that its facilities became the "focus of dissent" to declared national policy. Whether USSF activities violated any statute is not relevant; the inquiry was intended to inform Congress in an area where legislation may be had. USSF asserted it Page 421 U. S. 507 does not know the sources of its funds; in light of the Senate authorization to the Subcommittee to investigate "infiltration by persons who are or may be under the domination of . . . foreign government," supra at 421 U. S. 493, and in view of the pleaded facts, it is clear that the subpoena to discover USSF's bank records "may fairly be deemed within [the Subcommittee's] province." Tenney v. Brandhove, supra, at 341 U. S. 378.We conclude that the Speech or Debate Clause provides complete immunity for the Members for issuance of this subpoena. We draw no distinction between the Members and the Chief Counsel. In Gravel, supra, we made it clear that "the day-to-day work of such aides is so critical to the Members' performance that they must be treated as [the Members'] alter egos. . . ." 408 U.S. at 408 U. S. 616-617. See also id. at 408 U. S. 621. Here, the complaint alleges that the "Subcommittee members and staff caused the . . . subpoena to be issued . . . under the authority of Senate Resolution 366. . . ." The complaint thus does not distinguish between the activities of the Members and those of the Chief Counsel. Contrast Dombrowski v. Eastland, 387 U.S. at 387 U. S. 84. Since the Members are immune because the issuance of the subpoena is "essential to legislating," their aides share that immunity. Gravel v. United States, 408 U.S. at 408 U. S. 621; Doe v. McMillan, 412 U.S. at 412 U. S. 317.IVRespondents rely on language in Gravel v. United States, supra, at 408 U. S. 621:"[N]o prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded Page 421 U. S. 508 the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances."From this, respondents argue that the subpoena works an invasion of their privacy, and thus cannot be immune from judicial questioning. The conclusion is unwarranted. The quoted language from Gravel referred to actions which were not "essential to legislating." Ibid. See United States v. Johnson, 383 U. S. 169 (1966). For example, the arrest by the Sergeant at Arms was held unprotected in Kilbourn v. Thompson, supra, because it was not "essential to legislating." See Marshall v. Gordon, 243 U. S. 521, 243 U. S. 537 (1917). Quite the contrary is the case with a routine subpoena intended to gather information about a subject on which legislation may be had. See Quinn v. United States, 349 U. S. 155, 349 U. S. 161 (1955).Respondents also contend that the subpoena cannot be protected by the speech or debate immunity because the "sole purpose" of the investigation is to force "public disclosure of beliefs, opinions, expressions and associations of private citizens which may be unorthodox or unpopular." App. 16. Respondents view the scope of the privilege too narrowly. Our cases make clear that, in determining the legitimacy of a congressional act, we do not look to the motives alleged to have prompted it. Watkins v. United States, 354 U.S. at 354 U. S. 200; Hutcheson v. United States, 369 U.S. at 369 U. S. 614. In Brewster, we said that"the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts."408 U.S. at 408 U. S. 525 (emphasis added). And in Tenney v. Brandhove, we said that "[t]he claim of an unworthy purpose does not destroy the privilege." 341 U.S. at 341 U. S. 377. If the mere allegation that a valid legislative Page 421 U. S. 509 act was undertaken for an unworthy purpose would lift the protection of the Clause, then the Clause simply would not provide the protection historically undergirding it. "In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed." Id. at 341 U. S. 378. The wisdom of congressional approach or methodology is not open to judicial veto. Doe v. McMillan, 412 U.S. at 412 U. S. 313. Nor is the legitimacy of a congressional inquiry to be defined by what it produces. The very nature of the investigative function -- like any research -- is that it takes the searchers up some "blind alleys" and into nonproductive enterprises. To be a valid legislative inquiry, there need be no predictable end result.Finally, respondents argue that the purpose of the subpoena was to "harass, chill, punish and deter" them in the exercise of their First Amendment rights, App. 16, and thus that the subpoena cannot be protected by the Clause. Their theory seems to be that, once it is alleged that First Amendment rights may be infringed by congressional action, the Judiciary may intervene to protect those rights; the Court of Appeals seems to have subscribed to that theory. That approach, however, ignores the absolute nature of the speech or debate protection [Footnote 16] Page 421 U. S. 510 and our cases which have broadly construed that protection."Congressmen and their aides are immune from liability for their actions within the 'legislative sphere,' Gravel v. United States, supra, at 408 U. S. 624-625, even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes."Doe v. McMillan, 412 U.S. at 412 U. S. 312-313. For us to read the Clause as respondents suggest would create an exception not warranted by the language, purposes, or history of the Clause. Respondents make the familiar argument that the broad protection granted by the Clause creates a potential for abuse. That is correct, and in Brewster, supra, we noted that the risk of such abuse was "the conscious choice of the Framers" buttressed and justified by history. 408 U.S. at 408 U. S. 516. Our consistently broad construction of the Speech or Page 421 U. S. 511 Debate Clause rests on the belief that it must be so construed to provide the independence which is its central purpose.This case illustrates vividly the harm that judicial interference may cause. A legislative inquiry has been frustrated for nearly five years, during which the Members and their aide have been obliged to devote time to consultation with their counsel concerning the litigation, and have been distracted from the purpose of their inquiry. The Clause was written to prevent the need to be confronted by such "questioning" and to forbid invocation of judicial power to challenge the wisdom of Congress' use of its investigative authority. [Footnote 17]VWhen the Senate case was in the Court of Appeals, it was consolidated with three other cases [Footnote 18] because it was assumed that "a decision in [the Senate] case might well control the disposition of [the others]." Those cases Page 421 U. S. 512 involved subpoenas from the House Internal Security Committee to banks for the bank records of certain organizations. As in the Senate aspect of this case, the organizations whose bank records were sought sued, alleging that, if the subpoenas were honored, their constitutional rights would be violated. The issue of speech or debate protection for Members and aides is presented in all the cases consolidated in the Court of Appeals. However, the complaints in the House cases are different from the complaint in the Senate case, additional parties are involved, and, consequently, additional issues may be presented.Progress in the House cases was suspended when they were in the pleading stage awaiting the outcome of the Senate aspect of this case. The issues in them, therefore, have not been joined. Additionally, it appears that the Session in which the House subpoenas were issued has expired. Since the House, unlike the Senate, is not a continuing body, McGrain v. Daugherty, 273 U.S. at 273 U. S. 181; Gojack v. United States, 384 U. S. 702, 384 U. S. 706-707, n. 4 (1966), a question of mootness may be raised. Moreover it appears that the Committee that issued the subpoenas has been abolished by the House, H.Res. 5, 94th Cong., 1st Sess., Jan. 14, 1975. In view of these problems, and because the House aspects of this case were not briefed or argued here, we conclude it would be unwise to attempt to decide any issues they might present that are not resolved in the Senate aspect of this case. Powell v. McCormack, 395 U.S. at 395 U. S. 496 n. 8; id. at 395 U. S. 559 (STEWART, J., dissenting).Judgment with respect to the Senate aspect of this case is reversed, and the case is remanded to the Court of Appeals for entry of a judgment directing the District Court to dismiss the complaint. The House aspects of this case are remanded with directions to remand to Page 421 U. S. 513 the District Court for further consideration consistent with this opinion.Reversed

U.S. Supreme CourtEastland v. United States Servicemen's Fund, 421 U.S. 491 (1975)Eastland v. United States Servicemen's FundNo. 73-1923Argued January 22, 1975Decided May 27, 1975421 U.S. 491SyllabusThe Senate Subcommittee on Internal Security, pursuant to its authority under a Senate resolution to make a complete study of the administration, operation, and enforcement of the Internal Security Act of 1950, began an inquiry into the various activities of respondent organization, to determine whether they were potentially harmful to the morale of United States Armed Forces. In connection with such inquiry, it issued a subpoena duces tecum to the bank where the organization had an account, ordering the bank to produce all records involving the account. The organization and two of its members then brought an action against the Chairman, Senator Members, Chief Counsel of the Subcommittee, and the bank to enjoin implementation of the subpoena on First Amendment grounds. The District Court dismissed the action. The Court of Appeals reversed, holding that, although courts should hesitate to interfere with congressional actions even where First Amendment rights are implicated, such restraint should not preclude judicial review where no alternative avenue of relief is available, and that, if the subpoena was obeyed, respondents' First Amendment rights would be violated.Held: The activities of the Senate Subcommittee, the individual Senators, and the Chief Counsel fall within the "legitimate legislative sphere," and since it is determined that such is the case, those activities are protected by the absolute prohibition of the Speech or Debate Clause of the Constitution against being "questioned in any other Place," and hence are immune from judicial interference. Pp. 421 U. S. 501-511.(a) The applicability of the Clause to private civil actions is supported by the absoluteness of the term "shall not be questioned" and the sweep of the term "in any other Place." P. 421 U. S. 503.(b) Issuance of subpoenas such as the one in question is a legitimate use by Congress of its power to investigate, and the subpoena power may be exercised by a committee acting, as here, on behalf of one of the Houses. Pp. 421 U. S. 503-505.(c) Inquiry into the sources of the funds used to carry on activities suspected by a subcommittee of Congress to have a potential Page 421 U. S. 492 for undermining the morale of the Armed Forces is within the legitimate legislative sphere. Pp. 421 U. S. 505-507.(d) There is no distinction between the Subcommittee's Members and its Chief Counsel insofar as complete immunity from the issuance of the subpoena under the Speech or Debate Clause is concerned, and since the Members are immune because the issuance of the subpoena is "essential to legislating," their aides share that immunity. P. 421 U. S. 507.(e) The subpoena cannot be held subject to judicial questioning on the alleged ground that it works an invasion of respondents' privacy, since it is "essential to legislating." P. 421 U. S. 508.(f) Nor can the subpoena be held outside the protection of speech or debate immunity on the alleged ground that the motive of the investigation was improper, since, in determining the legitimacy of a congressional action, the motives alleged to have prompted it are not to be considered. Pp. 421 U. S. 508-509.(g) In view of the absolute terms of the speech or debate protection, a mere allegation that First Amendment rights may be infringed by the subpoena does not warrant judicial interference. Pp. 421 U. S. 509-511.159 U.S.App.D.C. 352, 488 F.2d 1252, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN and STEWART, JJ., joined, post, p. 421 U. S. 513. DOUGLAS, J., filed a dissenting opinion, post, p. 421 U. S. 518.

1995_95-157

Eric Schnapper. Joseph F. Walsh, by appointment of the Court, 516 U. S. 1007, filed a brief for respondent Rozelle. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In this case, we consider the showing necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same, in violation of 21 U. S. C. §§ 841 and 846 (1988 ed. and Supp. IV), and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of the Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. On seven separate occasions during this period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales. The agents searched the hotel room in which the sales were transacted, arrested respondents Armstrong and Hampton in the room, and found*Briefs of amici curiae urging reversal were filed for the Criminal Justice Legal Foundation by Kent F. Scheidegger; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.Briefs of amici curiae urging affirmance were filed for former law enforcement officials and police organizations et al. by David Cole; for the National Association of Criminal Defense Lawyers by Judy Clarke and Nancy Hollander; and for the NAACP Legal Defense and Educational Fund, Inc., et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, and Steven R. Shapiro.459more crack and a loaded gun. The agents later arrested the other respondents as part of the ring.In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In support of their motion, they offered only an affidavit by a "Paralegal Specialist," employed by the Office of the Federal Public Defender representing one of the respondents. The only allegation in the affidavit was that, in every one of the 24 § 841 or § 846 cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a "study" listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case.1The Government opposed the discovery motion, arguing, among other things, that there was no evidence or allegation "that the Government has acted unfairly or has prosecuted non-black defendants or failed to prosecute them." App. 150. The District Court granted the motion. It ordered the Government (1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses. Id., at 161-162.The Government moved for reconsideration of the District Court's discovery order. With this motion it submitted af-1 Other defendants had introduced this study in support of similar discovery motions in at least two other Central District cocaine prosecutions. App. 83. Both motions were denied. One District Judge explained from the bench that the 23-person sample before him was "statistically insignificant," and that the evidence did not indicate "whether there is a bias in the distribution of crime that says black people use crack cocaine, hispanic people use powdered cocaine, caucasian people use whatever it is they use." Id., at 119, 120.460fidavits and other evidence to explain why it had chosen to prosecute respondents and why respondents' study did not support the inference that the Government was singling out blacks for cocaine prosecution. The federal and local agents participating in the case alleged in affidavits that race played no role in their investigation. An Assistant United States Attorney explained in an affidavit that the decision to prosecute met the general criteria for prosecution, because"there was over 100 grams of cocaine base involved, over twice the threshold necessary for a ten year mandatory minimum sentence; there were multiple sales involving multiple defendants, thereby indicating a fairly substantial crack cocaine ring; ... there were multiple federal firearms violations intertwined with the narcotics trafficking; the overall evidence in the case was extremely strong, including audio and videotapes of defendants; ... and several of the defendants had criminal histories including narcotics and firearms violations." Id., at 81.The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that "[l]arge-scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street gangs dominate the manufacture and distribution of crack." J. Featherly & E. Hill, Crack Cocaine Overview 1989; App. 103.In response, one of respondents' attorneys submitted an affidavit alleging that an intake coordinator at a drug treatment center had told her that there are "an equal number of caucasian users and dealers to minority users and dealers." Id., at 138. Respondents also submitted an affidavit from a criminal defense attorney alleging that in his experience many nonblacks are prosecuted in state court for crack offenses, id., at 141, and a newspaper article reporting that federal "crack criminals ... are being punished far more severely than if they had been caught with powder cocaine,461and almost every single one of them is black," Newton, Harsher Crack Sentences Criticized as Racial Inequity, Los Angeles Times, Nov. 23, 1992, p. 1; App. 208-210.The District Court denied the motion for reconsideration.When the Government indicated it would not comply with the court's discovery order, the court dismissed the case.2A divided three-judge panel of the Court of Appeals for the Ninth Circuit reversed, holding that, because of the proof requirements for a selective-prosecution claim, defendants must "provide a colorable basis for believing that 'others similarly situated have not been prosecuted'" to obtain discovery. 21 F.3d 1431, 1436 (1994) (quoting United States v. Wayte, 710 F.2d 1385, 1387 (CA9 1983), aff'd, 470 U. S. 598 (1985)). The Court of Appeals voted to rehear the case en bane, and the en bane panel affirmed the District Court's order of dismissal, holding that "a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated." 48 F.3d 1508, 1516 (1995) (emphasis deleted). We granted certiorari to determine the appropriate standard for discovery for a selectiveprosecution claim. 516 U. S. 942 (1995).Neither the District Court nor the Court of Appeals mentioned Federal Rule of Criminal Procedure 16, which by its terms governs discovery in criminal cases. Both parties now discuss the Rule in their briefs, and respondents contend that it supports the result reached by the Court of Appeals. Rule 16 provides, in pertinent part:"Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects,2We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race. Here, "it was the government itself that suggested dismissal of the indictments to the district court so that an appeal might lie." 48 F.3d 1508, 1510 (CA9 1995).462buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." Fed. Rule Crim. Proc. 16(a)(1)(C).Respondents argue that documents "within the possession ... of the government" that discuss the Government's prosecution strategy for cocaine cases are "material" to respondents' selective-prosecution claim. Respondents argue that the Rule applies because any claim that "results in nonconviction" if successful is a "defense" for the Rule's purposes, and a successful selective-prosecution claim has that effect. Tr. of Oral Arg. 30.We reject this argument, because we conclude that in the context of Rule 16 "the defendant's defense" means the defendant's response to the Government's case in chief. While it might be argued that as a general matter, the concept of a "defense" includes any claim that is a "sword," challenging the prosecution's conduct of the case, the term may encompass only the narrower class of "shield" claims, which refute the Government's arguments that the defendant committed the crime charged. Rule 16(a)(1)(C) tends to support the "shield-only" reading. If "defense" means an argument in response to the prosecution's case in chief, there is a perceptible symmetry between documents "material to the preparation of the defendant's defense," and, in the very next phrase, documents "intended for use by the government as evidence in chief at the trial."If this symmetry were not persuasive enough, subdivision (a)(2) of Rule 16 establishes beyond peradventure that "defense" in subdivision (a)(l)(C) can refer only to defenses in response to the Government's case in chief. Rule 16(a)(2), as relevant here, exempts from defense inspection "reports, memoranda, or other internal government documents made463by the attorney for the government or other government agents in connection with the investigation or prosecution of the case."Under Rule 16(a)(1)(C), a defendant may examine documents material to his defense, but, under Rule 16(a)(2), he may not examine Government work product in connection with his case. If a selective-prosecution claim is a "defense," Rule 16(a)(1)(C) gives the defendant the right to examine Government work product in every prosecution except his own. Because respondents' construction of "defense" creates the anomaly of a defendant's being able to examine all Government work product except the most pertinent, we find their construction implausible. We hold that Rule 16(a)(1)(C) authorizes defendants to examine Government documents material to the preparation of their defense against the Government's case in chief, but not to the preparation of selective-prosecution claims.In Wade v. United States, 504 U. S. 181 (1992), we considered whether a federal court may review a Government decision not to file a motion to reduce a defendant's sentence for substantial assistance to the prosecution, to determine whether the Government based its decision on the defendant's race or religion. In holding that such a decision was reviewable, we assumed that discovery would be available if the defendant could make the appropriate threshold showing, although we concluded that the defendant in that case did not make such a showing. See id., at 186. We proceed on a like assumption here.A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one. These cases afford a "background presumption," cf. United States v. Mezzanatto, 513 U. S. 196, 203464(1995), that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.A selective-prosecution claim asks a court to exercise judicial power over a "special province" of the Executive. Heckler v. Chaney, 470 U. S. 821, 832 (1985). The Attorney General and United States Attorneys retain" 'broad discretion'" to enforce the Nation's criminal laws. Wayte v. United States, 470 U. S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982)). They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to "take Care that the Laws be faithfully executed." U. S. Const., Art. II, §3; see 28 U. S. C. §§516, 547. As a result, "[t]he presumption of regularity supports" their prosecutorial decisions and, "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926). In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978).Of course, a prosecutor's discretion is "subject to constitutional constraints." United States v. Batchelder, 442 U. S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U. S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons ... with a mind so unequal and465oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886).In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear evidence to the contrary." Chemical Foundation, supra, at 14-15. We explained in Wayte why courts are "properly hesitant to examine the decision whether to prosecute." 470 U. S., at 608. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. "Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." Id., at 607. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Ibid.The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." Id., at 608. The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Ibid.; accord, Oyler, supra, at 456. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been established in our case law since Ah Sin v. Wittman, 198 U. S. 500 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking discharge from imprisonment under a San Francisco County466ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop police from entering. Id., at 503. He alleged in his habeas petition "that the ordinance is enforced 'solely and exclusively against persons of the Chinese race and not otherwise.''' Id., at 507. We rejected his contention that this averment made out a claim under the Equal Protection Clause, because it did not allege "that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced." Id., at 507-508.The similarly situated requirement does not make a selective-prosecution claim impossible to prove. Twenty years before Ah Sin, we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo, 118 U. S., at 374. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings "under similar conditions." Ibid. We explained in Ah Sin why the similarly situated requirement is necessary:"No latitude of intention should be indulged in a case like this. There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the State, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance was which was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is in-467voked to interfere with the course of criminal justice of a State." 198 U. S., at 508 (emphasis added).Although Ah Sin involved federal review of a state conviction, we think a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute.Respondents urge that cases such as Batson v. Kentucky, 476 U. S. 79 (1986), and Hunter v. Underwood, 471 U. S. 222 (1985), cut against any absolute requirement that there be a showing of failure to prosecute similarly situated individuals. We disagree. In Hunter, we invalidated a state law disenfranchising persons convicted of crimes involving moral turpitude. Id., at 233. Our holding was consistent with ordinary equal protection principles, including the similarly situated requirement. There was convincing direct evidence that the State had enacted the provision for the purpose of disenfranchising blacks, id., at 229-231, and indisputable evidence that the state law had a discriminatory effect on blacks as compared to similarly situated whites: Blacks were" 'by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under'" the law in question, id., at 227 (quoting Underwood v. Hunter, 730 F.2d 614, 620 (CAll 1984)). Hunter thus affords no support for respondents' position.In Batson, we considered "[t]he standards for assessing a prima facie case in the context of discriminatory selection of the venire" in a criminal trial. 476 U. S., at 96. We required a criminal defendant to show "that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race" and that this fact, the potential for abuse inherent in a peremptory strike, and "any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Ibid. During jury selection, the entire res gestae take place in front of the trial468judge. Because the judge has before him the entire venire, he is well situated to detect whether a challenge to the seating of one juror is part of a "pattern" of singling out members of a single race for peremptory challenges. See id., at 97. He is in a position to discern whether a challenge to a black juror has evidentiary significance; the significance may differ if the venire consists mostly of blacks or of whites. Similarly, if the defendant makes out a prima facie case, the prosecutor is called upon to justify only decisions made in the very case then before the court. See id., at 97-98. The trial judge need not review prosecutorial conduct in relation to other venires in other cases.Having reviewed the requirements to prove a selectiveprosecution claim, we turn to the showing necessary to obtain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.The parties, and the Courts of Appeals which have considered the requisite showing to establish entitlement to discovery, describe this showing with a variety of phrases, like "colorable basis," "substantial threshold showing," Tr. of Oral Arg. 5, "substantial and concrete basis," or "reasonable likelihood," Brief for Respondents Martin et al. 30. However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals "require some evidence tending to show the existence of the essential elements of the defense," discriminatory effect and discriminatory intent. United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974).469In this case we consider what evidence constitutes "some evidence tending to show the existence" of the discriminatory effect element. The Court of Appeals held that a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. 48 F. 3d, at 1516. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law. United States v. Parham, 16 F.3d 844, 846847 (CA8 1994); United States v. Fares, 978 F.2d 52, 59-60 (CA2 1992); United States v. Peete, 919 F.2d 1168, 1176 (CA6 1990); C. E. Carlson, Inc. v. SEC, 859 F.2d 1429, 1437-1438 (CAlO 1988); United States v. Greenwood, 796 F.2d 49,52-53 (CA4 1986); United States v. Mitchell, 778 F.2d 1271, 1277 (CA7 1985). As the three-judge panel explained, "'[s]elective prosecution' implies that a selection has taken place." 21 F. 3d, at 1436.3The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types of crimes-not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group." 48 F. 3d, at 1516-1517. It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions3We reserve the question whether a defendant must satisfy the similarly situated requirement in a case "involving direct admissions by [prosecutors] of discriminatory purpose." Brief for United States 15.470at war with presumably reliable statistics have no proper place in the analysis of this issue.The Court of Appeals also expressed concern about the "evidentiary obstacles defendants face." 48 F. 3d, at 1514. But all of its sister Circuits that have confronted the issue have required that defendants produce some evidence of differential treatment of similarly situated members of other races or protected classes. In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold-a credible showing of different treatment of similarly situated persons-adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution.In the case before us, respondents' "study" did not constitute "some evidence tending to show the existence of the essential elements of" a selective-prosecution claim. Berrios, supra, at 1211. The study failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omission was not remedied by respondents' evidence in opposition to the Government's motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute. Respondents' affidavits, which recounted one attorney's conversation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evidence. The judgment of the Court of Appeals is therefore471reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1995SyllabusUNITED STATES v. ARMSTRONG ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 95-157. Argued February 26, 1996-Decided May 13, 1996In response to their indictment on "crack" cocaine and other federal charges, respondents filed a motion for discovery or for dismissal, alleging that they were selected for prosecution because they are black. The District Court granted the motion over the Government's argument, among others, that there was no evidence or allegation that it had failed to prosecute nonblack defendants. When the Government indicated it would not comply with the discovery order, the court dismissed the case. The en banc Ninth Circuit affirmed, holding that the proof requirements for a selective-prosecution claim do not compel a defendant to demonstrate that the Government has failed to prosecute others who are similarly situated.Held: For a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. Pp.461-471.(a) Contrary to respondents' contention, Federal Rule of Criminal Procedure 16, which governs discovery in criminal cases, does not support the result reached by the Ninth Circuit in this case. Rule 16(a)(I)(C)-which, inter alia, requires the Government to permit discovery of documents that are "material to the preparation of the ... defense" or "intended for use by the government as evidence in chief"applies only to the preparation of the "defense" against the Government's case in chief, not to the preparation of selective-prosecution claims. This reading creates a perceptible symmetry between the types of documents referred to in the Rule. Moreover, its correctness is established beyond peradventure by Rule 16(a)(2), which, as relevant here, exempts from discovery the work product of Government attorneys and agents made in connection with the case's investigation. Respondents' construction of "defense" as including selective-prosecution claims is implausible: It creates the anomaly of a defendant's being able to examine all Government work product under Rule 16(a)(I)(C), except that which is most pertinent, the work product in connection with his own case, under Rule 16(a)(2). Pp. 461-463.(b) Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based457on an arbitrary classification such as race or religion. Oyler v. Boles, 368 U. S. 448, 456. In order to prove a selective-prosecution claim, the claimant must demonstrate that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. Ibid. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. Ah Sin v. Wittman, 198 U. S. 500. Batson v. Kentucky, 476 U. S. 79, and Hunter v. Underwood, 471 U. S. 222, distinguished. Although Ah Sin involved federal review of a state conviction, a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute. Discovery imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. Assuming that discovery is available on an appropriate showing in aid of a selective-prosecution claim, see Wade v. United States, 504 U. S. 181, the justifications for a rigorous standard of proof for the elements of such a case thus require a correspondingly rigorous standard for discovery in aid of it. Thus, in order to establish entitlement to such discovery, a defendant must produce credible evidence that similarly situated defendants of other races could have been prosecuted, but were not. In this case, respondents have not met this required threshold. Pp. 463-471.48 F.3d 1508, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined, and in which BREYER, J., joined in part. SOUTER, J., post, p. 471, and GINSBURG, J., post, p. 471, filed concurring opinions. BREYER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 471. STEVENS, J., filed a dissenting opinion, post, p. 476.Solicitor General Days argued the cause for the United States. With him on the briefs were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Irving L. Gornstein, and Kathleen A. Felton.Barbara E. O'Connor, by appointment of the Court, 516 U. S. 1007, argued the cause for respondents. With her on the brief for respondents Martin et al. were Maria E. Stratton, Timothy C. Lannen, by appointment of the Court, 516 U. S. 1007, David Dudley, Bernard J. Rosen, and458Full Text of Opinion

1955_150

MR. JUSTICE MINTON delivered the opinion of the Court.Petitioner, an independent contractor in the business of unloading gasoline, was instructed by the consignee to unload a tank car of gasoline which had been hauled by respondent Atlantic Coast Line and which was located at the time on a siding in respondent's freight yards. In order to release the gasoline through a hose attached to the bottom of the car, it was necessary to go to the dome on top of the car, remove the dome cap, and open a valve inside the dome. ,While petitioner and his helper were engaged in opening the valve, the board on which they were standing broke, and petitioner fell, sustaining injuries. There is no dispute that the board was defective. It was a wooden board over seven feet long attached to the side of the tank near the top just below the dome by means of two triangular steel braces extending from the side of the tank at either end of the board.The question presented here is whether this device, which for convenience we shall call a dome running board, is a safety appliance within the meaning of §§ 2 and 3 of the Safety Appliance Act of 1910. Act of April 14, 1910, c. 160, §§ 2 and 3, 36 Stat. 298, 45 U.S.C. §§ 11 and 12.Petitioner brought suit in the District Court, alleging in one count of his amended complaint absolute liability for a violation of the Act and in a second count common law negligence. The jury returned a general verdict in his Page 350 U. S. 320 favor. The Court of Appeals reversed and remanded for a new trial on the negligence count alone, holding that the trial court erred in instructing that the dome running board was a safety appliance. 220 F.2d 242. [Footnote 1] We granted certiorari because of the importance of the questions raised as to the proper interpretation of the Safety Appliance Act. 350 U.S. 819.Section 2 of the Safety Appliance Act of 1910 provides in part:". . . all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards. . . ."Section 3 provides:"That, within six months from the passage of this Act, the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section two . . . , and thereafter said number, location, dimensions, and manner of application as designated by said commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this Act, unless changed by an order of said Interstate Commerce Commission . . . , and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any requirement of this Act. . . . [Footnote 2]"Under the authority of § 3, the Commission in 1911 promulgated regulations still in force providing in detail for Page 350 U. S. 321 one running board running around the perimeter, or at least the full length of the sides, of tank cars. [Footnote 3] Such a board enables a trainman to walk the length of a tank car between cars adjoining it on either end. The regulations make no mention whatever by any name of dome running boards. Petitioner nevertheless contends that the dome running board is a required running board affording him protection under § 2.The obvious purpose of a dome running board is to provide a secure flooring for those who must perform operations in connection with the tank car dome. Clearly the dome running board has major importance in loading and unloading operations. But a railroad man of over twenty-five years' experience testified that it also may be used to stand on in order to pass hand signals or repair minor troubles occurring while the train is en route. The dome running board is an integrated part of the exterior equipment of a tank car; [Footnote 4] it functions as a permanently attached outside "floor" near the dome of the car. The testimony showed that railroad men, including respondent's employees, often refer to the dome running board as a running board. We hold that it comes within the meaning of the term "running boards" as used in § 2.The fact that the Commission, in its 1911 regulations under § 3, has not specified uniform standards for dome running boards is not a binding administrative determination that they are not running boards for the purposes of § 2. The reason for the omission is apparently the Commission's view that only appliances affording safety while the train is moving need be standardized. But Page 350 U. S. 322 there is no showing that the regulations purport to exhaust by implication each category of statutory appliances listed in § 2. Omission of dome running boards, of itself, shows no more than that the Commission has not standardized all possible running boards within § 2. Davis v. Manry, 266 U. S. 401, is consistent with our view. There, the Court itself interpreted the language in § 2 requiring grab irons "on their roofs" of "cars having ladders" to apply only to cars having roofs. It then pointed to the Commission's failure to standardize a grab iron over a standardized ladder on a tender without a roof only as a supporting "practical construction" of the section. Moreover, the Commission in that case, having standardized the ladder, had no alternative but to interpret the statutory word "roofs" by either standardizing a grab iron or not standardizing it. Here, no such practical construction is implied by the failure to standardize.Even if the dome running board be properly characterized as a running board, respondent contends that, since § 2 refers to "cars requiring . . . secure running boards," the Commission's failure to standardize dome running boards under § 3 constitutes an administrative determination that they are not required within the meaning of § 2. The purpose of § 3 was to provide uniformity in the location and characteristics of those appliances upon which railroad men, working "always, in haste, and often in darkness and storm," must "instinctively" rely in the hazards of their employment. Illinois Central R. Co. v. Williams, 242 U. S. 462, 242 U. S. 466. [Footnote 5] Effectuation of such a purpose would require standardization of running boards which extend the length of train cars. But considerations of administrative expertise relevant to § 3 are not equally applicable to the effectuation of the purpose of § 2. The Page 350 U. S. 323 purpose of the latter section was "to convert the general legal duty of exercising ordinary care to provide" safety appliances on cars "requiring [them] for their proper use" into a "statutory, an absolute and imperative duty, of making them secure.'" Illinois Central R. Co. v. Williams, supra. The purpose of § 3 is to standardize the appliances required by § 2. But it does not follow that appliances necessary and furnished for the safe use of the car, although not standardized under § 3, are not within the sweep of § 2. Clearly, those who work on train cars may necessarily have to rely on the security of a dome running board, although the purposes of that appliance may not require any unhesitating reliance on its uniform characteristics.In the Williams case, supra, this Court held that the Commission's statutory power to postpone the effective date of its standardization regulations under § 3 did not suspend the railroad's duty under § 2 to make appliances secure. There was no question that the appliance in Williams was required, but the teaching of the case is that Commission action under § 3 does not exhaust the commands of § 2. See also Southern Pac. Co. v. Carson, 169 F.2d 734, holding a railroad liable under § 2 for defects in an independent wooden club used to help turn a brake wheel where the wheel itself complied with the Commission's regulations, which made no mention of the club. We conclude that failure of the Commission to standardize the dome running board need not mean that it was not a required running board under § 2. To hold otherwise would relieve railroads from the absolute duty under § 2 to make safety appliances secure whenever new appliances are adopted which have not yet been standardized by the Commission.Both the respondent and the manufacturer of the tank car considered that the dome running board was required for the proper use of the car. The railroad industry Page 350 U. S. 324 itself has recognized that tank cars require secure dome running boards. The Association of American Railroads safety appliance standards, largely identical to the Interstate Commerce Commission regulations, contain detailed uniform specifications for dome running boards, [Footnote 6] and compliance with those safety standards is required for interchange of cars between lines. [Footnote 7] Petitioner used the dome running board not simply because it happened to be there, but also because it had to be there for him to perform his duties safely, and performance of his duties was essential to the operation of the tank car. At best, appliances standardized in Commission regulations represent the minimum of safety equipment, and there is no prohibition of additional safety appliances. If a dome running board is provided by the railroad or the makers of the car and used by the railroad as an appliance necessary for the use of the car, it must be a safe board as required by § 2. Cf. Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 241 U. S. 37.The Commission, in a brief filed here, contends that only appliances designed to insure safety while the train is in movement are within § 2, and, therefore, a dome running board cannot be a statutory running board. No case is cited to support this construction. Nothing in the language of § 2 itself or in its legislative history indicates that it should be read so narrowly. Whether or not an appliance is designed to afford protection while the train is moving may provide the Commission with an appropriate guide for deciding which appliances should be standardized under § 3. But there is no reason to import such a distinction into § 2 in order to deny the Page 350 U. S. 325 humane benefits of the Act to those who perform dangerous work on train cars that are not moving. Section 2 is not limited to such running boards as are required only in the movement of the train. The dome running board here was required for the use of the car. Section 2 required it to be safe, although regulations pursuant to § 3 had not standardized it.There is no merit in respondent's contention that, since petitioner is not one of its employees, no duty is owed him under § 2 of the Act. Having been upon the dome running board for the purpose of unloading the car, he was a member of one class for whose benefit that device is a safety appliance under the statute. As to him, the violation of the statute must therefore result in absolute liability. Coray v. Southern Pacific Co., 335 U. S. 520; Brady v. Terminal Railroad Assn., 303 U. S. 10; Fairport, P. & E. R. Co. v. Meredith, 292 U. S. 589; Louisville & N. R. Co. v. Layton, 243 U. S. 617. The judgment below must be reversed, and the judgment of the District Court reinstated.Reversed

U.S. Supreme CourtShields v. Atlantic Coast Line R. Co., 350 U.S. 318 (1956)Shields v. Atlantic Coast Line Railroad Co.No. 150Argued January 19, 1956Decided February 27, 1956350 U.S. 318SyllabusPetitioner, an independent contractor in the business of unloading gasoline, was instructed by the consignee to unload a tank car of gasoline which had been hauled by respondent railroad and which was located on a siding in its freight yards. While petitioner was standing on a board attached to the car near the dome, in order to unload the car by opening a valve inside the dome, the board broke and petitioner fell, sustaining injuries. The board, which was defective, was permanently fastened to the car near the dome, and had been placed there for the purpose for which petitioner was using it.Held: the board as a safety appliance within the meaning of §§ 2 and 3 of the Safety Appliance Act of 1910, and the railroad was absolutely liable for damages resulting from petitioner's injuries. Pp. 350 U. S. 319-325.(a) The board here involved came within the meaning of the term "running boards" as used in § 2 of the Act, which provides that "all cars requiring . . . secure running boards shall be equipped with such . . . running boards." P. 350 U. S. 321.(b) The fact that the Interstate Commerce Commission, in its 1911 regulations under § 3, has not specified uniform standards for such running boards is not a binding administrative determination that they are not "running boards" for the purposes of § 2. Pp. 350 U. S. 321-322.(c) Failure of the Commission to specify uniform standards for such running boards under § 3 need not mean that the tank car was not a car "requiring" such a running board within the meaning of § 2. Pp. 350 U. S. 322-323.(d) If such a running board is provided by a railroad or the makers of the car and used by the railroad as an appliance necessary for the use of the car, it must be a safe board as required by § 2. Pp. 350 U. S. 323-324.(e) Section 2 is not limited to such running boards as are required only in the movement of the train. Pp. 350 U. S. 324-325.(f) There is no merit in the railroad's contention that, since petitioner is not one of its employees, no duty is owed him under § 2 of the Act. P. 350 U. S. 325.220 F.2d 242 reversed. Page 350 U. S. 319

1982_81-2399

JUSTICE REHNQUIST delivered the opinion of the Court.The issue in these cases is whether petitioner Nuclear Regulatory Commission (NRC) complied with the National Environmental Policy Act of 1969, 83 Stat. 852, as amended, 42 U.S.C. § 4321 et seq. (1976 ed. and Supp. V) (NEPA), when it considered whether to permit petitioner Metropolitan Edison Co. to resume operation of the Three Mile Island Unit 1 nuclear powerplant (TMI-1). The Court of Appeals for the District of Columbia Circuit held that the NRC improperly failed to consider whether the risk of an accident at TMI-1 might cause harm to the psychological health and community wellbeing of residents of the surrounding area. 219 U.S.App.D.C. 358, 678 F.2d 222 (1982). We reverse.Metropolitan owns two nuclear powerplants at Three Mile Island near Harrisburg, Pa. Both of these plants were licensed by the NRC after extensive proceedings, which included preparation of Environmental Impact Statements (EIS's). On March 28, 1979, TMI-1 was not operating; it had been shut down for refueling. TMI-2 was operating, and it suffered a serious accident that damaged the reactor. [Footnote 1] Although, as it turned out, no dangerous radiation was released, Page 460 U. S. 769 the accident caused widespread concern. The Governor of Pennsylvania recommended an evacuation of all pregnant women and small children, and many area residents did leave their homes for several days.After the accident, the NRC ordered Metropolitan to keep TMI-1 shut down until it had an opportunity to determine whether the plant could be operated safely. 44 Fed.Reg. 40461 (1979). The NRC then published a notice of hearing specifying several safety-related issues for consideration. Metropolitan Edison Co., 10 N.R.C. 141 (1979). The notice stated that the Commission had not determined whether to consider psychological harm or other indirect effects of the accident or of renewed operation of TMI-1. It invited interested parties to submit briefs on this issue. Id. at 148.Respondent People Against Nuclear Energy (PANE) intervened and responded to this invitation. PANE is an association of residents of the Harrisburg area who are opposed to further operation of either TMI reactor. PANE contended that restarting TMI-1 would cause both severe psychological health damage to persons living in the vicinity and serious damage to the stability, cohesiveness, and wellbeing of the neighboring communities. [Footnote 2] Page 460 U. S. 770The NRC decided not to take evidence concerning PANE's contentions. Metropolitan Edison Co., 12 N.R.C. 607 (1980); Metropolitan Edison Co., 14 N.R.C. 593 (1981). [Footnote 3] PANE filed a petition for review in the Court of Appeals, contending that both NEPA and the Atomic Energy Act of 1954, 68 Stat. 921, as amended, 42 U.S.C. § 2011 et seq. (1976 ed. and Supp. V), require the NRC to address its contentions. [Footnote 4] Metropolitan intervened on the side of the NRC. Page 460 U. S. 771The Court of Appeals concluded that the Atomic Energy Act does not require the NRC to address PANE's contentions. 219 U.S.App.D.C. at 385-389, 678 F.2d at 249-253. It did find, however, that NEPA requires the NRC to evaluate "the potential psychological health effects of operating" TMI-1 which have arisen since the original EIS was prepared. Id. at 371, 678 F.2d at 235. It also held that, if the NRC finds that significant new circumstances or information exist on this subject, it shall prepare a"supplemental [EIS] which considers not only the effects on psychological health but also effects on the wellbeing of the communities surrounding Three Mile Island."Id. at 371-372, 678 F.2d at 235-236. We granted certiorari. [Footnote 5] 459 U.S. 966 (1982).All the parties agree that effects on human health can be cognizable under NEPA, and that human health may include psychological health. The Court of Appeals thought these propositions were enough to complete a syllogism that disposes of the case: NEPA requires agencies to consider effects on health. An effect on psychological health is an effect on health. Therefore, NEPA requires agencies to consider the effects on psychological health asserted by PANE. See 219 U.S.App.D.C. at 364, 678 F.2d at 228. PANE, using similar reasoning, contends that, because the psychological health damage to its members would be caused by a change in the environment (renewed operation of TMI-1), NEPA requires the NRC to consider that damage. See Brief for Page 460 U. S. 772 Respondents 23. Although these arguments are appealing at first glance, we believe they skip over an essential step in the analysis. They do not consider the closeness of the relationship between the change in the environment and the "effect" at issue.Section 102(C) of NEPA, 83 Stat. 853, 42 U.S.C. § 4332(C), directs all federal agencies to"include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- ""(i) the environmental impact of the proposed action, [and]""(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented. . . ."To paraphrase the statutory language in light of the facts of this case, where an agency action significantly affects the quality of the human environment, the agency must evaluate the "environmental impact" and any unavoidable adverse environmental effects of its proposal. The theme of § 102 is sounded by the adjective "environmental:" NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment. If we were to seize the word "environmental" out of its context and give it the broadest possible definition, the words "adverse environmental effects" might embrace virtually any consequence of a governmental action that someone thought "adverse." But we think the context of the statute shows that Congress was talking about the physical environment -- the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.The statements of two principal sponsors of NEPA, explaining to their colleagues the Conference Report on the bill that was ultimately enacted, illustrate this point: Page 460 U. S. 773"What is involved [in NEPA] is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind: that we will not intentionally initiate actions which do irreparable dame to the air, land and water which support life on earth."115 Cong.Rec. 40416 (1969) (remarks of Sen. Jackson) (emphasis supplied)."[W]e can now move forward to preserve and enhance our air, aquatic, and terrestrial environments . . . to carry out the policies and goals set forth in the bill to provide each citizen of this great country a healthful environment."Id. at 40924 (remarks of Rep. Dingell) (emphasis supplied). Thus, although NEPA states its goals in sweeping terms of human health and welfare, [Footnote 6] these goals are ends that Congress has chosen to pursue by means of protecting the physical environment.To determine whether § 102 requires consideration of a particular effect, we must look at the relationship between that effect and the change in the physical environment caused by the major federal action at issue. For example, if the Department of Health and Human Services were to implement extremely stringent requirements for hospitals and nursing homes receiving federal funds, many perfectly adequate hospitals and homes might be forced out of existence. The remaining facilities might be so limited or so expensive that Page 460 U. S. 774 many ill people would be unable to afford medical care and would suffer severe health damage. Nonetheless, NEPA would not require the Department to prepare an EIS evaluating that health damage, because it would not be proximately related to a change in the physical environment.Some effects that are "caused by" a change in the physical environment in the sense of "but for" causation, will nonetheless not fall within § 102, because the causal chain is too attenuated. For example, residents of the Harrisburg area have relatives in other parts of the country. Renewed operation of TMI-1 may well cause psychological health problems for these people. They may suffer "anxiety, tension and fear, a sense of helplessness," and accompanying physical disorders, n 2, supra, because of the risk that their relatives may be harmed in a nuclear accident. However, this harm is simply too remote from the physical environment to justify requiring the NRC to evaluate the psychological health damage to these people that may be caused by renewed operation of TMI-1.Our understanding of the congressional concerns that led to the enactment of NEPA suggests that the terms "environmental effect" and "environmental impact" in § 102 be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue. This requirement is like the familiar doctrine of proximate cause from tort law. See generally W. Prosser, Law of Torts, ch. 7 (4th ed.1971). [Footnote 7] The issue before us, then, is how to give content to this requirement. This is a question of first impression in this Court. Page 460 U. S. 775The federal action that affects the environment in this case is permitting renewed operation of TMI-1. [Footnote 8] The direct effects on the environment of this action include release of low-level radiation, increased fog in the Harrisburg area (caused by operation of the plant's cooling towers), and the release of warm water into the Susquehanna River. The NRC has considered each of these effects in its EIS, and again in the EIA. See App. 51-58. Another effect of renewed operation is a risk of a nuclear accident. The NRC has also considered this effect. [Footnote 9] See id. at 58-60.PANE argues that the psychological health damage it alleges "will flow directly from the risk of [a nuclear] accident." Brief for Respondents 23. But a risk of an accident is not an effect on the physical environment. A risk is, by definition, unrealized in the physical world. In a causal chain from renewed operation of TMI-1 to psychological health damage, the element of risk and its perception by PANE's members are necessary middle links. [Footnote 10] We believe that the element of risk lengthens the causal chain beyond the reach of NEPA.Risk is a pervasive element of modern life; to say more would belabor the obvious. Many of the risks we face are generated by modern technology, which brings both the possibility of major accidents and opportunities for tremendous achievements. Medical experts apparently agree that risk Page 460 U. S. 776 can generate stress in human beings, which in turn may rise to the level of serious health damage. For this reason, among many others, the question whether the gains from any technological advance are worth its attendant risks may be an important public policy issue. Nonetheless, it is quite different from the question whether the same gains are worth a given level of alteration of our physical environment or depletion of our natural resources. The latter question, rather than the former, is the central concern of NEPA.Time and resources are simply too limited for us to believe that Congress intended to extend NEPA as far as the Court of Appeals has taken it. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 435 U. S. 551 (1978). The scope of the agency's inquiries must remain manageable if NEPA's goal of "insur[ing] a fully informed and well-considered decision," id. at 435 U. S. 558, is to be accomplished.If contentions of psychological health damage caused by risk were cognizable under NEPA, agencies would, at the very least, be obliged to expend considerable resources developing psychiatric expertise that is not otherwise relevant to their congressionally assigned functions. The available resources may be spread so thin that agencies are unable adequately to pursue protection of the physical environment and natural resources. As we said in another context in United States v. Dow, 357 U. S. 17, 357 U. S. 25 (1958), "[w]e cannot attribute to Congress the intention to . . . open the door to such obvious incongruities and undesirable possibilities."This case bears strong resemblance to other cases in which plaintiffs have sought to require agencies to evaluate the risk of crime from the operation of a jail or other public facility in their neighborhood. See, e.g., Como-Falcon Coalition, Inc. v. Department of Labor, 609 F.2d 342 (CA8 1979) (Job Corps Center); Nucleus of Chicago Homeowners Assn. v. Lynn, 524 F.2d 225 (CA7 1975) (low income housing); First National Bank of Chicago v. Richardson, 484 F.2d 1369 (CA7 1973) (jail). The plaintiffs in these cases could have alleged Page 460 U. S. 777 that the risk of crime (or their dislike of the occupants of the facility) would cause severe psychological health damage. [Footnote 11] The operation of the facility is an event in the physical environment, but the psychological health damage to neighboring residents resulting from unrealized risks of crime is too far removed from that event to be covered by NEPA. The psychological health damage alleged by PANE is no closer to an event in the environment or to environmental concerns.The Court of Appeals thought that PANE's contentions are qualitatively different from the harm at issue in the cases just described. It thought PANE raised an issue of health damage, while those cases presented questions of fear or policy disagreement. We do not believe this line is so easily drawn. Anyone who fears or dislikes a project may find himself suffering from "anxiety, tension[,] fear, [and] a sense of helplessness." N 2, supra. Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements. [Footnote 12]We do not mean to denigrate the fears of PANE's members, or to suggest that the psychological health damage they fear could not, in fact, occur. Nonetheless, it is difficult for us to see the differences between someone who dislikes a Page 460 U. S. 778 government decision so much that he suffers anxiety and stress, someone who fears the effects of that decision so much that he suffers similar anxiety and stress, and someone who suffers anxiety and stress that "flow directly," Brief for Respondents 23, from the risks associated with the same decision. It would be extraordinarily difficult for agencies to differentiate between "genuine" claims of psychological health damage and claims that are grounded solely in disagreement with a democratically adopted policy. Until Congress provides a more explicit statutory instruction than NEPA now contains, we do not think agencies are obliged to undertake the inquiry. See Maryland National Capital Park & Planning Comm'n v. U.S. Postal Service, 159 U.S.App.D.C. 158, 166, 487 F.2d 1029, 1037 (1973).The Court of Appeals' opinion seems at one point to acknowledge the force of these arguments, 219 U.S.App.D.C. at 365, 678 F.2d at 229, but seeks to distinguish the situation suggested by the related cases. First, the Court of Appeals thought the harm alleged by PANE is far more severe than the harm alleged in other cases. Ibid. It thought the severity of the harm is relevant to whether NEPA requires consideration of an effect. This cannot be the case. NEPA addresses environmental effects of federal actions. The gravity of harm does not change its character. [Footnote 13] If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply.Second, the Court of Appeals noted that PANE's claim was made "in the wake of a unique and traumatic nuclear accident." Ibid. We do not understand how the accident at TMI-2 transforms PANE's contentions into "environmental effects." The Court of Appeals "cannot believe that the psychological aftermath of the March, 1979, accident falls outside" Page 460 U. S. 779 NEPA. Id. at 366, 678 F.2d at 230. On the contrary, NEPA is not directed at the effects of past accidents, and does not create a remedial scheme for past federal actions. It was enacted to require agencies to assess the future effects of future actions. There is nothing in the language or the history of NEPA to suggest that its scope should be expanded "in the wake of " any kind of accident.For these reasons, we hold that the NRC need not consider PANE's contentions. [Footnote 14] NEPA does not require agencies to evaluate the effects of risk qua risk. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to dismiss the petition for review.It is so ordered

U.S. Supreme CourtMetropolitan Edison Co. v. PANE, 460 U.S. 766 (1983)Metropolitan Edison v. People Against Nuclear EnergyNo. 81-2399Argued March 1, 1983Decided April 19, 1983*460 U.S. 766SyllabusPetitioner Metropolitan Edison Co. (Metropolitan) owns two licensed nuclear plants at Three Mile Island near Harrisburg, Pa. On a day when one plant (TMI-1) was shut down for refueling, the other plant (TMI-2) suffered a serious accident that damaged the reactor and caused widespread concern. The Nuclear Regulatory Commission (NRC) then ordered Metropolitan to keep TMI-1 shut down until it could be determined whether the plant could be operated safely, and published a notice of hearing that included an invitation to interested parties to submit briefs on whether psychological harm or other indirect effects of the accident or of renewed operation of TMI-1 should be considered. Respondent People Against Nuclear Energy (PANE), an association of residents of the Harrisburg area who are opposed to further operation of either TMI reactor, responded to this invitation, contending that restarting TMI-1 would cause both severe psychological damage to persons living in the vicinity and serious damage to the stability, cohesiveness, and wellbeing of neighboring communities. When the NRC decided not to take evidence of these contentions, PANE filed a petition for review in the Court of Appeals, contending that the National Environmental Policy Act (NEPA), inter alia, required the NRC to address its contentions. The court held that the NRC improperly failed to consider whether the risk of an accident at TMI-1 might cause harm to the psychological health and community wellbeing of residents of the area surrounding Three Mile Island.Held: The NRC need not consider PANE's contentions. Pp. 771-779.(a) Section 102(C) of NEPA -- which provides that where an agency action significantly affects the quality of the human environment, the agency must evaluate the "environmental impact" and any unavoidable adverse "environmental effects" of its proposed action -- does not require the agency to assess every impact or effect of its proposed action, but Page 460 U. S. 767 only the impact or effect on the environment. The statute's context shows that Congress was talking about the physical environment. Although NEPA states its goals in sweeping terms of human health and welfare, these goals are ends that Congress has chosen to pursue by means of protecting the physical environment. Pp. 460 U. S. 772-773.(b) NEPA does not require agencies to evaluate the effects of risk, qua risk. The terms "environmental effects" and "environmental impact" in § 102(C) should be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue. Here, the federal action that affects the environment is permitting renewed operation of T-1. The direct effects of this action include release of low-level radiation, increased fog, and the release of warm water into the Susquehanna River, all of which effects the NRC has considered. The NRC has also considered the risk of a nuclear accident. But a risk of an accident is not an effect on the physical environment. In a causal chain from renewed operation of TMI-1 to psychological health damage, the element of risk and its perception by PANE's members are necessary middle links. That element of risk lengthens the causal chain beyond NEPA's reach. Pp. 460 U. S. 773-777.(c) Regardless of the gravity of the harm alleged by PANE, if a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply. P. 460 U. S. 778.(d) That PANE's claim was made in the wake of the accident at TMI-2 is irrelevant. NEPA is not directed at the effects of past accidents, and does not create a remedial scheme for past federal actions. Pp. 460 U. S. 778-779.219 U.S.App.D.C. 358, 678 F.2d 222, reversed and remanded.REHNQUIST, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, post, p. 460 U. S. 779. Page 460 U. S. 768

1985_85-5

JUSTICE WHITE announced the judgment of the Court and delivered an opinion, Parts I, II, and III-A of which represent the views of the Court, and Parts III-B, IV, and V of which are joined by THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE SCALIA.This case involves the award of an attorney's fee to the prevailing party pursuant to § 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d). [Footnote 1]IWe set forth a detailed statement of the facts underlying this litigation in Pennsylvania v. Delaware Valley Citizens' Page 483 U. S. 714 Council for Clean Air, 478 U. S. 546 (1986), and recite only an abbreviated version of those facts here. In 1977, the Delaware Valley Citizens' Council for Clean Air (hereinafter respondent) and the United States each filed suit to compel the Commonwealth of Pennsylvania to comply with certain provisions of the Clean Air Act. The parties entered into a consent decree, approved by the District Court in 1978, [Footnote 2] which obligated the Commonwealth to establish a program for the inspection and maintenance of vehicle emissions systems in 10 counties in the Philadelphia and Pittsburgh areas by August 1, 1980. The Commonwealth failed to implement the program by this date, and protracted litigation ensued. Ultimately, in May, 1983, the parties agreed to set June 1, 1984, as the date on which the Commonwealth would commence the inspection and maintenance program. Shortly after this agreement, respondent petitioned the District Court for attorney's fees and costs for the work performed after the issuance of the consent decree. In determining the amount of fees to be awarded, the District Court divided the work performed by respondent's counsel into nine phases. See 478 U.S. at 478 U. S. 549-553. After computing the lodestar for each phase, the District Court adjusted this figure upward in phases four, five, and seven by doubling the lodestar to reflect the risk presumably faced by respondent that it would not prevail on these phases of the litigation. The District Court observed:"The contingent nature of plaintiff's success has been apparent throughout this litigation. Plaintiffs entered the litigation against the U.S. Government and the Commonwealth of Pennsylvania. The case involved new and novel issues, the resolution of which had little or no precedent. . . . [P]laintiffs have had to defend their rights under the consent decree due to numerous Page 483 U. S. 715 attempts by defendants and others to overturn or circumvent this Court's Orders."581 F. Supp. 1412, 1431 (1984).The Court of Appeals for the Third Circuit affirmed the District Court's enhancement of the fee award for contingency of success, 762 F.2d 272, 282 (1985), a judgment that we now reverse. [Footnote 3]IIWe first focus on the nature of the issue before us. Under the typical fee-shifting statute, attorney's fees are awarded to a prevailing party and only to the extent that party prevails. See, e.g., Maher v. Gagne, 448 U. S. 122, 448 U. S. 129-130 (1980); Hensley v. Eckerhart, 461 U. S. 424, 461 U. S. 435 (1983). Hence, if the case is lost, the loser is awarded no fee; and unless its attorney has an agreement with the client that the attorney will be paid, win or lose, the attorney will not be paid at all. In such cases, the attorney assumes a risk of nonpayment when he takes the case. The issue before us is whether, when a plaintiff prevails, its attorney should or may be awarded separate compensation for assuming the risk of not being paid. That risk is measured by the risk of losing, rather than winning, and depends on how unsettled the applicable law is with respect to the issues posed by the Page 483 U. S. 716 case and by how likely it is that the facts could be decided against the complainant. Looked at in this way, there are various factors that have little or no bearing on the question before us.First is the matter of delay. When plaintiffs' entitlement to attorney's fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later, as in this case. Meanwhile, their expenses of doing business continue, and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e.g., Sierra Club v. EPA, 248 U.S.App.D.C. 107, 120-121, 769 F.2d 796, 809-810 (1985); Louisville Black Police Officers Organization, Inc. v. Louisville, 700 F.2d 268, 276, 281 (CA6 1983). Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue that is not involved in this case. We do not suggest, however, that adjustments for delay are inconsistent with the typical fee-shifting statute.Second, that a case involves an issue of public importance, that the plaintiff's position is unpopular in the community, or that defendant is difficult or obstreperous does not enter into assessing the risk of loss or determining whether that risk should be compensated. Neither does the chance that the court will find unnecessary, and not compensate, some of the time and effort spent on prosecuting the case.Third, when the plaintiff has agreed to pay its attorney, win or lose, the attorney has not assumed the risk of nonpayment, and there is no occasion to adjust the lodestar fee because the case was a risky one. See, e.g., Jones v. Central Soya Co., 748 F.2d 586, 593 (CA11 1984), where the court said that"[a] lawyer may not preserve a right of recourse against his client for fees and still expect to be compensated Page 483 U. S. 717 as if he had sacrificed completely his right to payment in the event of an unsuccessful outcome."IIIAAlthough the issue of compensating for assuming the risk of nonpayment was left open in Blum v. Stenson, 465 U. S. 886 (1984), JUSTICE BRENNAN wrote that"the risk of not prevailing, and therefore the risk of not recovering any attorney's fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee."Id. at 465 U. S. 902 (concurring). Most Courts of Appeals are of a similar view, and have allowed upward adjustment of fee awards because of the risk of loss factor. [Footnote 4] The First Circuit, Page 483 U. S. 718 in Wildman v. Lerner Stores Corp., 771 F.2d 605 (1985), for example, takes this approach and allows an upward adjustment to the lodestar to account for the contingency factor. In that case, the District Court entered judgment on a jury verdict finding an employer liable for violating the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and two Puerto Rican statutes. The court awarded the prevailing party a lodestar fee amount of $56,500 and then increased that figure by 50% to account for the fact that, because of the difficulties of the action and the novelty of the issue, "the plaintiffs' attorneys . . . faced a contingency of losing all their time and effort." 771 F.2d at 610. In sustaining the enhancement of fee awards based on contingency, the Court of Appeals relied on the legislative history of 42 U.S.C. § 1988, detailed several additional reasons as to why it is necessary to increase the lodestar figure for contingent fee cases, and concluded that, rather than compensating lawyers for unsuccessful claims, an adjustment of the lodestar figure may be necessary in particular cases to provide for the reasonable attorney's fee envisioned by Congress. [Footnote 5] Page 483 U. S. 719This construction of the fee-shifting statutes has not been universal. The District of Columbia Circuit is particularly skeptical of the purpose served by enhancing the lodestar amount to account for the risk of not prevailing. In Laffey v. Northwest Airlines, Inc., 241 U.S.App.D.C. 11, 746 F.2d 4 (1984), cert. denied, 472 U.S. 1021 (1985), the court reversed the trial court's decision to double the lodestar based on the risk factor, citing a wide variety of problems with such an approach. The court found that, in theory, there should be no limit on the size of the fee if risk enhancement is permitted, for the less likely the chances of success in a particular case, the more "entitled" the prevailing party should be to have the fee award reflect acceptance of this risk. In a similar vein, the contingency factor penalizes the losing parties with the strongest and most reasonable defenses, thus "creating a perverse penalty for those least culpable." 241 U.S.App.D.C. at 33, 746 F.2d at 26. Moreover, even if the risk of loss should be taken into account,"the chances of winning could not be set with anything approaching mathematical precision, and so vast increases in attorneys [fees] would derive from a spurious mathematical base."Id. at 33-34, 746 F.2d at 26-27 (footnote omitted).On a more fundamental level, the court found that using the risk of loss to increase the lodestar figure compensates attorneys not only for their successful efforts in one case, but for their unsuccessful claims asserted in related cases. This not only "encourag[es] marginal litigation," but raises "the Page 483 U. S. 720 reasonable question of why the subsidy [for unsuccessful litigation] should come from the defendant in another case.'" Id. at 34, n. 138, 746 F.2d at 27, n. 138 (citations omitted).Such a scheme was deemed to be manifestly inconsistent with Congress' intent to award attorney's fees only to prevailing parties. Relying on this Court's holding in Hensley that attorney's fees could not be awarded for claims unrelated to those on which the party ultimately prevailed, the court reasoned:"The same logic which restricts compensation to those portions of a lawsuit directly related to the relief procured also forbids multiplying attorneys fees so as effectively to compensate counsel for other, losing claims which may be brought. The prevailing party may expect full compensation for prevailing claims; there is no provision for compensating losing, unrelated claims in the same case, or other losing cases which might or might not involve the same parties. Any crude multiplier derived simply from the plaintiff's chance of success must be rejected as contrary to the congressional scheme."Id. at 34-35, 746 F.2d at 27-28.Finally, the court held that, even if a contingency enhancement, as opposed to a contingency multiplier, could be used to reflect the party's initial chance of success, Blum made clear that such enhancements were proper only in the most exceptional of cases, and because "this case did not present an exceptional level of risk, no risk enhancement should be awarded." Id. at 36, 746 F.2d at 29. [Footnote 6] Page 483 U. S. 721The bar and legal commentators have been much interested in the issue. [Footnote 7] Some writers unqualifiedly have endorsed the concept of increasing the fee award to insure that lawyers will be adequately compensated for taking the risk of not prevailing."The experience of the marketplace indicates that lawyers generally will not provide legal representation on a contingent basis unless they receive a premium for taking that risk."Berger, Court Awarded Attorneys' Fees: What is "Reasonable"?, 126 U.PaL.Rev. 281, 324-325 (1977). [Footnote 8] See also Developments in the Law -- Class Actions, 89 Harv.L.Rev. 1318, 1615 (1976); Comment, 122 U.Pa.L.Rev. 636, 708-711 (1974).Others have been considerably more reserved in their endorsement of a contingency bonus, focusing on four major problems with the use of this factor. First, evaluation of the risk of loss creates a potential conflict of interest between an attorney and his client, for in order to increase a fee award, a plaintiff's lawyer must expose all of the weaknesses Page 483 U. S. 722 and inconsistencies in his client's case, and a defendant's attorney must either concede the strength of the plaintiff's case in order to keep down the fee award or "allo[w] the fee to be boosted by the contingency bonus [by] insisting that the plaintiff's victory was freakish." Leubsdorf, The Contingency Factor in Attorney Fee Awards, 90 Yale L.J. 473, 483 (1981) (Leubsdorf). Second, in order to determine the proper size of the contingency bonus, a court must retroactively estimate the prevailing party's chances for success from the perspective of the attorney when he first considered filing the suit. Not only is this mathematically difficult to compute, but,"once the result is known, it is hard for judges and lawyers to regain a perspective of ignorance and to treat the result as only one of several that were initially possible."Id. at 486.The third problem with increasing the fee award to account for the risk of not prevailing is the same one identified by the courts which have questioned this practice: it penalizes the defendant with the strongest defense, and forces him to subsidize the plaintiff's attorney for bringing other unsuccessful actions against other defendants. Id. at 488-491. See Note, 80 Colum.L.Rev. 346, 375 (1980). Finally, because the contingency bonus cannot be determined with either certainty or accuracy, it "cannot be justified on the ground that it provides an appropriate incentive for litigation." Leubsdorf 496. Cf. Note, 96 Harv.L.Rev. 677, 686, n. 51 (1983); Comment, 53 U.Chi.L.Rev. 1074 (1986).There are other considerations. Fee-shifting removes the interest a paying client would have in ensuring that the lawyer is serving the client economically; the task of monitoring the attorney is shifted to the judge in separate litigation over fees if the plaintiff wins. Fee litigation occurs on a case-to-case basis, and is often protracted, complicated, and exhausting. There is little doubt that it should be simplified to the maximum extent possible. If the decided cases are any measure, assessing the initial risk of loss when the case is Page 483 U. S. 723 over is a particularly uncertain matter, especially for a judge who is confident that he has correctly decided for the plaintiff, but then must inquire how weak the plaintiff's case was and how likely it was that he, the judge, would have been mistaken. It may be absurd to ask the judge to "determine the probability that he would have decided the case incorrectly." Id. at 1094.BThe disagreement among the Circuits and commentators indicates that Congress has not clearly directed or authorized multipliers or enhancements for assuming the risk of loss. Neither the Clean Air Act nor § 1988 expressly provides for using the risk of loss as an independent basis for increasing an otherwise reasonable fee, and it is doubtful that the legislative history supports the use of this factor. In concluding that risk enhancement is authorized, JUSTICE BRENNAN in Blum, 465 U.S. at 465 U. S. 902, relied on the fact that one of the items to be relied on in setting a fee and enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), is whether the fee is fixed or contingent, and that Congress endorsed consideration of this factor. See S.Rep. No. 94-1011, p. 6 (1976) (S.Rep). But a careful reading of Johnson shows that the contingency factor was meant to focus judicial scrutiny solely on the existence of any contract for attorney's fees which may have been executed between the party and his attorney."The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating the attorney's fee expectations when he accepted the case."488 F.2d at 718. See Leubsdorf 479, n. 38. At most, therefore, Johnson suggests that the nature of the fee contract between the client and his attorney should be taken into account when determining the reasonableness of a fee award, but there is nothing in Johnson to show that this factor was meant to reflect the contingent nature of prevailing in the lawsuit as a whole. Page 483 U. S. 724JUSTICE BRENNAN also noted that Congress cited Stanford Daily v. Zurcher, 64 F.R.D. 680 (ND Cal.1974) (subsequently aff'd, 550 F.2d 464 (CA9 1977), rev'd on other grounds, 436 U. S. 547 (1978)), as one of several cases which "correctly applied" the Johnson factors. Blum, supra, at 465 U. S. 903. The court there increased the lodestar based, in part, on contingency-of-success considerations. But Congress also cited two other cases which it found also "correctly applied" the Johnson criteria. In Davis v. County of Los Angeles, 8 EPD � 9444, p. 5047 (CD Cal.1974), the District Court added a "Result Charge" to the basic fee award. This award was not intended to compensate the lawyers for assuming the risk of not prevailing on the merits; instead, as the label suggests, the court increased the award because "counsel [had] achieved excellent results," and "[t]he nature of the case made it difficult to litigate. . . ." Id. at 5048. The court in Swann v. Charlotte-Mecklenblurg Bd. of Ed., 66 F.R.D. 483 (WDNC 1975), the third illustrative case cited with approval by Congress, did not increase the basic fee award at all. Instead, after reviewing nine factors similar to those listed in Johnson, the court reduced the prevailing party's fee request by nearly 15%, choosing to "err on the conservative side in dealing with any fee question" rather than "contribute unnecessarily to the overpricing of litigation in this or any other court." 66 F.R.D. at 486. Given the divergence in both analysis and result between these three cases, the legislative history is, at best, inconclusive in determining whether Congress endorsed the concept of increasing the lodestar amount to reflect the risk of not prevailing on the merits.We must nevertheless come to a decision, and have concluded that the judgment must be reversed.IVWe are impressed with the view of the Court of Appeals for the District of Columbia Circuit that enhancing fees for Page 483 U. S. 725 risk of loss forces losing defendants to compensate plaintiff's lawyers for not prevailing against defendants in other cases. This result is not consistent with Congress' decision to adopt the rule that only prevailing parties are entitled to fees. If risk multipliers or enhancement are viewed as no more than compensating attorneys for their willingness to take the risk of loss and of nonpayment, we are nevertheless not at all sure that Congress intended that fees be denied when a plaintiff loses, but authorized payment for assuming the risk of an uncompensated loss. Such enhancement also penalizes the defendants who have the strongest case, and in theory, at least, would authorize the highest fees in cases least likely to be won, and hence encourage the bringing of more risky cases, especially by lawyers whose time is not fully occupied with other work. Because it is difficult ever to be completely sure that a case will be won, enhancing fees for the assumption of the risk of nonpayment would justify some degree of enhancement in almost every case.Weighing all of these considerations, we are unconvinced that Congress intended the risk of losing a lawsuit to be an independent basis for increasing the amount of any otherwise reasonable fee for the time and effort expended in prevailing. As the Senate Report observed:"In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, 'for all time reasonably expended on a matter.' Davis, supra; Stanford Daily, supra, at 684."S.Rep. 6.The contrary argument is that, without the promise of multipliers or enhancement for risk-taking, attorneys will not take cases for clients who cannot pay, and the fee-shifting statutes will therefore not serve their purpose. We agree that a fundamental aim of such statutes is to make it possible for those who cannot pay a lawyer for his time and effort to obtain competent counsel, this by providing lawyers with reasonable fees to be paid by the the losing defendants. But it does not follow that fee enhancement for risk is necessary Page 483 U. S. 726 or allowable. Surely that is not the case where plaintiffs can afford to pay and have agreed to pay, win or lose. The same is true where any plaintiff, impecunious or otherwise, has a damages case that competent lawyers would take in the absence of fee-shifting statutes. Nor is it true in those cases where plaintiffs secure help from organizations whose very purpose is to provide legal help through salaried counsel to those who themselves cannot afford to pay a lawyer. It is also unlikely to be true in any market where there are competent lawyers whose time is not fully occupied by other matters.The issue thus involves damages cases that lawyers would not take, not because they are too risky (the fee-shifting statutes should not encourage such suits to be brought), but because the damages likely to be recovered are not sufficient to provide adequate compensation to counsel, as well as those frequent cases in which the goal is to secure injunctive relief to the exclusion of any claim for damages. In both situations, the fee-shifting statutes guarantee reasonable payment for the time and effort expended if the case is won. Respondent's position is that, without the prospect of being awarded fees exceeding such reasonable payment, plaintiffs with such cases will be unable to secure the help that the statutes aimed to provide.We are not persuaded that this will be the case. Indeed, it may well be that using a contingency enhancement is superfluous and unnecessary under the lodestar approach to setting a fee. The reasons a particular lawsuit are considered to be "risky" for an attorney are because of the novelty and difficulty of the issues presented, and because of the potential for protracted litigation. Moreover, when an attorney ultimately prevails in such a lawsuit, this success will be primarily attributable to his legal skills and experience, and to the hours of hard work he devoted to the case. These factors, however, are considered by the court in determining the reasonable number of hours expended and the reasonable hourly Page 483 U. S. 727 rate for the lodestar, and any further increase in this sum based on the risk of not prevailing would result not in a "reasonable" attorney's fee, but in a windfall for an attorney who prevailed in a difficult case. [Footnote 9]It may be that. without the promise of risk enhancement, some lawyers will decline to take cases; but we doubt that the bar in general will so often be unable to respond that the goal of the fee-shifting statutes will not be achieved. In any event, risk enhancement involves difficulties in administration and possible inequities to those who must pay attorney's fees; and, in the absence of further legislative guidance, we conclude that multipliers or other enhancement of a reasonable lodestar fee to compensate for assuming the risk of loss is impermissible under the usual fee-shifting statutes. Page 483 U. S. 728Even if § 304(d) and other typical fee-shifting statutes are construed to permit supplementing the lodestar in appropriate cases by paying counsel for assuming the risk of nonpayment, for the reasons set out below, it was error to do so in this case.VSection 304(d), like § 1988, does not indicate that adjustment for risk should be the rule, rather than the exception; neither does it require such an adjustment in any case. At most, it leaves the matter of risk enhancement to the informed discretion of the courts. There are, however, severe difficulties and possible inequities involved in making upward adjustments for assuming the risk of nonpayment, and we deem it appropriate, in order to guide the exercise of the trial courts' discretion in awarding fees, to adopt here the approach followed in Blum in dealing with other multipliers. As in that case, payment for the time and effort involved -- the lodestar -- is presumed to be the reasonable fee authorized by the statute, and enhancement for the risk of nonpayment should be reserved for exceptional cases where the need and justification for such enhancement are readily apparent and are supported by evidence in the record and specific findings by the courts. [Footnote 10] Blum, 465 U.S. at 465 U. S. 898-901. Page 483 U. S. 729 For several reasons, the circumstances of this case do not justify the risk multiplier employed by the District Court.First, the District Court doubled the lodestar in three phases of the case in recognition of the risk of loss, saying that the "contingent nature of plaintiffs' success has been apparent" from the outset, that plaintiffs entered the litigation against the United States and the Commonwealth of Pennsylvania, and that the case involved new and novel issues, the resolution of which had little or no precedent. Furthermore, they had to"defend their rights under the consent decree due to numerous attempts by defendants and others to overturn or circumvent this court's orders."581 F. Supp. at 1431. This case, however, concerns only the reasonable fee for work done after the consent decree was entered, and fees have already been awarded for work done before that time. The risk of nonpayment should be determined at the beginning of the litigation. Lewis v. Coughlin, 801 F.2d 570, 576 (CA2 1986); Ramos v. Lamm, 713 F.2d 546, 558 (CA10 1983). [Footnote 11] Whatever counsel thought the risk of losing was at Page 483 U. S. 730 the outset, it is doubtful that counsel anticipated a similar risk in enforcing a decree if plaintiff was successful in having one entered. In any event, the District Court did not specifically identify any new and novel issues, and we fail to discern any, that emerged in the long process of enforcing the court decree in accordance with its terms. And whether the Commonwealth of Pennsylvania was a substantial opponent or whether it tried to circumvent the decree has little or nothing to do with whether the there was a real risk of not persuading the District Court to enforce its own decree. The matter may have been difficult, wearing, and time-consuming, but that kind of effort has been recognized in the lodestar award.Second, if it be assumed that this is one of the exceptional cases in which enhancement for assuming the risk of nonpayment is justified, we conclude that doubling the lodestar for certain phases of the work was excessive. We have alluded to the uncertainties involved in determining the risk of not prevailing and the burdensome nature of fee litigation. We deem it desirable and an appropriate application of the statute to hold that, if the trial court specifically finds that there was a real risk-of-not-prevailing issue in the case, an upward adjustment of the lodestar may be made, but, as a general rule, in an amount no more than one-third of the lodestar. Any additional adjustment would require the most exacting justification. This limitation will at once protect against windfalls for attorneys and act as some deterrence against bringing suits in which the the attorney believes there is less than a 50-50 chance of prevailing. Riskier suits may be brought, and, if won, a reasonable lodestar may be awarded, but risk enhancement will be limited to one-third of the lodestar, if awarded at all. Here, even assuming an adjustment for risk was justified, the multiplier employed was excessive.Third, whatever the risk of winning or losing in a specific case might be, a fee award should be informed by the statutory purpose of making it possible for poor clients with good Page 483 U. S. 731 claims to secure competent help. Before adjusting for risk assumption, there should be evidence in the record, and the trial court should so find, that, without risk enhancement, plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market. [Footnote 12] Here, there were no such findings.Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtPennsylvania v. Valley Citizens' Council, 483 U.S. 711 (1987)Pennsylvania v. Delaware Valley Citizens' Council for Clean AirNo. 85-5Argued March 3, 1986Reargued October 15, 1986Decided June 26, 1987483 U.S. 711SyllabusIn 1977, the Delaware Valley Citizens' Council for Clean Air (hereafter respondent) and the United States each filed suit to compel Pennsylvania to comply with certain provisions of the Clean Air Act (Act). (See 478 U.S. 478 U. S. 546, an earlier decision in this case setting forth a detailed statement of the facts.) A consent decree, approved by the Federal District Court in 1978, obligated Pennsylvania to establish a program for the inspection and maintenance of vehicle emissions systems in certain counties by August, 1980. The State failed to do so, and protracted litigation ensued. In 1983, the parties agreed to set June 1, 1984, as the date the state would commence the program. Shortly after such agreement, respondent petitioned the District Court for attorney's fees and costs, pursuant to § 304(d) of the Act, for the work performed after the issuance of the consent decree. The court divided the work into phases and determined the lodestar amount for attorney's fees (the product of reasonable hours times a reasonable rate) for each phase. For certain phases, the court adjusted the figure upward by doubling the lodestar to reflect the risk presumably faced by respondent that it would not prevail on such phases of the litigation. The Court of Appeals affirmed the District Court's enhancement of the fee award. The issue presented here is whether, under § 304(d), when a plaintiff prevails, its attorney, under a contingent fee arrangement, should or may be awarded separate compensation for the risk of losing and not being paid.Held: The judgment is reversed.762 F.2d 272, reversed.JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTlCE SCALIA, concluded that § 304(d) should be construed as not permitting enhancement of a reasonable lodestar fee to compensate for an attorney's assuming the risk of loss and of nonpayment, and that, even if § 304(d) is construed to permit such enhancement in appropriate cases, it was error to do so in this case. Pp. 483 U. S. 723-731.JUSTICE O'CONNOR concluded that Congress did not intend to foreclose consideration of contingency in setting a reasonable fee under fee-shifting Page 483 U. S. 712 provisions such as § 304(d), but that the District Court erred in employing a risk multiplier in the circumstances of this case. Pp. 483 U. S. 731-734.JUSTICE BLACKMUN, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS, concluded that Congress intended § 304(d) to allow an upward adjustment, in appropriate circumstances, for a case taken on a contingent basis, and that the award in this case should be vacated and the case should be remanded to the District Court for further findings. Pp. 483 U. S. 735-755.WHITE, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, in which REHNQUIST, C.J., and POWELL, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Parts III-B, IV, and V, in which REHNQUIST, C.J., and POWELL and SCALIA, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 483 U. S. 731. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 483 U. S. 735. Page 483 U. S. 713

1994_94-820

"on the ground of a change in conditions or because of a mistake in a determination of fact." The question in this case is whether a party may seek modification on the ground of "change in conditions" when there has been no change in the employee's physical condition but rather an increase in the employee's wage-earning capacity due to the acquisition of new skills.IIn 1980, respondent John Rambo injured his back and leg while working as a longshore frontman for petitioner Metropolitan Stevedore Company. Rambo filed a claim with the Department of Labor that was submitted to an Administrative Law Judge (ALJ). After Rambo and petitioner stipulated that Rambo sustained a 22112% permanent partial disability and a corresponding $120.24 decrease in his $534.38 weekly wage, the ALJ, pursuant to LHWCA § 8(c)(21), awarded Rambo 662/3% of that figure, or $80.16 per week. App. 5. Because the ALJ also found that Rambo's disability was not due solely to his work-related injury and was "materially and substantially greater than that which would have resulted from the subsequent injury alone," LHWCA § 8(f)(1), 33 U. S. C. § 908(f)(1), he limited the period of petitioner's liability to pay compensation to 104 weeks. Ibid.; App. 6. Later payments were to issue from the special fund administered by respondent Director of the Office of Workers' Compensation Programs (OWCP), LHWCA § 8(f)(2), 33 U. S. C. § 908(f)(2). Employers (or their insurance carriers) contribute to the fund based on their outstanding liabilities. See LHWCA § 44(c)(2)(B), 33 U. S. C. § 944(c)(2)(B).After the award, Rambo began attending crane school.With the new skills so acquired, he obtained longshore work as a crane operator. He also worked in his spare time as a heavy lift truck operator. Between 1985 and 1990, Rambo's average weekly wages ranged between $1,307.81 and $1,690.50, more than three times his preinjury earnings, though his physical condition remained unchanged. In light294of the increased wage-earning capacity, petitioner, which may seek modification even when the special fund has assumed responsibility for payments, see LHWCA § 22, 33 U. S. C. § 922; 20 CFR § 702.148(b) (1994), filed an application to modify the disability award under LHWCA § 22. Petitioner asserted there had been a "change in conditions" so that Rambo was no longer "disabled" under the Act. The ALJ agreed that an award may be modified based on changes in the employee's wage-earning capacity, even absent a change in physical condition. After discounting wage increases due to inflation and considering Rambo's risk of job loss and other employment prospects, the ALJ concluded Rambo "no longer has a wage-earning capacity loss" and terminated his disability payments. App. 68. The Benefits Review Board affirmed, relying on Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 16 BRBS 282 (1984), aff'd, 776 F.2d 1225 (CA4 1985), which held that "change in condition[sJ" means change in wage-earning capacity, as well as change in physical condition. App. 73. A panel of the Court of Appeals for the Ninth Circuit reversed. Rambo v. Director, owe?, 28 F.3d 86 (1994). Rejecting the Fourth Circuit's approach in Fleetwood, the Ninth Circuit held that LHWCA § 22 authorizes modification of an award only where there has been a change in the claimant's physical condition. We granted certiorari to resolve this split, 513 U. S. 1106 (1995), and now reverse.IIThe LHWCA is a comprehensive scheme to provide compensation "in respect of disability or death of an employee ... if the disability or death results from an injury occurring upon the navigable waters of the United States." LHWCA § 3, 33 U. S. C. § 903(a). Section 22 of the Act provides for modification of awards "on the ground of a change in conditions or because of a mistake in a determination of fact." 33 U. S. C. § 922. In Rambo's view and that of the Ninth Circuit, "change in conditions" means change in physical condi-295tion and does not include changes in other conditions relevant to the initial entitlement to benefits, such as a change in wage-earning capacity. In our view, this interpretation of "change in conditions" cannot stand in the face of the language, structure, and purpose of the Act.ANeither Rambo nor the Ninth Circuit has attempted to base their position on the language of the statute, where analysis in a statutory construction case ought to begin, for "when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475 (1992); Demarest v. Manspeaker, 498 U. S. 184, 190 (1991).Section 22 of the Act provides the only way to modify an award once it has issued. The section states:"Upon his own initiative, or upon the application of any party in interest (including an employer or carrier which has been granted relief under section 908(f) of this title), on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, ... or at any time prior to one year after the rejection of a claim, review a compensation case ... and ... issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation." 33 U. S. C. § 922.On two occasions we have construed the phrase "mistake in a determination of fact" and observed that nothing in the statutory language supports attempts to limit it to particular kinds of factual errors or to cases involving new evidence or changed circumstances. See O'Keeffe v. Aerojet-General296Shipyards, Inc., 404 U. S. 254, 255-256 (1971) (per curiam); Banks v. Chicago Grain Trimmers Assn., Inc., 390 U. S. 459, 465 (1968). The language of § 22 also provides no support for Rambo's narrow construction of the phrase "change in conditions." The use of "conditions," a word in the plural, suggests that Congress did not intend to limit the bases for modifying awards to a single condition, such as an employee's physical health. See 2A N. Singer, Sutherland on Statutory Construction § 47.34, p. 274 (5th rev. ed. 1992) (" 'Ordinarily the legislature by use of a plural term intends a reference to more than one matter or thing''') (quoting N. Y. Statutes Law § 252 (McKinney 1971)); cf. 1 U. S. C. § 1 ("[W]ords importing the plural include the singular"). Rather, under the "normal" or "natural reading," Estate of Cowart, supra, at 477, the applicable "conditions" are those that entitled the employee to benefits in the first place, the same conditions on which continuing entitlement is predicated.Our interpretation is confirmed by the language of LHWCA §§ 2(10) and 8(c)(21). Section 2(10) defines "[d]isability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 33 U. S. C. § 902(10). For certain injuries the statute creates a conclusive presumption of incapacity to earn wages and sets compensation at 662/3% of the claimant's actual wage for a fixed number of weeks, according to a statutory schedule. See LHWCA §§ 8(c)(1)-(20), (22), 33 U. S. C. §§ 908(c)(1)-20, (22). When these types of scheduled injuries occur, a claimant simply proves the relevant physical injury and compensation follows for a finite period of time. See Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 506 U. S. 153, 156, n. 4 (1993); Potomac Elec. Power Co. v. Director, Office of Workers' Compensation Programs, 449 U. S. 268, 269 (1980). "In all other cases," however, the statute provides "the compensation shall be 662/3 per centum of the difference between the average weekly wages of the em-297ployee and the employee's wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of partial disability." LHWCA § 8(c)(21), 33 U. S. C. § 908(c)(21). For these nonscheduled injuries, the type at issue in this case, loss of wage-earning capacity is an element of the claimant's case, for without the statutory presumption that accompanies scheduled injuries, a claimant is not "disabled" unless he proves "incapacity because of injury to earn the wages." LHWCA § 2(10), 33 U. S. C. § 902(10). See Bath Iron Works, supra, at 156; Potomac Elec. Power Co., supra, at 269-270. These two sections make it clear that compensation, as an initial matter, is predicated on loss of wage-earning capacity, and that such compensation should continue only "during the continuance of partial disability," LHWCA § 8(c)(21), 33 U. S. C. § 908(c)(21), i. e., during the continuance of the "incapacity ... to earn the wages," LHWCA § 2(10), 33 U. S. C. § 902(10). Section 22 accommodates this statutory requirement by providing for modification of an award on the ground of "a change in conditions." 33 U. S. C. § 922.Rambo's insistence on what seems to us a " 'narrowly technical and impractical construction'" of this phrase, O'Keeffe, supra, at 255 (quoting Luckenbach S. S. Co. v. Norton, 106 F. 2d 137, 138 (CA3 1939)), does more than disregard the plain language of §§ 22, 2(10), and 8(c)(21). It also is inconsistent with the structure and purpose of the LHWCA. Like most other workers' compensation schemes, the LHWCA does not compensate physical injury alone but the disability produced by that injury. See LHWCA §§ 3(a), 8, 33 U. S. C. §§ 903(a), 908; see also 1C A. Larson, Law of Workmen's Compensation § 57.11 (1994). Disability under the LHWCA, defined in terms of wage-earning capacity, LHWCA § 2(10), is in essence an economic, not a medical, concept. Cf. 3 Larson, supra, §81.31(e), p. 15-1150 (1995) ("[D]isability in the compensation sense has an economic as well as a medical component"). It may be ascertained for298nonscheduled injuries according to the employee's actual earnings, if they "fairly and reasonably represent his wageearning capacity," and if they do not, then with "due regard to the nature of [the employee's] injury, the degree of physical impairment, his usual employment and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future." LHWCA § 8(h), 33 U. S. C. § 908(h). The fundamental purpose of the Act is to compensate employees (or their beneficiaries) for wage-earning capacity lost because of injury; where that wage-earning capacity has been reduced, restored, or improved, the basis for compensation changes and the statutory scheme allows for modification.BGiven that the language of § 22 and the structure of the Act itself leave little doubt as to Congress' intent, any argument based on legislative history is of minimal, if any, relevance. See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254, (1992); Ardestani v. INS, 502 U. S. 129, 136 (1991); cf. Intercounty Constr. Corp. v. Walter, 422 U. S. 1, 8 (1975) (construing ambiguity in application of § 22's i-year limitations period). In any event, we find Rambo's arguments that the legislative history provides support for his view lacking in force.From congressional Reports accompanying amendments to § 22 in 1934, 1938, and 1984, Reports suggesting Congress was unwilling to extend the i-year limitations period in which a party may seek modification, Rambo would have us infer that Congress intended a narrow construction of other parts of § 22, including the circumstances that would justify reopening an award. We rejected this very argument in Banks, supra, at 465, and its logic continues to elude us. Congress' decision to maintain a i-year limitations period299has no apparent relevance to which changed conditions may justify modifying an award.Rambo next contends that following McCormick S. S. Co. v. United States Employees' Compensation Comm'n, 64 F. 2d 84 (CA9 1933), the Courts of Appeals unanimously held that "change in conditions" refers only to changes in physical conditions, so Congress' reenactment of the phrase "change in conditions" when it amended other parts of § 22 as late as 1984 must be understood to endorse that approach. We have often relied on Congress' "reenact[ment of] statutory language that has been given a consistent judicial construction," Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 185 (1994); see Pierce v. Underwood, 487 U. S. 552, 566-567 (1988), in particular where Congress was aware of or made reference to that judicial construction, see Brown v. Gardner, 513 U. S. 115, 121 (1994); United States v. Calamaro, 354 U. S. 351, 359 (1957). The cases in the relevant period, however, were based on a misreading of McCormick, supra, which did not reject the idea that § 22 included a change in wage-earning capacity, but merely expressed doubt that § 22 "applies to a change in earnings due to economic conditions," 64 F. 2d, at 85; they involved dicta, not holdings, see, e. g., Pillsbury v. Alaska Packers Assn., 85 F.2d 758, 760 (CA9 1936), rev'd on other grounds, 301 U. S. 174 (1937); Burley Welding Works, Inc. v. Lawson, 141 F.2d 964, 966 (CA5 1944); General Dynamics Corp. v. Director, OWCp, 673 F.2d 23, 25, n. 6 (CA1 1982) (per curiam); and they were not uniform in their approach, see, e. g., Hole v. Miami Shipyards Corp., 640 F.2d 769, 772 (CA5 1981) ("[T]he compensation award may be modified years later to reflect ... greater or lesser economic injury"). Under these circumstances, we are not persuaded that congressional silence in the reenactment of the phrase "change in conditions" carries any significance.In a related argument, Rambo criticizes petitioner's reading of § 22 because it sweeps away an accumulation of more300than 50 years of dicta. Far from counseling hesitation, however, we think this step long overdue. "[A]ge is no antidote to clear inconsistency with a statute," Brown v. Gardner, supra, at 122, and the dictum of Pillsbury and Burley Welding Works has not even aged with integrity, see, e. g., Fleetwood v. Newport News Shipbuilding and Dry Dock Co., 16 BRBS 282 (1984); LaFaille v. Benefits Review Board, U. S. Dept. of Labor, 884 F.2d 54, 62 (CA2 1989); Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 1042, n. 6 (CA5 1992) (dictum). Breath spent repeating dicta does not infuse it with life. The unnecessary observations of these Courts of Appeals "are neither authoritative nor persuasive." McLaren v. Fleischer, 256 U. S. 477, 482 (1921); cf. United StatesFinally, Rambo argues that including a change in wageearning capacity as a change in conditions under § 22 will flood the OWCP and the courts with litigation because parties will request modification every time an employee's wages change or the economy takes a turn in one direction or the other. Experience in the 11 years since the Benefits Review Board decided Fleetwood, supra, suggests otherwise, but that argument is, in any case, better directed at Congress or the Director in her rulemaking capacity, see LHWCA § 39(a), 33 U. S. C. § 939(a); Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 134 (1995), than at the courts. It is also based on a misconception of the LHWCA and our holding today. We recognize only that an award in a nonscheduled-injury case may be modified where there has been a change in wage-earning capacity. A change in actual wages is controlling only when actual wages "fairly and reasonably represent ... wage-earning capacity." LHWCA § 8(h), 33 U. S. C § 908(h). Otherwise, wage-earning capacity may be determined according to the many factors identified in § 8(h), including "any ... factors or circumstances in the case which may affect [the employee's] capacity to earn301wages in his disabled condition, including the effect of disability as it may naturally extend into the future." This circumspect approach does not permit a change in wageearning capacity with every variation in actual wages or transient change in the economy. There may be cases raising difficult questions as to what constitutes a change in wage-earning capacity, but we need not address them here. Rambo acquired additional, marketable skills and the ALJ, recognizing that higher wages do not necessarily prove an increase in wage-earning capacity, took care to account for inflation and risk of job loss in evaluating Rambo's new "wage-earning capacity in an open labor market under normal employment conditions." App. 66.We hold that a disability award may be modified under § 22 where there is a change in the employee's wage-earning capacity, even without any change in the employee's physical condition. Because Rambo raised other arguments before the Ninth Circuit that the panel did not have the opportunity to address, we reverse and remand for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusMETROPOLITAN STEVEDORE CO. v. RAMBO ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 94-820. Argued April 25, 1995-Decided June 12, 1995Respondent Rambo received a disability award under the Longshore and Harbor Workers' Compensation Act (LHWCA) for an injury he sustained while working for petitioner as a longshore frontman. Subsequently, he acquired new skills and obtained longshore work as a crane operator, earning more than three times his preinjury earnings, though his physical condition remained unchanged. Petitioner filed an application to modify the disability award under LHWCA § 22 on the ground that there had been a "change in conditions" so that Rambo was no longer disabled. An Administrative Law Judge terminated the disability payments, and the Benefits Review Board affirmed, relying on its 1984 Fleetwood decision that a change in wage-earning capacity is a change in conditions under § 22. The Court of Appeals reversed, holding that § 22 authorizes modification only where there has been a change in an employee's physical condition.Held: A disability award may be modified under § 22 where there is a change in an employee's wage-earning capacity, even without any change in the employee's physical condition. pp. 294-303.(a) A narrow reading of the phrase "change in conditions" is not supported by the Act's language, structure, and purpose. Section 22's use of the plural "conditions" suggests that Congress did not intend to limit the bases for modifying awards to a single condition, such as an employee's physical health. Rather, under the normal or natural reading, the applicable "conditions" are those that entitled the employee to benefits in the first place, the same conditions on which continuing entitlement is predicated. This interpretation is confirmed by the language of LHWCA §§ 2(10) and 8(c)(21), which make it clear that compensation, as an initial matter, is predicated on loss of wage-earning capacity and should continue only while the incapacity to earn wages persists. Thus, disability is in essence an economic, not a medical, concept. The Act's fundamental purpose is to compensate employees for wage-earning capacity lost because of injury; where that capacity has been reduced, restored, or improved, the basis for compensation changes and modification is permitted. Pp. 294-298.(b) The legislative history also does not support a narrow construction of §22. Congress' decision to maintain a I-year limitations period292in which to seek modification does not indicate a congressional intent to limit other parts of § 22. Nor is there any evidence that when Congress reenacted the phrase "change in conditions" as late as 1984, it was endorsing prior Court of Appeals' decisions limiting the phrase to changes in physical conditions. In addition, the dicta in those cases that Rambo claims is swept away by the Court's reading of § 22 is neither authoritative nor persuasive. Finally, experience in the 11 years since Fleetwood does not suggest that the Office of Workers Compensation Programs (OWCP) and courts will be flooded with litigation arising from modification requests based on every change in an employee's wages. Such an argument is better directed at Congress or the OWCP Director than at the courts; and it is based on a misconception of the LHWCA and the instant holding, for a change in wage-earning capacity will occur with a change in actual wages only when those wages fairly and reasonably represent such capacity. Pp. 298-303.28 F.3d 86, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 301.Robert Evans Babcock argued the cause and filed briefs for petitioner.Jeffrey P. Minear argued the cause for the federal respondent in support of petitioner under this Court's Rule 12.4. With him on the briefs were Solicitor General Days, Deputy Solicitor General Kneedler, Allen H. Feldman, Nathaniel 1. Spiller, and Edward D. Sieger.Thomas J. Pierry argued the cause and filed a brief for respondent Rambo. *JUSTICE KENNEDY delivered the opinion of the Court. Section 22 of the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1437, as amended, 33 U. S. C. § 922, allows for modification of a disability award*Briefs of amici curiae urging reversal were filed for Industrial Indemnity Insurance Co. by Roger A. Levy; and for the National Association of Waterfront Employers et al. by Charles T. Carroll, Jr., Thomas D. Wilcox, and Franklin W Losey.293Full Text of Opinion

1964_32

MR. JUSTICE BLACK delivered the opinion of the Court.The questions presented in this case relate to the power and discretion of a United States district court to tax as costs against the loser in a civil lawsuit expenses incurred by the winner in carrying on the litigation.Howard Farmer, a physician from Texas specializing in ophthalmology, started this litigation against the Arabian American Oil Company in a New York state court, claiming $4,000 damages [Footnote 1] for breach of an employment contract. The complaint alleged that, in April, 1955, the company entered into an agreement to employ Farmer as an ophthalmologist in Saudi Arabia at an annual salary of $16,000 plus a $4,000 living allowance per year, so long as the company continued its oil well operations there, and that, although he began work and properly performed his duties, the company wrongfully discharged him in March, 1956. On the company's motion, the case was removed to federal court because of diversity. The company admitted that it had employed Farmer, but defended on the grounds that the discharge was not wrongful, both because he had been employed at will, rather than for a definite term, and because he had been discharged for good cause. At the trial, Farmer attempted to show that the company discharged him because he had Page 379 U. S. 229 found that a number of Americans employed by the company in Arabia had contracted trachoma, a much dreaded tropical eye disease which may lead to blindness, and that, although urged by the company's medical staff to falsify or suppress his findings, he had refused to do so. The company's evidence tended to disprove this charge, and to show that Farmer had been discharged because he had operated on a young Arabian boy's eye without first having received and examined a urinalysis and blood test report. This the company alleged to be in violation of a written company rule and standard surgical practice. Such tests had, in fact, been completed before Dr. Farmer performed the operation, but whether he had known of the tests or their results, and whether there actually had been a company rule requiring that he have the test results were in sharp dispute.The company, in order to refute Farmer's charge, brought three witnesses from Saudi Arabia to New York to testify in support of its version of the dispute. The jury failed to agree, after which District Judge Palmieri granted the company's motion for a directed verdict, 176 F. Supp. 45, and approved the clerk's taxation of costs against Farmer in the amount of $6,601.08, which included, among other things, transportation expenses for the witnesses from Arabia and costs of daily stenographic transcripts of the trial record furnished to the company's lawyers at their request. Holding that a verdict should not have been directed, the Court of Appeals reversed and remanded the case for a new trial, thereby upsetting the judgment and the taxation of costs. 277 F.2d 46.On remand to the District Court, the company obtained an order directing Farmer to put up security for costs in the sum of $6,000. Because Farmer was unable to post so large a bond, Judge MacMahon dismissed the case. The Court of Appeals reversed in an opinion that strongly Page 379 U. S. 230 indicated its belief that the costs already taxed were exorbitant and that to require Farmer to give the bond would "for all practical purposes" deny him his day in court. 285 F.2d 720. On a second trial, this time before District Judge Weinfeld, the jury found for the company, and no appeal was taken. The clerk then taxed $11,900.12 against Farmer as the aggregate cost of both trials, but, on review, Judge Weinfeld found these costs "staggering" for so uncomplicated a case, and reduced them to $831.60. In making this reduction, Judge Weinfeld lowered the cost bill approved by Judge Palmieri in the first trial from $6,601.08 to $496.05. He did this chiefly by eliminating the transportation expenses of the witnesses from Arabia and the costs of supplying the company's counsel with overnight transcripts of the daily trial proceedings. Judge Weinfeld also refused to require Farmer to reimburse the company for its similar expenses in the second trial. 31 F.R.D. 191. Sitting en banc, the Court of Appeals, by a vote of 5-4, affirmed Judge Weinfeld's cost taxation for the second trial, but held that he had failed to give proper deference to Judge Palmieri's taxation of costs for the first trial, and so reversed that part of his order. The Court of Appeals itself, however, directed that Judge Palmieri's cost allowance be reduced by $2,064 for transportation of two of the witnesses from Arabia, who had"occupied otherwise empty space in company planes on regularly scheduled flights to and from Saudi Arabia, so that, as to them, there was no actual travel expense incurred by the company, and none should have been allowed."324 F.2d 359, 364.Farmer petitioned for certiorari to review the Court of Appeals' refusal to affirm Judge Weinfeld's taxation of costs. The company sought certiorari to review those parts of the Court of Appeals' judgment refusing to allow all costs taxed by Judge Palmieri on the first trial and Page 379 U. S. 231 refusing to allow transportation costs incurred in transporting its witnesses from Arabia for the second trial. We granted both petitions, 376 U.S. 942. For reasons to be stated, which are not wholly the grounds relied on by Farmer, we agree with him that Judge Weinfeld's order should have been upheld in its entirety.IWe deal first with Farmer's contention that the District Court was wholly without power to tax costs against him to reimburse the company for expenses incurred in bringing the witnesses from Arabia to this country. His argument runs this way. It has long been the law in this country, as now set out in Rule 45(e) of the Federal Rules of Civil Procedure, [Footnote 2] that, with exceptions not here relevant, subpoenas requiring the attendance of witnesses at a trial cannot be served outside the judicial district more than 100 miles from the place of trial. Many decisions of district courts and courts of appeals have held that, since witnesses cannot be compelled under this rule to travel more than 100 miles, a party who persuades them to do so by paying their transportation expenses cannot have those expenses taxed as costs against his adversary. [Footnote 3] This was the view of three of the dissenting judges below. 324 F.2d 359, 365. The majority, however, while recognizing that the great bulk of judicial authority supports the 100-mile rule, nevertheless Page 379 U. S. 232 held that district courts do have discretionary power to tax such costs under 28 U.S.C. § 1920(3) (1958 ed.), which provides that "[a] judge or clerk . . . may tax as costs . . . [f]ees and disbursements for . . . witnesses. . . ." The majority also thought the prior 100-mile rule had been undercut by the 1949 congressional amendment to 28 U.S.C. § 1821 (1958 ed.), which provides that "witnesses who are required to travel . . . to and from the Continental United States, shall be entitled to the actual expenses of travel. . . ."We cannot accept either the extreme position of the company that the old 100-mile rule has no vitality for any purpose or Farmer's argument that a federal district court can never under any circumstances tax as costs expenses for transporting witnesses more than 100 miles. In this case, however, where taxation of such expenses is being denied, we need not set out the specific circumstances under which such costs can be taxed, nor mark precisely the limits of a district court's power to tax them. It is sufficient here to point to Federal Rule of Civil Procedure 54(d), which provides that,"Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . ."While this Rule could be far more definite as to what "costs shall be allowed," the words "unless the court otherwise directs" quite plainly vest some power in the court to allow some "costs." We therefore hold that Judge Weinfeld was correct in treating this case as an appeal to his discretion.IIThe Court of Appeals held, and the company argues here, that, even if Judge Weinfeld did have discretion, it was nevertheless error for him to undertake "an independent determination de novo of the costs allowed at Page 379 U. S. 233 a prior trial." 324 F.2d at 364. We cannot agree. Since Judge Palmieri's judgment and his taxation of costs were both upset by the Court of Appeals' reversal of the first trial judgment, it became the duty of the clerk to tax costs for both trials only when judgment was finally entered for the company. The fact that the clerk accepted Judge Palmieri's former cost taxation put no duty on Judge Weinfeld to accept the same figures. On review of the clerk's assessment, it was Judge Weinfeld's responsibility to decide the cost question himself, and, so far as an exercise of discretion was called for, it was then his discretion, and not Judge Palmieri's, that had to control. True, any judge in a like situation would almost surely hope to agree with his brother judge's prior opinion, but we cannot accept the idea that he is compelled to do so. Judge Weinfeld was aware of intervening circumstances of which Judge Palmieri could not have known, as, for example, the Court of Appeals' two opinions following the first trial, one of which mentioned cost questions. And Judge Weinfeld, in lowering the prior assessment, reached a result not greatly different from that of the Court of Appeals, which itself reduced Judge Palmieri's cost allowance more than $2,000.IIIFinally, we think that Judge Weinfeld's taxation of costs as to both trials was an appropriate exercise of his discretion, and should have been allowed to stand. The two disputed expenses that are most important in principle and largest in amount are (a) approximately $3,000 for stenographers' fees in supplying company counsel with daily transcripts of the trial, and (b) approximately $7,000 for expenses incurred in transporting witnesses from and back to Arabia.(a) In denying the allowance for daily transcripts, Judge Weinfeld pointed out that while these might have Page 379 U. S. 234 added to the convenience of counsel for the company, and perhaps even have made the task of the trial judges easier, the transcripts were by no means indispensable. The judge's conclusion was based on his personal knowledge that this was not a complicated or extended trial where lawyers were required to submit briefs and proposed findings. As to the company's argument that the transcript costs were justified because the jury read them, Judge Weinfeld correctly pointed out that the same result could have been accomplished without this expense by following the common practice of calling on the stenographer to read from his notes. We think Judge Weinfeld's refusal to make Farmer pay for these overnight transcripts, which were ordered by the company's counsel, was proper, and should not have been disturbed by the Court of Appeals.(b) Judge Weinfeld, "in the exercise of discretion," refused to tax the actual transportation expenses of the witnesses from Arabia, limiting those costs to the per diem fees fixed by law and to expenses for travel for a distance not to exceed 100 miles to and from the courthouse. He undoubtedly was influenced to some extent by the longstanding 100-mile rule. That rule, we think, is a proper and necessary consideration in exercising discretion in this field. The century and a half old special statutory provision [Footnote 4] relating to service of subpoenas more than 100 miles from the courthouse is designed not only to protect witnesses from the harassment of long, tiresome trips, but also, in line with our national policy, to minimize the costs of litigation, which policy is strongly emphasized in the Federal Rules of Civil Procedure. [Footnote 5] Here, the company, Page 379 U. S. 235 on its own, without prior notice to the court, brought its foreign witnesses to court at its own expense. With reference to this, Judge Weinfeld said:"Upon an appropriate motion, the means of obtaining the testimony of the witness would have rested with the Court, which, in its discretion, could have imposed conditions with respect to which party initially was to bear the expense and provided for its ultimate taxation in favor of the prevailing party."31 F.R.D. 191, 195.Having failed to bring this problem to the court's attention in any manner, the company went ahead and piled up what Judge Weinfeld quite understandably referred to as this "huge bill of costs." We think that, under the circumstances, Judge Weinfeld could not be charged with any improper exercise of the discretion vested in him by Rule 54(d). We do not read that Rule as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful scrutiny. Any other practice would be too great a movement in the direction of some systems of jurisprudence that are willing, if not indeed anxious, to allow litigation costs so high as to discourage litigants from bringing lawsuits, no matter how meritorious they might in good faith believe their claims to be. Therefore, the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute. Such a restrained administration of the Rule is in harmony with our national policy of reducing insofar as possible the burdensome cost of litigation. We therefore hold that Judge Weinfeld's order assessing only appropriate expenses should have been Page 379 U. S. 236 affirmed by the Court of Appeals. That court's judgment is accordingly reversed, and the judgment of the District Court is affirmed.It is so ordered

U.S. Supreme CourtFarmer v. Arabian American Oil Co., 379 U.S. 227 (1964)Farmer v. Arabian American Oil Co.No. 32Argued November 9-10, 1964Decided December 14, 1964*379 U.S. 227SyllabusA doctor formerly employed by an oil company to work in Saudi Arabia sued for breach of his employment contract. The jury failed to agree, and the District Judge granted the company's motion for a directed verdict. Costs of more than $6,600 were taxed against the doctor, including transportation expenses of witnesses from Arabia and daily transcripts requested by company counsel. The Court of Appeals reversed, on the ground that a verdict should not have been directed, and remanded for a new trial. On remand, the case was dismissed because of the doctor's inability to post a $6,000 bond as security for costs. The Court of Appeals again reversed, and indicated that the costs already taxed were exorbitant. At a second trial, the jury found for the company. The clerk taxed costs at almost $12,000 for the two trials, which the second District Judge reduced by over 90%, eliminating the expenses of the overseas witnesses and the cost of the daily transcripts. The Court of Appeals upheld the costs for the second trial, but reversed as to costs for the first trial, although reducing the amount, holding that the second judge failed to give proper deference to the first judge's taxation of costs.Held:1. The 100-mile subpoena provision in Rule 45(e) of the Federal Rules of Civil Procedure does not completely bar a district court from taxing as costs expenses of transporting witnesses more than 100 miles, for Rule 54(d) does leave the district court discretion to tax such expenses. Pp. 379 U. S. 231-232.2. It was not error for the District Judge at the end of the second trial when judgment was finally entered, to determine costs for both trials, the first judgment and taxation of costs having been upset by the reversal of the trial judgment. Pp. 379 U. S. 232-233.3. The District Judge's discretion was appropriately exercised in his taxation of costs for both trials. Pp. 379 U. S. 233-236.324 F.2d 359, reversed. Page 379 U. S. 228

1963_42

MR. JUSTICE GOLDBERG delivered the opinion of the Court.We are called upon in this case to decide whether, under the Investment Advisers Act of 1940, [Footnote 1] the Securities and Exchange Commission may obtain an injunction compelling a registered investment adviser to disclose to his clients a practice of purchasing shares of a security for his own account shortly before recommending that security for long-term investment and then immediately selling the shares at a profit upon the rise in the market price following the recommendation. The answer to this question turns on whether the practice -- known in the trade as "scalping" -- "operates as a fraud or deceit upon any client or prospective client" within the meaning of the Act. [Footnote 2] We hold that it does, and that the Commission may "enforce compliance" with the Act by obtaining an Page 375 U. S. 182 injunction requiring the adviser to make full disclosure of the practice to his clients. [Footnote 3]The Commission brought this action against respondents in the United States District Court for the Southern District of New York. At the hearing on the application for a preliminary injunction, the following facts were established. Respondents publish two investment advisory services, one of which -- "a Capital Gains Report" -- Page 375 U. S. 183 is the subject of this proceeding. The Report is mailed monthly to approximately 5,000 subscribers who each pay an annual subscription price of $18. It carries the following description:"An Investment Service devoted exclusively to (1) The protection of investment capital. (2) The realization of a steady and attractive income therefrom. (3) The accumulation of CAPITAL GAINS thru the timely purchase of corporate equities that are proved to be undervalued."Between March 15, 1960, and November 7, 1960, respondents, on six different occasions, purchased shares of a particular security shortly before recommending it in the Report for long-term investment. On each occasion, there was an increase in the market price and the volume of trading of the recommended security within a few days after the distribution of the Report. Immediately thereafter, respondents sold their shares of these securities at a profit. [Footnote 4] They did not disclose any aspect of these transactions to their clients or prospective clients.On the basis of the above facts, the Commission requested a preliminary injunction as necessary to effectuate the purposes of the Investment Advisers Act of 1940. The injunction would have required respondents, in any future Report, to disclose the material facts concerning, inter alia, any purchase of recommended securities "within a very short period prior to the distribution of a recommendation . . . , " and "[t]he intent to sell and the sale of said securities . . . within a very short period after distribution of said recommendation. . . ." [Footnote 5] Page 375 U. S. 184The District Court denied the request for a preliminary injunction, holding that the words "fraud" and "deceit" are used in the Investment Advisers Act of 1940 "in their technical sense," and that the Commission had failed to show an intent to injure clients or an actual loss of money to clients. 191 F. Supp. 897. The Court of Appeals for the Second Circuit, sitting en banc, by a 5-to-4 vote accepted the District Court's limited construction of "fraud" and "deceit" and affirmed the denial Page 375 U. S. 185 of injunctive relief. [Footnote 6] 306 F.2d 606. The majority concluded that no violation of the Act could be found absent proof that "any misstatements or false figures were contained in any of the bulletins"; or that "the investment advice was unsound"; or that "defendants were being bribed or paid to tout a stock contrary to their own beliefs"; or that "these bulletins were a scheme to get rid of worthless stock"; or that the recommendations were made "for the purpose of endeavoring artificially to raise the market so that [respondents] might unload [their] holdings at a profit." Id., 306 F.2d at 608-609. The four dissenting judges pointed out that "[t]he common law doctrines of fraud and deceit grew up in a business climate very different from that involved in the sale of securities," and urged a broad remedial construction of the statute which would encompass respondents' conduct. Id., 306 F.2d at 614. We granted certiorari to consider the question of statutory construction because of its importance to the investing public and the financial community. 371 U.S. 967.The decision in this case turns on whether Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit upon any client or prospective client," intended to require the Commission to establish fraud and deceit "in their technical sense," including Page 375 U. S. 186 intent to injure and actual injury to clients, or whether Congress intended a broad remedial construction of the Act which would encompass nondisclosure of material facts. For resolution of this issue, we consider the history and purpose of the Investment Advisers Act of 1940.IThe Investment Advisers Act of 1940 was the last in a series of Acts designed to eliminate certain abuses in the securities industry, abuses which were found to have contributed to the stock market crash of 1929 and the depression of the 1930's. [Footnote 7] It was preceded by the Securities Act of 1933, [Footnote 8] the Securities Exchange Act of 1934, [Footnote 9] the Public Utility Holding Company Act of 1935, [Footnote 10] the Trust Indenture Act of 1939, [Footnote 11] and the Investment Company Act of 1940. [Footnote 12] A fundamental purpose, common to these statutes, was to substitute a philosophy of full disclosure for the philosophy of caveat emptor, and thus to achieve a high standard of business ethics in the securities industry. [Footnote 13] As we recently said in a related context,"It requires but little appreciation . . . of what happened in this country during the 1920's and 1930's to realize how essential it is that the highest ethical standards prevail "Page 375 U. S. 187in every facet of the securities industry. Silver v. New York Stock Exchange, 373 U. S. 341, 373 U. S. 366.The Public Utility Holding Company Act of 1935 "authorized and directed" the Securities and Exchange Commission "to make a study of the functions and activities of investment trusts and investment companies. . . ." [Footnote 14] Pursuant to this mandate, the Commission made an exhaustive study and report which included consideration of investment counsel and investment advisory services. [Footnote 15] This aspect of the study and report culminated in the Investment Advisers Act of 1940.The report reflects the attitude -- shared by investment advisers and the Commission -- that investment advisers could not"completely perform their basic function -- furnishing to clients on a personal basis competent, unbiased, and continuous advice regarding the sound management of their investments -- unless all conflicts of interest between the investment counsel and the client were removed. [Footnote 16]"The report stressed that affiliations by investment Page 375 U. S. 188 advisers with investment bankers or corporations might be "an impediment to a disinterested, objective, or critical attitude toward an investment by clients. . . ." [Footnote 17]This concern was not limited to deliberate or conscious impediments to objectivity. Both the advisers and the Commission were well aware that whenever advice to a client might result in financial benefit to the adviser -- other than the fee for his advice -- "that advice to a client might in some way be tinged with that pecuniary interest (whether consciously or) subconsciously motivated. . . ." [Footnote 18] The report quoted one leading investment adviser who said that he "would put the emphasis . . . on subconscious" motivation in such situations. [Footnote 19] It quoted a member of the Commission staff who suggested that a significant part of the problem was not the existence of a "deliberate intent" to obtain a financial advantage, but rather the existence "subconsciously [of] a prejudice" in favor of one's own financial interests. [Footnote 20] The report incorporated the Code of Ethics and Standards of Practice of one of the leading investment counsel associations, which contained the following canon:"[An investment adviser] should continuously occupy an impartial and disinterested position, as free as humanly possible from the subtle influence of prejudice, conscious or unconscious; he should scrupulously avoid any affiliation, or any act, which subjects his position to challenge in this respect. [Footnote 21]"(Emphasis added.)Other canons appended to the report announced the following guiding principles: that compensation for investment advice "should consist exclusively of direct Page 375 U. S. 189 charges to clients for services rendered"; [Footnote 22] that the adviser should devote his time "exclusively to the performance" of his advisory function; [Footnote 23] that he should not "share in profits" of his clients; [Footnote 24] and that he should not "directly or indirectly engage in any activity which may jeopardize [his] ability to render unbiased investment advice." [Footnote 25] These canons were adopted"to the end that the quality of services to be rendered by investment counselors may measure up to the high standards which the public has a right to expect and to demand. [Footnote 26]"One activity specifically mentioned and condemned by investment advisers who testified before the Commission was "trading by investment counselors for their own account in securities in which their clients were interested. . . ." [Footnote 27]This study and report -- authorized and directed by statute [Footnote 28] -- culminated in the preparation and introduction by Senator Wagner of the bill which, with some changes, became the Investment Advisers Act of 1940. [Footnote 29] In its "declaration of policy," the original bill stated that"Upon the basis of facts disclosed by the record and report of the Securities and Exchange Commission . . . , it is hereby declared that the national public interest and the interest of investors are adversely affected -- . . . (4) when the business of investment advisers is so conducted as to defraud or mislead investors, or to enable such advisers to relieve themselves of their fiduciary obligations to their clients. Page 375 U. S. 190 It is hereby declared that the policy and purposes of this title, in accordance with which the provisions of this title shall be interpreted, are to mitigate and, so far as is presently practicable, to eliminate the abuses enumerated in this section."S. 3580, 76th Cong., 3d Sess., § 202.Hearings were then held before Committees of both Houses of Congress. [Footnote 30] In describing their profession, leading investment advisers emphasized their relationship of "trust and confidence" with their clients [Footnote 31] and the importance of"strict limitation of [their right] to buy and sell securities in the normal way if there is any chance at all that to do so might seem to operate against the interests of clients and the public. [Footnote 32]"The president of the Investment Counsel Association of America, the leading investment counsel association, testified that the"two fundamental principles upon which the pioneers in this new profession undertook to meet the growing need for unbiased investment information and guidance were, first, that they would limit their efforts and activities to the study of investment problems from the investor's standpoint, not engaging in any other activity, such as security selling or brokerage, which might directly or indirectly bias their investment judgment; and, second, that their remuneration for this work would consist solely of definite, professional fees fully disclosed in advance. [Footnote 33] "Page 375 U. S. 191Although certain changes were made in the bill following the hearings, [Footnote 34] there is nothing to indicate an intent to alter the fundamental purposes of the legislation. The broad proscription against "any . . . practice . . . which operates . . . as a fraud or deceit upon any client or prospective client" remained in the bill from beginning to end. And the Committee Reports indicate a desire to preserve "the personalized character of the services of investment advisers," [Footnote 35] and to eliminate conflicts of interest between the investment adviser and the clients [Footnote 36] as safeguards both to "unsophisticated investors" and to "bona fide investment counsel." [Footnote 37] The Investment Advisers Act of 1940 thus reflects a congressional recognition "of the delicate fiduciary nature of an investment advisory relationship," [Footnote 38] as well as a congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline as investment adviser -- Page 375 U. S. 192 consciously or unconsciously -- to render advice which was not disinterested. It would defeat the manifest purpose of the Investment Advisers Act of 1940 for us to hold, therefore, that Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit," intended to require proof of intent to injure and actual injury to clients.This conclusion, moreover, is not in derogation of the common law of fraud, as the District Court and the majority of the Court of Appeals suggested. To the contrary, it finds support in the process by which the courts have adapted the common law of fraud to the commercial transactions of our society. It is true that, at common law, intent and injury have been deemed essential elements in a damage suit between parties to an arm's-length transaction. [Footnote 39] But this it not such an action. [Footnote 40] This is a Page 375 U. S. 193 suit for a preliminary injunction in which the relief sought is, as the dissenting judges below characterized it, the "mild prophylactic," 306 F.2d at 613, of requiring a fiduciary to disclose to his clients not all his security holdings, but only his dealings in recommended securities just before and after the issuance of his recommendations.The content of common law fraud has not remained static, as the courts below seem to have assumed. It has varied, for example, with the nature of the relief sought, the relationship between the parties, and the merchandise in issue. It is not necessary in a suit for equitable or prophylactic relief to establish all the elements required in a suit for monetary damages."Law had come to regard fraud . . . as primarily a tort, and hedged about with stringent requirements, the chief of which was a strong moral, or rather immoral element, while equity regarded it, as it had all along regarded it, as a conveniently comprehensive word for the expression of a lapse from the high standard of conscientiousness that it exacted from any party occupying a certain contractual or fiduciary relation towards another party. [Footnote 41]""Fraud has a broader meaning in equity [than at law], and intention to defraud or to misrepresent is not a necessary element. [Footnote 42] "Page 375 U. S. 194"Fraud, indeed, in the sense of a court of equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. [Footnote 43]"Nor is it necessary in a suit against a fiduciary, which Congress recognized the investment adviser to be, to establish all the elements required in a suit against a party to an arm's-length transaction. Courts have imposed on a fiduciary an affirmative duty of "utmost good faith, and full and fair disclosure of all material facts," [Footnote 44] as well as an affirmative obligation "to employ reasonable care to avoid misleading" [Footnote 45] his clients. There has also been a growing recognition by common law courts that the doctrines of fraud and deceit which developed around transactions involving land and other tangible items of wealth are ill suited to the sale of such intangibles as advice and securities, and that, accordingly, the doctrines must be adapted to the merchandise in issue. [Footnote 46] The 1909 New York case of Ridgely v. Keene, 134 App.Div. 647, 119 N.Y.S. 451, illustrates this continuing development. An investment adviser who, like respondents, published an investment advisory service, agreed, for compensation, to influence his clients to buy shares in a certain security. He did not disclose the agreement to his client, but sought "to excuse his conduct by asserting that . . . he honestly Page 375 U. S. 195 believed that his subscribers would profit by his advice. . . ." The court, holding that "his belief in the soundness of his advice is wholly immaterial," declared the act in question "a palpable fraud."We cannot assume that Congress, in enacting legislation to prevent fraudulent practices by investment advisers, was unaware of these developments in the common law of fraud. Thus, even if we were to agree with the courts below that Congress had intended, in effect, to codify the common law of fraud in the Investment Advisers Act of 1940, it would be logical to conclude that Congress codified the common law "remedially" as the courts had adapted it to the prevention of fraudulent securities transactions by fiduciaries, not "technically" as it has traditionally been applied in damage suits between parties to arm's-length transactions involving land and ordinary chattels.The foregoing analysis of the judicial treatment of common law fraud reinforces our conclusion that Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit" upon a client, did not intend to require proof of intent to injure and actual injury to the client. Congress intended the Investment Advisers Act of 1940 to be construed, like other securities legislation "enacted for the purpose of avoiding frauds," [Footnote 47] not technically and restrictively, but flexibly to effectuate its remedial purposes.IIWe turn now to a consideration of whether the specific conduct here in issue was the type which Congress intended to reach in the Investment Advisers Act of 1940. Page 375 U. S. 196 It is arguable -- indeed, it was argued by "some investment counsel representatives" who testified before the Commission -- that any "trading by investment counselors for their own account in securities in which their clients were interested . . ." [Footnote 48] creates a potential conflict of interest which must be eliminated. We need not go that far in this case, since here the Commission seeks only disclosure of a conflict of interests with significantly greater potential for abuse than in the situation described above. An adviser who, like respondents, secretly trades on the market effect of his own recommendation may be motivated -- consciously or unconsciously -- to recommend a given security not because of its potential for long-run price increase (which would profit the client), but because of its potential for short-run price increase in response to anticipated activity from the recommendation (which would profit the adviser). [Footnote 49] An investor seeking the advice of a registered investment adviser must, if the legislative purpose is to be served, be permitted to evaluate such overlapping motivations, through appropriate disclosure, in deciding whether an adviser is serving "two masters" or only one, "especially . . . if one of the masters happens to be economic self-interest." United States v. Mississippi Valley Generating Co., 364 U. S. 520, 364 U. S. 549. [Footnote 50] Accordingly, Page 375 U. S. 197 we hold that the Investment Advisers Act of 1940 empowers the courts, upon a showing such as that made here, to require an adviser to make full and frank disclosure of his practice of trading on the effect of his recommendations.IIIRespondents offer three basic arguments against this conclusion. They argue first that Congress could have made, but did not make, failure to disclose material facts unlawful in the Investment Advisers Act of 1940, as it did in the Securities Act of 1933, [Footnote 51] and that, absent specific language, it should not be assumed that Congress intended to include failure to disclose in its general proscription of any practice which operates as a fraud or deceit. But considering the history and chronology of the statutes, this omission does not seem significant. The Securities Page 375 U. S. 198 Act of 1933 was the first experiment in federal regulation of the securities industry. It was understandable, therefore, for Congress, in declaring certain practices unlawful, to include both a general proscription against fraudulent and deceptive practices and, out of an abundance of caution, a specific proscription against nondisclosure. It soon became clear, however, that the courts, aware of the previously outlined developments in the common law of fraud, were merging the proscription against nondisclosure into the general proscription against fraud, treating the former, in effect, as one variety of the latter. For example, in Securities & Exchange Comm'n v. Torr, 15 F. Supp. 315 (D.C.S.D.N.Y.1936), rev'd on other grounds, 87 F.2d 446, Judge Patterson held that suppression of information material to an evaluation of the disinterestedness of investment advice "operated as a deceit on purchasers," 15 F. Supp. at 317. Later cases also treated nondisclosure as one variety of fraud or deceit. [Footnote 52] In light of this, and in light of the evident purpose of the Investment Advisers Act of 1940 to substitute a philosophy of disclosure for the philosophy of caveat emptor, we cannot assume that the omission in the 1940 Act of a specific proscription against nondisclosure was intended to limit the application of the anti-fraud and anti-deceit provisions of the Act so as to render the Commission impotent to enjoin suppression of material facts. The more reasonable assumption, considering what had transpired between 1933 and 1940, is that Congress, in enacting the Investment Advisers Act of 1940 and proscribing Page 375 U. S. 199 any practice which operates "as a fraud or deceit," deemed a specific proscription against nondisclosure surplusage.Respondents also argue that the 1960 amendment [Footnote 53] to the Investment Advisers Act of 1940 justifies a narrow interpretation of the original enactment. The amendment made two significant changes which are relevant here. "Manipulative" practices were added to the list of those specifically proscribed. There is nothing to suggest, however, that, with respect to a requirement of disclosure, "manipulative" is any broader than fraudulent or deceptive. [Footnote 54] Nor is there any indication that, by adding the new proscription, Congress intended to narrow the scope of the original proscription. The new amendment also authorizes the Commission"by rules and regulations [to] define, and prescribe means reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative."The legislative history offers no indication, however, that Congress intended such rules to substitute for the "general and flexible" anti-fraud provisions which have long been considered necessary to control "the versatile inventions of fraud-doers." [Footnote 55] Moreover, the intent of Congress must be culled from the events surrounding the passage of Page 375 U. S. 200 the 1940 legislation. "[O]pinions attributed to a Congress twenty years after the event cannot be considered evidence of the intent of the Congress of 1940." Securities & Exchange Comm'n v. Capital Gains Research Bureau, Inc., 306 F.2d 606, 615 (dissenting opinion). See United States v. Philadelphia Nat. Bank, 374 U. S. 321, 374 U. S. 348-349.Respondents argue, finally, that their advice was "honest" in the sense that they believed it was sound, and did not offer it for the purpose of furthering personal pecuniary objectives. This, of course, is but another way of putting the rejected argument that the elements of technical common law fraud -- particularly intent -- must be established before an injunction requiring disclosure may be ordered. It is the practice itself, however, with its potential for abuse, which "operates as a fraud or deceit" within the meaning of the Act when relevant information is suppressed. The Investment Advisers Act of 1940 was "directed not only at dishonor, but also at conduct that tempts dishonor." United States v. Mississippi Valley Generating Co., 364 U. S. 520, 364 U. S. 549. Failure to disclose material facts must be deemed fraud or deceit within its intended meaning, for, as the experience of the 1920's and 1930's amply reveals, the darkness and ignorance of commercial secrecy are the conditions upon which predatory practices best thrive. To impose upon the Securities and Exchange Commission the burden of showing deliberate dishonesty as a condition precedent to protecting investors through the prophylaxis of disclosure would effectively nullify the protective purposes of the statute. Reading the Act in light of its background, we find no such requirement commanded. Neither the Commission nor the courts should be required "to separate the mental urges," Peterson v. Greenville, 373 U. S. 244, 373 U. S. 248, of an investment adviser, for "[t]he motives of man are too complex . . . Page 375 U. S. 201 to separate. . . ." Mosser v. Darrow, 341 U. S. 267, 341 U. S. 271. The statute, in recognition of the adviser's fiduciary relationship to his clients, requires that his advice be disinterested. To insure this, it empowers the courts to require disclosure of material facts. It misconceives the purpose of the statute to confine its application to "dishonest," as opposed to "honest," motives. As Dean Shulman said in discussing the nature of securities transactions, what is required is "a picture not simply of the show window, but of the entire store . . . , not simply truth in the statements volunteered, but disclosure." [Footnote 56] The high standards of business morality exacted by our laws regulating the securities industry do not permit an investment adviser to trade on the market effect of his own recommendations without fully and fairly revealing his personal interests in these recommendations to his clients.Experience has shown that disclosure in such situations, while not onerous to the adviser, is needed to preserve the climate of fair dealing which is so essential to maintain public confidence in the securities industry and to preserve the economic health of the country.The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for proceedings consistent with this opinion.Reversed

U.S. Supreme CourtSEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180 (1963)Securities and Exchange Commission v.Capital Gains Research Bureau, Inc.No. 42Argued October 21, 1963Decided December 9, 1963375 U.S. 180SyllabusUnder the Investment Advisers Act of 1940, the Securities and Exchange Commission may obtain an injunction compelling a registered investment adviser to disclose to his clients a practice of purchasing shares of a security for his own account shortly before recommending that security for long-term investment and then immediately selling his own shares at a profit upon the rise in the market price following the recommendation, since such a practice "operates as a fraud or deceit upon any client or prospective client" within the meaning of the Act. Pp. 375 U. S. 181-201.(a) Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit" upon a client, did not intend to require proof of intent to injure and actual injury to the client; it intended the Act to be construed like other securities legislation "enacted for the purpose of avoiding frauds," not technically and restrictively, but rather flexibly to effectuate its remedial purposes. Pp. 375 U. S. 186-195.(b) The Act empowers the courts, upon a showing such as that made here, to require an adviser to make full and frank disclosure of his practice of trading on the effect of his recommendations. Pp. 375 U. S. 195-197.(c) In the light of the evident purpose of the Act to substitute a philosophy of disclosure for the philosophy of caveat emptor, it cannot be assumed that the omission from the Act of a specific proscription against nondisclosure was intended to limit the application of the anti-fraud and anti-deceit provisions of the Act so as to render the Commission impotent to enjoin suppression of material facts. Pp. 375 U. S. 197-199.(d) The 1960 amendment to the Act does not justify a narrow interpretation of the original enactment. Pp. 375 U. S. 199-200. Page 375 U. S. 181(e) Even if respondents' advice was "honest," in the sense that they believed it was sound and did not offer it for the purpose of furthering personal pecuniary objectives, the Commission was entitled to an injunction requiring disclosure. Pp. 375 U. S. 200-201.306 F.2d 606 reversed and remanded.

1960_225

MR. JUSTICE BRENNAN delivered the opinion of the Court.This appeal presents the question whether due process under the Fourteenth Amendment was denied the appellants by the application in this case of Missouri's procedures authorizing the search for and seizure of allegedly obscene publications preliminarily to their destruction by burning or otherwise if found by a court to be obscene. The procedures are statutory, but are supplemented by a rule of the Missouri Supreme Court. [Footnote 1] The warrant for search for and seizure of obscene material issues on a sworn complaint filed with a judge or magistrate. [Footnote 2] Page 367 U. S. 719 If the complainant states "positively and not upon information or belief," or states "evidential facts from which such judge or magistrate determines the existence of probable cause" to believe that obscene material "is being held or kept in any place or in any building,""such judge or magistrate shall issue a search warrant directed to any peace officer commanding him to search the place therein described and to seize and bring before such judge or magistrate the personal property therein described. [Footnote 3]"The owner of the property is not afforded a Page 367 U. S. 720 hearing before the warrant issues; the proceeding is ex parte. However, the judge or magistrate issuing the warrant must fix a date, not less than five nor more than 20 days after the seizure, for a hearing to determine whether the seized material is obscene. [Footnote 4] The owner of the material may appear at such hearing and defend Page 367 U. S. 721 against the charge. [Footnote 5] No time limit is provided within which the judge must announce his decision. If the judge finds that the material is obscene, he is required to order it to be publicly destroyed, by burning or otherwise; if he finds that it is not obscene, he shall order its return to its owner. [Footnote 6]The Missouri Supreme Court sustained the validity of the procedures as applied in this case. 334 S.W.2d 119. The appellants brought this appeal here under 28 U.S.C. § 1257(2). We postponed consideration of the question of our jurisdiction to the hearing of the case on the merits. 364 U.S. 811. We hold that the appeal is properly here, see Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, and turn to the merits.Appellant, Kansas City News Distributors, managed by appellant, Homer Smay, is a wholesale distributor of magazines, newspapers and books in the Kansas City area. The other appellants operate five retail newsstands Page 367 U. S. 722 in Kansas City. In October 1957, Police Lieutenant Coughlin of the Kansas City Police Department Vice Squad was conducting an investigation into the distribution of allegedly obscene magazines. On October 8, 1957, he visited Distributors' place of business and showed Smay a list of magazines. Smay admitted that his company distributed all but one of the magazines on the list. The following day, October 9, Lieutenant Coughlin visited the five newsstands and purchased one magazine at each. [Footnote 7] On October 10, the officer signed and filed six sworn complaints in the Circuit Court of Jackson County, stating in each complaint that "of his own knowledge" the appellant named therein, at its stated place of business, "kept for the purpose of [sale] . . . obscene . . . publications. . . ." No copy of any magazine on Lieutenant Coughlin's list, or purchased by him at the newsstands, was filed with the complaint or shown to the circuit judge. The circuit judge issued six search warrants authorizing, as to the premises of the appellant named in each,"any peace officer in the State of Missouri . . . [to] search the said premises . . . within 10 days after the issuance of this warrant by day or night, and . . . seize . . . [obscene materials] and take same into your possession. . . ."All of the warrants were executed on October 10, but by different law enforcement officers. Lieutenant Coughlin, with two other Kansas City police officers and an officer of the Jackson County Sheriff's Patrol, executed the warrant against Distributors. Distributors' stock of magazines runs "into hundreds of thousands . . . [p]robably closer to a million copies." The officers examined the publications in the stock on the main floor of the establishment, Page 367 U. S. 723 not confining themselves to Lieutenant Coughlin's original list. They seized all magazines which, "[i]n our judgment," were obscene; when an officer thought "a magazine . . . ought to be picked up," he seized all copies of it. After three hours, the examination was completed, the the magazines seized were "hauled away in a truck, and put on the 15th floor of the courthouse." A substantially similar procedure was followed at each of the five newsstands. Approximately 11,000 copies of 280 publications, principally magazines but also some books and photographs, were seized at the six places. [Footnote 8]The circuit judge fixed October 17 for the hearing, which was later continued to October 23. Timely motions were made by the appellants to quash the search warrants and to suppress as evidence the property seized, and for the immediate return of the property. The motions were rested on a number of grounds, but we are concerned only with the challenge to the application of the procedures in the context of the protections for free speech and press assured against state abridgement by the Fourteenth Amendment. [Footnote 9] Unconstitutionality in violation of the Fourteenth Amendment was asserted because the procedures as applied (1) allowed a seizure by police officers"without notice or any hearing afforded to the movants prior to seizure for the purpose of determining whether or not these . . . publications are obscene . . . , "Page 367 U. S. 724and (2) because they"allowed police officers and deputy sheriffs to decide and make a judicial determination after the warrant was issued as to which . . . magazines were . . . obscene . . . and were subject to seizure, impairing movants' freedom of speech and publication."The circuit judge reserved rulings on the motions, and heard testimony of the police officers concerning the events surrounding the issuance and execution of the several warrants. On December 12, 1957, the circuit judge filed an unreported opinion in which he overruled the several motions and found that 100 of the 280 seized items were obscene. A judgment thereupon issued directing that the 100 items, and all copies thereof,"shall be retained by the Sheriff of Jackson County . . . as necessary evidence for the purpose of possible criminal prosecution or prosecutions, and, when such necessity no longer exists, said Sheriff . . . shall publicly destroy the same by burning within thirty days thereafter;"it ordered further that the 180 items not found to be obscene, and all copies thereof, "shall be returned forthwith by the Sheriff . . . to the rightful owner or owners. . . ."IThe use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new. Historically, the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. See generally Siebert, Freedom of the Press in England, 1476-1776; Hanson, Government and the Press, 1695-1763. It was a principal instrument for the enforcement of the Tudor licensing system. The Stationers' Company was incorporated in 1557 to help implement that system, and was empowered"to make search whenever it shall please them in any place, shop, Page 367 U. S. 725 house, chamber, or building or any printer, binder or bookseller whatever within our kingdom of England or the dominions of the same of or for any books or things printed, or to be printed, and to seize, take hold, burn, or turn to the proper use of the aforesaid community, all and several those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation, made or to be made. . . . [Footnote 10]"An order of counsel confirmed and expanded the Company's power in 1566, [Footnote 11] and the Star Chamber reaffirmed it in 1586 by a decree"That it shall be lawful for the wardens of the said Company for the time being or any two of the said Company thereto deputed by the said wardens, to make search in all workhouses, shops, warehouses of printers, booksellers, bookbinders, or where they shall have reasonable cause of suspicion, and all books [etc.] . . . contrary to . . . these present ordinances to stay and take to her Majesty's use. . . . [Footnote 12]"Books thus seized were taken to Stationers' Hall where they were inspected by ecclesiastical officers, who decided whether they should be burnt. These powers were exercised under the Tudor censorship to suppress both Catholic and Puritan dissenting literature. [Footnote 13]Each succeeding regime during turbulent Seventeenth Century England used the search and seizure power to suppress publications. James I commissioned the ecclesiastical judges comprising the Court of High Commission"to enquire and search for . . . all heretical, schismatical and seditious books, libels, and writings, and all other books, pamphlets and portraitures offensive to the state or set forth without sufficient and lawful authority in that Page 367 U. S. 726 behalf, . . . and the same books [etc.] and their printing presses themselves likewise to seize and so to order and dispose of them . . . as they may not after serve or be employed for any such unlawful use. . . . [Footnote 14]"The Star Chamber decree of 1637, reenacting the requirement that all books be licensed, continued the broad powers of the Stationers' Company to enforce the licensing laws. [Footnote 15] During the political overturn of the 1640's, Parliament on several occasions asserted the necessity of a broad search and seizure power to control printing. Thus, an order of 1648 gave power to the searchers"to search in any house or place where there is just cause of suspicion that Presses are kept and employed in the printing of Scandalous and lying Pamphlets, . . . [and] to seize such scandalous and lying pamphlets as they find upon search. . . . [Footnote 16]"The Restoration brought a new licensing act in 1662. Under its authority, "messengers of the press" operated under the secretaries of state, who issued executive warrants for the seizure of persons and papers. These warrants, while sometimes specific in content, often gave the most general discretionary authority. For example, a warrant to Roger L'Estrange, the Surveyor of the Press, empowered him to "seize all seditious books and libels and to apprehend the authors, contrivers, printers, publishers, and dispersers of them," and to"search any house, shop, printing room, chamber, warehouse, etc. for seditious, scandalous or unlicensed pictures, books, or papers, to bring away or deface the same, and the letter press, taking away all the copies. . . . [Footnote 17]"Another warrant gave L'Estrange power to"search for Page 367 U. S. 727 & seize authors, contrivers, printers, . . . publishers, dispensers, & concealers of treasonable, schismaticall, seditious or unlicensed books, libells, pamphlets, or papers . . . together with all copys exemplaryes of such Books, libells, pamphlets or paper as aforesaid. [Footnote 18]"Although increasingly attacked, the licensing system was continued in effect for a time even after the Revolution of 1688, and executive warrants continued to issue for the search for and seizure of offending books. The Stationers' Company was also ordered"to make often and diligent searches in all such places you or any of you shall know or have any probable reason to suspect, and to seize all unlicensed, scandalous books and pamphlets. . . . [Footnote 19]"And even when the device of prosecution for seditious libel replaced licensing as the principal governmental control of the press, [Footnote 20] it too was enforced with the aid of general warrants -- authorizing either the arrest of all persons connected with the publication of a particular libel and the search of their premises or the seizure of all the papers of a named person alleged to be connected with the publication of a libel. [Footnote 21] Page 367 U. S. 728Enforcement through general warrants was finally judicially condemned in England. This was the consequence of the struggle of the 1760's between the Crown and the opposition press led by John Wilkes, author and editor of the North Briton. From this struggle came the great case of Entick v. Carrington, 19 How.St.Tr. 1029, which this Court has called "one of the landmarks of English liberty." Boyd v. United States, 116 U. S. 616, 116 U. S. 626. A warrant based on a charge of seditious libel issued for the arrest of Entick, writer for an opposition paper, and for the seizure of all his papers. The officers executing the warrant ransacked Entick's home for four hours and carted away great quantities of books and papers. Lord Camden declared the general warrant for the seizure of papers contrary to the common law, despite its long history. Camden said:"This power so assumed by the secretary of state is an execution upon all the party's papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper."At 1064. Camden expressly dismissed the contention that such a warrant could be justified on the grounds that it was"necessary for the ends of government to lodge such a power with a state officer; and . . . better to prevent the publication before than to punish the offender afterwards."At 1073. In Wilkes v. Wood, 19 How.St.Tr. 1153, Camden also condemned the general warrants employed against John Wilkes for his publication of issue No. 45 of the North Briton. He declared that these warrants, calling for the arrest of unnamed persons connected with the alleged libel and seizure of their papers, amounted to a"discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is Page 367 U. S. 729 truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject."Id., 1167. [Footnote 22]This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. For the serious hazard of suppression of innocent expression inhered in the discretion confided in the officers authorized to exercise the power.IIThe question here is whether the use by Missouri in this case of the search and seizure power to suppress Page 367 U. S. 730 obscene publications involved abuses inimical to protected expression. We held in Roth v. United States, 354 U. S. 476, 354 U. S. 485, [Footnote 23] that "obscenity is not within the area of constitutionally protected speech or press." But, in Roth itself, we expressly recognized the complexity of the test of obscenity fashioned in that case and the vital necessity in its application of safeguards to prevent denial of "the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest." Id., p. 354 U. S. 488. We have since held that a State's power to suppress obscenity is limited by the constitutional protections for free expression. In Smith v. California, 361 U. S. 147, 361 U. S. 155, we said,"The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power,"inasmuch as "our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene." Id., p. 361 U. S. 152. We therefore held that a State may not impose absolute criminal liability on a bookseller for the possession of obscene material even if it may dispense with the element of scienter in dealing with such evils as impure food and drugs. We remarked the distinction between the cases:"There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller."Id. at 361 U. S. 152-153. The Missouri Supreme Court's assimilation of obscene literature to gambling paraphernalia or other contraband for purposes of search and seizure does not, therefore, answer the appellants' constitutional claim, but merely restates the issue Page 367 U. S. 731 whether obscenity may be treated in the same way. The authority to the police officers under the warrants issued in this case, broadly to seize "obscene . . . publications," poses problems not raised by the warrants to seize "gambling implements" and "all intoxicating liquors" involved in the cases cited by the Missouri Supreme Court. 334 S.W.2d at page 125. For the use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications.". . . [T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. . . . The separation of legitimate from illegitimate speech calls for . . . sensitive tools. . . ."Speiser v. Randall, 357 U. S. 513, 357 U. S. 525. [Footnote 24] It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved, without regard to the possible consequences for constitutionally protected speech.We believe that Missouri's procedures, as applied in this case, lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled. Putting to one side the fact that no opportunity was afforded the appellants to elicit and contest the reasons for the officer's belief, or otherwise to argue against the propriety of the seizure to the issuing judge, still the warrants issued on the strength Page 367 U. S. 732 of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene. The warrants gave the broadest discretion to the executing officers; they merely repeated the language of the statute and the complaints, specified no publications, and left to the individual judgment of each of the many police officers involved the selection of such magazines as in his view constituted "obscene . . . publications." So far as appears from the record, none of the officers except Lieutenant Coughlin had previously examined any of the publications which were subsequently seized. It is plain that, in many instances, if not in all, each officer actually made ad hoc decisions on the spot and, gauged by the number of publications seized and the time spent in executing the warrants, each decision was made with little opportunity for reflection and deliberation. As to publications seized because they appeared on the Lieutenant's list, we know nothing of the basis for the original judgment that they were obscene. It is no reflection on the good faith or judgment of the officers to conclude that the task they were assigned was simply an impossible one to perform with any realistic expectation that the obscene might be accurately separated from the constitutionally protected. They were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity. See generally 1 Chafee, Government and Mass Communications, pp. 200-218. In consequence, there were suppressed and withheld from the market for over two months 180 publications not found obscene. [Footnote 25] The fact that only one-third of the Page 367 U. S. 733 publications seized were finally condemned strengthens the conclusion that discretion to seize allegedly obscene materials cannot be confided to law enforcement officials without greater safeguards than were here operative. Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees. [Footnote 26] Page 367 U. S. 734IIIThe reliance of the Missouri Supreme Court upon Kingsley Books, Inc., v. Brown, 354 U. S. 436, is misplaced. The differences in the procedures under the New York statute upheld in that case and the Missouri procedures as applied here are marked. They amount to the distinction between "a "limited injunctive remedy," under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene," Kingsley Books, supra, at 354 U. S. 437, and a scheme which, in operation, inhibited the circulation of publications indiscriminately because of the Page 367 U. S. 735 absence of any such safeguards. First, the New York injunctive proceeding was initiated by a complaint filed with the court which charged that a particular named obscene publication had been displayed, and to which were annexed copies of the publication alleged to be obscene. [Footnote 27] The court, in restraining distribution pending final judicial determination of the claim, thus had the allegedly obscene material before it, and could exercise an independent check on the judgment of the prosecuting authority at a point before any restraint took place. Second, the restraints in Kingsley Books, both temporary and permanent, ran only against the named publication; no catchall restraint against the distribution of all "obscene" material was imposed on the defendants there, comparable to the warrants here which authorized a mass seizure and the removal of a broad range of items from circulation. [Footnote 28] Third, Kingsley Books does not support the proposition that the State may impose the extensive Page 367 U. S. 736 restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether or not the material is legally obscene. This Court expressly noted there that the State was not attempting to punish the distributors for disobedience of any interim order entered before hearing. The Court pointed out that New York might well construe its own law as not imposing any punishment for violation of an interim order were the book found not obscene after due trial. 354 U.S. at 354 U. S. 443, note 2. But there is no doubt that an effective restraint -- indeed, the most effective restraint possible -- was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the police could lay their hands were physically removed from the newsstands and from the premises of the wholesale distributor. An opportunity comparable to that which the distributor in Kingsley Books might have had to circulate the publication despite the interim restraint and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public's opportunity to obtain the publications was thus determined by the distributor's readiness and ability to outwit the police by obtaining and selling other copies before they, in turn, could be seized. In addition to its unseemliness, we do not believe that this kind of enforced competition affords a reasonable likelihood that nonobscene publications, entitled to constitutional protection, will reach the public. A distributor may have every reason to believe that a publication is constitutionally protected and will be so held after judicial hearing, but his belief is unavailing as against the contrary judgment of Page 367 U. S. 737 the police officer who seizes it from him. [Footnote 29] Finally, a subdivision of the New York statute in Kingsley Books required that a judicial decision on the merits of obscenity be made within two days of trial, which, in turn, was required to be within one day of the joinder of issue on the request for an injunction. [Footnote 30] In contrast, the Missouri statutory scheme drawn in question here has no limitation on the time within which decision must be made -- only a provision for rapid trial of the issue of obscenity. And, in fact ,over two months elapsed between seizure and decision. [Footnote 31] In these circumstances, the restraint on the circulation Page 367 U. S. 738 of publications was far more thoroughgoing and drastic than any restraint upheld by this Court in Kingsley Books.Mass seizure in the fashion of this case was thus effected without any safeguards to protect legitimate expression. The judgment of the Missouri Supreme Court sustaining the condemnation of the 100 publications therefore cannot be sustained. We have no occasion to reach the question of the correctness of the finding that the publications are obscene. Nor is it necessary for us to decide in this case whether Missouri lacks all power under its statutory scheme to seize and condemn obscene material. Since a violation of the Fourteenth Amendment infected the proceedings, in order to vindicate appellants' constitutional rights, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMarcus v. Search Warrant, 367 U.S. 717 (1961)Marcus v. Search Warrant of Property at 104 East TenthStreet, Kansas City, MissouriNo. 225Argued March 30, 1961Decided June 19, 1961367 U.S. 717SyllabusProceeding under certain Missouri statutes, as supplemented by a rule of the State Supreme Court, a city police officer appeared in a state trial court and filed a sworn complaint that each of the appellants, a wholesale distributor of magazines, newspapers and books and the operators of five retail newsstands, kept "obscene" publications for sale. In an ex parte proceeding, without granting appellants a hearing or even seeing any of the publications in question, and without specifying any particular publications, the trial judge issued search warrants authorizing police officers to search appellants' premises and seize all "obscene" material. Different police officers searched appellants' premises and, after hasty examination, seized all copies of all publications which, in their judgment, were obscene. Nearly two weeks later, appellants were given a hearing, at which they moved to quash the search warrants, for return of the seized publications, and for suppression of their use in evidence, on the ground that their seizure violated the protection of free speech and press guaranteed by the Fourteenth Amendment. These motions were denied, and, over two months after the seizure, the trial court found that 100 of the seized publications were obscene, and it ordered their destruction; but it also found that 180 other seized publications were not obscene, and it ordered them returned to their owners. The State Supreme Court sustained the validity of these procedures, and an appeal was taken to this Court.Held:1. This Court had jurisdiction of the appeal under 28 U.S.C. § 1257(2). P. 367 U. S. 721.2. The search and seizure procedures applied in this case lacked the safeguards to nonobscene material which the Due Process Clause of the Fourteenth Amendment requires to prevent erosion of the constitutional guaranties of freedom of speech and press, and the judgment is reversed. Pp. 367 U. S. 729-738.(a) Under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity Page 367 U. S. 718 without regard to the possible consequences for constitutionally protected speech. Pp. 367 U. S. 729-731.(b) As applied in this case, Missouri's procedures confided to law enforcement officials broad discretion to seize allegedly obscene publications without adequate safeguards to assure nonobscene material the constitutional protection to which it is entitled. Pp. 367 U. S. 731-733.(c) Kingsley Books, Inc., v. Brown, 354 U. S. 436, distinguished. Pp. 367 U. S. 731-738.334 S.W.2d 119, reversed.

1993_92-1479

abrogated by Reliable Transfer and is not in tension with the proportionate share approach. Pp. 218-221.979 F.2d 1068, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Arden J. Lea argued the cause for petitioner. With him on the briefs was R. Jeffrey Bridger.William K. Kelley argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Acting Deputy Solicitor General Kneedler, Richard A. Olderman, and David v: Hutchinson.Robert E. Couhig, Jr., argued the cause for respondents.With him on the brief was Thomas G. O'Brien.*JUSTICE STEVENS delivered the opinion of the Court.A construction accident in the Gulf of Mexico gave rise to this admiralty case. In advance of trial, petitioner, the plaintiff, settled with three of the defendants for $1 million. Respondents, however, did not settle, and the case went to trial. A jury assessed petitioner's loss at $2.1 million and allocated 32% of the damages to respondent AmClyde and 38% to respondent River Don Castings, Ltd. (River Don). The question presented is whether the liability of the non settling defendants should be calculated with reference to the jury's allocation of proportionate responsibility, or by giving the non settling defendants a credit for the dollar amount of the settlement. We hold that the proportionate approach is the correct one.IPetitioner McDermott, Inc., purchased a specially designed, 5,OOO-ton crane from AmClyde.1 When petitioner*Warren B. Daly, Jr., and George W Healy III filed a brief for the Maritime Law Association of the United States as amicus curiae urging reversal.1 "Am Clyde," formerly known as "Clyde Iron," is a division of AMCA International, Inc.205first used the crane in an attempt to move an oil and gas production platform-the "Snapper deck" -from a barge to a structural steel base affixed to the floor of the Gulf of Mexico, a prong of the crane's main hook broke, causing massive damage to the deck and to the crane itself. The malfunction may have been caused by petitioner's negligent operation of the crane, by AmClyde's faulty design or construction, by a defect in the hook supplied by River Don, or by one or more of the three companies (the "sling defendants") that supplied the supporting steel slings.2Invoking the federal court's jurisdiction under 28 U. S. C. §§ 1332 and 1333(1),3 petitioner brought suit against AmClyde and River Don and the three sling defendants. The complaint sought a recovery for both deck damages and crane damages. On the eve of trial, petitioner entered into a settlement with the sling defendants. In exchange for $1 million, petitioner agreed to dismiss with prejudice its claims against the sling defendants, to release them from all liability for either deck or crane damages, and to indemnify them against any contribution action. The trial judge later ruled that petitioner's claim for crane damages was barred by East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858 (1986).In its opening statement at trial, petitioner McDermott "accepted responsibility for any part the slings played in causing the damage."4 McDermott, Inc. v. Clyde Iron, 9792 The three sling defendants, sometimes also described as the "settling defendants," were International Southwest Slings, Inc.; British Ropes, Ltd.; and Hendrik Veder B. V.3 Section 1333(1) provides: "The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled."4 McDermott's motive in taking upon itself responsibility for the sling defendant's fault is obscure. Perhaps it thought doing so would prevent a contribution action against the sling defendants and thus relieve McDermott of its indemnity obligation.206F. 2d 1068, 1070 (CA5 1993). The jury found that the total damages to the deck amounted to $2.1 million and, in answer to special interrogatories, allocated responsibility among the respective parties: 32% to AmClyde, 38% to River Don, and 30% jointly to McDermott and the sling defendants.5 The court denied a motion by respondents to reduce the judgment pro tanto by the $1 million settlement, and entered judgment against AmClyde for $672,000 (32% of $2.1 million) and against River Don for $798,000 (38% of $2.1 million). Even though the sum of those judgments plus the settlement proceeds exceeded the total damages found by the jury, the District Court concluded that petitioner had not received a double recovery because the settlement had covered both crane damages and deck damages.6The Court of Appeals held that a contractual provision precluded any recovery against AmClyde and that the trial judge had improperly denied a pro tanto settlement credit. It reversed the judgment against AmClyde entirely and reduced the judgment against River Don to $470,000. It arrived at that figure by making two calculations. First, it determined that petitioner's "full damage[s] award is $1.47 million ($2.1 million jury verdict less 30% attributed to McDermott/sling defendants)." 979 F. 2d, at 1081. Next, it deducted the "$1 million received in settlement to reach5 The special interrogatory treated McDermott and the sling defendants as a single entity and called for a percentage figure that covered them both. This combined treatment reflected McDermott's acceptance of responsibility for the damages caused by the sling defendants.6 The trial judge also noted that "[tJo hold as the defendants request would result in the settling defendants, who were at the most thirty percent (30%) responsible for the accident (no separate contributory negligence, if any, finding was made as to McDermott), paying One Million Dollars ($1,000,000.00) while the defendants who insisted on a trial and were found to be seventy percent (70%) liable would pay Four Hundred and Seventy Thousand Dollars ($470,000.00) between them. That is unjust .... " App. to Pet. for Cert. A-52 to A-53.207$470,000." Ibid. It treated this figure as the maximum that could be recovered from the nonsettling defendants. Because it was less than River Don's liability as found by the jury (38% of $2.1 million or $798,000), it directed the entry of judgment against River Don in that amount. Ibid.Because we have not previously considered how a settlement with less than all of the defendants in an admiralty case should affect the liability of nonsettling defendants, and because the Courts of Appeals have adopted different approaches to this important question, we granted certiorari. 509 U. S. 921 (1993).IIAlthough Congress has enacted significant legislation in the field of admiralty law,7 none of those statutes provides us with any "policy guidance" or imposes any limit on our authority to fashion the rule that will best answer the question presented by this case. See Miles v. Apex Marine Corp., 498 U. S. 19, 27 (1990). We are, nevertheless, in familiar waters because "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime." United States v. Reliable Transfer Co., 421 U. S. 397, 409 (1975).In the Reliable Transfer case we decided to abandon a rule that had been followed for over a century in assessing damages when both parties to a collision are at fault. We replaced the divided damages rule, which required an equal division of property damage whatever the relative degree of fault may have been, with a rule requiring that damages be assessed on the basis of proportionate fault when such an allocation can reasonably be made. Although the old rule avoided the difficulty of determining comparative degrees of7 See, e. g., Longshore and Harbor Workers' Compensation Act, 33 U. S. C. §§ 901-950; Death on the High Seas Act, 46 U. S. C. §§ 761-768; Public Vessels Act, 46 U. S. C. §§781-790.208negligence, we concluded that it was "unnecessarily crude and inequitable" and that "[p]otential problems of proof in some cases hardly require adherence to an archaic and unfair rule in all cases." Id., at 407. Thus the interest in certainty and simplicity served by the old rule was outweighed by the interest in fairness promoted by the proportionate fault rule.Our decision in Reliable Transfer was supported by a consensus among the world's maritime nations and the views of respected scholars and judges. See id., at 403-405. No comparable consensus has developed with respect to the issue in the case before us today. It is generally agreed that when a plaintiff settles with one of several joint tortfeasors, the nonsettling defendants are entitled to a credit for that settlement. There is, however, a divergence among respected scholars and judges about how that credit should be determined. Indeed, the American Law Institute (ALl) has identified three principal alternatives and, after noting that "[e]ach has its drawbacks and no one is satisfactory," decided not to take a position on the issue. Restatement (Second) of Torts § 886A, pp. 343-344 (1977). The ALl describes the three alternatives as follows:"(1) The money paid extinguishes any claim that the injured party has against the party released and the amount of his remaining claim against the other tortfeasor is reached by crediting the amount received; but the transaction does not affect a claim for contribution by another tortfeasor who has paid more than his equitable share of the obligation." Id., at 343."(2) The money paid extinguishes both any claims on the part of the injured party and any claim for contribution by another tortfeasor who has paid more than his equitable share of the obligation and seeks contribution." Ibid. (As in alternative (1), the amount of the injured party's claim against the other tortfeasors is cal-209culated by subtracting the amount of the settlement from the plaintiff's damages.)"(3) The money paid extinguishes any claim that the injured party has against the released tortfeasor and also diminishes the claim that the injured party has against the other tortfeasors by the amount of the equitable share of the obligation of the released tortfeasor." Id., at 344.8The first two alternatives involve the kind of "pro tanto" credit that respondents urge us to adopt. The difference between the two versions of the pro tanto approach is the recognition of a right of contribution against a settling defendant in the first but not the second. The third alternative, supported by petitioner, involves a credit for the settling defendants' "proportionate share" of responsibility for the total obligation. Under this approach, no suits for contribution from the settling defendants are permitted, nor are they necessary, because the nonsettling defendants pay no more than their share of the judgment.8 The three alternatives sketched by the ALl correspond to three detailed model Acts proposed by the National Conference of Commissioners on Uniform State Laws. Uniform Contribution Among Tortfeasors Act (1939 Act), 12 U. L. A. 57-59 (1975) (ALl Option 1); Revised Uniform Contribution Among Tortfeasors Act (1955 Revised Act), id., at 63-107 (ALl Option 2); Uniform Comparative Fault Act (1977 Act), 12 U. L. A. 45-61 (1993 Supp.) (ALl Option 3). Although the three ALl options are the most plausible, a number of others are possible. So, for example, in addition to arguing for the pro tanto rule, respondents suggest that we consider a rule that allows the nonsettling defendants to elect before trial either the pro tanto or the proportionate share rule. Although respondents claim support for their proposal in Texas and New York statutes, those statutes enact regimes quite different from that proposed by respondents. Texas Civ. Prac. & Rem. Code Ann. § 33.012(b) (Supp. 1994) (nonsettling defendant can choose pro tanto rule or reduction of damages by fixed proportion of total damages without regard to relative fault); N. Y. Gen. Oblig. Law § 15-108 (McKinney 1989) (pro tanto rule or proportionate share rule, whichever favors nonsettling defendants). We are unwilling to consider a rule that has yet to be applied in any jurisdiction.210The proportionate share approach 9 would make River Don responsible for precisely its share of the damages, $798,000 (38% of $2.1 million).lO A simple application of the pro tanto approach would allocate River Don $1.1 million in damages ($2.1 million total damages minus the $1 million settlement).l1 The Court of Appeals, however, made a different9 In this opinion, we use the phrase "proportionate share approach" to denote ALl Option 3. We have deliberately avoided use of the term "pro rata," which is often used to describe this approach, see, e. g., T. Schoenbaum, Admiralty and Maritime Law §4-15, p. 153 (1987), because that term is also used to describe an equal allocation among all defendants without regard to their relative responsibility for the loss. See In re Masters Mates & Pilots Pension Plan and IRAP Litigation, 957 F.2d 1020, 1028 (CA2 1992); Silver, Contribution Under the Securities Acts: The Pro Rata Method Revisited, 1992/1993 Ann. Survey Am. L. 273. Others have used different terms to describe the approach adopted here. Ibid. ("proportionate method"); Kornhauser & Revesz, Settlements Under Joint and Several Liability, 68 N. Y. U. L. Rev. 427, 438 (1993) ("apportioned share set-off rule"); Polinsky & Shavell, Contribution and Claim Reduction Among Antitrust Defendants: An Economic Analysis, 33 Stan. L. Rev. 447 (1981) ("claim reduction").10 It might be thought that, since AmClyde is immune from damages, River Don's liability should be $1.47 million (McDermott's $2.1 million loss minus 30% of $2.1 million, the share of liability attributed to the settling defendants and McDermott). This calculation would make River Don responsible not only for its own 38% share, but also for the 32% of the damages allocated by the jury to AmClyde. This result could be seen as mandated by principles of joint and several liability and by Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256 (1979). See infra, at 220-221. Nevertheless, McDermott has not requested that River Don pay any more than its 38% share of the damages. AmClyde is immune from damages because its contract with McDermott provided that free replacement of defective parts "shall constitute fulfillment of all liabilities ... whether based upon Contract, tort, strict liability or otherwise." 979 F.2d 1068, 1075 (CA5 1993) (emphasis omitted). The best way of viewing this contractual provision is as a quasi settlement in advance of any tort claims. Viewed as such, the proportionate credit in this case properly takes into account both the 30% of liability apportioned to the settling defendants (and McDermott) and the 32% allocated to AmClyde. This leaves River Don with $798,000 or 38% of the damages.11 For simplicity, we ignore AmClyde, which was found to be immune from damages by the Court of Appeals. Id., at 1075-1076. No party211calculation. Because McDermott "accepted responsibility for any part the sling played in causing the damage," 979 F. 2d, at 1070, the Court of Appeals treated the 30% of liability apportioned to "McDermott/sling defendants" as if that 30% had been caused solely by McDermott's own negligence. Id., at 1081. The Court of Appeals, therefore, gave River Don a double credit, first reducing the total loss by the McDermott/sling defendants' proportionate share and then applying the full pro tanto reduction to that amount. This double credit resulted in an award of only $470,000 ($2.1 million minus 30% of $2.1 million minus $1 million).12IIIIn choosing among the ALl's three alternatives, three considerations are paramount: consistency with the proportionate fault approach of United States v. Reliable Transfer, 421 U. S. 397 (1975), promotion of settlement, and judicial economy. ALl Option 1, pro tanto setoff with right of contribution against the settling defendant, is clearly inferior to the other two, because it discourages settlement and leads to unnecessary ancillary litigation. It discourages settlement, because settlement can only disadvantage the settling defendantP If a defendant makes a favorable settlement, inappeals that holding. Although AmClyde spent a considerable amount replacing the defective hook, River Don does not argue that that amount should be included in the calculation of its liability.12 Whether the Court of Appeals correctly applied the pro tanto rule in the context of McDermott's acceptance of responsibility for the sling damages is a difficult question. Fortunately, since we adopt the proportionate share approach, we need not answer it.13 Uniform Contribution Among Tortfeasors Act § 4 (1955 Revised Act), Commissioners' Comment, 12 U. L. A. 99 (1975); Kornhauser & Revesz, 68 N. Y. U. L. Rev., at 474; Polinsky & Shavell, 33 Stan. L. Rev., at 458-459, 462, 463. This argument assumes, in accordance with the law of most jurisdictions, that a settling defendant ordinarily has no right of contribution against other defendants. See Uniform Contribution Against Tortfeasors Act § l(d), 12 U. L. A. 63 (1975); Uniform Comparative Fault Act § 4(b), 12 U. L. A. 54 (1993 Supp.); Restatement (Second) of Torts § 886A(2) and Comment 1, pp. 337, 339 (1977).212which it pays less than the amount a court later determines is its share of liability, the other defendant (or defendants) can sue the settling defendant for contribution. The settling defendant thereby loses the benefit of its favorable settlement. In addition, the claim for contribution burdens the courts with additional litigation. The plaintiff can mitigate the adverse effect on settlement by promising to indemnify the settling defendant against contribution, as McDermott did here. This indemnity, while removing the disincentive to settlement, adds yet another potential burden on the courts, an indemnity action between the settling defendant and plaintiff.The choice between ALl Options 2 and 3, between the pro tanto rule without contribution against the settling tortfeasor and the proportionate share approach, is less clear. The proportionate share rule is more consistent with Reliable Transfer, because a litigating defendant ordinarily pays only its proportionate share of the judgment. Under the pro tanto approach, however, a litigating defendant's liability will frequently differ from its equitable share, because a settlement with one defendant for less than its equitable share requires the nonsettling defendant to pay more than its share.14 Such deviations from the equitable apportionment14 Suppose, for example, that a plaintiff sues two defendants, each equally responsible, and settles with one for $250,000. At trial, the nonsettling defendant is found liable, and plaintiff's damages are assessed at $1 million. Under the pro tanto rule, the nonsettling defendant would be liable for 75% of the damages ($750,000, which is $1 million minus $250,000). The litigating defendant is thus responsible for far more than its proportionate share of the damages. It is also possible for the pro tanto rule to result in the nonsettlor paying less than its apportioned share, if, as in this case, the settlement is greater than the amount later determined by the court to be the settlors' equitable share. For a more complex example illustrating the potential for unfairness under the pro tanto rule when the parties are not equally at fault, see Kornhauser & Revesz, 68 N. Y. U. L. Rev., at 455-456 (pro tanto rule can lead to defendant responsible for 75% of damages paying only 37.5% of loss, while 25% responsible defendant pays 31.25%).213of damages will be common, because settlements seldom reflect an entirely accurate prediction of the outcome of a trial. Moreover, the settlement figure is likely to be significantly less than the settling defendant's equitable share of the loss, because settlement reflects the uncertainty of trial and provides the plaintiff with a "war chest" with which to finance the litigation against the remaining defendants. Courts and legislatures have recognized this potential for unfairness and have required "good-faith hearings" as a remedy.15 When such hearings are required, the settling defendant is protected against contribution actions only if it shows that the settlement is a fair forecast of its equitable share of the judgment.16 Nevertheless, good-faith hearings cannot fully remove the potential for inequitable allocation of liabilityP First, to serve their protective function effectively, such hearings would have to be minitrials on the merits, but in practice they are often quite cursory.18 More fundamentally, even if the judge at a good-faith hearing were able to make a perfect forecast of the allocation of liability at trial, there might still be substantial unfairness when the plaintiff's suc-15 In re Masters Mates & Pilots Pension Plan and IRAP Litigation, 957 F.2d 1020 (CA2 1992); Miller v. Christopher, 887 F.2d 902, 906-907 (CA9 1989); Tech-Bilt, Inc. v. Woodward-Clyde & Assocs., 38 Cal. 3d 488, 698 P. 2d 159 (1985); Uniform Contribution Among Tortfeasors Act § 4 (1955 Revised Act), 12 U. L. A. 98 (1975) (enacted as statute law in 19 States, 12 U. L. A. 81 (1993 Supp.)).16 Tech-Bilt, Inc., 38 Cal. 3d, at 499, 698 P. 2d, at 166; Miller, 887 F. 2d, at 907; In re Masters, 957 F. 2d, at 1031; but see Noyes v. Raymond, 28 Mass. App. 186, 190, 548 N. E. 2d 196, 199 (1990) (judge in good-faith hearing should not scrutinize the settlement amount, but merely look for "collusion, fraud, dishonesty, and other wrongful conduct").17 Franklin v. Kaypro Corp., 884 F.2d 1222, 1230 (CA9 1989).18 Tech-Bilt, 38 Cal. 3d, at 500, 698 P. 2d, at 167 ("[T]he determination of good faith can be made by the court on the basis of affidavits"); TBG Inc. v. Bendis, 811 F. Supp. 596, 605, n. 17, 608 (Kan. 1992) (no "mini trial" required; settlement amount is "best available measure of liability").214cess at trial is uncertain.19 In sum, the pro tanto approach, even when supplemented with good-faith hearings, is likely to lead to inequitable apportionments of liability, contrary to Reliable Transfer.The effect of the two rules on settlements is more ambiguous. Sometimes the pro tanto approach will better promote settlement.2o This beneficial effect, however, is a conse-19 Suppose again, as in footnote 14, that plaintiff sues two equally culpable defendants for $1 million and settles with one for $250,000. At the good-faith hearing, the settling defendant persuasively demonstrates that the settlement is in good faith, because it shows that its share of liability is 50% and that plaintiff has only a 50% chance of prevailing at trial. The settlement thus reflects exactly the settling defendant's expected liability. If plaintiff prevails at trial, the nonsettling defendant will again be liable for 75% of the judgment even though its equitable share is only 50%. The only way to avoid this inequity is for the judge at the good-faith hearing to disallow any settlement for less than $500,000, that is, any settlement which takes into account the uncertainty of recovery at trial. Such a policy, however, carries a grave cost. It would make settlement extraordinarily difficult, if not impossible, in most cases. As a result, every jurisdiction that conducts a good-faith inquiry into the amount of the settlement takes into account the uncertainty of recovery at trial. Miller, 887 F. 2d, at 907-908; Tech-Bilt, 38 Cal. 3d, at 499, 698 P. 2d, at 166; TBG Inc., 811 F. Supp., at 600.20 Illustration of the beneficial effects of the pro tanto rule requires substantial simplifying assumptions. Suppose, for example, that all parties are risk neutral, that litigation is costless, and that there are only two defendants. In addition, suppose everyone agrees that the damages are $100, that if one defendant is found liable, the other one will also be found liable, and that if the defendants are liable, each will be apportioned 50% of the damages. And suppose, as frequently happens, that the plaintiff is more optimistic about his chances of prevailing than the defendants: Plaintiff thinks his chances of winning are 60%, whereas the defendants think the plaintiff's chances are only 50%. In this case, under the proportionate setoff rule, settlement is unlikely, because the plaintiff would be reluctant to accept less than $30 (60% times 50% of $100) from each defendant, whereas neither defendant would be disposed to offer more than $25 (50% times 50% of $100). On the other hand, under the pro tanto rule, the plaintiff would be willing to accept a $25 settlement offer, because he would believe he had a 60% chance of recovering $75 ($100 minus the $25 settlement) at trial from the other defendant. Accepting the $25 settlement offer would give the plaintiff an expected recovery of $70 ($25 plus215quence of the inequity discussed above. The rule encourages settlements by giving the defendant that settles first an opportunity to pay less than its fair share of the damages, thereby threatening the nonsettling defendant with the prospect of paying more than its fair share of the loss. By disadvantaging the party that spurns settlement offers, the pro tanto rule puts pressure on all defendants to settle.21 While public policy wisely encourages settlements, such additional pressure to settle is unnecessary. The parties' desire to avoid litigation costs, to reduce uncertainty, and to maintain ongoing commercial relationships is sufficient to ensure nontrial dispositions in the vast majority of cases.22 Under the proportionate share approach, such factors should ensure a similarly high settlement rate. The additional incentive to settlement provided by the pro tanto rule comes at too high a price in unfairness.23 Furthermore, any conclusion that the pro tanto rule generally encourages more settlements requires many simplifying assumptions, such as low litigation costs. Recognition of the reality that a host of practical60% of $75), which is more than the $60 (60% of $100) the plaintiff would expect if he went to trial against both defendants. For a more thorough discussion of settlement under the pro tanto rule, see Kornhauser & Revesz, 68 N. Y. U. L. Rev., at 447-465.21 See H. Hovenkamp, Economics and Federal Antitrust Law § 14.6, p. 377 (1985), summarizing Easterbrook, Landes, & Posner, Contribution among Antitrust Defendants: A Legal and Economic Analysis, 23 J. Law & Econ. 331, 353-360 (1980).22 Less than 5% of cases filed in federal court end in trial. Administrative Office of United States Courts, Annual Report of the Director, 186, 217 (1991) (Of 211,713 civil cases terminated between July 1, 1990, and June 30, 1991, only 11,024 involved trials). Although some of the nontrial terminations are the result of pretrial adjudications, such as summary judgments and contested motions to dismiss, the bulk of the nontrial terminations reflect settlements. Kritzer, Adjudication to Settlement: Shading in the Gray, 70 Judicature 161, 163-164 (1986).23 United States v. Reliable Transfer Co., 421 U. S. 397, 408 (1975) ("Congestion in the courts cannot justify a legal rule that produces unjust results in litigation simply to encourage speedy out-of-court accommodations").216considerations may be more significant than stark hypotheticals persuades us that the pro tanto rule has no clear advantage in promoting settlements.24The effect of the two rules on judicial economy is also ambiguous. The pro tanto rule, if adopted without the requirement of a good-faith hearing, would be easier to administer, because the relative fault25 of the settling defendant would not have to be adjudicated either at a preliminary hearing or at trial. Nevertheless, because of the large potential for unfairness, no party or amicus in this suit advocates the pro tanto rule untamed by good-faith hearings. Once the pro tanto rule is coupled with a good-faith hearing, however, it is difficult to determine whether the pro tanto or proportionate share approach best promotes judicial economy. Under either approach, the relative fault of the parties will have to24 An excellent discussion of the effect of the various rules on settlement is Kornhauser & Revesz, Settlement Under Joint and Several Liability, 68 N. Y. U. L. Rev. 427 (1993). After considering the effects of strategic behavior, litigation costs, and whether the probabilities of the defendants' being found liable at trial are "independent" or "correlated," they conclude that "neither rule is consistently better than the other." Id., at 492. In addition, in comparing the pro tanto and proportionate share rules, they generally assume that the pro tanto rule is implemented without goodfaith hearings. Good-faith hearings, however, "mak[e] the pro tanto setoff rule relatively less desirable from the perspective of inducing settlements than the apportioned [i. e. proportionate] share set-off rule." Id., at 476. Moreover, the pro tanto rule contains a unique disincentive to settlement in cases, like this one, in which the settlement covers more items of damage than the litigated judgment. McDermott argued that the settlement covered damage both to the crane and to the deck, whereas the judgment against River Don related only to the deck. The Court of Appeals refused to apportion the settlement between deck damages and crane damages and to credit River Don only with that portion related to deck damages. 979 F. 2d, at 1080. This refusal to apportion will greatly discourage settlement, because parties like McDermott will be unable to recover their full damages if they settle with one party.25 By referring to the relative fault of the parties, we express no disapproval of the lower courts' use of relative "causation" to allocate damages. See 979 F. 2d, at 1081-1082.217be determined. Under the pro tanto approach, the settling defendant's share of responsibility will have to be ascertained at a separate, pretrial hearing. Under the proportionate share approach, the allocation will take place at trial. The pro tanto approach will, therefore, save judicial time only if the good-faith hearing is quicker than the allocation of fault at trial. Given the cursory nature of most good-faith hearings, this may well be true. On the other hand, there is reason to believe that reserving the apportionment of liability for trial may save more time. First, the remaining defendant (or defendants) may settle before trial, thus making any determination of relative culpability unnecessary. In addition, the apportionment of damages required by the proportionate share rule may require little or no additional trial time. The parties will often need to describe the settling defendant's role in order to provide context for the dispute. Furthermore, a defendant will often argue the "empty chair" in the hope of convincing the jury that the settling party was exclusively responsible for the damage. The pro tanto rule thus has no clear advantage with respect to judicial economy.26In sum, although the arguments for the two approaches are closely matched, we are persuaded that the proportionate share approach is superior, especially in its consistency with Reliable Transfer.26 A further cost of the pro tanto rule would be incurred in cases in which the settlement covered more items of damage than the judgment. See n. 24, supra. To avoid discouraging settlement, the judge would have to figure out what proportion of the settlement related to damages covered by the judgment and what percentage related to damages covered only by the settlement. Presumably this allocation would be done by comparing the settling defendant's liability for the damages to be covered by the judgment to those not so covered. Ascertaining the liability of a settling defendant for damages not otherwise litigated at trial would be at least as difficult as ascertaining an absent defendant's responsibility for damages already the subject of litigation.218IVRespondents advance two additional arguments against the proportionate share approach: that it violates the "one satisfaction rule" and that it is inconsistent with Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256 (1979).In the 19th and early 20th centuries, the "one satisfaction rule" barred a plaintiff from litigating against one joint tortfeasor, if he had settled with and released another.27 This version of the one satisfaction rule has been thoroughly repudiated.28 Respondents do not ask that the one satisfaction rule be applied with its original strictness, but rather in the milder form in which some courts still invoke it to reduce a plaintiff's recovery against a nonsettling defendant in order to ensure that the plaintiff does not secure more than necessary to compensate him for his loss.29 As a preliminary matter, it is far from clear that there was any danger of supercompensatory damages here. First, there is the question of the crane damages, which were not covered by the judgment against River Don. In addition, even limiting consideration to deck damages, the jury fixed plaintiff's losses at $2.1 million. Plaintiff received $1 million in settlement from the sling defendants. Under the proportionate share approach, plaintiff would receive an additional $798,000 from River Don. In total, plaintiff would recover only $1.798 million, over $300,000 less than its damages. The one satisfaction rule comes into play only if one assumes that the percent share of liability apportioned to McDermott and the sling defendants really represented McDermott's contributory27 Conway v. Pottsville Union Traction Co., 253 Pa. 211, 97 A. 1058 (1916); Rogers v. Cox, 66 N. J. L. 432, 50 A. 143 (1901); w. Prosser, Law of Torts § 109, pp. 1105-1111 (1941).28W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 49, pp. 333-334 (5th ed. 1984); Restatement (Second) of Torts § 885(1), Comment b, at 334.29 Rose v. Associated Anesthesiologists, 501 F.2d 806, 809 (CADC 1974); Sanders v. Cole Municipal Finance, 489 N. E. 2d 117, 120 (Ind. App. 1986).219fault, and that it would be overcompensatory for McDermott to receive more than the percentage of the total loss allocated to the defendants, here $1.47 million (70% of $2.1 million).Even if the Court of Appeals were correct in finding that the proportionate share approach would overcompensate McDermott, we would not apply the one satisfaction rule. The law contains no rigid rule against overcompensation. Several doctrines, such as the collateral benefits rule,30 recognize that making tortfeasors pay for the damage they cause can be more important than preventing overcompensation. In this case, any excess recovery is entirely attributable to the fact that the sling defendants may have made an unwise settlement. It seems probable that in most cases in which there is a partial settlement, the plaintiff is more apt to accept less than the proportionate share that the jury might later assess against the settling defendant, because of the uncertainty of recovery at the time of settlement negotiations and because the first settlement normally improves the plaintiff's litigating posture against the nonsettlors. In such cases, the entire burden of applying a proportionate share rule would rest on the plaintiff, and the interest in avoiding overcompensation would be absent. More fundamentally, we must recognize that settlements frequently result in the plaintiff's getting more than he would have been entitled to at trial. Because settlement amounts are based on rough estimates of liability, anticipated savings in litigation costs, and a host of other factors, they will rarely match exactly30 See 4 F. Harper, F. James, & O. Gray, Law of Torts § 25.22 (2d ed. 1986) (injured person can recover full damages from tortfeasor, even when he has already been made whole by insurance or other compensatory payment); Restatement (Second) of Torts § 920A(2) (1977). The one satisfaction rule once applied to compensatory payments by nonparties as well, thus preventing or diminishing recovery in many situations in which the collateral benefits rules would now permit full judgment against the tortfeasor. W. Prosser, Law of Torts § 109, pp. 1105-1107 (1941).220the amounts a trier of fact would have set. It seems to us that a plaintiff's good fortune in striking a favorable bargain with one defendant gives other defendants no claim to pay less than their proportionate share of the total loss. In fact, one of the virtues of the proportionate share rule is that, unlike the pro tanto rule, it does not make a litigating defendant's liability dependent on the amount of a settlement negotiated by others without regard to its interests.Respondents also argue that the proportionate share rule is inconsistent with Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256 (1979). In that case, we refused to reduce the judgment against a shipowner by the proportionate fault attributed to a stevedore whose liability was limited by the Longshoremen's and Harbor Workers' Compensation Act. Instead, the Court allowed the plaintiff to collect from the shipowner the entirety of his damages, after adjusting for the plaintiff's own negligence. There is no inconsistency between that result and the rule announced in this opinion. Edmonds was primarily a statutory construction case and related to special interpretive questions posed by the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act. Both parties acknowledge that this case must be resolved by judge-made rules of law. Moreover, Edmonds did not address the issue in this case, the effect of a settlement on nonsettling defendants. Indeed, there was no settlement in that case. Instead, one can read that opinion as merely reaffirming the well-established principle of joint and several liability. As the Court pointed out, that principle was in no way abrogated by Reliable Transfer's proportionate fault approach. Edmonds, 443 U. S., at 271272, n. 30. In addition, as the Commissioners on Uniform State Laws have noted, there is no tension between joint and several liability and a proportionate share approach to settlements.31 Joint and several liability applies when there31 Uniform Comparative Fault Act §2, Comment "Joint and Several Liability and Equitable Shares of the Obligation," 12 U. L. A. 51 (1993 Supp.).221has been a judgment against multiple defendants. It can result in one defendant's paying more than its apportioned share of liability when the plaintiff's recovery from other defendants is limited by factors beyond the plaintiff's control, such as a defendant's insolvency. When the limitations on the plaintiff's recovery arise from outside forces, joint and several liability makes the other defendants, rather than an innocent plaintiff, responsible for the shortfall. Ibid.32 Unlike the rule in Edmonds, the proportionate share rule announced in this opinion applies when there has been a settlement. In such cases, the plaintiff's recovery against the settling defendant has been limited not by outside forces, but by its own agreement to settle. There is no reason to allocate any shortfall to the other defendants, who were not parties to the settlement. Just as the other defendants are not entitled to a reduction in liability when the plaintiff negotiates a generous settlement, see supra, at 219-220, so they are not required to shoulder disproportionate liability when the plaintiff negotiates a meager one.VThe judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1993SyllabusMcDERMOTT, INC. v. AMCLYDE ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 92-1479. Argued January 11, 1994-Decided April 20, 1994When petitioner McDermott, Inc., attempted to use a crane purchased from respondent AmClyde to move an offshore oil and gas production platform, a prong of the crane's hook broke, damaging both the platform and the crane itself. The malfunction may have been caused by McDermott's negligent operation of the crane, by AmClyde's faulty design or construction, by a defect in the hook supplied by respondent River Don Castings, Ltd., or by one or more of the three companies that supplied supporting steel slings. McDermott brought suit in admiralty against respondents and the three "sling defendants," but settled with the latter for $1 million. The case then went to trial, and the jury assessed McDermott's loss at $2.1 million, allocating 32% of the damages to AmClyde, 38% to River Don, and 30% jointly to petitioner and the sling defendants. Among other things, the District Court entered judgment against AmClyde for $672,000 (32% of $2.1 million) and against River Don for $798,000 (38% of $2.1 million). Holding that the contract between McDermott and AmClyde precluded any recovery against the latter and that the trial judge had improperly denied respondents' motion to reduce the judgment against them pro tanto by the settlement amount, the Court of Appeals reversed the judgment against AmClyde entirely and reduced the judgment against River Don to $470,000, which it computed by determining McDermott's full award to be $1.47 million ($2.1 million minus 30% attributed to McDermott/sling defendants), and then by deducting the $1 million settlement.Held: The nonsettling defendants' liability should be calculated with reference to the jury's allocation of proportionate responsibility, not by giving them a credit for the dollar amount of the settlement. Pp. 207-221.(a) Supported by a consensus among maritime nations, scholars, and judges, the Court, in United States v. Reliable Transfer Co., 421 U. S. 397,409, adopted a rule requiring that damages in an admiralty suit be assessed on the basis of proportionate fault when such an allocation can reasonably be made. No comparable consensus has developed with respect to the issue in this case. Although it is generally agreed that nonsettling joint tortfeasors are entitled to a credit when the plaintiff settles with one of the other defendants, there is a divergence of views203about how that credit should be determined. The American Law Institute (ALl) has identified three principal alternatives for doing so: (1) pro tanto setoff with a right of contribution against the settling defendant; (2) pro tanto setoff without contribution; and (3) the "proportionate share approach," whereby the settlement diminishes the injured party's claim against nonsettling tortfeasors by the amount of the equitable share of the obligation of the settling tortfeasor. pp. 207-211.(b) ALl Option 3, the proportionate share approach, best answers the question presented in this case. Option 1 is clearly inferior to the other two alternatives, because it discourages settlement and leads to unnecessary ancillary litigation. As between Options 2 and 3, the proportionate share approach is more consistent with the proportionate fault approach of Reliable Transfer, supra, because a litigating defendant ordinarily pays only its proportionate share of the judgment. Conversely, Option 2, even when supplemented with hearings to determine the good faith of the settlement, is likely to lead to inequitable apportionments of liability, contrary to Reliable Transfer. Moreover, although Option 2 sometimes seems to better promote settlement than Option 3, it must ultimately be seen to have no clear advantage in that regard, since, under the proportionate share approach, factors such as the parties' desire to avoid litigation costs, to reduce uncertainty, and to maintain ongoing commercial relationships should ensure nontrial dispositions in the vast majority of cases. Similarly, Option 2 has no clear advantage with respect to judicial economy unless it is adopted without the requirement of a good-faith hearing, a course which no party or amicus advocates because of the large potential for unfairness to nonsettling defendants, who might have to pay more than their fair share of the damages. Pp.211-217.(c) Respondents' argument that the proportionate share approach violates the "one satisfaction rule" -which, as applied by some courts, reduces a plaintiff's recovery against a nonsettling defendant in order to ensure that the plaintiff does not secure more than necessary to compensate him for his loss-is rejected, since the law contains no rigid rule against overcompensation, and, indeed, several doctrines, such as the collateral benefits rule, recognize that making tortfeasors pay for the damage they cause can be more important than preventing overcompensation. The argument that the proportionate share approach is inconsistent with Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256, is also rejected, since Edmonds was primarily a statutory construction case, did not address the question at issue here or even involve a settlement, and can be read as merely reaffirming the wellestablished principle of joint and several liability, which was in no way204Full Text of Opinion

1977_77-56

MR. JUSTICE POWELL delivered the opinion of the Court.We consider on this appeal whether a State may punish a member of its Bar who, seeking to further political and ideological goals through associational activity, including litigation, advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a nonprofit organization with which the lawyer and her associates are affiliated. Appellant, a member of the Bar of South Carolina, received a public reprimand for writing such a letter. The appeal is opposed by the State Attorney General, on behalf of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina. As this appeal presents a substantial question under the First and Fourteenth Amendments, as interpreted in NAACP v. Button, 371 U. S. 415 (1963), we noted probable jurisdiction.IAppellant, Edna Smith Primus, is a lawyer practicing in Columbia, S.C. During the period in question, she was associated with the "Carolina Community Law Firm," [Footnote 1] and was an officer of and cooperating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU). [Footnote 2] She received Page 436 U. S. 415 no compensation for her work on behalf of the ACLU, [Footnote 3] but was paid a retainer as a legal consultant for the South Carolina Council on Human Relations (Council), a nonprofit organization with offices in Columbia.During the summer of 1973, local and national newspapers reported that pregnant mothers on public assistance in Aiken County, S.C. were being sterilized or threatened with sterilization as a condition of the continued receipt of medical assistance under the Medicaid program. [Footnote 4] Concerned by this development, Gary Allen, an Aiken businessman and officer of a local organization serving indigents, called the Council requesting that one of its representatives come to Aiken to address some of the women who had been sterilized. At the Council's behest, appellant, who had not known Allen previously, called him and arranged a meeting in his office in July, 1973. Among those attending was Mary Etta Williams, who had been sterilized by Dr. Clovis H. Pierce after the birth of her third child. Williams and her grandmother attended the meeting because Allen, an old family friend, had invited Page 436 U. S. 416 them and because Williams wanted "[t]o see what it was all about. . . ." App. 412. At the meeting, appellant advised those present, including Williams and the other women who had been sterilized by Dr. Pierce, of their legal rights and suggested the possibility of a lawsuit.Early in August, 1973, the ACLU informed appellant that it was willing to provide representation for Aiken mothers who had been sterilized. [Footnote 5] Appellant testified that, after being advised by Allen that Williams wished to institute suit against Dr. Pierce, she decided to inform Williams of the ACLU's offer of free legal representation. Shortly after receiving appellant's letter, dated August 30, 1973 [Footnote 6] -- the centerpiece of this Page 436 U. S. 417 litigation -- Wllliams visited Dr. Pierce to discuss the progress of her third child, who was ill. At the doctor's office, she encountered his lawyer, and, at the latter's request, signed a release of liability in the doctor's favor. Williams showed appellant's letter to the doctor and his lawyer, and they retained a copy. She then called appellant from the doctor's office and announced her intention not to sue. There was no further communication between appellant and Williams.On October 9, 1974, the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina (Board) filed a formal complaint with the Board, charging that appellant had engaged in "solicitation in violation of the Canons of Ethics" by sending the August 30, 1973, letter to Williams. App. 1-2. Appellant denied any unethical solicitation and asserted, inter alia, that her conduct was protected by the First and Fourteenth Amendments and by Canon 2 of the Code of Professional Responsibility of the American Bar Association (ABA). The complaint was heard by a panel of the Board on March 20, 1975. The State's evidence consisted of the letter, the testimony of Williams, [Footnote 7] Page 436 U. S. 418 and a copy of the summons and complaint in the action instituted against Dr. Pierce and various state officials, Walker v. Pierce, Civ. No. 71 75 (SC, July 28, 1975.), aff'd in part and rev'd in part, 560 F.2d 609 (CA4 1977), cert. denied, 434 U.S. 1075 (1978). [Footnote 8] Following denial of appellant's motion to dismiss, App. 77-82, she testified in her own behalf and called Allen, a number of ACLU representatives, and several character witnesses. [Footnote 9]The panel filed a report recommending that appellant be found guilty of soliciting a client on behalf of the ACLU, in violation of Disciplinary Rules (DR) 2-103(D)(5)(a) and (c) [Footnote 10] and 2-104(A)(5) [Footnote 11] of the Supreme Court of South Page 436 U. S. 419 Carolina, [Footnote 12] and that a private reprimand be issued. It noted that"[t]he evidence is inconclusive as to whether [appellant] solicited Mrs. Williams on her own behalf, but she did solicit Page 436 U. S. 420 Mrs. Williams on behalf of the ACLU, which would benefit financially in the event of successful prosecution of the suit for money damages."The panel determined that appellant violated DR 2-103(D)(5)"by attempting to solicit a client for a nonprofit organization which, as its primary purpose, renders legal services, where respondent's associate is a Page 436 U. S. 421 staff counsel for the non-profit organization."Appellant also was found to have violated DR 104(A)(5) because she solicited Williams, after providing unsolicited legal advice, to join in a prospective class action for damages and other relief that was to be brought by the ACLU.After a hearing on January 9, 1976, the full Board approved the panel report and administered a private reprimand. On March 17, 1977, the Supreme Court of South Carolina entered an order which adopted verbatim the findings and conclusions of the panel report and increased the sanction, sua sponte, to a public reprimand. 268 S.C. 259, 233 S.E.2d 301.On July 9, 1977, appellant filed a jurisdictional statement and this appeal was docketed. We noted probable jurisdiction on October 3, 1977, sub nom. In re Smith, 434 U.S. 814. We now reverse.IIThis appeal concerns the tension between contending values of considerable moment to the legal profession and to society. Relying upon NAACP v. Button, 371 U. S. 415 (1963), and its progeny, appellant maintains that her activity involved constitutionally protected expression and association. In her view, South Carolina has not shown that the discipline meted out to her advances a subordinating state interest in a manner that avoids unnecessary abridgment of First Amendment freedoms. [Footnote 13] Appellee counters that appellant's letter to Williams falls outside of the protection of Button, and that Page 436 U. S. 422 South Carolina acted lawfully in punishing a member of its Bar for solicitation.The States enjoy broad power to regulate "the practice of professions within their boundaries," and"[t]he interest of the States in regulating lawyers is especially great, since lawyers are essential to the primary governmental function of administering justice, and have historically been 'officers of the courts.'"Goldfarb v. Virginia State Bar, 421 U. S. 773, 421 U. S. 792 (1975). For example, we decide today in Ohralik v. Ohio State Bar Assn., post, p. 436 U. S. 447, that the States may vindicate legitimate regulatory interests through proscription, in certain circumstances, of in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons.Unlike the situation in Ohralik, however, appellant's act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain. Appellant was communicating an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery. And her actions were undertaken to express personal political beliefs and to advance the civil liberties objectives of the ACLU, rather than to derive financial gain. The question presented in this case is whether, in light of the values protected by the First and Fourteenth Amendments, these differences materially affect the scope of state regulation of the conduct of lawyers.IIIIn NAACP v. Button, supra, the Supreme Court of Appeals of Virginia had held that the activities of members and staff attorneys of the National Association for the Advancement of Colored People (NAACP) and its affiliate, the Virginia State Conference of NAACP Branches (Conference), constituted Page 436 U. S. 423 "solicitation of legal business" in violation of state law. NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960). Although the NAACP representatives and staff attorneys had"a right to peaceably assemble with the members of the branches and other groups to discuss with them and advise them relative to their legal rights in matters concerning racial segregation,"the court found no constitutional protection for efforts to "solicit prospective litigants to authorize the filing of suits" by NAACP-compensated attorneys. Id. at 159, 116 S.E.2d at 68-69.This Court reversed:"We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of [state law] and the Canons of Professional Ethics."371 U.S. at 371 U. S. 428-2429. The solicitation of prospective litigants, [Footnote 14] many of whom were not Page 436 U. S. 424 members of the NAACP or the Conference, for the purpose of furthering the civil rights objectives of the organization and its members was held to come within the right "to engage in association for the advancement of beliefs and ideas.'" Id. at 371 U. S. 430, quoting NAACP v. Alabama, 357 U. S. 449, 357 U. S. 460 (1958). Since the Virginia statute sought to regulate expressive and associational conduct at the core of the First Amendment's protective ambit, the Button Court insisted that "government may regulate in the area only with narrow specificity." 371 U.S. at 371 U. S. 433. The Attorney General of Virginia had argued that the law merely (i) proscribed control of the actual litigation by the NAACP after it was instituted, ibid., and (ii) sought to prevent the evils traditionally associated with common law maintenance, champerty, and barratry, id. at 371 U. S. 438. [Footnote 15] The Court found inadequate the first justification because of an absence of evidence of NAACP interference with the actual conduct of litigation, or neglect or harassment of clients, and because the statute, as construed, was not drawn narrowly to advance the asserted goal. It rejected the analogy to the common law offenses because of an absence of proof that malicious intent or the prospect of pecuniary gain inspired the NAACP-sponsored litigation. It also found a lack of proof that a serious danger of conflict of interest marked the relationship between the NAACP and its member and nonmember Negro litigants. The Court concluded that,"although the [NAACP] has amply shown that its activities fall within the Page 436 U. S. 425 First Amendment's protections, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from [the NAACP's] activities, which can justify the broad prohibitions which it has imposed."Id. at 371 U. S. 444. [Footnote 16] Page 436 U. S. 426Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." United Transportation Union v. Michigan Bar, 401 U. S. 576, 401 U. S. 585 (1971). See Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 376 n. 32 (1977). The Court has held that the First and Fourteenth Amendments prevent state proscription of a range of solicitation activities by labor unions seeking to provide low-cost, effective legal representation to their members. See Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967); United Transportation Union v. Michigan Bar, supra. And "lawyers accepting employment under [such plans] have a like protection which the State cannot abridge." Railroad Trainmen, supra at 377 U. S. 8. Without denying the power of the State to take measures to correct the substantive evils of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, and lay interference that potentially are present in solicitation of prospective clients by lawyers, this Court has required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms." Mine Workers, supra at 389 U. S. 222.IVWe turn now to the question whether appellant's conduct implicates interests of free expression and association sufficient to justify the level of protection recognized in Button and subsequent cases. [Footnote 17] The Supreme Court of South Carolina found appellant to have engaged in unethical conduct because Page 436 U. S. 427 she"'solicit[ed] a client for a non-profit organization, which, as its primary purpose, renders legal services, where respondent's associate is a staff counsel for the non-profit organization.'"268 S.C. at 269, 233 S.E.2d at 306. [Footnote 18] It rejected appellant's First Amendment defenses by distinguishing Button from the case before it. Whereas the NAACP in that case was primarily a "political'" organization that used "`litigation as an adjunct to the overriding political aims of the organization,'" the ACLU "`has as one of its primary purposes the rendition of legal services.'" Id. at 268, 269, 233 S.E.2d at 305, 306. The court also intimated that the ACLU's policy of requesting an award of counsel fees indicated that the organization might "`benefit financially in the event of successful prosecution of the suit for money damages.'" Id. at 263, 233 S.E.2d at 303.Although the disciplinary panel did not permit full factual development of the aims and practices of the ACLU, see n 9, supra, the record does not support the state court's effort to draw a meaningful distinction between the ACLU and the NAACP. From all that appears, the ACLU and its local chapters, much like the NAACP and its local affiliates in Button, "[engage] in extensive educational and lobbying activities" and"also [devote] much of [their] funds and energies to an extensive program of assisting certain kinds of litigation on behalf of [their] declared purposes."371 U.S. at 371 U. S. 419-420. See App. 177-178; n. 2, supra. The court below acknowledged that "the ACLU has only entered cases in which substantial civil liberties questions are involved. . . .'" 268 S.C. at 263, 233 S.E.2d at 303. See Button, 371 U.S. at 371 U. S. 440 n.19. It has engaged in the defense of unpopular Page 436 U. S. 428 causes and unpopular defendants, [Footnote 19] and has represented individuals in litigation that has defined the scope of constitutional protection in areas such as political dissent, juvenile rights, prisoners' rights, military law, amnesty, and privacy. See generally Rabin, Lawyer for Social Change: Perspectives on Public Interest Law, 28 Stan.L.Rev. 207, 21214 (1976). For the ACLU, as for the NAACP, "litigation is not a technique of resolving private differences"; it is "a form of political expression" and "political association." 371 U.S. at 371 U. S. 429, 431. [Footnote 20]We find equally unpersuasive any suggestion that the level of constitutional scrutiny in this case should be lowered because of a possible benefit to the ACLU. The discipline administered to appellant was premised solely on the possibility of financial benefit to the organization, rather than any possibility of pecuniary gain to herself, her associates, or the lawyers representing the plaintiffs in the Walker v. Pierce litigation. [Footnote 21] It is conceded that appellant received no compensation Page 436 U. S. 429 for any of the activities in question. It is also undisputed that neither the ACLU nor any lawyer associated with it would have shared in any monetary recovery by the plaintiffs in Walker v. Pierce. If Williams had elected to bring suit, and had been represented by staff lawyers for the ACLU, the situation would have been similar to that in Button, where the lawyers for the NAACP were "organized as a staff and paid by" that organization. 371 U.S. at 371 U. S. 434; see id. at 371 U. S. 457 (Harlan, J., dissenting); Mine Workers v. Illinois Bar Assn., 389 U.S. at 389 U. S. 222-223; n 16, supra. [Footnote 22]Contrary to appellee's suggestion, the ACLU's policy of requesting an award of counsel fees does not take this case outside of the protection of Button. Although the Court in Button did not consider whether the NAACP seeks counsel fees, such requests are often made both by that organization, see, e.g., NAACP v. Allen, 493 F.2d 614, 622 (CA5 1974); Boston Chapter, NAACP, Inc. v. Beecher, 371 F. Supp. 507, 523 (Mass.), aff'd, 504 F.2d 1017 (CA1 1974), cert. denied, 421 U.S. 910 (1975), and by the NAACP Legal Defense Fund, Inc., see, e.g., Bradley v. Richmond School Board, 416 U. S. 696 (1974); Reynolds v. Coomey, 567 F.2d 1166, 1167 (CA1 1978). In any event, in a case of this kind there are differences between counsel fees awarded by a court and traditional fee-paying arrangements which militate against a presumption Page 436 U. S. 430 that ACLU sponsorship of litigation is motivated by considerations of pecuniary gain, rather than by its widely recognized goal of vindicating civil liberties. Counsel fees are awarded in the discretion of the court; awards are not drawn from the plaintiff's recovery, and are usually premised on a successful outcome; and the amounts awarded often may not correspond to fees generally obtainable in private litigation. Moreover, under prevailing law during the events in question, an award of counsel fees in federal litigation was available only in limited circumstances. [Footnote 23] And even if there had been an award during the period in question, it would have gone to the central fund of the ACLU. [Footnote 24] Although such benefit to the organization Page 436 U. S. 431 may increase with the maintenance of successful litigation, the same situation obtains with voluntary contributions and foundation support, which also may rise with ACLU victories in important areas of the law. That possibility, standing alone, offers no basis for equating the work of lawyers associated with the ACLU or the NAACP with that of a group that exists for the primary purpose of financial gain through the recovery of counsel fees. See n 20, supra. [Footnote 25]Appellant's letter of August 30, 1973, to Mrs. Williams thus comes within the generous zone of First Amendment protection reserved for associational freedoms. The ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. See n 32, infra; cf. Bates v. State Bar of Arizona, 433 U.S. at 433 U. S. 364; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 425 U. S. 779-780 (1976) (STEWART, J., concurring). As Button indicates, and as appellant offered to prove at the disciplinary hearing, see n 9, supra, the efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants. Page 436 U. S. 432 "Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts." Thomas v. Collins, 323 U. S. 516, 323 U. S. 537 (1945). The First and Fourteenth Amendments require a measure of protection for "advocating lawful means of vindicating legal rights," Button, 371 U.S. at 371 U. S. 437, including "advis[ing] another that his legal rights have been infringed and refer[ring] him to a particular attorney or group of attorneys . . . for assistance," id. at 371 U. S. 434.VSouth Carolina's action in punishing appellant for soliciting a prospective litigant by mail, on behalf of the ACLU, must withstand the "exacting scrutiny applicable to limitations on core First Amendment rights. . . ." Buckley v. Valeo, 424 U. S. 1, 424 U. S. 4 5 (1976). South Carolina must demonstrate "a subordinating interest which is compelling," Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524 (1960), and that the means employed in furtherance of that interest are "closely drawn to avoid unnecessary abridgment of associational freedoms." Buckley, supra at 424 U. S. 25.Appellee contends that the disciplinary action taken in this case is part of a regulatory program aimed at the prevention of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, lay interference, and other evils that are thought to inhere generally in solicitation by lawyers of prospective clients, and to be present on the record before us. Brief for Appellee 37-49. We do not dispute the importance of these interests. This Court's decision in Button makes clear, however, that "[b]road prophylactic rules in the area of free expression are suspect," and that "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." 371 U.S. at 371 U. S. 438; see Mine Workers v. Illinois Bar Assn., 389 U.S. at 389 U. S. 222-223. Because of the danger of censorship through selective enforcement of broad prohibitions, and "[b]ecause First Amendment freedoms need breathing space to survive, government Page 436 U. S. 433 may regulate in [this] area only with narrow specificity." Button, supra at 371 U. S. 433.AThe Disciplinary Rules in question sweep broadly. Under DR 2-103(D)(5), a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he retain the organization's free services, and it would seem that one who merely assists or maintains a cooperative relationship with the organization also must suppress the giving of such advice if he or anyone associated with the organization will be involved in the ultimate litigation. See Tr. of Oral Arg. 334. Notwithstanding appellee's concession in this Court, it is far from clear that a lawyer may communicate the organization's offer of legal assistance at an informational gathering such as the July, 1973, meeting in Aiken without breaching the literal terms of the Rule. Cf. Memorandum of Complainant, Apr. 8, 1975, p. 9. [Footnote 26] Moreover, the Disciplinary Rules in question permit punishment for mere solicitation unaccompanied by proof of any of the substantive evils that appellee maintains were present in this case. In sum, the Rules in their present form have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra at 371 U. S. 438, as well as for permitting discretionary enforcement against unpopular causes.BEven if we ignore the breadth of the Disciplinary Rules and the absence of findings in the decision below that support Page 436 U. S. 434 the justifications advanced by appellee in this Court, [Footnote 27] we think it clear from the record -- which appellee does not suggest is inadequately developed -- that findings compatible with the First Amendment could not have been made in this case. As in New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-285 (1964),"considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment [against appellant]. This Court's duty is not limited to the elaboration of constitutional principles; we must also, in proper cases, review the evidence to make certain that those principles [can be] constitutionally applied."See Jenkins v. Georgia, 418 U. S. 153, 418 U. S. 160-161 (1974); Pickering v. Board of Education, 391 U. S. 563, 391 U. S. 574-575, 391 U. S. 578-582, and n. 2 (1968); Edwards v. South Carolina, 372 U. S. 229, 372 U. S. 235-236 (1963).Where political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs. The approach we adopt today in Ohralik, post, p. 436 U. S. 447, that the State may proscribe in-person solicitation for pecuniary gain under circumstances likely to result in adverse consequences, cannot be applied to appellant's activity on behalf of the ACLU. Although a showing of potential danger may suffice in the former context, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed.The record does not support appellee's contention that Page 436 U. S. 435 undue influence, overreaching, misrepresentation, or invasion of privacy actually occurred in this case. Appellant's letter of August 30, 1973, followed up the earlier meeting -- one concededly protected by the First and Fourteenth Amendments -- by notifying Williams that the ACLU would be interested in supporting possible litigation. The letter imparted additional information material to making an informed decision about whether to authorize litigation, and permitted Williams an opportunity, which she exercised, for arriving at a deliberate decision. The letter was not facially misleading; indeed, it offered "to explain what is involved so you can understand what is going on." The transmittal of this letter -- as contrasted with in-person solicitation -- involved no appreciable invasion of privacy; [Footnote 28] nor did it afford any significant opportunity for overreaching or coercion. Moreover, the fact that there was a written communication lessens substantially the Page 436 U. S. 436 difficulty of policing solicitation practices that do offend valid rules of professional conduct. See Ohralik, post at 436 U. S. 466-467. The manner of solicitation in this case certainly was no more likely to cause harmful consequences than the activity considered in Button, see n 14, supra.Nor does the record permit a finding of a serious likelihood of conflict of interest or injurious lay interference with the attorney-client relationship. Admittedly, there is some potential for such conflict or interference whenever a lay organization supports any litigation. That potential was present in Button, in the NAACP's solicitation of nonmembers and its disavowal of any relief short of full integration, see 371 U.S. at 371 U. S. 420; id. at 371 U. S. 460, 371 U. S. 465 (Harlan, J., dissenting). But the Court found that potential insufficient in the absence of proof of a "serious danger" of conflict of interest, id. at 371 U. S. 443, or of organizational interference with the actual conduct of the litigation, id. at 371 U. S. 433, 371 U. S. 444. As in Button,"[n]othing that this record shows a to the nature and purpose of [ACLU] activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application,"id. at 371 U. S. 444, of the Disciplinary Rules to appellant's activity. [Footnote 29] A "very distant possibility of harm," Mine Workers v. Illinois Bar Assn., 389 U.S. at 389 U. S. 223, cannot justify proscription of the activity of appellant revealed by this record. See id. at 389 U. S. 223-224. [Footnote 30]The State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization Page 436 U. S. 437 of the legal profession offer no further justification for the discipline administered in this case. The Button Court declined to accept the proffered analogy to the common law offenses of maintenance, champerty, and barratry, where the record would not support a finding that the litigant was solicited for a malicious purpose or "for private gain, serving no public interest," 371 U.S. at 371 U. S. 440; see id. at 371 U. S. 439-444. The same result follows from the facts of this case. And considerations of undue commercialization of the legal profession are of marginal force where, as here, a nonprofit organization offers its services free of charge to individuals who may be in need of legal assistance and may lack the financial means and sophistication necessary to tap alternative sources of such aid. [Footnote 31]At bottom, the case against appellant rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply "propose[s] a commercial transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 413 U. S. 385 (1973). See Ohralik, post at 436 U. S. 455-459. In the context Page 436 U. S. 438 of political expression and association, however, a State must regulate with significantly greater precision. [Footnote 32]VIThe State is free to fashion reasonable restrictions with respect to the time, place and manner of solicitation by members of its Bar. See Bates v. State Bar of Arizona, 433 U.S. at 433 U. S. 384; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 771, and cases cited therein. The State's special interest in regulating members of a profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence. [Footnote 33] As we decide today in Page 436 U. S. 439 Ohralik, a State also may forbid in-person solicitation for pecuniary gain under circumstances likely to result in these evils. And a State may insist that lawyers not solicit on behalf of lay organizations that exert control over the actual conduct of any ensuing litigation. See Button, 371 U.S. at 371 U. S. 447 (WHITE, J., concurring in part and dissenting in part). Accordingly, nothing in this opinion should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the NAACP or the ACLU.We conclude that South Carolina's application of DR 2-103(D)(5)(a) and (c) and 2-104(A)(5) to appellant's solicitation by letter on behalf of the ACLU violates the First and Fourteenth Amendments. The judgment of the Supreme Court of South Carolina isReversed

U.S. Supreme CourtIn re Primus, 436 U.S. 412 (1978)In re PrimusNo. 77-56Argued January 16, 1978Decided May 30, 1978436 U.S. 412SyllabusAppellant, a practicing lawyer in South Carolina who was also a cooperating lawyer with a branch of the American Civil Liberties Union (ACLU), after advising a gathering of women of their legal rights resulting from their having been sterilized as a condition of receiving public medical assistance, informed one of the women in a subsequent letter that free legal assistance was available from the ACLU. Thereafter, the disciplinary Board of the South Carolina Supreme Court charged and determined that appellant, by sending such letter, had engaged in soliciting a client in violation of certain Disciplinary Rules of the State Supreme Court, and issued a private reprimand. The court adopted the Board's findings and increased the sanction to a public reprimand.Held: South Carolina's application of its Disciplinary Rules to appellant's solicitation by letter on the ACLU's behalf violates the First and Fourteenth Amendments. NAACP v. Button, 371 U. S. 415, followed; Ohralik v. Ohio Bar Assn., post, p. 436 U. S. 447, distinguished. Pp. 436 U. S. 421-439.(a) Solicitation of prospective litigants by nonprofit organizations that engage in litigation as "a form of political expression" and "political association" constitutes expressive and associational conduct entitled to First Amendment protection, as to which government may regulate only "with narrow specificity," Button, supra at 371 U. S. 429, 371 U. S. 431, 371 U. S. 433. Pp. 436 U. S. 422-425.(b) Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment," United Transportation Union v. Michigan Bar, 401 U. S. 576, 401 U. S. 585, and have required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms," Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 389 U. S. 222. P. 436 U. S. 426.(c) Appellant's activity in this case comes within the generous zone of protection reserved for associational freedoms because she engaged in solicitation by mail on behalf of a bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. There is nothing in the record to suggest that the ACLU Page 436 U. S. 413 or its South Carolina affiliate is an organization dedicated exclusively to providing legal services, or a group of attorneys that exists for the purpose of financial gain through the recovery of counsel fees, or a mere sham to evade a valid state rule against solicitation for pecuniary gain. Pp. 436 U. S. 426-432.(d) The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra at 371 U. S. 438, as well as for permitting discretionary enforcement against unpopular causes. P. 436 U. S. 433.(e) Although a showing of potential danger may suffice in the context of in-person solicitation for pecuniary gain under the decision today in Ohralik, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed. P. 436 U. S. 434.(f) The record does not support appellee's contention that undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, or lay interference actually occurred in this case. And the State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered to appellant. Pp. 436 U. S. 434-437.(g) Nothing in this decision should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the ACLU. Pp. 436 U. S. 438-439.268 S.C. 259, 233 S.E.2d 301, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined, and in all but the first paragraph of Part VI of which MARSHALL, J., joined. BLACKMUN, J., filed a concurring opinion, post, p. 436 U. S. 439. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 436 U. S. 468. REHNQUIST, J., filed a dissenting opinion, post, p. 436 U. S. 440. BRENNAN, J., took no part in the consideration or decision of the case. Page 436 U. S. 414

1991_91-535

JUSTICE WHITE delivered the opinion of the Court.The issue in this case is whether Hawaii's prohibition on write-in voting unreasonably infringes upon its citizens' rights under the First and Fourteenth Amendments. Petitioner contends that the Constitution requires Hawaii to provide for the casting, tabulation, and publication of write-in votes. The Court of Appeals for the Ninth Circuit disagreed, holding that the prohibition, taken as part of the State's comprehensive election scheme, does not impermissibly burden the right to vote. 937 F.2d 415, 422 (1991). We affirm.IPetitioner is a registered voter in the city and county of Honolulu. In 1986, only one candidate filed nominating papers to run for the seat representing petitioner's district in the Hawaii House of Representatives. Petitioner wrote to state officials inquiring about Hawaii's write-in voting policy and received a copy of an opinion letter issued by the Hawaii Attorney General's Office stating that the State's election law made no provision for write-in voting. 1 App. 38-39,49.Petitioner then filed this lawsuit, claiming that he wished to vote in the primary and general elections for a person who had not filed nominating papers and that he wished to vote in future elections for other persons whose names might not appear on the ballot. Id., at 32-33. The United States District Court for the District of Hawaii concluded that the ban on write-in voting violated petitioner's First Amendment right of expression and association and entered a preliminary injunction ordering respondents to provide for the casting and tallying of write-in votes in the November 1986 generalBarnett of South Dakota, Paul Van Dam of Utah, Joseph B. Meyer of Wyoming, and Robert Naraja of the Commonwealth of the Northern Mariana Islands.James C. Linger filed a brief for Andre Marrou et al. as amici curiae.431election. App. to Pet. for Cert. 67a-77a. The District Court denied a stay pending appeal. 1 App. 76-107.The Court of Appeals entered the stay, id., at 109, and vacated the judgment of the District Court, reasoning that consideration of the federal constitutional question raised by petitioner was premature because "neither the plain language of Hawaii statutes nor any definitive judicial interpretation of those statutes establishes that the Hawaii legislature has enacted a ban on write-in voting," Burdick v. Takushi, 846 F.2d 587, 588 (CA9 1988). Accordingly, the Court of Appeals ordered the District Court to abstain, see Railroad Comm'n of Texas v. Pullman Co., 312 U. S. 496 (1941), until state courts had determined whether Hawaii's election laws permitted write-in voting.1On remand, the District Court certified the following three questions to the Supreme Court of Hawaii:"(1) Does the Constitution of the State of Hawaii require Hawaii's election officials to permit the casting of write-in votes and require Hawaii's election officials to count and publish write-in votes?"(2) Do Hawaii's election laws require Hawaii's election officials to permit the casting of write-in votes and require Hawaii's election officials to count and publish write-in votes?"(3) Do Hawaii's election laws permit, but not require, Hawaii's election officials to allow voters to cast writein votes and to count and publish write-in votes?" App. to Pet. for Cert. 56a-57a.1 While petitioner's appeal was pending, he became concerned that the Court of Appeals might not enter its decision before the September 1988 primary election. Accordingly, petitioner filed a second suit challenging the unavailability of write-in voting in the 1988 election. Burdick v. Cayetano, Civ. No. 99-0365. Coincidentally, petitioner's new suit was filed on the very day that the Ninth Circuit decided the appeal stemming from petitioner's original complaint. The two actions subsequently were consolidated by the District Court. 1 App. 142.432Hawaii's high court answered "No" to all three questions, holding that Hawaii's election laws barred write-in voting and that these measures were consistent with the State's Constitution. Burdick v. Takushi, 70 Haw. 498, 776 P. 2d 824 (1989). The United States District Court then granted petitioner's renewed motion for summary judgment and injunctive relief, but entered a stay pending appeal. 737The Court of Appeals again reversed, holding that Hawaiiwas not required to provide for write-in votes:"Although the prohibition on write-in voting places some restrictions on [petitioner's] rights of expression and association, that burden is justified in light of the ease of access to Hawaii's ballots, the alternatives available to [petitioner] for expressing his political beliefs, the State's broad powers to regulate elections, and the specific interests advanced by the State." 937 F. 2d, at 421.2In so ruling, the Ninth Circuit expressly declined to follow an earlier decision regarding write-in voting by the Court of Appeals for the Fourth Circuit. See ibid., citing Dixon v. Maryland State Administrative Bd. of Election Laws, 878 F. 2d 776 (CA4 1989). We granted certiorari to resolve the disagreement on this important question. 502 U. S. 1003 (1991).IIPetitioner proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Our cases do not so hold.2 The Ninth Circuit panel issued its opinion on March 1, 1991. See Burdick v. Takushi, 927 F.2d 469. On June 28, 1991, the Court of Appeals denied petitioner's petition for rehearing and suggestion for rehearing en bane, and the panel withdrew its original opinion and issued the version that appears at 937 F.2d 415.433It is beyond cavil that "voting is of the most fundamental significance under our constitutional structure." Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979). It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute. Munro v. Socialist Workers Party, 479 U. S. 189, 193 (1986). The Constitution provides that States may prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives," Art. I, § 4, cl. 1, and the Court therefore has recognized that States retain the power to regulate their own elections. Sugarman v. Dougall, 413 U. S. 634, 647 (1973); Tashjian v. Republican Party of Connecticut, 479 U. S. 208, 217 (1986). Common sense, as well as constitutionallaw, compels the conclusion that government must play an active role in structuring elections; "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U. S. 724, 730 (1974).Election laws will invariably impose some burden upon individual voters. Each provision of a code, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects-at least to some degree-the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently. See Brief for Petitioner 32-37. Accordingly, the mere fact that a State's system "creates barriers ... tending to limit the field of candidates from which voters might choose ... does not of itself compel close scrutiny." Bullock v. Carter, 405434u. S. 134, 143 (1972); Anderson, supra, at 788; McDonald v. Board of Election Comm'rs of Chicago, 394 U. S. 802 (1969).Instead, as the full Court agreed in Anderson, 460 U. S., at 788-789; id., at 808, 817 (REHNQUIST, J., dissenting), a more flexible standard applies. A court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights." Id., at 789; Tashjian, supra, at 213-214.Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to "severe" restrictions, the regulation must be "narrowly drawn to advance a state interest of compelling importance." Norman v. Reed, 502 U. S. 279, 289 (1992). But when a state election law provision imposes only "reasonable, nondiscriminatory restrictions" upon the First and Fourteenth Amendment rights of voters, "the State's important regulatory interests are generally sufficient to justify" the restrictions. Anderson, 460 U. S., at 788; see also id., at 788-789, n. 9. We apply this standard in considering petitioner's challenge to Hawaii's ban on write-in ballots.AThere is no doubt that the Hawaii election laws, like all election regulations, have an impact on the right to vote, id., at 788, but it can hardly be said that the laws at issue here unconstitutionally limit access to the ballot by party or independent candidates or unreasonably interfere with the right of voters to associate and have candidates of their choice placed on the ballot. Indeed, petitioner understandably does435not challenge the manner in which the State regulates candidate access to the ballot.To obtain a position on the November general election ballot, a candidate must participate in Hawaii's open primary, "in which all registered voters may choose in which party primary to vote." Tashjian, supra, at 223, n. 11. See Haw. Rev. Stat. § 12-31 (1985). The State provides three mechanisms through which a voter's candidate-of-choice may appear on the primary ballot.First, a party petition may be filed 150 days before the primary by any group of persons who obtain the signatures of one percent of the State's registered voters.3 Haw. Rev. Stat. § 11-62 (Supp. 1991). Then, 60 days before the primary, candidates must file nominating papers certifying, among other things, that they will qualify for the office sought and that they are members of the party that they seek to represent in the general election. The nominating papers must contain the signatures of a specified number of registered voters: 25 for candidates for statewide or federal office; 15 for state legislative and county races. Haw. Rev. Stat. §§ 12-2.5 to 12-7 (1985 and Supp. 1991). The winner in each party advances to the general election. Thus, if a party forms around the candidacy of a single individual and no one else runs on that party ticket, the individual will be elected at the primary and win a place on the November general election ballot.The second method through which candidates may appear on the Hawaii primary ballot is the established party route.43We have previously upheld party and candidate petition signature requirements that were as burdensome or more burdensome than Hawaii's one-percent requirement. See, e. g., Norman v. Reed, 502 U. S. 279, 295 (1992); American Party of Texas v. White, 415 U. S. 767 (1974); Jenness v. Fortson, 403 U. S. 431 (1971).4 In Jenness, we rejected an equal protection challenge to a system that provided alternative means of ballot access for members of established political parties and other candidates, concluding that the system was con-436Established parties that have qualified by petition for three consecutive elections and received a specified percentage of the vote in the preceding election may avoid filing party petitions for 10 years. Haw. Rev. Stat. § 11-61 (1985). The Democratic, Republican, and Libertarian Parties currently meet Hawaii's criteria for established parties. Like new party candidates, established party contenders are required to file nominating papers 60 days before the primary. Haw. Rev. Stat. §§ 12-2.5 to 12-7 (1985 and Supp. 1991).5The third mechanism by which a candidate may appear on the ballot is through the designated nonpartisan ballot. Nonpartisans may be placed on the nonpartisan primary ballot simply by filing nominating papers containing 15 to 25 signatures, depending upon the office sought, 60 days before the primary. §§ 12-3 to 12-7. To advance to the general election, a nonpartisan must receive 10 percent of the primary vote or the number of votes that was sufficient to nominate a partisan candidate, whichever number is lower. Hustace v. Doi, 60 Haw. 282, 289-290, 588 P. 2d 915, 920 (1978). During the 10 years preceding the filing of this action, 8 of 26 nonpartisans who entered the primary obtained slots on the November ballot. Brief for Respondents 8.Although Hawaii makes no provision for write-in voting in its primary or general elections, the system outlined above provides for easy access to the ballot until the cutoff date for the filing of nominating petitions, two months before the primary. Consequently, any burden on voters' freedom of choice and association is borne only by those who fail to iden-stitutional because it did not operate to freeze the political status quo. 403 U. S., at 438.5 In Anderson v. Celebrezze, 460 U. S. 780 (1983), the Court concluded that Ohio's early filing deadline for Presidential candidates imposed an unconstitutional burden on voters' freedom of choice and freedom of association. But Anderson is distinguishable because the Ohio election scheme, as explained by the Court, provided no means for a candidate to appear on the ballot after a March cutoff date. Id., at 786. Hawaii fills this void through its nonpartisan primary ballot mechanism.437tify their candidate of choice until days before the primary. But in Storer v. Brown, we gave little weight to "the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status." 415 U. S., at 736.6 Cf. Rosario v. Rockefeller, 410 U. S. 752, 757 (1973). We think the same reasoning applies here and therefore conclude that any burden imposed by Hawaii's write-in vote prohibition is a very limited one. "To conclude otherwise might sacrifice the political stability of the system of the State, with profound consequences for the entire citizenry, merely in the interest of particular candidates and their supporters having instantaneous access to the ballot." Storer, supra, at 736.7Because he has characterized this as a voting rights rather than ballot access case, petitioner submits that the write-in prohibition deprives him of the opportunity to cast a meaningful ballot, conditions his electoral participation upon the6 In Storer, we upheld a California ballot access law that refused to recognize independent candidates until a year after they had disaffiliated from a political party.7 The dissent complains that, because primary voters are required to opt for a specific partisan or nonpartisan ballot, they are foreclosed from voting in those races in which no candidate appears on their chosen ballot and in those races in which they are dissatisfied with the available choices. Post, at 444. But this is generally true of primaries; voters are required to select a ticket, rather than choose from the universe of candidates running on all party slates. Indeed, the Court has upheld the much more onerous requirement that voters interested in participating in a primary election enroll as a member of a political party prior to the preceding general election. Rosario v. Rockefeller, 410 U. S. 752 (1973). Cf. American Party of Texas, supra, at 786 ("[T]he State may determine that it is essential to the integrity of the nominating [petition] process to confine voters to supporting one party and its candidates in the course of the same nominating process").If the dissent were correct in suggesting that requiring primary voters to select a specific ballot impermissibly burdened the right to vote, it is clear under our decisions that the availability of a write-in option would not provide an adequate remedy. Anderson, supra, at 799, n. 26; Lubin v. Panish, 415 U. S. 709, 719, n. 5 (1974).438waiver of his First Amendment right to remain free from espousing positions that he does not support, and discriminates against him based on the content of the message he seeks to convey through his vote. Brief for Petitioner 19. At bottom, he claims that he is entitled to cast and Hawaii required to count a "protest vote" for Donald Duck, Tr. of Oral Arg. 5, and that any impediment to this asserted "right" is unconstitutional.Petitioner's argument is based on two flawed premises.First, in Bullock v. Carter, we minimized the extent to which voting rights cases are distinguishable from ballot access cases, stating that "the rights of voters and the rights of candidates do not lend themselves to neat separation." 405 U. S., at 143.8 Second, the function of the election process is "to winnow out and finally reject all but the chosen candidates," Storer, 415 U. S., at 735, not to provide a means of giving vent to "short-range political goals, pique, or personal quarrel[sJ." Ibid. Attributing to elections a more generalized expressive function would undermine the ability of States to operate elections fairly and efficiently. Id., at 730.Accordingly, we have repeatedly upheld reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls. See Munro, 479 U. S., at 199. Petitioner offers no persuasive reason to depart from these precedents. Reasonable regulation of elections does not require voters to espouse positions that they do not support; it does require them to act in a timely fashion if they wish to express their views in the voting booth. And there is nothing content based about a flat ban on all forms of write-in ballots.The appropriate standard for evaluating a claim that a state law burdens the right to vote is set forth in Anderson. Applying that standard, we conclude that, in light of the adequate ballot access afforded under Hawaii's election code, the8 Indeed, voters, as well as candidates, have participated in the so-called ballot access cases. E. g., Anderson, supra, at 783.439State's ban on write-in voting imposes only a limited burden on voters' rights to make free choices and to associate politically through the vote.BWe turn next to the interests asserted by Hawaii to justify the burden imposed by its prohibition of write-in voting. Because we have already concluded that the burden is slight, the State need not establish a compelling interest to tip the constitutional scales in its direction. Here, the State's interests outweigh petitioner's limited interest in waiting until the eleventh hour to choose his preferred candidate.Hawaii's interest in "avoid[ing] the possibility of unrestrained factionalism at the general election," Munro, supra, at 196, provides adequate justification for its ban on write-in voting in November. The primary election is "an integral part of the entire election process," Storer, 415 U. S., at 735, and the State is within its rights to reserve "[t]he general election ballot ... for major struggles ... [and] not a forum for continuing intraparty feuds." Ibid.; Munro, supra, at 196, 199. The prohibition on write-in voting is a legitimate means of averting divisive sore-loser candidacies. Hawaii further promotes the two-stage, primary-general election process of winnowing out candidates, see Storer, supra, at 735, by permitting the unopposed victors in certain primaries to be designated officeholders. See Haw. Rev. Stat. §§ 12-41, 12-42 (1985). This focuses the attention of voters upon contested races in the general election. This would not be possible, absent the write-in voting ban.Hawaii also asserts that its ban on write-in voting at the primary stage is necessary to guard against "party raiding." Tashjian, 479 U. S., at 219. Party raiding is generally defined as "the organized switching of blocs of voters from one party to another in order to manipulate the outcome of the other party's primary election." Anderson, 460 U. S., at 789, n. 9. Petitioner suggests that, because Hawaii conducts an open primary, this is not a cognizable interest. We dis-440agree. While voters may vote on any ticket in Hawaii's primary, the State requires that party candidates be "member[s] of the party," Haw. Rev. Stat. § 12-3(a)(7) (1985), and prohibits candidates from filing "nomination papers both as a party candidate and as a nonpartisan candidate," § 12-3(c). Hawaii's system could easily be circumvented in a party primary election by mounting a write-in campaign for a person who had not filed in time or who had never intended to run for election. It could also be frustrated at the general election by permitting write-in votes for a loser in a party primary or for an independent who had failed to get sufficient votes to make the general election ballot. The State has a legitimate interest in preventing these sorts of maneuvers, and the write-in voting ban is a reasonable way of accomplishing this goal. 9We think these legitimate interests asserted by the State are sufficient to outweigh the limited burden that the writein voting ban imposes upon Hawaii's voters.109 The State also supports its ban on write-in voting as a means of enforcing nominating requirements, combating fraud, and "fostering informed and educated expressions of the popular will." Anderson, 460 U. S., at 796.10 Although the dissent purports to agree with the standard we apply in determining whether the right to vote has been restricted, post, at 445446, and implies that it is analyzing the write-in ban under some minimal level of scrutiny, post, at 448, the dissent actually employs strict scrutiny. This is evident from its invocation of quite rigid narrow tailoring requirements. For instance, the dissent argues that the State could adopt a less drastic means of preventing sore-loser candidacies, ibid., and that the State could screen out ineligible candidates through postelection disqualification rather than a write-in voting ban. Post, at 450.It seems to us that limiting the choice of candidates to those who have complied with state election law requirements is the prototypical example of a regulation that, while it affects the right to vote, is eminently reasonable. Anderson, supra, at 788. The dissent's suggestion that voters are entitled to cast their ballots for unqualified candidates appears to be driven by the assumption that an election system that imposes any restraint on voter choice is unconstitutional. This is simply wrong. See supra, at 433-434.441IIIIndeed, the foregoing leads us to conclude that when a State's ballot access laws pass constitutional muster as imposing only reasonable burdens on First and Fourteenth Amendment rights-as do Hawaii's election laws-a prohibition on write-in voting will be presumptively valid, since any burden on the right to vote for the candidate of one's choice will be light and normally will be counterbalanced by the very state interests supporting the ballot access scheme.In such situations, the objection to the specific ban on write-in voting amounts to nothing more than the insistence that the State record, count, and publish individual protests against the election system or the choices presented on the ballot through the efforts of those who actively participate in the system. There are other means available, however, to voice such generalized dissension from the electoral process; and we discern no adequate basis for our requiring the State to provide and to finance a place on the ballot for recording protests against its constitutionally valid election laws.ll"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Wesberry v. Sanders, 376 U. S. 1, 17 (1964). But the right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system. Anderson, supra, at 788; Storer, 415 U. S., at 730. We think that Hawaii's prohibition on write-in voting, considered as part of an electoral scheme that provides constitutionally sufficient ballot access, does not impose an unconstitutional burden upon the First and Fourteenth Amendment rights of11 We of course in no way suggest that a State is not free to provide for write-in voting, as many States do; nor should this opinion be read to discourage such provisions.442the State's voters. Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1991SyllabusBURDICK v. TAKUSHI, DIRECTOR OF ELECTIONS OF HAWAII, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 91-535. Argued March 24, 1992-Decided June 8, 1992Petitioner, a registered Honolulu voter, filed suit against respondent state officials, claiming that Hawaii's prohibition on write-in voting violated his rights of expression and association under the First and Fourteenth Amendments. The District Court ultimately granted his motion for summary judgment and injunctive relief, but the Court of Appeals reversed, holding that the prohibition, taken as part of the State's comprehensive election scheme, does not impermissibly burden the right to vote.Held: Hawaii's prohibition on write-in voting does not unreasonably infringe upon its citizens' rights under the First and Fourteenth Amendments. Pp. 432-442.(a) Petitioner assumes erroneously that a law that imposes any burden on the right to vote must be subject to strict scrutiny. This Court's cases have applied a more flexible standard: A court considering a state election law challenge must weigh the character and magnitude of the asserted injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate against the precise interests put forward by the State as justification for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights. Anderson v. Celebrezze, 460 U. S. 780, 788-789. Under this standard, a regulation must be narrowly drawn to advance a state interest of compelling importance only when it subjects the voters' rights to "severe" restrictions. Norman v. Reed, 502 U. S. 279, 289. If it imposes only "reasonable, nondiscriminatory restrictions" upon those rights, the State's important regulatory interests are generally sufficient to justify the restrictions. Anderson, supra, at 788. Pp. 432-434.(b) Hawaii's write-in vote prohibition imposes a very limited burden upon voters' rights to associate politically through the vote and to have candidates of their choice placed on the ballot. Because the State's election laws provide easy access to the primary ballot until the cutoff date for the filing of nominating petitions, two months before the primary, any burden on the voters' rights is borne only by those who fail to identify their candidate of choice until shortly before the primary. An429interest in making a late rather than an early decision is entitled to little weight. Cf. Storer v. Brown, 415 U. S. 724, 736. Pp. 434-439.(c) Hawaii's asserted interests in avoiding the possibility of unrestrained factionalism at the general election and in guarding against "party raiding" during the primaries are legitimate and are sufficient to outweigh the limited burden that the write-in voting ban imposes upon voters. Pp. 439-440.(d) Indeed, the foregoing analysis leads to the conclusion that where, as here, a State's ballot access laws pass constitutional muster as imposing only reasonable burdens on First and Fourteenth Amendment rights, a write-in voting prohibition will be presumptively valid, since any burden on the right to vote for the candidate of one's choice will be light and normally will be counterbalanced by the very state interests supporting the ballot access scheme. Pp.441-442.937 F.2d 415, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, SOUTER, and THOMAS, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 442.Arthur N. Eisenberg argued the cause for petitioner.With him on the briefs were Steven R. Shapiro, John A. Powell, Mary Blaine Johnston, Carl Varady, Paul W Kahn, Lawrence G. Sager, Burt Neuborne, and Alan B. Burdick, pro se.Steven S. Michaels, Deputy Attorney General of Hawaii, argued the cause for respondents. With him on the brief were Warren Price III, Attorney General, and Girard D. Lau, Deputy Attorney General. **Briefs of amici curiae urging reversal were filed for Common Cause/ Hawaii by Stanley E. Levin; for the Hawaii Libertarian Party by Arlo Hale Smith; and for the Socialist Workers Party by Edward Copeland and Eric M. Lieberman.A brief of amici curiae urging affirmance was filed for the State of Arizona et al. by Frankie Sue Del Papa, Attorney General of Nevada, and Kateri Cavin, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Grant Woods of Arizona, Robert A. Butterworth of Florida, Richard P. Ieyoub of Louisiana, Lacy H. Thornburg of North Carolina, Susan Brimer Loving of Oklahoma, Mark430Full Text of Opinion

1985_85-621

JUSTICE O'CONNOR delivered the opinion of the Court.The question presented is whether the Commodity Exchange Act (CEA or Act), 7 U.S.C. § 1 et seq., empowers the Commodity Futures Trading Commission (CFTC or Commission) to entertain state law counterclaims in reparation Page 478 U. S. 836 proceedings and, if so, whether that grant of authority violates Article III of the Constitution.IThe CEA broadly prohibits fraudulent and manipulative conduct in connection with commodity futures transactions. In 1974, Congress "overhaul[ed]" the Act in order to institute a more "comprehensive regulatory structure to oversee the volatile and esoteric futures trading complex." H.R.Rep. No. 93-975, p. 1 (1974). See Pub.L. 93-463, 88 Stat. 1389. Congress also determined that the broad regulatory powers of the CEA were most appropriately vested in an agency which would be relatively immune from the "political winds that sweep Washington." H.R.Rep. No. 93-975, at 44, 70. It therefore created an independent agency, the CFTC, and entrusted to it sweeping authority to implement the CEA.Among the duties assigned to the CFTC was the administration of a reparations procedure through which disgruntled customers of professional commodity brokers could seek redress for the brokers' violations of the Act or CFTC regulations. Thus, § 14 of the CEA, 7 U.S.C. § 18 (1976 ed.), [Footnote 1] provides that any person injured by such violations may apply to the Commission for an order directing the offender to pay reparations to the complainant and may enforce that order in federal district court. Congress intended this administrative procedure to be an "inexpensive and expeditious" alternative to existing fora available to aggrieved customers, namely, the courts and arbitration. S.Rep. No. 95-850, p. 11 (1978). See also 41 Fed.Reg. 3994 (1976) Page 478 U. S. 837 (accompanying CFTC regulations promulgated pursuant to § 14).In conformance with the congressional goal of promoting efficient dispute resolution, the CFTC promulgated a regulation in 1976 which allows it to adjudicate counterclaims "aris[ing] out of the transaction or occurrence or series of transactions or occurrences set forth in the complaint." Id. at 3995, 4002 (codified at 17 CFR § 12.23(b)(2) (1983)). This permissive counterclaim rule leaves the respondent in a reparations proceeding free to seek relief against the reparations complainant in other fora.The instant dispute arose in February, 1980, when respondents Schor and Mortgage Services of America, Inc., invoked the CFTC's reparations jurisdiction by filing complaints against petitioner ContiCommodity Services, Inc. (Conti), a commodity futures broker, and Richard L. Sandor, a Conti employee. [Footnote 2] Schor had an account with Conti which contained a debit balance because Schor's net futures trading losses and expenses, such as commissions, exceeded the funds deposited in the account. Schor alleged that this debit balance was the result of Conti's numerous violations of the CEA. See App. to Pet. for Cert. in No. 85-621, p. 53a.Before receiving notice that Schor had commenced the reparations proceeding, Conti had filed a diversity action in Federal District Court to recover the debit balance. ContiCommodity Services, Inc. v. Mortgage Services of America, Inc., No. 80-C-1089 (ND Ill., filed Mar. 4, 1980). Schor Page 478 U. S. 838 counterclaimed in this action, reiterating his charges that the debit balance was due to Conti's violations of the CEA. Schor also moved on two separate occasions to dismiss or stay the District Court action, arguing that the continuation of the federal action would be a waste of judicial resources and an undue burden on the litigants in view of the fact that"[t]he reparations proceedings . . . will fully . . . resolve and adjudicate all the rights of the parties to this action with respect to the transactions which are the subject matter of this action."App. 13. See also id. at 19.Although the District Court declined to stay or dismiss the suit, see id. at 15, 16, Conti voluntarily dismissed the federal court action and presented its debit balance claim by way of a counterclaim in the CFTC reparations proceeding. See id. at 29-32. Conti denied violating the CEA, and instead insisted that the debit balance resulted from Schor's trading, and was therefore a simple debt owed by Schor. Schor v. Commodity Futures Trading Comm'n, 239 U.S.App.D.C. 159, 162, 740 F.2d 1262, 1265 (1984); App. to Pet. for Cert. in No. 85-621, p. 53a.After discovery, briefing, and a hearing, the Administrative Law Judge (ALJ) in Schor's reparations proceeding ruled in Conti's favor on both Schor's claims and Conti's counterclaims. After this ruling, Schor for the first time challenged the CFTC's statutory authority to adjudicate Conti's counterclaim. See id. at 62a. The ALJ rejected Schor's challenge, stating himself "bound by agency regulations and published agency policies." Id. at 62a-63a. The Commission declined to review the decision, and allowed it to become final, id. at 50a-52a, at which point Schor filed a petition for review with the Court of Appeals for the District of Columbia Circuit. Prior to oral argument, the Court of Appeals, sua sponte, raised the question whether CFTC could constitutionally adjudicate Conti's counterclaims in light of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982), in which this Court held that"Congress may Page 478 U. S. 839 not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review."Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568, 473 U. S. 584 (1985).After briefing and argument, the Court of Appeals upheld the CFTC's decision on Schor's claim in most respects, but ordered the dismissal of Conti's counterclaims on the ground that "the CFTC lacks authority (subject matter competence) to adjudicate" common law counterclaims. 239 U.S.App.D.C. at 161, 740 F.2d at 1264. In support of this latter ruling, the Court of Appeals reasoned that the CFTC's exercise of jurisdiction over Conti's common law counterclaim gave rise to "[s]erious constitutional problems" under Northern Pipeline. 239 U.S.App.D.C. at 174, 740 F.2d at 1277. The Court of Appeals therefore concluded that, under well-established principles of statutory construction, the relevant inquiry was whether the CEA was "fairly susceptible' of [an alternative] construction," such that Article III objections, and thus unnecessary constitutional adjudication, could be avoided. Ibid. (quoting Ralpho v. Bell, 186 U.S.App.D.C. 368, 380, 569 F.2d 607, 619 (1977)).After examining the CEA and its legislative history, the court concluded that Congress had no "clearly expressed" or "explicit" intention to give the CFTC constitutionally questionable jurisdiction over state common law counterclaims. See 239 U.S.App.D.C. at 166, 178, 740 F.2d at 1269, 1281. The Court of Appeals therefore "adopt[ed] the construction of the Act that avoids significant constitutional questions," reading the CEA to authorize the CFTC to adjudicate only those counterclaims alleging violations of the Act or CFTC regulations. Id. at 175, 740 F.2d at 1278. Because Conti's counterclaims did not allege such violations, the Court of Appeals held that the CFTC exceeded its authority in adjudicating those claims, and ordered that the Page 478 U. S. 840 ALJ's decision on the claims be reversed and the claims dismissed for lack of jurisdiction. Id. at 161, 740 F.2d at 1264.The Court of Appeals denied rehearing en banc by a divided vote. In a dissenting statement, Judge Wald, joined by Judge Starr, urged that rehearing be granted because the panel's holding would"resul[t] in a serious evisceration of a congressionally crafted scheme for compensating victims of Commodity Futures Trading Act . . . violations"and would, in practical, effect "decimat[e]" the efficacy of this "faster and less expensive alternative forum." App. to Pet. for Cert. in No. 85-621, p. 71a. This Court granted the CFTC's petition for certiorari, vacated the Court of Appeals' judgment, and remanded the case for further consideration in light of Thomas, supra, at 473 U. S. 582-593. 473 U.S. 473 U. S. 568 (1985). We had there ruled that the arbitration scheme established under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., does not contravene Article III, and, more generally, held that"Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, may create a seemingly 'private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary."473 U.S. at 473 U. S. 593.On remand, the Court of Appeals reinstated its prior judgment. It reaffirmed its earlier view that Northern Pipeline drew into serious question the Commission's authority to decide debit-balance counterclaims in reparations proceedings; concluded that nothing in Thomas altered that view; and again held that, in light of the constitutional problems posed by the CFTC's adjudication of common law counterclaims, the CEA should be construed to authorize the CFTC to adjudicate only counterclaims arising from violations of the Act or CFTC regulations. See 248 U.S.App.D.C. 155, 157-158, 770 F.2d 211, 213-214 (1985). Page 478 U. S. 841We again granted certiorari, 474 U.S. 1018 (1985), and now reverse.IIThe Court of Appeals was correct in its understanding that "[f]ederal statutes are to be so construed as to avoid serious doubt of their constitutionality." Machinists v. Street, 367 U. S. 740, 367 U. S. 749 (1961). See also NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 440 U. S. 500-501 (1979). Where such "serious doubts" arise, a court should determine whether a construction of the statute is "fairly possible" by which the constitutional question can be avoided. Crowell v. Benson, 285 U. S. 22 (1932). See also Machinists v. Street, supra, at 367 U. S. 750. It is equally true, however, that this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication;"'[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .' or judicially rewriting it."Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 515 (1964) (quoting Scales v. United States, 367 U. S. 203, 367 U. S. 211 (1961)). See also Heckler v. Mathews, 465 U. S. 728, 465 U. S. 742-743 (1984).Assuming that the Court of Appeals correctly discerned a "serious" constitutional problem in the CFTC's adjudication of Conti's counterclaim, we nevertheless believe that the court was mistaken in finding that the CEA could fairly be read to preclude the CFTC's exercise of jurisdiction over that counterclaim. Our examination of the CEA and its legislative history and purpose reveals that Congress plainly intended the CFTC to decide counterclaims asserted by respondents in reparations proceedings, and just as plainly delegated to the CFTC the authority to fashion its counterclaim jurisdiction in the manner the CFTC determined necessary to further the purposes of the reparations program.Congress' assumption that the CFTC would have the authority to adjudicate counterclaims is evident on the face of Page 478 U. S. 842 the statute. See, e.g., 7 U.S.C. § 18(c) (providing that, before action will be taken on complaints filed by nonresident complainants, a bond must be filed which must cover inter alia, "any reparation award that may be issued by the Commission against the complainant on any counterclaim by respondent") (emphasis added); § 18(d) ("any person for whose benefit [a reparation award] was made" may enforce the judgment in district court) (emphasis added). See also § 18(e) (judicial review available to "any party"). Accordingly, the court below did not seriously contest that Congress intended to authorize the CFTC to adjudicate some counterclaims in reparations proceedings. Rather, the court read into the facially unqualified reference to counterclaim jurisdiction a distinction between counterclaims arising under the Act or CFTC regulations and all other counterclaims. See 239 U.S.App.D.C. at 173, 740 F.2d at 1278. While the court's reading permitted it to avoid a potential Article III problem, it did so only by doing violence to the CEA, for its distinction cannot fairly be drawn from the language or history of the CEA, nor reconciled with the congressional purposes motivating the creation of the reparations proceedings.We can find no basis in the language of the statute or its legislative history for the distinction posited by the Court of Appeals. Congress empowered the CFTC"to make and promulgate such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of [the CEA]."7 U.S.C. § 12a(5) (emphasis added). The language of the congressional Report that specifically commented on the scope of the CFTC's authority over counterclaims unambiguously demonstrates that, consistent with the sweeping authority Congress delegated to the CFTC generally, Congress intended to vest in the CFTC the power to define the scope of the counterclaims cognizable in reparations proceedings: Page 478 U. S. 843"Counterclaims will be recognized in the [reparations] proceedings . . . on such terms and under such circumstances as the Commission may prescribe by regulation. It is the intent of the Committee that the Commission will promulgate appropriate regulations to implement this section."H.R.Rep. No. 93-975, p. 23 (1974). Moreover, quite apart from congressional statements of intent, the broad grant of power in § 12a(5) clearly authorizes the promulgation of regulations providing for adjudication of common law counterclaims arising out of the same transaction as a reparations complaint, because such jurisdiction is necessary, if not critical, to accomplish the purposes behind the reparations program.Reference to the instant controversy illustrates the crippling effect that the Court of Appeals' restrictive reading of the CFTC's counterclaim jurisdiction would have on the efficacy of the reparations remedy. The dispute between Schor and Conti is typical of the disputes adjudicated in reparations proceedings: a customer and a professional commodities broker agree that there is a debit balance in the customer's account, but the customer attributes the deficit to the broker's alleged CEA violations and the broker attributes it to the customer's lack of success in the market. The customer brings a reparations claim; the broker counterclaims for the amount of the debit balance. In the usual case, then, the counterclaim "arises out of precisely the same course of events" as the principal claim, and requires resolution of many of the same disputed factual issues. Friedman v. Dean Witter & Co., [1980-1982 Transfer Binder] CCH Comm.Fut.L.Rep. � 21,307, p. 25,538 (1981).Under the Court of Appeals' approach, the entire dispute may not be resolved in the administrative forum. Consequently, the entire dispute will typically end up in court, for, when the broker files suit to recover the debit balance, the customer will normally be compelled either by compulsory counterclaim rules or by the expense and inconvenience of Page 478 U. S. 844 litigating the same issues in two fora, to forgo his reparations remedy and to litigate his claim in court. See, e.g., App. 13 (Schor's motion to dismiss Conti's federal court action) ("[C]ontinuation of this action, in light of the prior filed reparations proceedings, would be unjust to [Schor] in that it would require [him], at a great cost and expense, to litigate the same issues in two forums. If this action proceeds, defendants will be required pursuant to [Federal Rule of Civil Procedure 13(a)] to file a counterclaim in this action setting forth all the claims that they have already filed before the CFTC"). In sum, as Schor himself aptly summarized, to require a bifurcated examination of the single dispute"would be to emasculate, if not destroy, the purposes of the Commodity Exchange Act to provide an efficient and relatively inexpensive forum for the resolution of disputes in futures trading."Ibid. See also App. to Pet. for Cert. in No. 85-621, p. 71a (Wald, J., dissenting from denial of rehearing) ("To bifurcate, as the panel's decision now requires, the main reparations proceeding from counterclaims between the same parties . . . will realistically mean that the courts, not the agency, will end up dealing with all of these claims. The faster and less expensive alternative forum will be decimated").As our discuss on makes manifest, the CFTC's long-held position that it has the power to take jurisdiction over counterclaims such as Conti's is eminently reasonable, and well within the scope of its delegated authority. Accordingly, as the CFTC's contemporaneous interpretation of the statute it is entrusted to administer, considerable weight must be accorded the CFTC's position. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 844-845 (1984); Red Lion Broadcasting Co., Inc. v. FCC, 395 U. S. 367, 395 U. S. 380-381 (1969). The Court of Appeals declined to defer to the CFTC's interpretation because, in its view, the Commission had not maintained a consistent position on the scope of its authority to adjudicate counterclaims, and the Page 478 U. S. 845 question was not one on which a specialized administrative agency, in contrast to a court of general jurisdiction, had superior expertise. 239 U.S.App.D.C. at 176, 740 F.2d at 1279. We find both these reasons insubstantial.First, the CFTC issued the counterclaim rule currently in force at the time that the reparations program first took effect, and has never altered that rule. The only "inconsistency" identified by the Court of Appeals was a proposed rule, published by the Commission for notice and comment, that would have allowed a narrower class of counterclaims. 40 Fed.Reg. 55666-55667, 55672-55673 (1975). It goes without saying that a proposed regulation does not represent an agency's considered interpretation of its statute, and that an agency is entitled to consider alternative interpretations before settling on the view it considers most sound. Indeed, it would be antithetical to the purposes of the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553, to tax an agency with "inconsistency" whenever it circulates a proposal that it has not firmly decided to put into effect, and that it subsequently reconsiders in response to public comment.Second, the Court of Appeals was incorrect to state, on the facts of this case, that the CFTC's expertise was not deserving of deference because of the "statutory interpretation-jurisdictional" nature of the question at issue. 239 U.S.App. D.C. at 176, 740 F.2d at 1279. An agency's expertise is superior to that of a court when a dispute centers on whether a particular regulation is "reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes" of the Act the agency is charged with enforcing; the agency's position, in such circumstances, is therefore due substantial deference.Such deference is especially warranted here, for Congress has twice amended the CEA since the CFTC declared by regulation that it would exercise jurisdiction over counterclaims arising out of the same transaction as the principal Page 478 U. S. 846 reparations dispute, but has not overruled the CFTC's assertion of jurisdiction. See Red Lion Broadcasting Co., Inc. v. FCC, supra, at 395 U. S. 380-381. It is well established that, when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the"congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress."NLRB v. Bell Aerospace Co., 416 U. S. 267, 416 U. S. 274-275 (1974) (footnotes omitted). See also FDIC v. Philadelphia Gear Corp., 476 U. S. 426 (1986).Moreover, we need not, as the Court of Appeals argued, rely simply on congressional "silence" to find approval of the CFTC's position in the subsequent amendments to the CEA, see 239 U.S.App.D.C. at 177, 740 F.2d at 1280. Congress explicitly affirmed the CFTC's authority to dictate the scope of its counterclaim jurisdiction in the 1983 amendments to the Act:"The Commission may promulgate such rules, regulations, and orders as it deems necessary or appropriate for the efficient and expeditious administration of this section. Notwithstanding any other provision of law such rules, regulations, and orders may prescribe, or otherwise condition, without limitation . . . the nature and scope of . . . counterclaims, . . . and all other matters governing proceedings before the Commission under this section."7 U.S.C. § 18(b). See also H.R.Rep. No. 97-565, pt. 1, p. 55 (1982) ("[T]he reparations program seeks to pass upon the whole controversy surrounding each claim, including counterclaims arising out of the same set of facts"). Where, as here,"Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation,"we cannot but deem that construction virtually conclusive. See Red Lion Broadcasting Co. . Inc. v. FCC, supra, at 395 U. S. 380-381. See also Bell v. New Jersey, 461 U. S. 773, 461 U. S. 785 and n. 12 (1983). Page 478 U. S. 847In view of the abundant evidence that Congress both contemplated and authorized the CFTC's assertion of jurisdiction over Conti's common law counterclaim, we conclude that the Court of Appeals' analysis is untenable. The canon of construction that requires courts to avoid unnecessary constitutional adjudication did not empower the Court of Appeals to manufacture a restriction on the CFTC's jurisdiction that was nowhere contemplated by Congress, and to reject plain evidence of congressional intent because that intent was not specifically embodied in a statutory mandate. See Heckler v. Mathews, 465 U.S. at 465 U. S. 742-743. We therefore are squarely faced with the question whether the CFTC's assumption of jurisdiction over common law counterclaims violates Article III of the Constitution.IIIArticle III, § 1, directs that the"judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish,"and provides that these federal courts shall be staffed by judges who hold office during good behavior, and whose compensation shall not be diminished during tenure in office. Schor claims that these provisions prohibit Congress from authorizing the initial adjudication of common law counterclaims by the CFTC, an administrative agency whose adjudicatory officers do not enjoy the tenure and salary protections embodied in Article III.Although our precedents in this area do not admit of easy synthesis, they do establish that the resolution of claims such as Schor's cannot turn on conclusory reference to the language of Article III. See, e.g., Thomas, 473 U.S. at 473 U. S. 583. Rather, the constitutionality of a given congressional delegation of adjudicative functions to a non-Article III body must be assessed by reference to the purposes underlying the requirements of Article III. See, e.g., id. at 473 U. S. 590; Northern Pipeline, 458 U.S. at 458 U. S. 64. This inquiry, in turn, is guided Page 478 U. S. 848 by the principle that "practical attention to substance, rather than doctrinaire reliance on formal categories, should inform application of Article III." Thomas, supra, at 473 U. S. 587. See also Crowell v. Benson, 285 U.S. at 285 U. S. 53.AArticle III, § 1, serves both to protect "the role of the independent judiciary within the constitutional scheme of tripartite government," Thomas, supra, at 473 U. S. 583, and to safeguard litigants' "right to have claims decided before judges who are free from potential domination by other branches of government." United States v. Will, 449 U. S. 200, 449 U. S. 218 (1980). See also Thomas, supra, at 473 U. S. 582-583; Northern Pipeline, 458 U.S. at 458 U. S. 58. Although our cases have provided us with little occasion to discuss the nature or significance of this latter safeguard, our prior discussions of Article III, § 1's guarantee of an independent and impartial adjudication by the federal judiciary of matters within the judicial power of the United States intimated that this guarantee serves to protect primarily personal, rather than structural, interests. See, e.g., id. at 458 U. S. 90 (REHNQUIST, J., concurring in judgment) (noting lack of consent to non-Article III jurisdiction); id. at 458 U. S. 95 (WHITE, J., dissenting) (same). See also Currie, Bankruptcy Judges and the Independent Judiciary, 16 Creighton L.Rev. 441, 460, n. 108 (1983) (Article III, § 1, "was designed as a protection for the parties from the risk of legislative or executive pressure on judicial decision"). Cf. Crowell v. Benson, supra, at 285 U. S. 87 (Brandeis, J., dissenting).Our precedents also demonstrate, however, that Article III does not confer on litigants an absolute right to the plenary consideration of every nature of claim by an Article III court. See, e.g., Thomas, supra, at 473 U. S. 583; Crowell v. Benson, supra. Moreover, as a personal right, Article III's guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil Page 478 U. S. 849 and criminal matters must be tried. See, e.g., Boykin v. Alabama, 395 U. S. 238 (1969) (waiver of criminal trial by guilty plea); Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 158 (1968) (waiver of right to trial by jury in criminal case); Fed.Rule of Civ.Proc. 38(d) (waiver of right to trial by jury in civil cases). Indeed, the relevance of concepts of waiver to Article III challenges is demonstrated by our decision in Northern Pipeline, in which the absence of consent to an initial adjudication before a non-Article III tribunal was relied on as a significant factor in determining that Article III forbade such adjudication. See, e.g., 458 U.S. at 458 U. S. 80, n. 31; id. at 91 (REHNQUIST, J., concurring in judgment); id. at 458 U. S. 95 (WHITE, J., dissenting). See also Thomas, supra, at 473 U. S. 584, 473 U. S. 591. Cf. Kimberly v. Arms, 129 U. S. 512 (1889); Heckers v. Fowler, 2 Wall. 123 (1865).In the instant cases, Schor indisputably waived any right he may have possessed to the full trial of Conti's counterclaim before an Article III court. Schor expressly demanded that Conti proceed on its counterclaim in the reparations proceeding, rather than before the District Court, see App. 13, 19, and was content to have the entire dispute settled in the forum he had selected until the ALJ ruled against him on all counts; it was only after the ALJ rendered a decision to which he objected that Schor raised any challenge to the CFTC's consideration of Conti's counterclaim.Even were there no evidence of an express waiver here, Schor's election to forgo his right to proceed in state or federal court on his claim, and his decision to seek relief instead in a CFTC reparations proceeding, constituted an effective waiver. Three years before Schor instituted his reparations action, a private right of action under the CEA was explicitly recognized in the Circuit in which Schor and Conti filed suit in District Court. See Hirk v. Agri-Research Council, Inc., 561 F.2d 96, 103, n. 8 (CA7 1977). See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 (1982) (affirming the existence of a private cause of action under the Page 478 U. S. 850 CEA). Moreover, at the time Schor decided to seek relief before the CFTC, rather than in the federal courts, the CFTC's regulations made clear that it was empowered to adjudicate all counterclaims "aris[ing] out of the same transaction or occurrence or series of transactions or occurrences set forth in the complaint." 41 Fed.Reg. 3995 (1976) (codified in 17 CFR § 12.23(b)(2) (1983)). Thus, Schor had the option of having the common law counterclaim against him adjudicated in a federal Article III court, but, with full knowledge that the CFTC would exercise jurisdiction over that claim, chose to avail himself of the quicker and less expensive procedure Congress had provided him. In such circumstances, it is clear that Schor effectively agreed to an adjudication by the CFTC of the entire controversy by seeking relief in this alternative forum. Cf. McElrath v. United States, 102 U. S. 426, 102 U. S. 440 (1880).BAs noted above, our precedents establish that Article III, § 1, not only preserves to litigants their interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as "an inseparable element of the constitutional system of checks and balances." Northern Pipeline, supra, at 458 U. S. 58. See also United States v. Will, supra, at 449 U. S. 217. Article III, § 1, safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts "to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating" constitutional courts, National Insurance Co. v. Tidewater Co., 337 U. S. 582, 337 U. S. 644 (1949) (Vinson, C.J., dissenting), and thereby preventing "the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U. S. 1, 424 U. S. 122 (1976) (per curiam). See Thomas, 473 U.S. at 473 U. S. 582-583; Northern Pipeline, 458 U.S. at 458 U. S. 57-58, 458 U. S. 73-74, 458 U. S. 83, 453 U. S. 86; id. at 453 U. S. 98, 453 U. S. 115-116 (WHITE, J., dissenting). To the extent that this structural principle is Page 478 U. S. 851 implicated in a given case, the parties cannot by consent cure the constitutional difficulty, for the same reason that the parties, by consent, cannot confer on federal courts subject matter jurisdiction beyond the limitations imposed by Article III, § 2. See, e.g., United States v. Griffin, 303 U. S. 226, 303 U. S. 229 (1938). When these Article III limitations are at issue, notions of consent and waiver cannot be dispositive, because the limitations serve institutional interests that the parties cannot be expected to protect.In determining the extent to which a given congressional decision to authorize the adjudication of Article III business in a non-Article III tribunal impermissibly threatens the institutional integrity of the Judicial Branch, the Court has declined to adopt formalistic and unbending rules. Thomas, 473 U.S. at 473 U. S. 587. Although such rules might lend a greater degree of coherence to this area of the law, they might also unduly constrict Congress' ability to take needed and innovative action pursuant to its Article I powers. Thus, in reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary. Id. at 473 U. S. 590. Among the factors upon which we have focused are the extent to which the "essential attributes of judicial power" are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III. See, e.g., id. at 473 U. S. 587, 437 U. S. 589-593; Northern Pipeline, supra, at 458 U. S. 84-86.An examination of the relative allocation of powers between the CFTC and Article III courts in light of the considerations given prominence in our precedents demonstrates that the congressional scheme does not impermissibly intrude Page 478 U. S. 852 on the province of the judiciary. The CFTC's adjudicatory powers depart from the traditional agency model in just one respect: the CFTC's jurisdiction over common law counterclaims. While wholesale importation of concepts of pendent or ancillary jurisdiction into the agency context may create greater constitutional difficulties, we decline to endorse an absolute prohibition on such jurisdiction out of fear of where some hypothetical "slippery slope" may deposit us. Indeed, the CFTC's exercise of this type of jurisdiction is not without precedent. Thus, in RFC v. Bankers Trust Co., 318 U. S. 163, 318 U. S. 168-171 (1943), we saw no constitutional difficulty in the initial adjudication of a state law claim by a federal agency, subject to judicial review, when that claim was ancillary to a federal law dispute. Similarly, in Katchen v. Landy, 382 U. S. 323 (1966), this Court upheld a bankruptcy referee's power to hear and decide state law counterclaims against a creditor who filed a claim in bankruptcy when those counterclaims arose out of the same transaction. We reasoned that, as a practical matter, requiring the trustee to commence a plenary action to recover on its counterclaim would be a "meaningless gesture." Id. at 382 U. S. 334.In the instant cases, we are likewise persuaded that there is little practical reason to find that this single deviation from the agency model is fatal to the congressional scheme. Aside from its authorization of counterclaim jurisdiction, the CEA leaves far more of the "essential attributes of judicial power" to Article III courts than did that portion of the Bankruptcy Act found unconstitutional in Northern Pipeline. The CEA scheme, in fact, hews closely to the agency model approved by the Court in Crowell v. Benson, 285 U. S. 22 (1932).The CFTC, like the agency in Crowell, deals only with a "particularized area of law," Northern Pipeline, supra, at 458 U. S. 85, whereas the jurisdiction of the bankruptcy courts found unconstitutional in Northern Pipeline extended to broadly "all civil proceedings arising under title 11 or arising in or related Page 478 U. S. 853 to cases under title 11." 28 U.S.C. § 1471(b) (quoted in Northern Pipeline, 458 U.S. at 458 U. S. 85) (emphasis added). CFTC orders, like those of the agency in Crowell, but unlike those of the bankruptcy courts under the 1978 Act, are enforceable only by order of the district court. See 7 U.S.C. § 18(f); Northern Pipeline, supra, at 458 U. S. 85-86. CFTC orders are also reviewed under the same "weight of the evidence" standard sustained in Crowell, rather than the more deferential standard found lacking in Northern Pipeline. See 7 U.S.C. § 9; Northern Pipeline, supra, at 458 U. S. 85. The legal rulings of the CFTC, like the legal determinations of the agency in Crowell, are subject to de novo review. Finally, the CFTC, unlike the bankruptcy courts under the 1978 Act, does not exercise "all ordinary powers of district courts," and thus may not, for instance, preside over jury trials or issue writs of habeas corpus. 458 U.S. at 458 U. S. 85.Of course, the nature of the claim has significance in our Article III analysis quite apart from the method prescribed for its adjudication. The counterclaim asserted in this litigation is a "private" right for which state law provides the rule of decision. It is therefore a claim of the kind assumed to be at the "core" of matters normally reserved to Article III courts. See, e.g., Thomas, supra, at 473 U. S. 587; Northern Pipeline, 458 U.S. at 458 U. S. 70-71, and n. 25; id. at 458 U. S. 90 (REHNQUIST, J., concurring in judgment). Yet this conclusion does not end our inquiry; just as this Court has rejected any attempt to make determinative for Article III purposes the distinction between public rights and private rights, Thomas, supra, at 473 U. S. 585-586, there is no reason inherent in separation of powers principles to accord the state law character of a claim talismanic power in Article III inquiries. See, e.g., Northern Pipeline, 458 U.S. at 458 U. S. 68, n. 20; id. at 458 U. S. 98 (WHITE, J., dissenting).We have explained that"the public rights doctrine reflects simply a pragmatic understanding that, when Congress selects a quasi-judicial method of resolving matters that 'could Page 478 U. S. 854 be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers"is less than when private rights, which are normally within the purview of the judiciary, are relegated as an initial matter to administrative adjudication. Thomas, 473 U.S. at 473 U. S. 589 (quoting Northern Pipeline, supra, at 458 U. S. 68). Similarly, the state law character of a claim is significant for purposes of determining the effect that an initial adjudication of those claims by a non-Article III tribunal will have on the separation of powers, for the simple reason that private common law rights were historically the types of matters subject to resolution by Article III courts. See Northern Pipeline, 458 U.S. at 68, n. 458 U. S. 20, 458 U. S. 84; id. at 458 U. S. 90 (REHNQUIST, J., concurring in judgment). The risk that Congress may improperly have encroached on the federal judiciary is obviously magnified when Congress"withdraw[s] from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,"and which therefore has traditionally been tried in Article III courts, and allocates the decision of those matters to a non-Article III forum of its own creation. Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 59 U. S. 284 (1856). Accordingly, where private, common law rights are at stake, our examination of the congressional attempt to control the manner in which those rights are adjudicated has been searching. See, e.g., Northern Pipeline, 458 U.S. at 458 U. S. 84; id. at 458 U. S. 90 (REHNQUIST, J., concurring in judgment). In this litigation, however, "[l]ooking beyond form to the substance of what" Congress has done, we are persuaded that the congressional authorization of limited CFTC jurisdiction over a narrow class of common law claims as an incident to the CFTC's primary, and unchallenged, adjudicative function does not create a substantial threat to the separation of powers. Thomas, supra, at 473 U. S. 589.It is clear that Congress has not attempted to "withdraw from judicial cognizance" the determination of Conti's right to Page 478 U. S. 855 the sum represented by the debit balance in Schor's account. Congress gave the CFTC the authority to adjudicate such matters, but the decision to invoke this forum is left entirely to the parties, and the power of the federal judiciary to take jurisdiction of these matters is unaffected. In such circumstances, separation of powers concerns are diminished, for it seems self-evident that, just as Congress may encourage parties to settle a dispute out of court or resort to arbitration without impermissible incursions on the separation of powers, Congress may make available a quasi-judicial mechanism through which willing parties may, at their option, elect to resolve their differences. This is not to say, of course, that, if Congress created a phalanx of non-Article III tribunals equipped to handle the entire business of the Article III courts without any Article III supervision or control, and, without evidence of valid and specific legislative necessities, the fact that the parties had the election to proceed in their forum of choice would necessarily save the scheme from constitutional attack. See, e.g., Northern Pipeline, supra, at 458 U. S. 73-74. But this case obviously bears no resemblance to such a scenario, given the degree of judicial control saved to the federal courts, see supra, at 478 U. S. 852-853, as well as the congressional purpose behind the jurisdictional delegation, the demonstrated need for the delegation, and the limited nature of the delegation.When Congress authorized the CFTC to adjudicate counterclaims, its primary focus was on making effective a specific and limited federal regulatory scheme, not on allocating jurisdiction among federal tribunals. Congress intended to create an inexpensive and expeditious alternative forum through which customers could enforce the provisions of the CEA against professional brokers. Its decision to endow the CFTC with jurisdiction over such reparations claims is readily understandable, given the perception that the CFTC was relatively immune from political pressures, see H.R.Rep. No. 93-975, pp. 44, 70 (1974), and the obvious expertise Page 478 U. S. 856 that the Commission possesses in applying the CEA and its own regulations. This reparations scheme itself is of unquestioned constitutional validity. See, e.g., Thomas, supra, at 473 U. S. 589; Northern Pipeline, supra, at 458 U. S. 80-81; Crowell v. Benson, 285 U. S. 22 (1932). It was only to ensure the effectiveness of this scheme that Congress authorized the CFTC to assert jurisdiction over common law counterclaims. Indeed, as was explained above, absent the CFTC's exercise of that authority, the purposes of the reparations procedure would have been confounded.It also bears emphasis that the CFTC's assertion of counterclaim jurisdiction is limited to that which is necessary to make the reparations procedure workable. See 7 U.S.C. § 12a(5). The CFTC adjudication of common law counterclaims is incidental to, and completely dependent upon, adjudication of reparations claims created by federal law, and, in actual fact, is limited to claims arising out of the same transaction or occurrence as the reparations claim.In such circumstances, the magnitude of any intrusion on the Judicial Branch can only be termed de minimis. Conversely, were we to hold that the Legislative Branch may not permit such limited cognizance of common law counterclaims at the election of the parties, it is clear that we would"defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task."Crowell v. Benson, supra, at 285 U. S. 46. See also Thomas, supra, at 473 U. S. 583-584. We do not think Article III compels this degree of prophylaxis.Nor does our decision in Bowsher v. Synar, ante, p. 478 U. S. 714, require a contrary result. Unlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch. Instead, the separation of powers question presented in this litigation is whether Congress impermissibly undermined, without appreciable expansion Page 478 U. S. 857 of its own power, the role of the Judicial Branch. In any case, we have, consistent with Bowsher, looked to a number of factors in evaluating the extent to which the congressional scheme endangers separation of powers principles under the circumstances presented, but have found no genuine threat to those principles to be present in this litigation.In so doing, we have also been faithful to our Article III precedents, which counsel that bright-line rules cannot effectively be employed to yield broad principles applicable in all Article III inquiries. See, e.g., 473 U. S. 473 U. S. 568 (1985). Rather, due regard must be given in each case to the unique aspects of the congressional plan at issue, and its practical consequences in light of the larger concerns that underlie Article III. We conclude that the limited jurisdiction that the CFTC asserts over state law claims as a necessary incident to the adjudication of federal claims willingly submitted by the parties for initial agency adjudication does not contravene separation of powers principles or Article III.CSchor asserts that Article III, § 1, constrains Congress for reasons of federalism, as well as for reasons of separation of powers. He argues that the state law character of Conti's counterclaim transforms the central question in this litigation from whether Congress has trespassed upon the judicial powers of the Federal Government into whether Congress has invaded the prerogatives of state governments.At the outset, we note that our prior precedents in this area have dealt only with separation of powers concerns, and have not intimated that principles of federalism impose limits on Congress' ability to delegate adjudicative functions to non-Article III tribunals. This absence of discussion regarding federalism is particularly telling in Northern Pipeline, where the Court based its analysis solely on the separation of powers principles inherent in Article III, despite the fact that the claim sought to be adjudicated in the bankruptcy court was Page 478 U. S. 858 created by state law. See, e.g., 458 U.S. at 458 U. S. 57-60, and n. 11.Even assuming that principles of federalism are relevant to Article III analysis, however, we are unpersuaded that those principles require the invalidation of the CFTC's counterclaim jurisdiction. The sole fact that Conti's counterclaim is resolved by a federal, rather than a state, tribunal could not be said to unduly impair state interests, for it is established that a federal court could, without constitutional hazard, decide a counterclaim such as the one asserted here under its ancillary jurisdiction, even if an independent jurisdictional basis for it were lacking. See, e.g., Baker v. Gold Seal Liquors, 417 U. S. 467, 417 U. S. 469, n. 1 (1974); Moore v. New York Cotton Exchange, 270 U. S. 593, 270 U. S. 609 (1926). Given that the federal courts can and do exercise ancillary jurisdiction over counterclaims such as the one at issue here, the question becomes whether the fact that a federal agency, rather than a federal Article III court, initially hears the state law claim gives rise to a cognizably greater impairment of principles of federalism.Schor argues that those Framers opposed to diversity jurisdiction in the federal courts acquiesced in its inclusion in Article III only because they were assured that the federal judiciary would be protected by the tenure and salary provisions of Article III. He concludes, in essence, that, to protect this constitutional compact, Article III should be read to absolutely preclude any adjudication of state law claims by federal decisionmakers that do not enjoy the Article III salary and tenure protections. We are unpersuaded by Schor's novel theory, which suffers from a number of flaws, the most important of which is that Schor identifies no historical support for the critical link he posits between the provisions of Article III that protect the independence of the federal judiciary and those provisions that define the extent of the judiciary's jurisdiction over state law claims. Page 478 U. S. 859The judgment of the 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

U.S. Supreme CourtCFTC v. Schor, 478 U.S. 833 (1986)Commodity Futures Trading Commission v. SchorNo. 85-621Argued April 29, 1986Decided July 7, 1986*478 U.S. 833SyllabusSection 14 of the Commodity Exchange Act (CEA) provides that any person injured by a commodity broker's violation of the Act or regulations of the Commodity Futures Trading Commission (CFTC) may apply to the CFTC for an order directing the offender to pay reparations to the complainant, and may enforce that order in federal district court. The CFTC promulgated a regulation that allows it in a reparations proceeding to adjudicate counterclaims "aris[ing] out of the transaction or occurrence or series of transactions or occurrences set forth in the complaint." Respondents filed separate reparations complaints (later consolidated) with the CFTC against petitioner commodity futures broker (petitioner) and one of its employees, alleging that a debit balance in their accounts with petitioner, resulting from respondents' futures trading losses and expenses being in excess of the funds deposited in the accounts, was the result of petitioner's violations of the CEA. In the meantime, petitioner filed a diversity action in Federal District Court to recover the debit balance, but, after respondents moved to dismiss on the ground that the reparations proceeding would resolve all rights of the parties, petitioner voluntarily dismissed the action and presented its debit balance claims as counterclaims in the CFTC reparations proceeding. The Administrative Law Judge (ALJ) in that proceeding ruled in petitioner's favor on both respondents' claims and petitioner's counterclaims. Respondents then for the first time challenged the CFTC's statutory authority to adjudicate the counterclaims. The ALJ rejected the challenge, and the CFTC declined to review the decision, allowing it to become final. Respondents filed a petition for review with the Court of Appeals, which upheld the CFTC's decision on respondents' claims in most respects, but ordered dismissal of petitioner's counterclaims on the ground that the CFTC lacked authority to adjudicate common law counterclaims. The court held that, in light of the constitutional problems posed by the CFTC's adjudication of such counterclaims, the CEA should be construed Page 478 U. S. 834 to authorize the CFTC to adjudicate only counterclaims arising from violations of the CEA or CFTC regulations.Held:1. The CEA empowers the CFTC to entertain state law counterclaims in reparations proceedings. 478 U. S. 841-847.(a) While the Court of Appeals' reading of the CEA permitted it to avoid a potential Article III problem, it did so only by doing violence to the statute, for its distinction between common law counterclaims and counterclaims based on violations of the statute cannot be drawn from the statute's language or history, nor reconciled with the congressional purpose in creating reparations proceedings to promote efficient dispute resolution. Pp. 478 U. S. 841-842.(b) Section 8(a)(5) of the CEA, which empowers the CFTC to promulgate such regulations as are reasonably necessary "to effectuate any of the provisions or to accomplish any of the purposes of [the CEA]," clearly authorizes a regulation providing for adjudication of common law counterclaims. To require a bifurcated examination of a single dispute would destroy the efficacy of the reparations remedy. Pp. 478 U. S. 842-844.(c) The CFTC's longstanding interpretation of the statute as empowering it to take jurisdiction over counterclaims such as petitioner's is reasonable, is well within the scope of its delegated authority, and accordingly is entitled to considerable weight, especially where Congress has twice amended the CEA since the CFTC issued its counterclaim regulation without overruling it, and indeed has explicitly affirmed the CFTC's authority to dictate the scope of its counterclaim jurisdiction. Pp. 478 U. S. 844-847.2. The CFTC's assumption of jurisdiction over common law counterclaims does not violate Article III of the Constitution. Pp. 478 U. S. 847-858.(a) As a personal right, Article III's guarantee of an impartial and independent adjudication by the federal judiciary is subject to waiver. Here, respondents indisputably waived any right they may have had to the full trial of petitioner's counterclaims before an Article III court by expressly demanding that petitioner proceed with its counterclaims in the reparations proceedings, rather than before the District Court. Even if there were no express waiver, respondents' election to forgo their right to proceed in state or federal court and to seek relief in the CFTC constituted an effective waiver. Pp. 478 U. S. 847-850.(b) Nor does the CFTC's common law counterclaim jurisdiction contravene the nonwaivable protections Article III affords separation of powers principles. Examination of the congressional scheme in light of a number of factors, including the extent to which the "essential attributes of judicial power" are reserved to Article III courts, and conversely, the extent to which the non-Article III forum exercises the Page 478 U. S. 835 range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III, yields the conclusion that the limited jurisdiction the CFTC asserts over state law claims as a necessary incident to the adjudication of federal claims willingly submitted by the parties for initial agency adjudication does not impermissibly threaten the institutional integrity of the Judicial Branch. Pp. 478 U. S. 850-856.(c) Even assuming that principles of federalism are relevant to Article III analysis, those principles do not require invalidation of the CFTC's counterclaim jurisdiction. The fact that petitioner's counterclaims are resolved by a federal, rather than a state, tribunal is not objectionable, because federal courts can, without constitutional hazard, decide such counterclaims under their ancillary jurisdiction. Moreover, respondents have identified no historical support for the argument that Article III embodies a compact among the Framers that all state law claims heard in a federal forum be adjudicated by judges possessing the tenure and salary protections of Article III. Pp. 478 U. S. 856-858.248 U.S.App.D.C. 155, 770 F.2d 211, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, JJ., joined, post, p. 478 U. S. 859.

1971_71-5313

MR. JUSTICE BRENNAN delivered the opinion of the Court.Petitioner was tried and convicted in the Circuit Court of Hamilton County, Tennessee, on charges of armed robbery and unlawful possession of a pistol. During the Page 406 U. S. 606 trial, at the close of the State's case, defense counsel moved to delay petitioner's testimony until after other defense witnesses had testified. The trial court denied this motion on the basis of Tenn.Code Ann. § 40-2403 (1955), which requires that a criminal defendant "desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case." [Footnote 1] Although the prosecutor agreed to waive the statute, the trial court refused, stating that "the law is, as you know it to be, that, if a defendant testifies, he has to testify first." The defense called two witnesses, but petitioner himself did not take the stand.Following the denial of his motion for new trial, petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, which overruled his assignments of error, including his claim that § 40-2403 violated the State and Federal Constitutions. The Supreme Court of Tennessee denied review, and we granted certiorari to consider whether the requirement that a defendant testify first violates the Federal Constitution. 404 U.S. 955 (1971). We reverse. Page 406 U. S. 607IThe rule that a defendant must testify first is related to the ancient practice of sequestering prospective witnesses in order to prevent their being influenced by other testimony in the case. See 6 J. Wigmore, Evidence § 1837 (3d ed.1940). Because the criminal defendant is entitled to be present during trial, and thus cannot be sequestered, the requirement that he precede other defense witnesses was developed by court decision and statute as an alternative means of minimizing this influence as to him. According to Professor Wigmore,"[t]he reason for this rule is the occasional readiness of the interested person to adapt his testimony, when offered later, to victory, rather than to veracity, so as to meet the necessities as laid open by prior witnesses. . . ."Id. at § 1869.Despite this traditional justification, the validity of the requirement has been questioned in a number of jurisdictions as a limitation upon the defendant's freedom to decide whether to take the stand. Two federal courts have rejected the contention, holding that a trial court does not abuse its discretion by requiring the defendant to testify first. United States v. Shipp, 359 F.2d 185, 189-190 (CA6 1966); Spaulding v. United States, 279 F.2d 65, 667 (CA9 1960). In Shipp, however, the dissenting judge strongly objected to the rule, stating:"If the man charged with crime takes the witness stand in his own behalf, any and every arrest and conviction, even for lesser felonies, can be brought before the jury by the prosecutor, and such evidence may have devastating and deadly effect, although unrelated to the offense charged. The decision as to whether the defendant in a criminal case shall take Page 406 U. S. 608 the stand is, therefore, often of utmost importance, and counsel must, in many cases, meticulously balance the advantages and disadvantages of the prisoner's becoming a witness in his own behalf. Why, then, should a court insist that the accused must testify before any other evidence is introduced in his behalf, or be completely foreclosed from testifying thereafter? . . . This savors of judicial whim, even though sanctioned by some authorities, and the cause of justice and a fair trial cannot be subjected to such a whimsicality of criminal procedure."359 F.2d at 190-191.Other courts have followed this line of reasoning in striking down the rule as an impermissible restriction on the defendant's freedom of choice. In the leading case of Bell v. State, 66 Miss. 192, 5 So. 389 (1889), the court held the requirement to be reversible error, saying:"It must often be a very serious question with the accused and his counsel whether he shall be placed upon the stand as a witness, and subjected to the hazard of cross-examination, a question that he is not required to decide until, upon a proper survey of all the case as developed by the state, and met by witnesses on his own behalf, he may intelligently weigh the advantages and disadvantages of his situation, and, thus advised, determine how to act. Whether he shall testify or not; if so, at what stage in the progress of his defense, are equally submitted to the free and unrestricted choice of one accused of crime, and are, in the very nature of things, beyond the control or direction of the presiding judge. Control as to either is coercion, and coercion is denial of freedom of action."Id. at 194, 5 So. at 389. In Nassif v. District of Columbia, 201 A.2d 519 (DC Ct.App. 1964), the court adopted the language and Page 406 U. S. 609 reasoning of Bell in concluding that the trial court had erred in applying the rule.Although Bell, Nassif, and the Shipp dissent were not based on constitutional grounds, we are persuaded that the rule embodied in § 40-2403 is an impermissible restriction on the defendant's right against self-incrimination, "to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." Malloy v. Hogan, 378 U. S. 1, 378 U. S. 8 (1964). As these opinions demonstrate, a defendant's choice to take the stand carries with it serious risks of impeachment and cross-examination; it "may open the door to otherwise inadmissible evidence which is damaging to his case," McGautha v. California, 402 U. S. 183, 402 U. S. 213 (1971), including, now, the use of some confessions for impeachment purposes that would be excluded from the State's case in chief because of constitutional defects. Harris v. New York, 401 U. S. 222 (1971). Although"it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify,"McGautha v. California, supra, at 402 U. S. 215, none would deny that the choice itself may pose serious dangers to the success of an accused's defense.Although a defendant will usually have some idea of the strength of his evidence, he cannot be absolutely certain that his witnesses will testify as expected or that they will be effective on the stand. They may collapse under skillful and persistent cross-examination, and, through no fault of their own, they may fail to impress the jury as honest and reliable witnesses. In addition, a defendant is sometimes compelled to call a hostile prosecution witness as his own. [Footnote 2] Unless the State provides Page 406 U. S. 610 for discovery depositions of prosecution witnesses, which Tennessee apparently does not, [Footnote 3] the defendant is unlikely to know whether this testimony will prove entirely favorable.Because of these uncertainties, a defendant may not know at the close of the State's case whether his own testimony will be necessary or even helpful to his cause. Rather than risk the dangers of taking the stand, he might prefer to remain silent at that point, putting off his testimony until its value can be realistically assessed. Yet, under the Tennessee rule, he cannot make that choice "in the unfettered exercise of his own will." Section 40-2403 exacts a price for his silence by keeping him off the stand entirely unless he chooses to testify first. [Footnote 4] This, we think, casts a heavy burden on a defendant's otherwise unconditional right not to take the Page 406 U. S. 611 stand. [Footnote 5] The rule, in other words, "cuts down on the privilege [to remain silent] by making its assertion costly." Griffin v. California, 380 U. S. 609, 380 U. S. 614 (1965). [Footnote 6]Although the Tennessee statute does reflect a state interest in preventing testimonial influence, we do not regard that interest as sufficient to override the defendant's right to remain silent at trial. [Footnote 7] This is not to imply that there may be no risk of a defendant's coloring his testimony to conform to what has gone before. But our adversary system reposes judgment of the credibility of all witnesses in the jury. Pressuring the defendant to take the stand, by foreclosing later testimony if he refuses, is not a constitutionally permissible means of ensuring his honesty. It fails to take into account the Page 406 U. S. 612 very real and legitimate concerns that might motivate a defendant to exercise his right of silence. And it may compel even a wholly truthful defendant, who might otherwise decline to testify for legitimate reasons, to subject himself to impeachment and cross-examination at a time when the strength of his other evidence is not yet clear. For these reasons, we hold that § 40-2403 violates an accused's constitutional right to remain silent insofar as it requires him to testify first for the defense or not at all.IIFor closely related reasons, we also regard the Tennessee rule as an infringement on the defendant's right of due process as defined in Ferguson v. Georgia, 365 U. S. 570 (1961). There, the Court reviewed a Georgia statute providing that a criminal defendant, though not competent to testify under oath, could make an unsworn statement at trial. The statute did not permit defense counsel to aid the accused by eliciting his statement through questions. The Court held that this limitation deprived the accused of"'the guiding hand of counsel at every step in the proceedings against him,' Powell v. Alabama, 287 U. S. 45, 287 U. S. 69, within the requirement of due process in that regard as imposed upon the States by the Fourteenth Amendment."Id. at 365 U. S. 572. The same may be said of § 40-2403. Whether the defendant is to testify is an important tactical decision, as well as a matter of constitutional right. By requiring the accused and his lawyer to make that choice without an opportunity to evaluate the actual worth of their evidence, the statute restricts the defense -- particularly counsel -- in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though, as a matter of professional judgment, his lawyer might want to call him later in the trial. The accused is thereby deprived of Page 406 U. S. 613 the "guiding hand of counsel" in the timing of this critical element of his defense. While nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand.Petitioner, then, was deprived of his constitutional rights when the trial court excluded him from the stand for failing to testify first. The State makes no claim that this was harmless error, Chapman v. California, 386 U. S. 18 (1967), and petitioner is entitled to a new trial.The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtBrooks v. Tennessee, 406 U.S. 605 (1972)Brooks v. TennesseeNo. 71-5313Argued March 21-22, 1972Decided June 7, 1972406 U.S. 605Syllabus1. Tennessee's statutory requirement that a defendant in a criminal proceeding "desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case" violates the defendant's privilege against self-incrimination. A defendant may not be penalized for remaining silent at the close of the State's case by being excluded from the stand later in the trial. Pp. 406 U. S. 607-612.2. The Tennessee rule also infringes the defendant's constitutional rights by depriving him of the "guiding hand of counsel," in deciding not only whether the defendant will testify but, if so, at what stage. Pp. 406 U. S. 612-613.___ Tenn.App. ___, ___ S.W.2d ___, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, WHITE, MARSHALL, and POWELL, JJ., joined. STEWART, J., filed a statement concurring in the judgment and in Part II of the Court's opinion, post, p. 406 U. S. 613. BURGER, C.J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 406 U. S. 613. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 406 U. S. 617.

1981_80-2116

JUSTICE BLACKMUN delivered the opinion of the Court.In this case, we must decide whether the deposit of a "bad check" in a federally insured bank is proscribed by 18 U.S.C. § 1014.IIn 1975, petitioner William Archie Williams purchased a controlling interest in the Pelican State Bank in Pelican, La., and appointed himself president. The bank's deposits were insured by the Federal Deposit Insurance Corporation.Among the services the bank provided its customers at the time of petitioner's purchase was access to a "dummy account," used to cover checks drawn by depositors who had insufficient funds in their individual accounts. Any such check was processed through the dummy account and paid from the bank's general assets. The check was then held until the customer covered it by a deposit to his own account, at which time the held check was posted to the customer's account and the dummy account was credited accordingly. As president of the bank, petitioner enjoyed virtually unlimited use of the dummy account, and by May 2, 1978, his personal overdrafts amounted to $58,055.44, approximately half the total then covered by the account.On May 8, 1978, federal and state examiners arrived at the Pelican Bank to conduct an audit. That same day, petitioner Page 458 U. S. 281 embarked on a series of transactions that seemingly amounted to a case of "check-kiting." [Footnote 1] He began by opening a checking account with a deposit of $4,649.97 at the federally insured Winn State Bank and Trust Company in Winnfield, La. The next day, petitioner drew a check on his new Winn account for $58,500 -- a sum far in excess of the amount actually on deposit at the Winn Bank -- and deposited it in his Pelican account. Pelican credited his account with the face value of the check, at the same time deducting from petitioner's account the $58,055.44 total of his checks that previously had been cleared through the dummy account. At the close of business on May 9, then, petitioner had a balance of $452.89 at the Pelican Bank.On May 10, petitioner wrote a $60,000 check on his Pelican account -- again, a sum far in excess of the account balance -- and deposited it in his Winn account. The Winn Bank immediately credited the $60,000 to petitioner's account there, and Pelican cleared the check through its dummy account when it was presented for payment on May 11. The Winn Bank routinely Page 458 U. S. 282 paid petitioner's May 9 check for $58,500 when it cleared on May 12.Petitioner next attempted to balance his Pelican account by depositing a $65,000 check drawn on his account at yet another institution, the Sabine State Bank in Many, La. Unfortunately, the balance in petitioner's Sabine account at the time was only $1,204.81. The Sabine Bank therefore refused payment when Pelican presented the check on May 17. On May 23, petitioner settled his Pelican account by depositing at the Pelican Bank a $65,000 money order obtained with the proceeds from a real estate mortgage loan.The bank examiners, meanwhile, had been following petitioner's activities with considerable interest. Their scrutiny ultimately led to petitioner's indictment, in the United States District Court for the Western District of Louisiana, on two counts of violating 18 U.S.C. § 1014. [Footnote 2] That provision makes it a crime to"knowingly mak[e] any false statement or report, or willfully overvalu[e] any land, property or security, for the purpose of influencing in any way the action of [certain enumerated financial institutions, among them banks whose deposits are insured by the Federal Deposit Insurance Corporation], upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan. . . ."The first of the counts under § 1014 was directed at the May 9, 1978, check drawn on the Winn Bank, and charged that petitioner"did knowingly and willfully overvalue . . . a security, that is a check . . . for the purpose of influencing the Pelican State Bank, . . . a bank the deposits of which are insured by the Federal Deposit Insurance Corporation, upon an advance of money and extension of credit."The other Page 458 U. S. 283 § 1014 count used virtually identical language to indict petitioner for depositing in his Winn account the May 10 check drawn on the Pelican Bank. App. 3-4. [Footnote 3]At petitioner's trial, the court charged the jury that "[a] check is a security for purposes of Section 1014." The court then explained that"[t]he Government charges that Mr. Williams was involved in check-kiting -- a scheme whereby false credit is obtained by the exchange and passing of worthless checks between two or more banks."Id. at 36. To convict petitioner, the court continued, the jury had to find as to each count that "the defendant . . . did knowingly and willfully make a false statement of a material fact," that the statement "influence[d] the decision of the [bank] officers or employees," and that "the defendant made the false statement with fraudulent intent to influence the [bank] to extend credit to the defendant." Id. at 37-38. "The crucial question in check-kiting," the court concluded,"is whether the defendant intended to write checks which he could not reasonably expect to cover, and thereby defraud the bank, or whether he was genuinely involved in the process of depositing funds and then making legitimate withdrawals against them."Id. at 38. The jury convicted petitioner on both counts, and he was sentenced to six months' incarceration on the second § 1014 count. For the first § 1014 count, he was placed on five years' probation, to begin upon his release from confinement. App. 39. [Footnote 4] Page 458 U. S. 284Among other things, petitioner argued on appeal that the indictment did not state a violation of § 1014. The Court of Appeals rejected this contention, however, concluding that petitioner's actions "constitute classic incidents of check-kiting." 639 F.2d 1311, 1319 (CA5 1981). In line with its earlier decision in United States v. Payne, 602 F.2d 1215 (CA5 1979), cert. denied, 445 U.S. 903 (1980), the court found such action proscribed by the statute.We granted certiorari, limited to Questions 3 and 4 presented by the petition, in order to resolve a conflict concerning the reach of § 1014. [Footnote 5] 454 U.S. 1030 and 1096 (1981).IITo obtain a conviction under § 1014, the Government must establish two propositions: it must demonstrate (1) that the defendant made a "false statement or report," or "willfully overvalue[d] any land, property or security," and (2) that he did so "for the purpose of influencing in any way the action of [a described financial institution] upon any application, advance, . . . commitment, or loan." We conclude that petitioner's convictions under § 1014 cannot stand, because the Government has failed to meet the first of these burdens.AAlthough petitioner deposited several checks that were not supported by sufficient funds, that course of conduct did not involve the making of a "false statement," for a simple reason: technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as "true" or "false." Petitioner's bank checks served only to direct the drawee banks to pay the face amounts to the bearer, while committing petitioner to make good the obligations if the banks dishonored the drafts. Each check did not, in terms, Page 458 U. S. 285 make any representation as to the state of petitioner's bank balance. As defined in the Uniform Commercial Code, 2 U.L.A. 17 (1977), a check is simply "a draft drawn on a bank and payable on demand," § 3-104(2)(b), which "contain[s] an unconditional promise or order to pay a sum certain in money," § 3-104(1)(b). As such,"[t]he drawer engages that upon dishonor of the draft and any necessary notice of dishonor or protest he will pay the amount of the draft to the holder."§ 3-413(2), 2 U.L.A. 424 (1977). The Code also makes clear, however, that"[a] check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it."§ 3-409(1), 2 U.L.A. 408 (1977). Louisiana, the site of petitioner's unfortunate banking career, embraces verbatim each of these definitions. See La.Rev.Stat.Ann. §§ 10:3-104, 10:3-409, 10:3-413 (West Supp.1982). [Footnote 6]For similar reasons, we conclude that petitioner's actions cannot be regarded as "overvalu[ing]" property or a security. Even assuming that petitioner's checks were property or a security as defined by § 1014, the value legally placed upon them was the value of petitioner's obligation; as defined by Louisiana law, that is the only meaning actually attributable to a bank check. See La.Rev.Stat.Ann. §§ 10:3-409(1), 10:3-413(2) (West Supp.1982). In a literal sense, then, the face amounts of the checks were their "values."The foregoing description of bank checks is concededly a technical one, and the Government therefore argues with some force that a drawer is generally understood to represent that he "currently has funds on deposit sufficient to cover the face value of the check." Brief for United States 19. See United States v. Payne, 602 F.2d at 1218. If the Page 458 U. S. 286 drawer has insufficient funds in his account at the moment the check is presented, the Government continues, he effectively has made a "false statement" to the recipient. While this broader reading of § 1014 is plausible, we are not persuaded that it is the preferable or intended one. It "slights the wording of the statute," United States v. Enmons, 410 U. S. 396, 410 U. S. 399 (1973), for, as we have noted, a check is literally not a "statement" at all. In any event, whatever the general understanding of a check's function, "false statement" is not a term that, in common usage, is often applied to characterize "bad checks." And, when interpreting a criminal statute that does not explicitly reach the conduct in question, we are reluctant to base an expansive reading on inferences drawn from subjective and variable "understandings." [Footnote 7]Equally as important, the Government's interpretation of § 1014 would make a surprisingly broad range of unremarkable conduct a violation of federal law. While the Court of Appeals addressed itself only to check-kiting, its ruling has wider implications: it means that any check, knowingly supported by insufficient funds, deposited in a federally insured bank could give rise to criminal liability, whether or not the drawer had an intent to defraud. Under the Court of Appeals' approach, the violation of § 1014 is not the scheme to pass a number of bad checks; it is the presentation of one false statement -- that is, one check that, at the moment of deposit, is not supported by sufficient funds -- to a federally insured Page 458 U. S. 287 bank. The United States acknowledged as much at oral argument. Tr. of Oral Arg. 40. Indeed, each individual count of the indictment in this case stated only that petitioner knowingly had deposited a single check that was supported by insufficient funds, not that he had engaged in an extended scheme to obtain credit fraudulently. [Footnote 8]Yet, if Congress really set out to enact a national bad check law in § 1014, it did so with a peculiar choice of language, and in an unusually backhanded manner. Federal action was not necessary to interdict the deposit of bad checks, for, as Congress surely knew, fraudulent checking activities already were addressed in comprehensive fashion by state law. See Comment, Insufficient Funds Checks in the Criminal Area: Elements, Issues, and Proposals, 38 Mo.L.Rev. 432 (1973). Absent support in the legislative history for the proposition that § 1014 was "designed to have general application to the passing of worthless checks," United States v. Krown, 675 F.2d 46, 50 (CA2 1982), we are not prepared to hold petitioner's conduct proscribed by that particular statute. [Footnote 9] Page 458 U. S. 288BIn the 1948 codification of Title 18 of the United States Code, 62 Stat. 683, § 1014 reduced 13 existing statutes, which criminalized fraudulent practices directed at a variety of financial and credit institutions, to a single section. See 18 U.S.C. § 1014, Historical and Revision Notes. Of the originally enumerated institutions, [Footnote 10] only two -- the Reconstruction Finance Corporation, see 15 U.S.C. § 616(a) (1946 ed.), and the Federal Reserve Banks, see 12 U.S.C. § 596 (1946 ed.) -- performed duties other than the making of farm and home loans, and neither of those two organizations accepted checks for deposit from private customers. See United States v. Sabatino, 485 F.2d 540, 548 (CA2 1973), cert. denied, 415 U.S. 948 (1974); United States v. Edwards, 455 F. Supp. 1354, 1357 (MD Pa.1978). It is evident, then, that bad checks were not among the "false statements" or "overvalued property" originally addressed by the statute. While Congress has added and subtracted certain institutions to and from the list covered by § 1014 over the intervening years, no changes have been made in the type of transactions proscribed by the provision.The legislative history does not demand a broader reading of the statute. The amendments adding institutions to § 1014's list attracted little attention in Congress, and were dealt with summarily; at no point was it suggested that the statute should be applicable to anything other than representations Page 458 U. S. 289 made in connection with conventional loan or related transactions. In 1964, for example, when Congress, by Pub.L. 88-353, § 5, 78 Stat. 269, added Federal Credit Unions to the statutory list, § 1014 was described as barring "false statements or willful overvaluations in connection with applications, loans, and the like." S.Rep. No. 1078, 88th Cong., 2d Sess., 1 (1964). Thus, the Senate Committee on Banking and Currency declared that § 1014 "is designed primarily to apply to borrowers from Federal agencies or federally chartered organizations." [Footnote 11] Id. at 4. Similarly, the first of two 1970 amendments, which added state-chartered credit unions to the statutory list, Pub.L. 91-468, § 7, 84 Stat. 1017, was characterized simply as "relating to false statements in loan and credit applications." H.R.Rep. No. 91-1457, p. 21 (1970).A second 1970 amendment, Pub.L. 91-609, § 915, 84 Stat. 1815, added banks insured by the Federal Deposit Insurance Corporation, Federal Home Loan Banks, and institutions insured by the Federal Savings and Loan Insurance Corporation, for the first time listing institutions that engaged in commercial checking. [Footnote 12] But there was no contemporaneous congressional recognition of the substantial expansion of federal criminal jurisdiction that would attend the proscription of bad checks. To the contrary, the Reports accompanying the amendment stated simply that the addition"would describe more explicitly the institutions which are covered by 18 U.S.C. § 1014, which provides penalties for making false statements or reports in connection with loans or other similar Page 458 U. S. 290 transactions."H.R.Rep. No. 91-1556, p. 35 (1970). See H.R.Conf.Rep. No. 91-1784, p. 66 (1970). Congressional debate was directed only at the addition of federally insured savings and loan institutions, which was said to"mak[e] it a Federal crime to submit false data to an insured savings and loan on the true value of a property on which a mortgage is to be granted."116 Cong.Rec. 42633 (1970) (remarks of Rep. Sullivan).Given this background -- a statute that is not unambiguous in its terms and that, if applied here would render a wide range of conduct violative of federal law, a legislative history that fails to evidence congressional awareness of the statute's claimed scope, and a subject matter that traditionally has been regulated by state law -- we believe that a narrow interpretation of § 1014 would be consistent with our usual approach to the construction of criminal statutes. The Court has emphasized that,"'when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.'"United States v. Bass, 404 U. S. 336, 404 U. S. 347 (1971), quoting United States v. Universal C.I.T. Credit Corp., 344 U. S. 218, 344 U. S. 221-222 (1952). [Footnote 13] To be sure, the rule of lenity does not give courts license to disregard otherwise applicable enactments. But in a case such as this one, where both readings of § 1014 are plausible,"it would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business of policing the"deposit of bad checks. United States v. Enmons, 410 U.S. at 410 U. S. 411.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

U.S. Supreme CourtWilliams v. United States, 458 U.S. 279 (1982)Williams v. United StatesNo. 80-2116Argued April 20, 1982Decided June 29, 1982458 U.S. 279SyllabusTitle 18 U.S.C. § 1014 makes it a crime to "knowingly mak[e] any false statement or report," or "willfully overvalu[e] any land, property or security," for the purpose of influencing the action of described financial institutions (including federally insured banks) "upon any application, advance, . . . commitment, or loan." Petitioner engaged in a series of transactions seemingly amounting to a case of "check-kiting" between his accounts in federally insured banks, first drawing a check far in excess of his account balance in one bank and depositing it in his account in the other, and then reversing the process between his accounts. Petitioner was convicted in Federal District Court of violating § 1014, and the Court of Appeals affirmed.Held: Petitioner's conduct in depositing "bad checks" in federally insured banks is not proscribed by § 1014. Pp. 458 U. S. 282-290.(a) Petitioner's actions did not involve the making of a "false statement." Technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as "true" or "false." Similarly, petitioner's conduct cannot be regarded as "overvalu[ing]" property or a security. In a literal sense, the face amounts of the checks were their "values." To interpret § 1014 as meaning that a drawer of a check has made a "false" statement whenever he has insufficient funds in his account at the moment the check is presented would "sligh[t] the wording of the statute," United States v. Enmons, 410 U. S. 396, 410 U. S. 399, and would render a wide range of unremarkable conduct violative of federal law. When § 1014 was enacted, federal action was not necessary to interdict the deposit of bad checks, for fraudulent checking activities already were addressed in comprehensive fashion by state law. Pp. 458 U. S. 284-287.(b) The legislative history does not support the proposition that § 1014 was designed to have general application to the passing of worthless checks, and does not demand that the statute be read as applicable to anything other than representations made in connection with conventional loan or related transactions. A narrow interpretation of § 1014 is consistent with the usual approach of lenity in the construction of criminal statutes. Pp. 458 U. S. 288-290.639 F.2d 1311, reversed and remanded. Page 458 U. S. 280BLACKMUN, J., delivered the opinion of the Court, in which POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 458 U. S. 291. MARSHALL, J., filed a dissenting opinion, in which BURGER, C.J., and BRENNAN and WHITE, JJ., joined, post, p. 458 U.S. 292.

1983_82-91

JUSTICE O'CONNOR delivered the opinion of the Court.In § 244(a)(1) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U.S.C. § 1254(a)(1), Congress provided that the Attorney General, in his discretion, may suspend deportation and adjust the status of an otherwise deportable alien who (1) "has been physically present in the United States for a continuous period of not less than seven years"; (2) "is a person of good moral character"; and (3) is "a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child. . . ." In this case, we must decide the meaning of § 244(a)(1)'s "continuous physical presence" requirement.IRespondent, a native and citizen of Thailand, first entered the United States as a nonimmigrant student in October, 1969. Respondent's husband, also a native and citizen of Thailand, entered the country in August, 1968. Respondent and her husband were authorized to remain in the United States until July, 1971. However, when their visas expired, they chose to stay without securing permission from the immigration authorities.In January, 1977, petitioner, the Immigration and Naturalization Service (INS), [Footnote 1] commenced deportation proceedings against respondent and her husband pursuant to § 241(a)(2) of the Act. See 8 U.S.C. § 1251(a)(2). Respondent and her husband conceded deportability and applied for suspension Page 464 U. S. 186 pursuant to § 244(a)(1). 8 U.S.C. § 1254(a)(1). An Immigration Judge found that respondent's husband had satisfied § 244(a)(1)'s eligibility requirements, and suspended his deportation. App. to Pet. for Cert. 29a-31a. But respondent's own testimony showed that she had left the country during January, 1974, and that she had improperly obtained a nonimmigrant visa from the United States consular officer in Thailand to aid her reentry three months later. [Footnote 2] On the basis of this evidence, the Immigration Judge concluded that respondent had failed to meet the 7-year "continuous physical presence" requirement of the Act:"[Respondent's] absence was not brief, innocent, or casual. The absence would have been longer than three months if she had not obtained the spouse of a student visa as fast as she did obtain it. It was not casual, because she had to obtain a new Tha[i] passport, as well as a nonimmigrant visa from the American Consul, to return to the United States. It was not innocent, because she failed to inform the American Consul that she was the wife of a student who had been out of status for three years (and therefore not entitled to the nonimmigrant visa she received)."Id. at 28a. Accordingly, he denied respondent's application for suspension. Id. at 28a-29a.The Board of Immigration Appeals (BIA) affirmed the Immigration Judge's decision on the "continuous physical presence" Page 464 U. S. 187 issue. [Footnote 3] BIA observed that respondent was illegally in the United States at the time she left for Thailand and that she was able to return only by misrepresenting her status as the wife of a foreign student. Id. at 17a-18a. Based on these observations, BIA concluded that respondent's absence was meaningfully interruptive of her continuous physical presence in the United States. Ibid.The Court of Appeals reversed. 673 F.2d 1013 (CA9 1981). It noted that, although respondent traveled to Thailand for three months, "she intended, at all times, to return to the United States." Id. at 1017. The court held that BIA had placed too much emphasis on respondent's illegal presence prior to her departure and on the increased risk of deportation that her departure had engendered. Id. at 1017-1018. Finding BIA's approach legally erroneous, it concluded that"an absence cannot be 'meaningfully interruptive' if two factors are present: (1) the hardships would be as severe if the absence had not occurred, and (2) there would not be an increase in the risk of deportation as a result of the absence."Id. at 1018, and n. 6 (citing Kamheangpatiyooth v. INS, 597 F.2d 1253, 1257 (CA9 1979)). Since BIA failed"to view the circumstances in their totality, and analyze those circumstances in light of the [underlying] Congressional purpose,"673 F.2d at 1017, [Footnote 4] the court remanded Page 464 U. S. 188 for further proceedings on the "continuous physical presence" issue. [Footnote 5]We granted certiorari, 459 U.S. 965 (1982), to review the meaning of § 244(a)(1)'s requirement that an otherwise deportable alien have been "physically present in the United States for a continuous period of not less than seven years. . . ." 8 U.S.C. § 1254(a)(1). We find that the Court of Appeals' interpretation of this statutory requirement departs from the plain meaning of the Act. [Footnote 6] Page 464 U. S. 189IIThis Court has noted on numerous occasions that,"in all cases involving statutory construction, 'our starting point must be the language employed by Congress,' . . . and we assume 'that the legislative purpose is expressed by the ordinary meaning of the words used.'"American Tobacco Co. v. Patterson, 456 U. S. 63, 456 U. S. 68 (1982), quoting Reiter v. Sonotone Corp., 442 U. S. 330, 442 U. S. 337 (1979), and Richards v. United States, 369 U. S. 1, 369 U. S. 9 (1962). The language of § 244(a)(1) requires certain threshold criteria to be met before the Attorney General or his delegates, in their discretion, may suspend proceedings against an otherwise deportable alien. This language plainly narrows the class of aliens who may obtain suspension by requiring each applicant for such extraordinary relief to prove that he"has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, . . . that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. . . ."8 U.S.C. § 1254(a)(1). The ordinary meaning of these words does not readily admit any"exception[s] to the requirement of seven years of 'continuous physica[l] presence' in the United States to be eligible for suspension of deportation."McColvin v. INS, 648 F.2d 935, 937 (CA4 1981).By contrast, when Congress in the past has intended for a "continuous physical presence" requirement to be flexibly administered, it has provided the authority for doing so. For example, former § 301(b) of the Act, which required two Page 464 U. S. 190 years of "continuou[s] physica[l] presen[ce]" for maintenance of status as a United States national or citizen, provided that"absence from the United States of less than sixty days in the aggregate during the period for which continuous physical presence in the United States is required shall not break the continuity of such physical presence."86 Stat. 1289, repealing 71 Stat. 644 (12-month aggregate absence does not break continuity of physical presence). The deliberate omission of a similar moderating provision in § 244(a)(1) compels the conclusion that Congress meant this "continuous physical presence" requirement to be administered as written.Indeed, the evolution of the deportation provision itself shows that Congress knew how to distinguish between actual "continuous physical presence" and some irreducible minimum of "nonintermittent" presence. Prior to 1940, the Attorney General had no discretion in ordering deportation, and an alien's sole remedy was to obtain a private bill from Congress. See INS v. Jong Ha Wang, 450 U. S. 139, 450 U. S. 140, and n. 1 (1981). In 1940, Congress authorized the Attorney General to suspend deportation of aliens of good moral character whose deportation "would result in serious economic detriment" to the aliens or their families. See 54 Stat. 672. Then, in 1948, Congress amended the statute again to make the suspension process available to aliens who "resided continuously in the United States for seven years or more" and who could show good moral character for the preceding five years, regardless of family ties. 62 Stat. 1206. Finally, in 1952, "in an attempt to discontinue lax practices and discourage abuses," Congress replaced the 7-year "continuous residence" requirement with the current 7-year "continuous physical presence" requirement. H.R.Rep. No. 1365, 82d Cong., 2d Sess., 31 (1952). It made the criteria for suspension of deportation more stringent both to restrict the opportunity for discretionary action, see ibid., and to exclude"aliens [who] are deliberately flouting our immigration laws by the processes of gaining admission into the Page 464 U. S. 191 United States illegally or ostensibly as nonimmigrants, but with the intention of establishing themselves in a situation in which they may subsequently have access to some administrative remedy to adjust their status to that of permanent residents."S.Rep. No. 1137, 82d Cong., 2d Sess., pt. 1, p. 25 (1952). [Footnote 7] Had Congress been concerned only with "nonintermittent" presence or with the mere maintenance of a domicile or general abode, it could have retained the "continuous residence" requirement. Instead, Congress expressly opted for the 7-year "continuous physical presence" requirement.The statutory switch from "continuous residence" to "continuous physical presence" was no simple accident of draftsmanship. Congress broadened the class of aliens eligible for admission to citizenship by requiring only five years' "continuous residence" and "physical presence" for at least half the period of residency. Concomitantly, it made § 244(a)(1) more restrictive; suspensions of deportations are "grossly unfair to aliens who await abroad their turn on quota waiting lists," [Footnote 8] and Congress wanted to limit the number of aliens allowed to remain through discretionary action. [Footnote 9] The citizenship Page 464 U. S. 192 and suspension of deportation provisions are interrelated parts of Congress' comprehensive scheme for admitting aliens into this country. We do justice to this scheme only by applying the "plain meaning of [§ 244(a)(1)], however severe the consequences." Jay v. Boyd, 351 U. S. 345, 351 U. S. 357 (1956). The Court of Appeals' inquiry into whether the hardship to be suffered upon deportation has been diminished by the alien's absence fails to do so.IIIRespondent contends that we should approve the Court of Appeals' "generous" and "liberal" construction of the "continuous physical presence" requirement notwithstanding the statute's plain language and history. Brief for Respondent 10 (quoting Kamheangpatiyooth v. INS, 597 F.2d at 1256, and n. 3). She argues that the Court of Appeals' construction is in keeping both with our decision in Rosenberg v. Fleuti, 374 U. S. 449 (1963), and with the equitable and ameliorative nature of the suspension remedy. We disagree.AIn Fleuti, this Court held that a lawful permanent resident alien's return to the United States after an afternoon trip to Mexico did not constitute an "entry" within the meaning of § 101(a)(13) of the Act. [Footnote 10] We construed the term "intended" Page 464 U. S. 193 in the statutory exception to the definition of "entry" to mean an "intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." Id. at 374 U. S. 462. We interpreted the statute not to allow a lawful resident alien like Fleuti to be excluded "for a condition for which he could not have been deported had he remained in the country," id. at 374 U. S. 460, because it would subject the alien to "unsuspected risks and unintended consequences of . . . wholly innocent action." Id. at 374 U. S. 462. Since Fleuti had gone to Mexico, without travel documents, for only a few hours, we remanded for a determination whether his departure had been "innocent, casual, and brief," and so not "meaningfully interruptive" of his permanent residence. Id. at 374 U. S. 461, 374 U. S. 462.Fleuti is essentially irrelevant to the adjudication of respondent's § 244(a)(1) suspension application. Fleuti dealt with a statutory exception enacted precisely to ameliorate the harsh effects of prior judicial construction of the "entry" doctrine. See id. at 374 U. S. 457-462. By contrast, this case deals with a threshold requirement added to the statute specifically to limit the discretionary availability of the suspension remedy. See supra at 464 U. S. 190-191. Thus, whereas a flexible approach to statutory construction was consistent with the congressional purpose underlying § 101(a)(13), such an approach would not be consistent with the congressional purpose underlying the "continuous physical presence" requirement. Ibid.In Fleuti, the Court believed that Congress had not considered the "meaningless and irrational hazards" that a strict application of the "entry" provision could create. Thus, it inferred that Congress would not have approved of the otherwise Page 464 U. S. 194 harsh consequences that would have resulted to Fleuti. See 374 U.S. at 374 U. S. 460-462. Here, by contrast, we have every reason to believe that Congress considered the harsh consequences of its actions. Congress expressly provided a mechanism for factoring "extreme hardship" into suspension of deportation decisions. We would have to ignore the clear congressional mandate and the plain meaning of the statute to find that Fleuti is applicable to the determination whether an otherwise deportable alien has been "physically present in the United States for a continuous period of not less than seven years. . . ." 8 U.S.C. § 1254(a)(1). [Footnote 11] We refuse to do so.We also note, though it is not essential to our decision, that Fleuti involved the departure of a lawful resident alien who, but for his departure, otherwise had a statutory right to remain in this country. This case, by contrast, deals with the departure of an unlawful alien who could have been deported even had she remained in this country. Such an alien has no basis for expecting the Government to permit her to remain in the United States or to readmit her upon her return from foreign soil. Thus, respondent simply is not being excluded "for a condition for which [she] could not have been deported had [she] remained in the country. . . ." 374 U.S. at 374 U. S. 460. [Footnote 12] Page 464 U. S. 195BRespondent further suggests that we approve the Court of Appeals' articulation of the "continuous physical presence" standard -- that an absence is "meaningfully interruptive" only when it increases the risk and reduces the hardship of deportation -- as consistent with the ameliorative purpose of, and the discretion of the Attorney General to grant, the suspension remedy. Brief for Respondent 6-11. Respondent's suggestion is without merit.Although § 244(a)(1) serves a remedial purpose, the liberal interpretation respondent suggests would collapse § 244 (a)(1)'s "continuous physical presence" requirement into its "extreme hardship" requirement and read the former out of the Act. The language and history of that section suggest that "continuous physical presence" and "extreme hardship" are separate preconditions for a suspension of deportation. See n 9, supra. It strains the statutory language to construe the "continuous physical presence" requirement as requiring yet a further assessment of hardship.It is also clear that Congress intended strict threshold criteria to be met before the Attorney General could exercise his discretion to suspend deportation proceedings. Congress drafted § 244(a)(1)'s provisions specifically to restrict the opportunity for discretionary administrative action. Respondent's suggestion that we construe the Act to broaden the Attorney General's discretion is fundamentally inconsistent with this intent. In INS v. Jong Ha Wang, we rejected a relaxed standard for evaluating the "extreme hardship" requirement as impermissibly shifting discretionary authority from INS to the courts. 450 U.S. at 450 U. S. 146. Respondent's suggestion that we construe the Act to broaden the Attorney General's discretion analogously would shift authority to relax the "continuous physical presence" requirement from Congress to INS and, eventually, as is evident from the experience in this case, to the courts. We must therefore Page 464 U. S. 196 reject respondent's suggestion as impermissible in our tripartite scheme of government. [Footnote 13] Congress designs the immigration laws, and it is up to Congress to temper the laws' rigidity if it so desires.IVThe Court of Appeals' approach ignores the plain meaning of § 244(a)(1) and extends eligibility to aliens whom Congress clearly did not intend to be eligible for suspension of deportation. Congress meant what it said: otherwise deportable aliens must show that they have been physically present in the United States for a continuous period of seven years before they are eligible for suspension of deportation. The judgment of the Court of Appeals therefore isReversed

U.S. Supreme CourtINS v. Phinpathya, 464 U.S. 183 (1984)Immigration and Naturalization Service v. PhinpathyaNo. 82-91Argued October 3, 1983Decided January 10, 1984464 U.S. 183SyllabusSection 244(a)(1) of the Immigration and Nationality Act (Act) authorizes the Attorney General, in his discretion, to suspend deportation of an otherwise deportable alien who "has been physically present in the United States for a continuous period of not less than seven years" and is a person of good moral character whose deportation would result in extreme hardship to the alien or his spouse, parent, or child. Respondent, a citizen of Thailand, first entered the United States as a nonimmigrant student in October, 1969, and was authorized to remain until July, 1971. But when her visa expired, she chose to stay without securing permission from the immigration authorities. In 1977, petitioner Immigration and Naturalization Service commenced deportation proceedings against respondent. Conceding deportability, respondent applied for suspension pursuant to § 244(a)(1). Based on respondent's testimony that she had left the United States for Thailand during January, 1974, and that she had improperly obtained a nonimmigrant visa from the United States consular officer in Thailand to aid her reentry three months later, an Immigration Judge concluded that respondent had failed to meet § 244(a)(1)'s 7-year "continuous physical presence" requirement, and accordingly denied her application for suspension. The Board of Immigration Appeals (BIA) affirmed, holding that respondent's absence from the United States was meaningfully interruptive of her continuous physical presence in the country, since she was illegally in the United States at the time she left for Thailand and was able to return only by misrepresenting her status. The Court of Appeals reversed, holding that the BIA had placed too much emphasis on respondent's illegal presence prior to her departure and on the increased risk of deportation that her departure had engendered, and that an absence can be "meaningfully interruptive" only when it increases the risk and reduces the hardship of deportation.Held: Respondent did not meet § 244(a)(1)'s "continuous physical presence" requirement. Pp. 464 U. S. 189-196.(a) The Court of Appeals' interpretation of this requirement departs from the Act's plain meaning. Section 244(a)(1)'s language requiring certain threshold criteria to be met before the Attorney General, in his Page 464 U. S. 184 discretion, may suspend deportation plainly narrows the class of aliens who may obtain suspension. The ordinary meaning of such language does not readily admit any exception to the "continuous physical presence" requirement. When Congress has intended that a "continuous physical presence" requirement be flexibly administered, it has provided authority for doing so. Moreover, the evolution of the deportation provision itself shows that Congress knew how to distinguish between actual "continuous physical presence" and some irreducible minimum of "nonintermittent" presence. Pp. 464 U. S. 189-192.(b) Since this case deals with a threshold requirement added to the statute specifically to limit the discretionary availability of the deportation suspension remedy, a flexible approach to statutory construction, such as the Court of Appeals' approach, is not consistent with the congressional purpose underlying the "continuous physical presence" requirement. Rosenberg v. Fleuti, 374 U. S. 449, distinguished. Pp. 464 U. S. 192-194.(c) To interpret 244(a)(1) as the Court of Appeals did collapses the section's "continuous physical presence" requirement into its "extreme hardship" requirement and reads the former out of the Act. Section 244(a)(1)'s language and history suggest that the two requirements are separate preconditions for a suspension of deportation. It is also clear that Congress intended strict threshold criteria to be met before the Attorney General could exercise his discretion to suspend deportation. To construe the Act so as to broaden such discretion is fundamentally inconsistent with this intent. Pp. 464 U. S. 195-196.673 F.2d 1013, reversed.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL and STEVENS, JJ., joined, post, p. 464 U. S. 196. Page 464 U. S. 185

1987_87-712

JUSTICE STEVENS delivered the opinion of the Court.The principal question presented by this case is whether a federal district court has jurisdiction to review a final order of the Secretary of Health and Human Services refusing to reimburse a State for a category of expenditures under its Medicaid program. All of the Courts of Appeals that have confronted this precise question have agreed that district courts do have jurisdiction in such cases. [Footnote 1] We implicitly Page 487 U. S. 883 answered the question in the same way when we accepted jurisdiction and decided the merits in Connecticut Dept. of Income Maintenance v. Heckler, 471 U. S. 524 (1985). Moreover, although the Medicaid program was established in 1965, the novel proposition that the Claims Court is the exclusive forum for judicial review of this type of agency action does not appear to have been advocated by the Secretary until this case reached the Court of Appeals. As we shall explain, the conclusion that the District Court had jurisdiction in this case is supported by the plain language of the relevant statutes, their legislative history, and a practical understanding of their efficient administration. Before turning to the legal arguments, however, it is appropriate to say a few words about the mechanics of the federal financial participation (FFP) in the States' Medicaid programs and the character of the issue decided by the District Court.IIn 1965, Congress authorized the Medicaid program by adding Title XIX to the Social Security Act, 79 Stat. 343. The program is"a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons."Harris v. McRae, 448 U. S. 297, 448 U. S. 308 (1980). Subject to the federal standards incorporated in the statute and the Secretary's regulations, each participating State must develop its own program describing conditions of eligibility and covered services. At present, 18 different categories of medical assistance are authorized. See Connecticut Dept. of Income Maintenance v. Heckler, 471 U.S. at 471 U. S. 528-529.Although the federal contribution to a State's Medicaid program is referred to as a "reimbursement," the stream of revenue is actually a series of huge quarterly advance payments Page 487 U. S. 884 that are based on the State's estimate of its anticipated future expenditures. [Footnote 2] The estimates are periodically adjusted to reflect actual experience. Overpayments may be withheld from future advances or, in the event of a dispute over a disallowance, may be retained by the State at its option pending resolution of the dispute. [Footnote 3] Page 487 U. S. 885Two procedures are available to the Secretary if he believes that a State's expenditures do not comply with either the Act or his regulations. First: if he concludes that the State's administration of its plan is in "substantial noncompliance" with federal requirements, he may initiate a compliance proceeding pursuant to 42 U.S.C. § 1316(a); in such a proceeding, he may order termination of FFP for entire categories of state assistance, or even (theoretically) the entire state program. [Footnote 4] Should the Secretary subsequently conclude that his initial determination was incorrect, the statute provides that "he shall certify restitution forthwith in a lump sum of any funds incorrectly withheld or otherwise denied." § 1316(c). A final order in a compliance proceeding is reviewable in the "United States court of appeals for the circuit in which such State is located." § 1316(a)(3). Second: the Secretary may "disallow" reimbursement for "any item or class of items." § 1316(d). "In general, . . . a disallowance represents an isolated and highly focused inquiry into a State's operation of the assistance program." [Footnote 5] The statute does not expressly provide for judicial review of a disallowance order. In several cases, a State has sought direct review of a disallowance order in a court of appeals, but, in each such case, the court has concluded that the State should proceed in the district court. See Illinois Dept. of Public Aid v. Schweiker, 707 F.2d 273 (CA7 1983), and cases cited therein.Massachusetts has participated in the Medicaid program continuously since 1966. One of the categories of assistance covered by the Massachusetts program is the provision of medical and rehabilitative services to patients in intermediate Page 487 U. S. 886 care facilities for the mentally retarded (ICF/MR services). [Footnote 6] These services include such matters as "training in "the activities of daily living" (such as dressing and feeding oneself),'" Massachusetts v. Heckler, 616 F. Supp. 687, 691 (Mass.1985) (citation omitted) (case below), and are performed jointly by personnel from the State Departments of Mental Health and Education, working pursuant to state mental health and "special education" laws. See Massachusetts v. Secretary of Health and Human Services, 816 F.2d 796, 798 (CA1 1987) (case below). Although the Secretary apparently would have regarded these services as covered had they been performed solely by the Massachusetts Department of Mental Health, his auditors classified them as uncovered educational services because they were performed in part by employees of the State Department of Education. [Footnote 7] On August 23, 1982, the Regional Administrator of the Department's Page 487 U. S. 887 Health Care Financing Administration (HCFA) notified the State that he had disallowed $6,414,964 in FFP for the period July 1, 1978, to December 31, 1980. See App. to Pet. for Cert. 97a. [Footnote 8] The Departmental Grant Appeals Board affirmed this decision on May 31, 1983. Id. at 53a. [Footnote 9]On August 26, 1983, the State filed a complaint in the Federal District Court for the District of Massachusetts. The State's complaint invoked federal jurisdiction pursuant to 28 U.S.C. § 1331, and alleged that the United States had waived its sovereign immunity through 5 U.S.C. § 702. The complaint requested declaratory and injunctive relief, and specifically asked the District Court to "set aside" the Board's order. [Footnote 10] While the case was pending, on August 20, 1984, the HCFA notified the State of a $4,908,994 FFP disallowance for the same category of ICF/MR services based on its audit of the period January 1, 1981, through June 30, Page 487 U. S. 888 1982. See App. to Pet. for Cert. 92a. On March 29, 1985, this second disallowance period was upheld by the Board. On June 5, 1985, the State filed a second complaint in District Court, seeking to overturn the second disallowance. Id. at 89a.On August 27, 1985, the District Court issued an opinion in the first disallowance case. It did not discuss the jurisdictional issue. On the merits, it held that the services in question were in fact rehabilitative, and that this classification was not barred by the fact that the Department of Education had played a role in their provision. Massachusetts v. Heckler, 616 F. Supp. 687 (Mass.1985) (case below). Its judgment, dated October 7, 1985, simply "reversed" the Board's decision disallowing reimbursement of the sum of $6,414,964 in FFP under the Medicaid program. App. to Pet. for Cert. 32a. On November 25, 1985, in a second opinion relying on the analysis of the first, the court reversed the Board's second disallowance determination. Massachusetts v. Heckler, 622 F. Supp. 266 (Mass.1985) (case below). It entered an appropriate judgment on December 2, 1985. App. to Pet. for Cert. 36a. That judgment did not purport to state what amount of money, if any, was owed by the United States to Massachusetts, nor did it order that any payment be made.The Secretary at first had challenged the District Court's subject matter jurisdiction, [Footnote 11] but later filed a memorandum stating that, as "a matter of policy, HHS has decided not to press the defense of lack of jurisdiction in this action." App. 20. [Footnote 12] In his consolidated appeal to the First Circuit, the Secretary Page 487 U. S. 889 reexamined this policy decision and decided to argue that the District Court did not have jurisdiction. The Court of Appeals accepted the Secretary's argument that the District Court could not order him to pay money to the State, but held that the District Court had jurisdiction to review the Board's disallowance decision, and to grant declaratory and injunctive relief. The Court explained its understanding of the difference between relief that was wholly retrospective in nature and relief that affected the future relationship between the parties as follows:"The disallowance decision at issue in this case, unlike that at issue in [Massachusetts v. Departmental Grant Appeals Bd. of Health and Human Services, 815 F.2d 778 (CA1 1987)], represents an ongoing policy that has significant prospective effect. The structure of the Medicaid program (in which the Secretary 'reimburses' the states in advance) makes it inevitable that disallowance decisions concern money past due. Yet the Secretary uses these decisions to implement important policies governing ongoing programs. Grant Appeals Board concerned the unusual situation in which the disallowance decision had no significant prospective effect; the challenge only concerned the money allegedly past due.""Here, in contrast, the interpretation of the Medicaid Act announced in the disallowance decision affects far more than any money past due. The special education exclusion defines the respective roles of the Commonwealth and HHS in a continuing program.""* * * *" "Prospective relief is important to the Commonwealth both because the ICF/MR program is still active and because the legal issues involved have ramifications that affect other aspects of the Medicaid program. What is at Page 487 U. S. 890 stake here is the scope of the Medicaid program, not just how many dollars Massachusetts should have received in any particular year."816 F.2d at 799 (emphasis in original).On the merits, the Court of Appeals agreed with the District Court that the Secretary could not lawfully exclude the rehabilitative services provided to the mentally retarded just because the State had labeled them (in part) "educational" services and had used Department of Education personnel to help provide them. It therefore affirmed the District Court's holding that the decisions of the Grant Appeals Board must be reversed because the Secretary's "special education exclusion" violated the statute. It held, however, that it could not rule that the services in dispute were reimbursable because it had "no evidentiary basis for doing so." Id. at 804. In sum, the Court of Appeals affirmed the District Court's declaratory judgment, vacated the "money judgment" against the Secretary, and remanded to the Secretary for further determinations regarding whether the services are reimbursable. [Footnote 13]In his petition for certiorari, the Secretary asked us to decide that the United States Claims Court had exclusive jurisdiction over the State's claim. [Footnote 14] In its cross-petition, the Page 487 U. S. 891 State asked us to decide that the District Court had jurisdiction to grant complete relief. [Footnote 15] We granted both petitions. 484 U.S. 1003 (1988). The basic jurisdictional dispute is over the meaning of the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704. [Footnote 16] The Secretary argues that § 702, as amended in 1976, does not authorize review because this is not an action "seeking relief other than money damages" within the meaning of the 1976 amendment to that section; he also argues that, even if § 702 is satisfied, § 704 bars relief because the State has an adequate remedy in the Claims Court. The State must overcome both arguments in order to prevail; we shall discuss them separately.IISince it is undisputed that the 1976 amendment to § 702 was intended to broaden the avenues for judicial review of Page 487 U. S. 892 agency action by eliminating the defense of sovereign immunity in cases covered by the amendment, it is appropriate to begin by quoting the original text of § 702. Prior to 1976, it simply provided:"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. [Footnote 17]"In 1975, in a case seeking review of a disallowance decision by the Secretary of the Department of Health, Education, and Welfare, the Court of Appeals for the Ninth Circuit concluded that the decision was reviewable in the District Court. County of Alameda v. Weinberger, 520 F.2d 344. It would be difficult to question the fact that the disallowance decision was "agency action" that "adversely affected" the State, and that, accordingly, the State was "entitled to judicial review thereof."The 1976 amendment contains no language suggesting that Congress disagreed with the Ninth Circuit decision. The amendment added the following sentence to the already broad coverage of § 702:"An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. [Footnote 18] "Page 487 U. S. 893There are two reasons why the plain language of this amendment does not foreclose judicial review of the action brought by the State challenging the Secretary's disallowance decision. First, insofar as the complaint sought declaratory and injunctive relief, it was certainly not an action for money damages. Second, and more importantly, even the monetary aspects of the relief that the State sought are not "money damages" as that term is used in the law.Neither a disallowance decision nor the reversal of a disallowance decision is properly characterized as an award of "damages." Either decision is an adjustment -- and, indeed, usually a relatively minor one -- in the size of the federal grant to the State that is payable in huge quarterly installments. Congress has used the terms "overpayment" and "underpayment" to describe such adjustments in the open account between the parties, [Footnote 19] and the specific agency action that reverses a disallowance decision is described as "restitution" in the statute. [Footnote 20]Our cases have long recognized the distinction between an action at law for damages -- which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation -- and an equitable action for specific relief -- which may include an order providing for the reinstatement of an employee with back pay, or for "the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer's actions." Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 337 U. S. 688 (1949) (emphasis added). The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as "money damages." Thus, we have recognized that relief Page 487 U. S. 894 that orders a town to reimburse parents for educational costs that Congress intended the town to pay is not "damages":"Because Congress undoubtedly did not intend this result, we are confident that, by empowering the court to grant 'appropriate' relief, Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.""In this Court, the Town repeatedly characterizes reimbursement as 'damages,' but that simply is not the case. Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP."School Committee of Burlington v. Department of Education of Massachusetts, 471 U. S. 359, 471 U. S. 370-371 (1985).Judge Bork's explanation of the plain meaning of the critical language in this statute merits quotation in full. In his opinion for the Court of Appeals for the District of Columbia Circuit in Maryland Dept. of Human Resources v. Department of Health and Human Services, 246 U.S.App.D.C. 180, 763 F.2d 1441 (1985), [Footnote 21] he wrote:"We turn first to the question whether the relief Maryland seeks is equivalent to money damages. Maryland asked the district court for a declaratory judgment and for injunctive relief""enjoin[ing] defendants from reducing funds otherwise due to plaintiffs, or imposing any sanctions on such funds for alleged Title XX violations. . . .""We are satisfied that the relief Maryland seeks here is not a claim for money damages, although it is a claim that would require the payment of money by the federal government. "Page 487 U. S. 895"We begin with the ordinary meaning of the words Congress employed. The term 'money damages,' 5 U.S.C. § 702, we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies 'are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.' D. Dobbs, Handbook on the Law of Remedies 135 (1973). Thus, while in many instances an award of money is an award of damages, '[o]ccasionally a money award is also a specie remedy.' Id. Courts frequently describe equitable actions for monetary relief under a contract in exactly those terms. See, e.g., First National State Bank v. Commonwealth Federal Savings & Loan Association, 610 F.2d 164, 171 (3d Cir.1979) (specific performance of contract to borrow money); Crouch v. Crouch, 566 F.2d 486, 488 (5th Cir.1978) (contrasting lump-sum damages for breach of promise to pay monthly support payments with an order decreeing specific performance as to future installments); Joyce v. Davis, 539 F.2d 1262, 1265 (10th Cir.1976) (specific performance of a promise to pay money bonus under a royalty contract).""In the present case, Maryland is seeking funds to which a statute allegedly entitles it, rather than money in compensation for the losses, whatever they may be, that Maryland will suffer or has suffered by virtue of the withholding of those funds. If the program in this case involved in-kind benefits, this would be altogether evident. The fact that in the present case it is money, rather than in-kind benefits that pass from the federal government to the states (and then, in the form of services, to program beneficiaries), cannot transform the nature of the relief sought -- specific relief, not relief in the form of damages. Cf. Clark v. Library of Congress, 750 F.2d 89, 104 n. 33 (D.C. Cir.1984) (dictum) (describing Page 487 U. S. 896 an action to compel an official to repay money improperly recouped as 'in essence, specific relief')."Id. at 185, 763 F.2d at 1446 (emphasis in original) (citation omitted).In arguing for a narrow construction of the 1976 amendment -- which was unquestionably intended to broaden the coverage of § 702 -- the Secretary asks us to substitute the words "monetary relief" for the words "money damages" actually selected by Congress. Given the obvious difference in meaning between the two terms and the well-settled presumption that Congress understands the state of existing law when it legislates, see, e.g., Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 696-697 (1979), only the most compelling reasons could justify a revision of a statutory text that is this unambiguous. Nevertheless, we have considered the Secretary's argument that the legislative history of § 702 supports his reading of the amendment.The 1976 amendment to § 702 was an important part of a major piece of legislation designed to remove "technical" obstacles to access to the federal courts. [Footnote 22] The statute was the culmination of an effort generated by scholarly writing and bar association work in the early 1960's. [Footnote 23] Although the Department of Justice initially opposed the proposal, it eventually reversed course and offered its support. [Footnote 24] We shall comment Page 487 U. S. 897 first on the legislative materials that relate directly to the bill that passed in 1976, and then refer to the 1970 Hearing on which the Government places its principal reliance.Two propositions are perfectly clear. The first concerns the text of the amendment. There is no evidence that any legislator in 1976 understood the words "money damages" to have any meaning other than the ordinary understanding of the term as used in the common law for centuries. No one suggested that the term was the functional equivalent of a broader concept such as "monetary relief," and no one proposed that the broader term be substituted for the familiar one. [Footnote 25] Each of the Committee Reports repeatedly used the term "money damages"; [Footnote 26] the phrase "monetary relief" was used in each Report once, and only in intentional juxtaposition and distinction to "specific relief," indicating that the drafters had in mind the time-honored distinction between damages and specific relief. [Footnote 27] There is no support in that history Page 487 U. S. 898 for a departure from the plain meaning of the text that Congress enacted.Second, both the House and Senate Committee Reports indicate that Congress understood that § 702, as amended, would authorize judicial review of the "administration of Federal grant-in-aid programs." [Footnote 28] The fact that grant-in-aid programs were expressly included in the list of proceedings in which the Committees wanted to be sure the sovereign immunity defense was waived is surely strong affirmative evidence that the members did not regard judicial review of an agency's disallowance decision as an action for damages.If we turn to the 1970 Hearing and the earlier scholarly writings, we find that the terms "monetary relief" and "money damages" were sometimes used interchangeably. That fact is of only minimal significance, however, for several reasons. First, given the high caliber of the scholars who testified, it seems obvious that, if they had intended the exclusion for proceedings seeking "money damages" to encompass all proceedings seeking any form of monetary relief, they would have drafted their proposal differently. Second, they cited cases involving challenges to federal grant-in-aid programs as examples of the Government's reliance on a sovereign immunity defense that should be covered by the proposed legislation. [Footnote 29] Third, the case that they discussed at Page 487 U. S. 899 the greatest length in the 1970 Hearing was Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682 (1949). [Footnote 30] Although they criticized the reliance on sovereign immunity in that opinion, they made no objection to its recognition of the classic distinction between the recovery of money damages and "the recovery of specific property or monies." Id. at 337 U. S. 688.Judge Bork's summary of the legislative history is especially convincing:"Neither the House nor Senate Reports (there was no Conference Report) intimates that Congress intended the term 'money damages' as a shorthand for 'whatever forms of monetary relief would be available under the Tucker Act.' To the contrary, the federal sovereign immunity case law, which the Reports discuss at length, see H.R.Rep. No. 1656, supra, at 5-8; S.Rep. No. 996, 94th Cong., 2d Sess. 4-8 (1976), suggests that Congress would have understood the recovery of specific monies to be specific relief in this context. See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 337 U. S. 688 (1949) (contrasting 'damages' and 'specific relief' and including in the latter category 'the recovery of specific property or monies').""Moreover, while reiterating that Congress intended 'suits for damages' to be barred, both Reports go on to say that""the time [has] now come to eliminate the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity.""H.R.Rep. No. 1656, supra, at 9; S.Rep. No. 996, supra, at 8, U.S. Code Cong. & Admin. News 1976, p. 6129 (emphasis added). That sweeping declaration strongly suggests that Congress intended to authorize equitable suits for specific monetary Page 487 U. S. 900 relief as we have defined that category. This inference is made virtually conclusive by the fact that both Reports then enumerate several kinds of cases in which the sovereign immunity defense had continued to pose an undesirable bar to consideration of the merits: that listing includes cases involving 'administration of Federal grant-in-aid programs.' H.R.Rep. No. 1656, supra, at 9; S.Rep. No. 996, supra, at 8, U.S. Code Cong. & Admin. News 1976, p. 6129. Specific relief in cases involving such programs will, of course, often result in the payment of money from the federal treasury. It seems to us, then, that the legislative history supports the proposition that Congress used the term 'money damages' in its ordinary signification of compensatory relief. We therefore hold that Maryland's claims for specific relief, albeit monetary, are for 'relief other than money damages,' and therefore within the waiver of sovereign immunity in section 702."246 U.S.App.D.C. at 186-187, 763 F.2d at 1447-1448.Thus, the combined effect of the 1970 Hearing and the 1976 legislative materials is to demonstrate conclusively that the exception for an action seeking "money damages" should not be broadened beyond the meaning of its plain language. The State's suit to enforce § 1396b(a) of the Medicaid Act, which provides that the Secretary "shall pay" certain amounts for appropriate Medicaid services, is not a suit seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it is a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money. [Footnote 31] The fact that the Page 487 U. S. 901 mandate is one for the payment of money must not be confused with the question whether such payment, in these circumstances, is a payment of money as damages or as specific relief. Judge Bork's explanation bears repeating:"[The State] is seeking funds to which a statute allegedly entitles it, rather than money in compensation for the losses, whatever they may be, that [the State] will suffer or has suffered by virtue of the withholding of those funds. If the program in this case involved in-kind benefits, this would be altogether evident. The fact that, in the present case, it is money, rather than in-kind benefits, that pass from the federal government to the states (and then, in the form of services, to program beneficiaries) cannot transform the nature of the relief sought -- specific relief, not relief in the form of damages."246 U.S.App.D.C. at 185, 763 F.2d at 1446.IIIThe Secretary's novel submission that the entire action is barred by § 704 must be rejected, because the doubtful and limited relief available in the Claims Court is not an adequate substitute for review in the District Court. A brief review of the principal purpose of § 704 buttresses this conclusion.Section 704 was enacted in 1946 as § 10(c) of the APA. In pertinent part, it provided: Page 487 U. S. 902"Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review."60 Stat. 243. [Footnote 32]Earlier drafts of what became § 704 provided that"only final actions, rules, or orders, or those for which there is no other adequate judicial remedy . . . shall be subject to such review,"or that"[e]very final agency action, or agency action for which there is no other adequate remedy in any court, shall be subject to judicial review. [Footnote 33]"Professor Davis, a widely respected administrative law scholar, has written that § 704 "has been almost completely ignored in judicial opinions," [Footnote 34] and has discussed § 704's bar to judicial review of agency action when there is an "adequate remedy" elsewhere as merely a restatement of the proposition that "[o]ne need not exhaust administrative remedies that are inadequate." [Footnote 35] Page 487 U. S. 903However, although the primary thrust of § 704 was to codify the exhaustion requirement, the provision as enacted also makes it clear that Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action. As Attorney General Clark put it the following year, § 704 "does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures." [Footnote 36] At the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency's action; for example, Federal Trade Commission and National Labor Relations Board orders were directly reviewable in the regional courts of appeals, [Footnote 37] and Interstate Commerce Commission orders were subject to review in specially constituted three-judge district courts. [Footnote 38] When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies.The exception that was intended to avoid such duplication should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action. Page 487 U. S. 904 In our leading opinion explaining the significance of this provision, Justice Harlan wrote:"The Administrative Procedure Act provides specifically not only for review of '[a]gency action made reviewable by statute,' but also for review of 'final agency action for which there is no other adequate remedy in a court,' 5 U.S.C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act's 'generous review provisions' must be given a 'hospitable' interpretation."Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 140-141 (1967) (footnote omitted). A restrictive interpretation of § 704 would unquestionably, in the words of Justice Black,"run counter to § 10 and § 12 of the Administrative Procedure Act. Their purpose was to remove obstacles to judicial review of agency action under subsequently enacted statutes. . . ."Shaughnessy v. Pedreiro, 349 U. S. 48, 349 U. S. 51 (1955).The Secretary argues that § 704 should be construed to bar review of the agency action in the District Court because monetary relief against the United States is available in the Claims Court under the Tucker Act. This restrictive -- and unprecedented -- interpretation of § 704 should be rejected, because the remedy available to the State in the Claims Court is plainly not the kind of "special and adequate review procedure" that will oust a district court of its normal jurisdiction under the APA. [Footnote 39] Moreover, the availability of Page 487 U. S. 905 any review of a disallowance decision in the Claims Court is doubtful.The Claims Court does not have the general equitable powers of a district court to grant prospective relief. Indeed, we have stated categorically that "the Court of Claims has no power to grant equitable relief." [Footnote 40] As the facts of this case illustrate, the interaction between the State's administration of its responsibilities under an approved Medicaid plan and the Secretary's interpretation of his regulations may make it appropriate for judicial review to culminate in the entry of declaratory or injunctive relief that requires the Secretary to modify future practices. We are not willing to assume, categorically, that a naked money judgment against the United States will always be an adequate substitute for prospective relief fashioned in the light of the rather complex ongoing relationship between the parties. [Footnote 41]Moreover, in some cases, the jurisdiction of the Claims Court to entertain the action, or perhaps even to enter a specific money judgment against the United States, would be at least doubtful. [Footnote 42] Regarding the former dilemma: if a State Page 487 U. S. 906 elects to retain the amount covered by a disallowance until completion of review by the Grant Appeals Board, see 42 U.S.C. § 1396b(d)(5); n 3, supra, it will not be able to file suit in the Claims Court until after the disallowance is recouped from a future quarterly payment. It is no answer to suggest that a State will not be harmed as long as it retains the money, because its interest in planning future programs Page 487 U. S. 907 for groups such as the mentally retarded who must be trained in ICF's may be more pressing than the monetary amount in dispute. Such planning may make it important to seek judicial review -- perhaps in the form of a motion for a preliminary injunction -- as promptly as possible after the agency action becomes final. A district court has jurisdiction both to grant such relief and to do so while the funds are still on the State's side of the ledger (assuming administrative remedies have been exhausted); the Claims Court can neither grant equitable relief, supra at 487 U. S. 905, nor act in any fashion so long as the Federal Government has not yet offset the disallowed amount from a future payment. See § 1396b(d)(5); n 3, supra. [Footnote 43] Regarding the latter problem: given the fact that the quarterly payments of federal money are actually advances against expenses that have not yet been incurred by the State, it is arguable that a dispute concerning the status of the open account is not one in which the State can claim an entitlement to a specific sum of money that the Federal Government owes to it. [Footnote 44]Further, the nature of the controversies that give rise to disallowance decisions typically involve state governmental Page 487 U. S. 908 activities that a district court would be in a better position to understand and evaluate than a single tribunal headquartered in Washington. We have a settled and firm policy of deferring to regional courts of appeals in matters that involve the construction of state law. [Footnote 45] That policy applies with special force in this context, because neither the Claims Court nor the Court of Appeals for the Federal Circuit has any special expertise in considering the state law aspects of the controversies that give rise to disallowances under grant-in-aid programs. It would be nothing less than remarkable to conclude that Congress intended judicial review of these complex questions of federal-state interaction to be reviewed in a specialized forum such as the Court of Claims. More specifically, it is anomalous to assume that Congress would channel the review of compliance decisions to the regional courts of appeals, see 42 U.S.C. § 1316(a)(3); supra, at 487 U. S. 885, and yet intend that the same type of questions arising in the disallowance context should be resolved by the Claims Court or the Federal Circuit. [Footnote 46] Page 487 U. S. 909IVWe agree with the position advanced by the State in its cross-petition -- that the judgments of the District Court should have been affirmed in their entirety -- for two independent reasons. First, neither of the District Court's orders in this case was a "money judgment," as the Court of Appeals held. The first order (followed in the second, see 487 U. S. supra) simply "reversed" the"decision of the Department Grant Appeals Board of the United States Department of Health and Human Services in Decision No. 438 (May 31, 1983). [Footnote 47]"It is true that it describes Decision No. 438 as one that had disallowed reimbursement of $6,414,964 to the State, but it did not order that amount to be paid, and it did not purport to be based on a finding that the Federal Government Page 487 U. S. 910 owed Massachusetts that amount, or indeed, any amount of money. Granted, the judgment tells the United States that it may not disallow the reimbursement on the grounds given, and thus it is likely that the Government will abide by this declaration and reimburse Massachusetts the requested sum. But to the extent that the District Court's judgment engenders this result, this outcome is a mere byproduct of that court's primary function of reviewing the Secretary's interpretation of federal law.Second, even if the District Court's orders are construed in part as orders for the payment of money by the Federal Government to the State, such payments are not "money damages," see 487 U. S. supra, and the orders are not excepted from § 702's grant of power by § 704, see 487 U. S. supra. That is, since the orders are for specific relief (they undo the Secretary's refusal to reimburse the State), rather than for money damages (they do not provide relief that substitutes for that which ought to have been done), they are within the District Court's jurisdiction under § 702's waiver of sovereign immunity. See 487 U. S. supra. Further, the District Court's jurisdiction to award complete relief in a case such as this is not barred by the possibility that a purely monetary judgment may be entered in the Claims Court. See 487 U. S. supra. [Footnote 48] Page 487 U. S. 911The question whether the District Court had the power to enter the order it did is governed by the plain language of 5 U.S.C. § 706. [Footnote 49] It seems perfectly clear that, as "the reviewing court," the District Court had the authority to "hold unlawful and set aside agency action" that it found to be "not in accordance with law." As long as it had jurisdiction under § 702 to review the disallowance order of the Secretary, it also had the authority to grant the complete relief authorized by § 706. Neither the APA nor any of our cases required the Court of Appeals to split this case into two parts. [Footnote 50] Page 487 U. S. 912In his explanation to Congress of the basic purpose of what became the 1976 amendment to the APA, Dean Cramton endorsed the view that"'today, the doctrine [of sovereign immunity] may be satisfactory to technicians, but not at all to persons whose main concern is with justice. . . . The trouble with the sovereign immunity doctrine is that it interferes with consideration of practical matters, and transforms everything into a play on words.' [Footnote 51]"In our judgment, a fair consideration of "practical matters" supports the conclusion that the district courts and the regional courts of appeals have jurisdiction to review agency action of the kind involved in this case, and to grant the complete relief authorized by § 706. Accordingly, the Court of Appeals should have affirmed the judgments of the District Court in their entirety.Thus, we affirm in part, reverse in part, and remand to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBowen v. Massachusetts, 487 U.S. 879 (1988)Bowen v. MassachusettsNo. 87-712Argued April 20, 1988Decided June 29, 1988*487 U.S. 879SyllabusThe federal contribution (referred to as a "reimbursement") to a State's Medicaid program takes the form of advances based on the State's estimate of its future expenditures for covered services. Overpayments may be withheld from future advances, or, if a disallowance dispute develops, may be retained by the State at its option pending resolution of the dispute. After Massachusetts was reimbursed by the Department of Health and Human Services (HHS) for its expenditures for particular services during two time periods, HHS subsequently disallowed the reimbursements on the ground that the services in question were not covered by the Medicaid statute or HHS regulations. The Departmental Grant Appeals Board (Board) affirmed. Unlike orders in the related compliance proceedings, which are expressly made reviewable by the regional courts of appeals, disallowance orders are not explicitly made judicially reviewable by the Medicaid statute. Nevertheless, the State filed two suits, each with respect to one of the disallowance decisions, in the Federal District Court, seeking declaratory and injunctive relief and specifically asking the court to "set aside" the Board's orders. In one case, the court issued a declaratory judgment agreeing with respondent on the merits, and "reversed" the disallowance decision. In the second case, the court issued an order based on its earlier decision. The Court of Appeals agreed with the Secretary of HHS that the District Court lacked jurisdiction to order him to pay money to the State, and therefore reversed the "money judgment" against him. The court also held, however, that the District Court had jurisdiction to review the Board's disallowance decisions and to grant declaratory and injunctive relief having prospective effect, and affirmed the declaratory judgment on the merits. In this Court, the Secretary contends that the United States Claims Court had jurisdiction over the State's claim, since §§ 702 and 704 of the Administrative Procedure Act preclude district court review. Page 487 U. S. 880Held:1. The federal district courts, rather than the Claims Court, have jurisdiction to review a final HHS order refusing to reimburse a State for a category of expenditures under its Medicaid program. Pp. 487 U. S. 891-912.(a) Although § 702 denies the district courts review jurisdiction in actions against federal agencies seeking "money damages," the plain meaning of that language does not foreclose review of the Secretary's disallowance decisions in cases such as the present. First, insofar as the State's complaint sought declaratory and injunctive relief, it was not an action for money damages. Second, and most importantly, even the monetary aspects of the relief sought by the State are not "money damages" as that term is used in § 702. The ordinary meaning of the term is compensatory relief for an injury suffered. Here, the State's suit is in the nature of an equitable action for specific relief seeking reimbursement to which the State was allegedly already entitled, rather than money in compensation for losses suffered as a result of the disallowance. Cf. Maryland Dept. of Human Resources v. Department of Health and Human Services, 246 U.S.App.D.C. 180, 763 F.2d 1441. Thus, the statutory text is unambiguous, and, given the well-settled presumption that Congress understands the state of existing law when it legislates, the Secretary's suggestion that the words "monetary relief" must be substituted for the words "money damages" could be accepted only for the most compelling reasons. In fact, however, the legislative history demonstrates conclusively that § 702's exception for an action seeking "money damages" should not be broadened beyond the meaning of its plain language. Pp. 487 U. S. 891-901.(b) Section 704 -- which provides for district court review of final agency actions "for which there is no other adequate remedy in any court" -- does not bar relief, since the doubtful and limited relief available in the Claims Court under the Tucker Act is not an adequate substitute for district court review. Section 704 was intended to avoid duplication when there are special statutory review procedures relating to specific agencies, whereas the Tucker Act relates broadly to monetary relief against the United States. The Tucker Act remedy available in the Claims Court is deficient for several reasons. That court has no power to grant equitable relief. Such relief may be appropriate in the disallowance context, and it cannot be assumed categorically that a naked money judgment against the United States will always be an adequate substitute for prospective relief. Furthermore, the Claims Court would be unable to entertain any action in a case in which the State retained a disallowed amount pending Board review until the Government recouped the disallowed amount from a future payment, and might be unable to enter a money judgment against the Government, since reimbursements Page 487 U. S. 881 are actually advances against expenses not yet incurred. In addition, disallowance controversies typically involve state governmental activities that a district court would be in a much better position to understand and evaluate than would a single, specialized tribunal headquartered in Washington. It is anomalous to assume that Congress would channel the review of compliance decisions to the regional courts of appeals, but intend that the same kinds of controversies in the disallowance context should be resolved by the Claims Court or the Federal Circuit. Pp. 487 U. S. 901-908.2. The Court of Appeals erred in not affirming the judgments of the District Court in their entirety, for the reasons set forth above. Moreover, neither of the District Court's orders was a "money judgment," as the Court of Appeals held, since the first order (followed in the second) simply "reversed" the Board's decision, and did not order that any amount be paid or purport to be based on a finding that any amount was owed. The District Court had the power to grant the complete relief that it did under 5 U.S.C. § 706. Pp. 487 U. S. 909-912.816 F.2d 796, affirmed in part, reversed in part, and remanded.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 487 U. S. 912. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined, post, p. 487 U. S. 913. Page 487 U. S. 882

1986_86-337

JUSTICE MARSHALL delivered the opinion of the Court.The issue presented by this case is whether § 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11503, permits review by federal courts of alleged overvaluation of railroad property by state taxation authorities. Page 481 U. S. 457IIn 1976, after 15 years of intermittent and inconclusive legislative action, Congress passed the Railroad Revitalization and Regulatory Reform Act, Pub.L. 94-210, 90 Stat. 31 (Act). The Act's purpose, as stated in the congressional declaration of policy, was"to provide the means to rehabilitate and maintain the physical facilities, improve the operations and structure, and restore the financial stability of the railway system of the United States."§ 101(a). Among the means chosen by Congress to fulfill these objectives, particularly the goal of furthering railroad financial stability, was a prohibition on discriminatory state taxation of railroad property. After an extended period of congressional investigation, Congress concluded that "railroads are over-taxed by at least $50 million each year." H.R.Rep. No. 94-725, p. 78 (1975).Congress' solution to the problem of discriminatory state taxation of railroads was embodied in § 306 of the Act, currently codified at 49 U.S.C. § 11503. [Footnote 1] In broad terms, Congress declared in § 306(b) that assessment ratios or taxation rates imposed on railroad property which differ significantly from the ratios or rates imposed on other commercial and industrial property are prohibited as burdens on interstate commerce. [Footnote 2] Section 306(c) declared an exception from the Page 481 U. S. 458 provisions of the Tax Injunction Act, 28 U.S.C. § 1341, allowing railroads to challenge discriminatory taxation in federal district courts. [Footnote 3] States were given a 3-year grace period, until February 1979, to bring their property taxation systems into compliance with the statutory requirements. § 306(2)(b), 90 Stat. 54; see Act of Oct. 17, 1978, Pub.L. 95-473, 92 Stat. 1466.The present action was filed by petitioner Burlington Northern Railroad in the United States District Court for the Western District of Oklahoma on March 3, 1983. The complaint alleged that respondents, the Oklahoma Tax Commission Page 481 U. S. 459 and State Board of Equalization and their members, had discriminated against petitioner in the assessment of state property taxes for the 1982 tax year. [Footnote 4] In particular, petitioner alleged that respondents had overvalued petitioner's property.The determination of railroad property tax liability in Oklahoma proceeds in several discrete stages. The first step is to ascertain the amount of property subject to tax. The Oklahoma Tax Commission follows the procedure of determining the value of the entire railroad, and then allocating a portion of that total system value to Oklahoma. The value of the railroad is determined by calculating a weighted average of original cost of assets and capitalized net operating income. Response to Complaint � 14, App. 16. A similar procedure for determining the value of railroad property subject to tax by valuing the total system and apportioning that value to the taxing jurisdiction is employed in almost all jurisdictions which apply property taxes to railroads. See J. Runke & A. Finder, State Taxation of Railroads and Tax Relief Programs 23-32 (1977). In allocating a proportion of petitioner's property to Oklahoma, the Tax Commission took the position in 1982 that 3.53% of petitioner's property was taxable in the State, an allocation which petitioner does not dispute. Brief for Petitioner 9, n. 14.Oklahoma does not assess property at full market value for tax purposes. See Okla.Const., Art. 10, § 8 (assessment not to exceed 35% of market value). Therefore, the second step in the determination of tax liability is the application to the true market valuation of the assessment ratio. In 1982, the State assessed the taxable value of petitioner's property at 10.87% of true market value. Petitioner does not dispute that this was the same assessment ratio employed with respect Page 481 U. S. 460 to all other commercial and industrial property in the State. Brief for Petitioner 9, n. 14.Petitioner's claim of discriminatory taxation was thus based solely upon the State's original determination of the market value of petitioner's entire railroad system. The 1982 assessment by the State determined that the "true" market value of the railroad was approximately $3.6 billion. Response to Complaint � 28, App. 22. Petitioner contended that fair application of respondents' own valuation methodology would have resulted in a determination that the "true" market value of the railroad was approximately $1.5 billion. Complaint � 34, App. to Pet for Cert. 31a.The District Court, following the decision of the United States Court of Appeals for the Tenth Circuit in Burlington Northern R. Co. v. Lennen, 715 F.2d 494 (1983), cert. denied, 467 U.S. 1230 (1984), held that § 11503 does not permit the exercise of federal jurisdiction to review claims of state taxation based upon alleged overvaluation of railroad property, unless the railroad "can make a strong showing of purposeful overvaluation with discriminatory intent.'" CIV 83-419-R (WD Okla. Jan. 8, 1985), App. to Pet. for Cert. 10a (quoting Burlington Northern R. Co. v. Lennen, supra, at 498). The District Court found that no such showing had been made, and dismissed "for lack of subject matter jurisdiction" under Federal Rule of Civil Procedure 12(b)(1). App. to Pet. for Cert. 17a. The Court of Appeals affirmed in an unpublished opinion. No. 85-1657 (CA10 May 2, 1986). We granted certiorari, 479 U.S. 913 (1986), to resolve a conflict between the position of the Tenth Circuit and that of the Eighth Circuit in Burlington Northern R. Co. v. Bair, 766 F.2d 1222 (1985). We now reverse.IIThere is some difference of opinion between respondents and the Court of Appeals as to the proper interpretation of § 11503. The Court of Appeals, following its decision Page 481 U. S. 461 in Burlington Northern R. Co. v. Lennen, supra, held that district courts may not review claims of discriminatory taxation based upon overvaluation of railroad property unless the plaintiff first makes a preliminary showing of intentional discrimination. Respondents suggest that § 11503 never permits district court review of such claims. Brief for Respondents State Board of Equalization et al. 9; Tr. of Oral Arg. 41, 52-53. Our reading of the statute convinces us that both positions are untenable.The parties have canvassed at length the 15-year legislative history of the Act, and of the protection against discriminatory state taxation which became § 11503. We find the results of that investigation inconclusive and irrelevant. Legislative history can be a legitimate guide to a statutory purpose obscured by ambiguity, but,"[i]n the absence of a 'clearly expressed legislative intention to the contrary,' the language of the statute itself 'must ordinarily be regarded as conclusive.'"United States v. James, 478 U. S. 597, 478 U. S. 606 (1986) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980)). Unless exceptional circumstances dictate otherwise, "[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete." Rubin v. United States, 449 U. S. 424, 449 U. S. 430 (1981).In the present case, the language of § 11503 plainly declares the congressional purpose. Subsection (b)(1) forbids any State to"assess rail transportation property at a value that has a higher ratio to the true market value . . . than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property."It is clear from this language that, in order to compare the actual assessment ratios, it is necessary to determine what the "true market values" are. Respondents take the position that the first occurrence of the phrase "true market value" in § 11503(b)(1) should be read as "state determined market value," for they contend in essence that whatever Page 481 U. S. 462 the State determines the value of the railroad to be, the resulting assessment ratio is not subject to further judicial scrutiny in the federal courts.The obstacle to this position is the language of § 11503(c), which states that "[t]he burden of proof in determining assessed value and true market value is governed by State law." It would be inconsistent to allocate the burden of proof as to an issue which could not be litigated in federal court in the first place. Respondents attempt to meet this argument by pointing to the remainder of subsection (c), which specifically instructs the district courts as to methods for proving the assessment ratio for other commercial and industrial property, either through statistical sampling of the assessed value and sale value of individual properties, or through the determination of assessed value and true market value of "all other commercial and industrial property" "in the assessment jurisdiction." § 11503(c)(1). Respondents contend that these instructions as to the determination of assessment ratios for other commercial and industrial property show that it is the burden of proof on these issues only which is allocated in subsection (c), and that it is only these issues which may be the subject of proof before the district court.In fact, however, the language of subsection (c) leads to the opposite conclusion. The general statement that assessed value and true market value are subjects for judicial inquiry, and are to be proved under burdens allocated by state law, is followed by a specific instruction as to how two of those issues are to be addressed. These are not, by their placement or meaning, words of limitation on the preceding general statement, but rather a particular grant of authority to district courts to use statistical methods for establishing the assessed and market values of "other commercial and industrial property" where such methods will result in proof "to the satisfaction of the district court." Congress has said that the value of one kind of property may, in the court's discretion, Page 481 U. S. 463 be proved by particular means; this raises no implication whatever that the value of another kind of property may not be proved at all. [Footnote 5] Respondents' position depends upon the addition of words to a statutory provision which is complete as it stands. Adoption of their view would require amendment, rather than construction, of the statute, and it must be rejected here.The position taken by the Court of Appeals is also unsatisfactory. The court found that some disputes as to state valuation of railroad property may be the subject of a federal claim under § 11503, but only where the plaintiff alleges, and makes a preliminary showing, that the overvaluation results from discriminatory intent. App. to Pet. for Cert. 10a; Burlington Northern R. Co. v. Lennen, 715 F.2d at 498. The statute provides no support for this interpretation. Subsection (b) speaks only in terms of "acts" which "unreasonably burden and discriminate against interstate commerce"; nowhere does it refer to the intent of the actor. The Court of Appeals does not dispute that the other acts prohibited by the plain language of § 11503(b), such as the use of facially discriminatory disparities in assessment ratio or the systematic undervaluation of other commercial and industrial property, are not subject to an intent requirement. It does not explain how the same sentence can be interpreted in two such strikingly different senses depending upon whether the railroad's challenge is to the State's undervaluation of other Page 481 U. S. 464 commercial and industrial property or to the State's overvaluation of railroad property.Further support for our conclusion is found in § 11503(c), which provides that"[r]elief may be granted under this subsection only if the ratio of assessed value to true market value of rail transportation property exceeds by at least 5 percent"the assessment ratio for other commercial and industrial property. Such a provision makes sense as a prohibition on the litigation of de minimis disparate impact claims in the federal courts, but it is hard to reconcile with the proposition that Congress intended to reach only claims of intentional discrimination by overvaluation. If intentional discrimination is the evil to be remedied, did Congress propose to permit the States to discriminate at will, so long as they unfairly retained only one nickel out of every dollar? The Court of Appeals' suggested interpolation of an intent requirement draws no support from the statute's language, and is inconsistent with its expressed purpose.Respondents contend that injunctive relief against state taxation offends the principles of comity. Brief for Respondents State Board of Equalization et al. 41-42. The Court of Appeals found that its restrictions on valuation actions under § 11503 are necessary in order to avoid "an inevitable clog of federal dockets" and "unreasonable delay of the state tax collection process." App. to Pet. for Cert. 10a. These are policy considerations which may have weighed heavily with legislators who considered the Act and its predecessors. It should go without saying that we are not free to reconsider them now. The decision of the Court of Appeals isReversed

U.S. Supreme CourtBurlington Northern v. Okla. Tax Comm'n., 481 U.S. 454 (1987)Burlington Northern Railroad Co. v. Oklahoma Tax CommissionNo. 86-337Argued March 25, 1987Decided April 28, 1987481 U.S. 454SyllabusSection 306 of the Railroad Revitalization and Regulatory Reform Act of 1976 -- which prohibits discriminatory state taxation of railroad property -- provides, in § 306(b)(1), that a State may not"assess rail transportation property at a value that has a higher ratio to the true market value . . . than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property."Section 306(c) includes, inter alia, provisions declaring an exception from the provisions of the Tax Injunction Act, conferring jurisdiction on district courts to prevent violations of § 306(b), and stating that "[t]he burden of proof in determining assessed value and true market value is governed by State law." Petitioner railroad filed this action in the Federal District Court, alleging that respondents, Oklahoma taxation authorities and their members had discriminated against petitioner in the assessment of state property taxes for the 1982 tax year, particularly by overvaluing petitioner's property. In Oklahoma, the determination of tax liability involves determining the value of the entire railroad system and allocating a portion of that value to Oklahoma, and then assessing the taxable value of the railroad's property at only a certain percentage of true market value, which, during the tax year in question, was concededly the same assessment ratio employed with respect to all other commercial and industrial property in the State. Petitioner's claim of discriminatory taxation was based solely upon the State's overvaluation of the "true market value" of petitioner's entire railroad system. Holding that § 306 does not permit the exercise of federal .jurisdiction to review such claims of discriminatory state taxation unless the railroad shows purposeful overvaluation with discriminatory intent, the District Court found that no such showing had been made here, and dismissed the case for lack of subject matter jurisdiction. The Court of Appeals affirmed.Held: Section 306 permits federal court review of petitioner's claim of alleged overvaluation of its property. Pp. 481 U. S. 460-464.(a) Respondents' contention that § 306 never permits district court review of claims of discriminatory taxation based upon overvaluation of railroad property is without merit. The language of § 306(b)(1) makes Page 481 U. S. 455 clear that, in order to compare the actual assessment ratios applicable to railroad property and to other commercial and industrial property, it is necessary to determine what the "true market values" are. The obstacle to respondents' position that the first occurrence of the phrase "true market value" in the statute should be read as "state determined market value" is the language of § 306(c) stating that the burden of proof in determining assessed value and true market value is governed by state law. It would be inconsistent to allocate the burden of proof as to an issue which could not be litigated in federal court in the first place. The additional provisions of § 306(c) instructing the district courts as to methods for proving the assessment ratio for "other commercial and industrial property" do not, as respondents claim, raise an implication that the State's valuation of a railroad's property may not be proved at all. Pp. 481 U. S. 460-463.(b) The position of the courts below that district courts may not review claims of discriminatory taxation based upon overvaluation of railroad property unless the plaintiff first makes a preliminary showing of intentional discrimination is also untenable. Section 306(b) speaks only in terms of "acts" which "unreasonably burden and discriminate against interstate commerce"; nowhere does it refer to the actor's intent. Moreover, § 306(c) provides that relief may be granted only if the ratio of assessed value to true market value of railroad property exceeds by at least 5% the assessment ratio for other commercial and industrial property. That provision makes sense as a prohibition on the litigation of de minimis disparate impact claims, and does not support the view that Congress intended to reach only claims of intentional discrimination by overvaluation. Pp. 481 U. S. 463-464.(c) The contentions that injunctive relief against state taxation offends principles of comity, and that restrictions on valuation actions under § 306 are necessary to avoid crowded federal dockets and unreasonable delay of the state tax collection process, involve policy considerations that may have weighed heavily with legislators who considered the Act and its predecessors. This Court is not free to reconsider such policy matters. P. 481 U. S. 464.Reversed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 481 U. S. 456

1979_78-1513

MR. JUSTICE MARSHALL delivered the opinion of the Court.This appeal presents the question whether illegitimate children of a federal civil service employee are entitled to survivors' benefits under the Civil Service Retirement Act when the children once lived with the employee in a familial relationship, but were not living with the employee at the time of his death.IGeorge Isaacson and the appellee Patricia Clark lived together from 1965 through 1971 without benefit of matrimony. They had two children, Shawn and Tricia Clark, born in 1968 and 1971, respectively, and the four lived together as a family. After the appellee and Isaacson separated, the appellee filed a state court action in Montana seeking a determination of the paternity of the children. In June, 1972, the Montana court issued a decree determining that Isaacson was the natural father of the children and ordering him to contribute to their support. Isaacson provided monthly support payments up to the time of his death in 1974.At the time of death, Isaacson was a federal employee covered by the Civil Service Retirement Act, 5 U.S.C. § 8331 et seq. The Act provides that each surviving child of a deceased federal employee is entitled to a survivors' annuity. 5 U.S.C. § 8341(e)(1). All legitimate and adopted children under 18 years of age qualify for these benefits, but stepchildren or "recognized natural" children under 18 may recover only if they "lived with the employee . . . in a regular parent-child relationship." 5 U.S.C. § 8341(a)(3)(A). In September, 1974, the Civil Service Commission's Bureau of Retirement, Insurance, and Occupational Health denied the appellee's application for such annuities for Shawn and Tricia. The Bureau held that 5 U.S.C. § 8341(a)(3)(A) bars recovery for otherwise qualified children born out of wedlock who, like Shawn and Tricia, were not living with the employee Page 445 U. S. 25 at the time of his death. The Commission's Board of Appeals and Review affirmed. [Footnote 1]The appellee then filed this action in the Court of Claims on behalf of her children. She argued that 5 U.S.C. § 8341(a)(3)(A) allows recovery where, as here, the recognized natural children had once lived with the employee in a parent-child relationship. Alternatively she contended that, if the Commission's interpretation of 5 U.S.C. § 8341(a)(3)(A) was correct, that provision violated the equal protection component of the Due Process Clause of the Fifth Amendment because it impermissibly discriminated against illegitimate children.The Court of Claims granted the appellee's motion for summary judgment. 218 Ct.Cl. 705, 590 F.2d 343. Ignoring the statutory issue, the court granted relief on the authority of its earlier decision in Gentry v. United States, 212 Ct.Cl. 1, 546 F.2d 343 (1976), rehearing denied, 212 Ct.Cl. 27, 551 F.2d 852 (1977), which held that the "lived with" requirement of 5 U.S.C. § 8341(a)(3)(A) unconstitutionally discriminated against illegitimate children. We postponed consideration of our jurisdiction pending hearing on the merits, 441 U.S. 960 (1979), and now affirm on the statutory ground presented to, but not addressed by, the Court of Claims. [Footnote 2] Page 445 U. S. 26IIThe Civil Service Retirement Act provides survivors' annuities to all legitimate children, but grants the same benefits to Page 445 U. S. 27 children born out of wedlock only if they "lived with the employee . . . in a regular parent-child relationship." Such a classification based on illegitimacy is unconstitutional unless it bears "an evident and substantial relation to the particular . . . interests this statute is designed to serve." Lalli v. Lalli, 439 U. S. 259, 439 U. S. 268 (1978) (plurality opinion); see id. at 439 U. S. 279 (BRENNAN, J., dissenting). See also Trimble v. Gordon, 430 U. S. 762, 430 U. S. 767 (1977). [Footnote 3] The Government's asserted justification for the classification -- that it is an administratively convenient means of identifying children who actually were deprived of support by the employee's death -- is itself open to constitutional question, since the statute does not condition benefits to legitimate children on such a showing.It is well settled that this Court will not pass on the constitutionality of an Act of Congress if a construction of the statute is fairly possible by which the question may be avoided. E.g., Califano v. Yamasaki, 442 U. S. 682, 442 U. S. 693 (1979); New York City Transit Authority v. Beazer, 440 U. S. 568, 440 U. S. 582, and n. 22 (1979); Machinists v. Street, 367 U. S. 740, 367 U. S. 749-750 (1961); Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 323 U. S. 105 (1944). Where both a constitutional issue and an issue of statutory construction are raised, we are not, of course, foreclosed from considering the statutory question merely because the lower court failed to address it. Califano v. Yamasaki, supra at 442 U. S. 693; University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 328 (1978) Page 445 U. S. 28 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.); id. at 438 U. S. 281 (opinion of POWELL, J.); id. at 438 U. S. 411-412 (opinion of STEVENS, J.). Accordingly, we turn to the statute to determine whether resolution of the constitutional question is necessary to the disposition of this case.Shawn and Tricia Clark were denied annuities on the ground that they did not meet the statutory requirement that they "lived with the employee . . . in a regular parent-child relationship." The appellee contended that her children did meet the requirement, because they had lived with the decedent as a family from their birth through 1971. If the appellee's construction of the statutory language is correct, the children are entitled to survivors' annuities and decision of the constitutional question is unnecessary. The Civil Service Commission, however, has construed the "lived with" language to require that the children be living with the employee at the time of the employee's death.When the statutory language is considered on its face, the appellee's reading is at least as plausible as that of the Government. Shawn and Tricia had "lived with" their father, and we believe those words would not ordinarily imply a temporal limitation. Moreover, Congress has demonstrated in other social welfare legislation that it knows how to restrict the class of eligible beneficiaries to those living with an individual at a particular time. [Footnote 4] Page 445 U. S. 29We can find nothing in the legislative history of the statute to indicate that appellee's construction of the statute is out of harmony with the congressional intent. The original enactment in 1948 made an annuity payable to"an unmarried child, including a dependent stepchild or an adopted child, under the age of eighteen years, or such unmarried child who because of physical or mental disability is incapable of self-support."Act of Feb. 28, 1948, § 11, 62 Stat. 55. The amount of the annuity depended on whether another parent survived. Although children born out of wedlock were not expressly included, the provision was seemingly broad enough to cover them. [Footnote 5] The Government argues that, in granting annuities to surviving children, Congress intended to provide funds to replace support lost by the wage earner's dependents. The Government views the statutory scheme as designed to pay benefits only to those children Congress thought most likely to have been dependent on the wage earner, and to take account of the likelihood of supplementary support from the other parent. We note, however, that only stepchildren were required to show dependency. [Footnote 6]In 1956, Congress amended the definition of an entitled child to include"an unmarried child, including (1) an adopted child, and (2) a stepchild or recognized natural child who received more than one-half his support from and lived with the . . . employee in a regular parent-child relationship."Act of July 31, 1956, Title IV, § 1(j), 70 Stat. 744. [Footnote 7] For the Page 445 U. S. 30 first time children born out of wedlock were explicitly included, but their eligibility was made subject both to the "lived with" requirement and to the dependency requirement originally applicable only to stepchildren.The legislative history is devoid of any indication whether Congress intended that annuities could be recovered by all recognized natural children who had once lived with the employee in a familial relationship, or only by such children who were living with the employee at the time of death. Nor do the congressional materials illuminate the purpose of the "lived with" requirement. The Government defends the provision as a rational indicator of both dependency and parentage. An illegitimate child who lived with the natural parent, according to this view, is both more likely to have received support from the parent and more likely to be the true issue of that parent than is any illegitimate child who lived apart from the natural parent. It seems unlikely that Congress viewed the requirement as a means of ascertaining either dependency or parentage, however, since the statute also required the child to prove both that he had received more than one-half of his support from the deceased employee and that he was the employee's "recognized natural child." Those provisions speak directly to the concerns raised by the Government, and the additional requirement that the child must have lived with the parent would therefore be superfluous regardless of whether it mandated that the child must have lived with the parent at the time of the parent's death rather than at some other time.The Government also urges that Congress intended the "lived with" requirement to serve as a means of thwarting fraudulent claims of dependency or parentage, and to promote efficient administration by facilitating the prompt identification of eligible annuitants. It is evident from the facts Page 445 U. S. 31 of this case, however, that the classification is not narrowly tailored as a means of furthering either goal. As we recognized in Jimenez v. Weinberger, 417 U. S. 628, 417 U. S. 636 (1974), the prevention of fraud is a legitimate goal, but it does not necessarily follow "that the blanket and conclusive exclusion of [appellee's] subclass of illegitimates is reasonably related to the prevention of spurious claims." Thus, even if the "lived with" requirement is assumed to serve as a device to prevent fraud or to promote efficient administration, it raises serious equal protection problems that this Court must seek to avoid by adopting a saving statutory construction not at odds with fundamental legislative purposes.In sum, the legislative history of the 1956 amendments provides no direct guidance on the purpose of the "lived with" provision or on whether it was intended to be restricted to children living with the parent at a particular time. The less restrictive construction proposed by the appellee appears fair and reasonable in light of the language, purpose, and history of the enactment, and it avoids a serious constitutional question. Before we conclude our inquiry, however, we must consider whether a 1966 amendment to the statute affected the children's right to recovery.Congress enacted the 1966 amendments to the Act upon the request of the Executive Branch's Committee on Federal Staff Retirement Systems. One of these amendments removed the requirement that children must prove they received one-half of their support from the deceased employee in order to recover survivors' annuities. Act of July 18, 1966, Title V, § 502, 80 Stat. 300. Congress deleted the dependency requirement in order to ensure recovery for the children of female civil servants, who typically earned less than their husbands and accordingly contributed less than half of the support of their children. [Footnote 8] Congress also deleted the requirement Page 445 U. S. 32 of proof of dependency for stepchildren and "recognized natural" children, but retained the "lived with" requirement for those claimants. The reason for retaining the requirement was not clearly explained in the Cabinet Committee report, which simply stated:"Stepchildren and natural children are eligible for benefits at present only when they have been dependent on the deceased parent and living with the parent in a regular parent-child relationship. The latter requirement should be retained; but, if it is fulfilled, the benefits should be paid as for any other child, without regard to the dependency requirement."H.R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966).The Government views the 1966 amendment as evidence that Congress intended the "lived with" requirement to serve as a convenient method of determining whether the child received support from the deceased employee. This proposition appears implausible, since, in the same sentence, the Committee recommended that, if the "lived with" requirement were met, benefits should be paid "as for any other child, without regard to the dependency requirement." The Committee's use of the word "retained" is a further indication that Congress did not intend the "lived with" provision to assume a new function previously performed by the dependency requirement. Moreover, the Government's position again unnecessarily raises the equal protection question, because legitimate children and adopted children were not required to demonstrate that they had received support from the decedent. In the absence of any persuasive evidence to the contrary, therefore, we assume that Congress' failure to alter the "lived Page 445 U. S. 33 with" requirement likewise failed to modify the purpose of that provision as envisioned by the Congress that enacted it. [Footnote 9]We conclude that the "lived with" requirement is satisfied when a recognized natural child has lived with the deceased employee in a "regular parent-child relationship," regardless of whether the child was living with the employee at the time of the employee's death. Our consideration of the language and purpose of the statute and of the available legislative history convinces us that this construction is a fair and reasonable reading of the congressional enactment. [Footnote 10] Furthermore, Page 445 U. S. 34 the construction is necessary to avoid a serious constitutional question. By so holding, we do not believe that we are creating undue administrative difficulties for the Civil Service Commission. In this case, for example, the Commission relied on the Montana court's paternity decree and affidavits concerning when the appellee's children lived with the deceased employee. Similar documentary evidence would be equally probative of whether an illegitimate child claiming a survivors' annuity had ever lived with the deceased employee in a regular parent-child relationship. [Footnote 11]The judgment of the Court of Claims isAffirmed

U.S. Supreme CourtUnited States v. Clark, 445 U.S. 23 (1980)United States v. ClarkNo. 78-1513Argued October 31, 1979Decided February 26, 1980445 U.S. 23SyllabusHeld: Under the provisions of the Civil Service Retirement Act whereby a deceased federal employee's legitimate children under 18 years of age qualify for survivors' benefits but "recognized natural" children under 18 may recover only if they "lived with the employee . . . in a regular parent-child relationship," a recognized natural child is entitled to survivors' benefits when the child has lived with the deceased employee in a "regular parent-child relationship," regardless of whether the child was living with the employee at the time of his death. This construction of the statutory provisions is fair and reasonable in light of the language, purpose, and history of the enactment and avoids a serious constitutional question under the equal protection component of the Due Process Clause of the Fifth Amendment. Even if the "lived with" requirement is assumed to serve as a device to thwart fraudulent claims of dependency or parentage or to promote efficient administration by facilitating the prompt identification of eligible annuitants, to construe the provision as applying only to illegitimate children living with the employee at the time of death would raise serious equal protection problems that this Court must seek to avoid by adopting a saving statutory construction not at odds with fundamental legislative purposes. Pp. 445 U. S. 26-34.218 Ct.Cl. 705, 590 F.2d 343, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C.J., joined, post, p. 445 U. S. 34. REHNQUIST, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 445 U. S. 36. Page 445 U. S. 24

1969_778

MR. JUSTICE BRENNAN delivered the opinion of the Court.Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage, at"which a determination is made as to Page 397 U. S. 359 whether a juvenile is a 'delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution."In re Gault, 387 U. S. 1, 387 U. S. 13 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial, or even of the usual administrative proceeding, the Due Process Clause does require application during the adjudicatory hearing of "the essentials of due process and fair treatment.'" Id. at 387 U. S. 30. This case presents the single, narrow question whether proof beyond a reasonable doubt is among the "essentials of due process and fair treatment" required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult. [Footnote 1]Section 712 of the New York Family Court Act defines a juvenile delinquent as "a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime." During a 1967 adjudicatory hearing, conducted pursuant to § 742 of the Act, a judge in New York Family Court Page 397 U. S. 360 found that appellant, then a 12-year-old boy, had entered a locker and stolen $112 from a woman's pocketbook. The petition which charged appellant with delinquency alleged that his act, "if done by an adult, would constitute the crime or crimes of Larceny." The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant's contention that such proof was required by the Fourteenth Amendment. The judge relied instead on § 744(b) of the New York Family Court Act, which provides that"[a]ny determination at the conclusion of [an adjudicatory] hearing that a [juvenile] did an act or acts must be based on a preponderance of the evidence. [Footnote 2]"During a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of 18 months, subject to annual extensions of his commitment until his 18th birthday -- six years, in appellant's case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion, 30 App.Div.2d 781, 291 N.Y.S.2d 1005 (1968). The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of § 744(b), 24 N.Y.2d 196, 247 N.E.2d 253 (1969). [Footnote 3] Page 397 U. S. 361 We noted probable jurisdiction, 396 U.S. 885 (1969). We reverse.IThe requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The"demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula 'beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt."C. McCormick, Evidence § 321, pp. 681-682 (1954); see also J. Wigmore, Evidence § 2497 (3d ed.1940). Although virtually unanimous adherence to the reasonable doubt standard in common law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does "reflect a profound judgment about the Page 397 U. S. 362 way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 155 (1968).Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States, 103 U. S. 304, 103 U. S. 312 (1881); Davis v. United States, 160 U. S. 469, 160 U. S. 488 (1895); Holt v. United States, 218 U. S. 245, 218 U. S. 253 (1910); Wilson v. United States, 232 U. S. 563, 232 U. S. 569-570 (1914); Brinegar v. United States, 338 U. S. 160, 338 U. S. 174 (1949); Leland v. Oregon, 343 U. S. 790, 343 U. S. 795 (1952); Holland v. United States, 348 U. S. 121, 348 U. S. 138 (1954); Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526 (1958). Cf. Coffin v. United States, 156 U. S. 432 (1895). Mr. Justice Frankfurter stated that"[i]t is the duty of the Government to establish . . . guilt beyond a reasonable doubt. This notion -- basic in our law and rightly one of the boasts of a free society -- is a requirement and a safeguard of due process of law in the historic, procedural content of 'due process.'"Leland v. Oregon, supra, at 343 U. S. 802-803 (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States, supra, at 338 U. S. 174, that"[g]uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common law tradition, to some extent embodied in the Constitution, has crystalized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property."Davis v. United States, supra, at 160 U. S. 488, stated that the requirement is implicit in "constitutions . . . [which] recognize the fundamental principles that are deemed essential for the protection of life and liberty." In Davis, a murder conviction was Page 397 U. S. 363 reversed because the trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced regarding the sanity of the accused. This Court said:"On the contrary, he is entitled to an acquittal of the specific crime charged if, upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime. . . . No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them . . . is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged."Id. at 160 U. S. 484, 160 U. S. 493.The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence -- that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, supra, at 156 U. S. 453. As the dissenters in the New York Court of Appeals observed, and we agree,"a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case."24 N.E.2d at 205, 247 N.E.2d at 259.The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society Page 397 U. S. 364 that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 357 U. S. 525-526:"There is always, in litigation, a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value -- as a criminal defendant his liberty -- this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt."To this end, the reasonable doubt standard is indispensable, for it "impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue." Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967).Moreover, use of the reasonable doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Page 397 U. S. 365IIWe turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. We do not find convincing the contrary arguments of the New York Court of Appeals. Gault rendered untenable much of the reasoning relied upon by that court to sustain the constitutionality of § 744(b). The Court of Appeals indicated that a delinquency adjudication"is not a 'conviction' (§ 781); that it affects no right or privilege, including the right to hold public office or to obtain a license (§ 782), and a cloak of protective confidentiality is thrown around all the proceedings (§§ 783-784)."24 N.Y.2d at 200, 247 N.E.2d at 255-256. The court said further:"The delinquency status is not made a crime, and the proceedings are not criminal. There is, hence, no deprivation of due process in the statutory provision [challenged by appellant]. . . ."24 N.Y.2d at 203, 247 N.E.2d at 257. In effect the Court of Appeals distinguished the proceedings in question here from a criminal prosecution by use of what Gault called the "civil' label of convenience which has been attached to juvenile proceedings." 387 U.S. at 387 U. S. 50. But Gault expressly rejected that distinction as a reason for holding the Due Process Clause inapplicable to a juvenile proceeding. 387 U.S. at 387 U. S. 50-51. The Court of Appeals also attempted to justify the preponderance standard on the related ground that juvenile proceedings are designed "not to punish, but to save the child." 24 N.Y.2d at 17, 247 N.E.2d at 254. Again, however, Gault expressly rejected this justification. 387 U.S. at 387 U. S. 27. We made clear in that decision that civil labels and good Page 397 U. S. 366 intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for"[a] proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution."Id. at 387 U. S. 36.Nor do we perceive any merit in the argument that to afford juveniles the protection of proof beyond a reasonable doubt would risk destruction of beneficial aspects of the juvenile process. [Footnote 4] Use of the reasonable doubt standard during the adjudicatory hearing will not disturb New York's policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child's social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the procedures Page 397 U. S. 367 distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing.The Court of Appeals observed that"a child's best interest is not necessarily, or even probably, promoted if he wins in the particular inquiry which may bring him to the juvenile court."24 N.Y.2d at 199, 247 N.E.2d at 255. It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law [Footnote 5] and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.We conclude, as we concluded regarding the essential due process safeguards applied in Gault, that the observance of the standard of proof beyond a reasonable doubt "will not compel the States to abandon or displace any of the substantive benefits of the juvenile process." Gault, supra, at 387 U. S. 21.Finally, we reject the Court of Appeals' suggestion that there is, in any event, only a "tenuous difference" between the reasonable doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge's ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge's action evidences the accuracy of the observation of commentators that"the preponderance test is susceptible to the misinterpretation Page 397 U. S. 368 that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted."Dorsen & Rezneck, supra, at 26-27. [Footnote 6]IIIIn sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault -- notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals,"that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process . . . the case against him must be proved beyond a reasonable doubt."24 N.Y.2d at 207, 247 N.E.2d at 260.Reversed

U.S. Supreme CourtIn re Winship, 397 U.S. 358 (1970)In re WinshipNo. 778Argued January 20, 1970Decided March 31, 1970397 U.S. 358SyllabusRelying on a preponderance of the evidence, the standard of proof required by § 744(b) of the New York Family Court Act, a New York Family Court judge found that appellant, then a 12-year-old boy, had committed an act that "if done by an adult, would constitute the crime . . . of Larceny." The New York Court of Appeals affirmed, sustaining the constitutionality of § 744(b).Held: Proof beyond a reasonable doubt, which is required by the Due Process Clause in criminal trials, is among the "essentials of due process and fair treatment" required during the adjudicatory stage when a juvenile is charged with an act that would constitute a crime if committed by an adult. Pp. 397 U. S. 361-368.2 N.Y.2d 196, 247 N.E.2d 253, reversed.

1963_37

MR. JUSTICE STEWART delivered the opinion of the Court.The United States Constitution requires that "Full Faith and Credit shall be given in each State to the . . . judicial Proceedings of every other State." [Footnote 1] The case before us presents questions arising under this constitutional provision and under the federal statute enacted to implement it. [Footnote 2]In 1956, the petitioners brought an action against the respondent in a Nebraska court to quiet title to certain bottom land situated on the Missouri River. The main channel of that river forms the boundary between the States of Nebraska and Missouri. The Nebraska court Page 375 U. S. 108 had jurisdiction over the subject matter of the controversy only if the land in question was in Nebraska. Whether the land was Nebraska land depended entirely upon a factual question -- whether a shift in the river's course had been caused by avulsion or accretion. [Footnote 3] The respondent appeared in the Nebraska court and, through counsel, fully litigated the issues, explicitly contesting the court's jurisdiction over the subject matter of the controversy. [Footnote 4] After a hearing, the court found the issues in favor of the petitioners and ordered that title to the land be quieted in them. The respondent appealed, and the Supreme Court of Nebraska affirmed the judgment after a trial de novo on the record made in the lower court. The State Supreme Court specifically found that the rule of avulsion was applicable, that the land in question was in Nebraska, that the Nebraska courts therefore had jurisdiction of the subject matter of the litigation, and that title to the land was in the petitioners. Durfee v. Keiffer, 168 Neb. 272, 95 N.W.2d 618. The respondent did not petition this Court for a writ of certiorari to review that judgment.Two months later, the respondent filed a suit against the petitioners in a Missouri court to quiet title to the same land. Her complaint alleged that the land was in Missouri. The suit was removed to a Federal District Court by reason of diversity of citizenship. The District Court, after hearing evidence, expressed the view that the land was in Missouri, but held that all the issues had been Page 375 U. S. 109 adjudicated and determined in the Nebraska litigation, and that the judgment of the Nebraska Supreme Court was res judicata, and "is now binding upon this court." The Court of Appeals reversed, holding that the District Court was not required to give full faith and credit to the Nebraska judgment, and that normal res judicata principles were not applicable, because the controversy involved land, and a court in Missouri was therefore free to retry the question of the Nebraska court's jurisdiction over the subject matter. 308 F.2d 209. We granted certiorari to consider a question important to the administration of justice in our federal system. 371 U.S. 946. For the reasons that follow, we reverse the judgment before us.The constitutional command of full faith and credit, as implemented by Congress, requires that"judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken. [Footnote 5]"Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it."By the Constitutional provision for full faith and credit, the local doctrines of res judicata, speaking generally, become a part of national jurisprudence, and therefore federal questions cognizable here."Riley v. New York Trust Co., 315 U. S. 343, 315 U. S. 349.It is not questioned that the Nebraska courts would give full res judicata effect to the Nebraska judgment quieting title in the petitioners. [Footnote 6] It is the respondent's Page 375 U. S. 110 position, however, that whatever effect the Nebraska courts might give to the Nebraska judgment, the federal court in Missouri was free independently to determine whether the Nebraska court in fact had jurisdiction over the subject matter, i.e., whether the land in question was actually in Nebraska.In support of this position, the respondent relies upon the many decisions of this Court which have held that a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits -- had jurisdiction, that is, to render the judgment. As Mr. Justice Bradley stated the doctrine in the leading case of Thompson v. Whitman, 18 Wall. 457,"we think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself."18 Wall. at 85 U. S. 469. The principle has been restated and applied in a variety of contexts. [Footnote 7] Page 375 U. S. 111However, while it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court's jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit -- even as to questions of jurisdiction -- when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.With respect to questions of jurisdiction over the person, [Footnote 8] this principle was unambiguously established in Baldwin v. Iowa State Traveling Men's Assn., 283 U. S. 522. There, it was held that a federal court in Iowa must give binding effect to the judgment of a federal court in Missouri despite the claim that the original court did not have jurisdiction over the defendant's person, once it was shown to the court in Iowa that that question had been fully litigated in the Missouri forum. "Public policy," said the Court,"dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents Page 375 U. S. 112 his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause."283 U.S. at 283 U. S. 525-526. [Footnote 9]Following the Baldwin case, this Court soon made clear in a series of decisions that the general rule is no different when the claim is made that the original forum did not have jurisdiction over the subject matter. Davis v. Davis, 305 U. S. 32; Stoll v. Gottlieb, 305 U. S. 165; [Footnote 10] Treinies v. Sunshine Mining Co., 308 U. S. 66; Sherrer v. Sherrer, 334 U. S. 343. [Footnote 11] In each of these cases, the claim was made that a court, when asked to enforce the judgment of another forum, was free to retry the question of that forum's jurisdiction over the subject matter. In each case, this Court held that, since the question of subject matter jurisdiction had been fully litigated in the original forum, the issue could not be retried in a subsequent action between the parties.In the Davis case, it was held that the courts of the District of Columbia were required to give full faith and credit to a decree of absolute divorce rendered in Virginia, despite the claim that the Virginia court had lacked jurisdiction because the plaintiff in the Virginia proceedings Page 375 U. S. 113 had not been domiciled in that State. In the course of the opinion, the Court stated:"As to petitioner's domicil for divorce and his standing to invoke jurisdiction of the Virginia court, its finding that he was a bona fide resident of that State for the required time is binding upon respondent in the courts of the District. She may not say that he was not entitled to sue for divorce in the state court, for she appeared there and by plea put in issue his allegation as to domicil, introduced evidence to show it false, took exceptions to the commissioner's report, and sought to have the court sustain them and uphold her plea. Plainly, the determination of the decree upon that point is effective for all purposes in this litigation."305 U.S. at 305 U. S. 40.This doctrine of jurisdictional finality was applied even more unequivocally in Treinies, supra, involving title to personal property, and in Sherrer, supra, involving, like Davis, recognition of a foreign divorce decree. In Treinies, the rule was succinctly stated:"One trial of an issue is enough. 'The principles of res judicata apply to questions of jurisdiction as well as to other issues,' as well to jurisdiction of the subject matter as of the parties."308 U.S. at 308 U. S. 78.The reasons for such a rule are apparent. In the words of the Court's opinion in Stoll v. Gottlieb, supra,"We see no reason why a court, in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction of the subject matter of the litigation. . . . Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end Page 375 U. S. 114 as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first."305 U.S. at 305 U. S. 172.To be sure, the general rule of finality of jurisdictional determinations is not without exceptions. Doctrines of federal preemption or sovereign immunity may, in some contexts, be controlling. Kalb v. Feuerstein, 308 U. S. 433; United States v. United States Fidelity & Guaranty Co., 309 U. S. 506. [Footnote 12] But no such overriding considerations are present here. While this Court has not before had occasion to consider the applicability of the rule of Davis, Stoll, Treinies, and Sherrer to a case involving real property, Page 375 U. S. 115 we can discern no reason why the rule should not be fully applicable. [Footnote 13]It is argued that an exception to this rule of jurisdictional finality should be made with respect to cases involving real property because of this Court's emphatic expressions of the doctrine that courts of one State are completely without jurisdiction directly to affect title to land in other States. [Footnote 14] This argument is wide of the mark. Courts of one State are equally without jurisdiction to dissolve the marriages of those domiciled in other States. But the location of land, like the domicile of a party to a divorce action, is a matter "to be resolved by judicial determination." Sherrer v. Sherrer, 334 U.S. at 334 U. S. 349. The question remains whether, once the matter has been fully litigated and judicially determined, it can be retried in another State in litigation between the same parties. Upon the reason and authority of the cases we have discussed, it is clear that the answer must be in the negative.It is to be emphasized that all that was ultimately determined in the Nebraska litigation was title to the land in question as between the parties to the litigation there. Nothing there decided, and nothing that could be decided in litigation between the same parties or their privies in Missouri, could bind either Missouri or Nebraska with respect to any controversy they might have, now or in the future, as to the location of the boundary between them, or as to their respective sovereignty over the land in question. Fowler v. Lindsey, 3 Dall. 411; New York v. Page 375 U. S. 116 Connecticut, 4 Dall. 1; Land v. Dollar, 330 U. S. 731, 330 U. S. 736-737. Either State may at any time protect its interest by initiating independent judicial proceedings here. Cf. Missouri v. Nebraska, 196 U. S. 23. [Footnote 15]For the reasons stated, we hold in this case that the federal court in Missouri had the power and, upon proper averments, the duty to inquire into the jurisdiction of the Nebraska courts to render the decree quieting title to the land in the petitioners. We further hold that, when that inquiry disclosed, as it did, that the jurisdictional issues had been fully and fairly litigated by the parties and finally determined in the Nebraska courts, the federal court in Missouri was correct in ruling that further inquiry was precluded. Accordingly the judgment of the Court of Appeals is reversed, and that of the District Court is affirmed.It is so ordered

U.S. Supreme CourtDurfee v. Duke, 375 U.S. 106 (1963)Durfee v. DukeNo. 37Argued October 24, 1963Decided December 2, 1963375 U.S. 106SyllabusPetitioners sued respondent in a Nebraska State Court to quiet title to certain land on the Missouri River, which is the boundary between Nebraska and Missouri. The Nebraska Court had jurisdiction over the subject matter only if the land was in Nebraska, and that depended on whether a shift in the river's course had been caused by avulsion or accretion. Respondent appeared in the Nebraska Court and fully litigated the issues, including that as to the Court's jurisdiction over the subject matter. The Court found in favor of petitioners, and ordered that title to the land be quieted in them. The Nebraska Supreme Court affirmed, finding specifically that the rule of avulsion was applicable, that the land was in Nebraska, that the Nebraska courts had jurisdiction over the subject matter, and that title to the land was in petitioners. Subsequently, respondent sued in a Missouri State Court to quiet title to the same land, claiming that it was in Missouri. The case was removed to a Federal District Court.Held: The judgment of the Nebraska Supreme Court was res judicata as to all issues, including the issue of jurisdiction, and it was binding on the District Court under the Full Faith and Credit Clause of the Constitution and the federal statute enacted to implement it.Pp. 375 U. S. 107-116.308 F.2d 209 reversed. Page 375 U. S. 107

1958_350

MR. JUSTICE HARLAN announced the judgment of the Court, and delivered an opinion in which MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK, and MR. JUSTICE WHITTAKER join.We are called upon in this case to weigh in a particular context two considerations of high importance Page 360 U. S. 565 which now and again come into sharp conflict -- on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government, and, on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill founded damage suits brought on account of action taken in the exercise of their official responsibilities.This is a libel suit, brought in the District Court of the District of Columbia by respondents, former employees of the Office of Rent Stabilization. The alleged libel was contained in a press release issued by the office on February 5, 1953, at the direction of petitioner, then its Acting Director. [Footnote 1] The circumstances which gave rise to the issuance of the release follow.In 1950, the statutory existence of the Office of Housing Expediter, the predecessor agency of the Office of Rent Stabilization, was about to expire. Respondent Madigan, then Deputy Director in charge of personnel and fiscal matters, and respondent Matteo, chief of the personnel branch, suggested to the Housing Expediter a plan designed to utilize some $2,600,000 of agency funds earmarked in the agency's appropriation for the fiscal year 1950 exclusively for terminal leave payments. The effect of the plan would have been to obviate the possibility that the agency might have to make large terminal leave payments during the next fiscal year out of general agency funds, should the life of the agency be extended by Congress. In essence, the mechanics of the plan were that agency employees would be discharged, paid accrued annual leave out of the $2,600,000 earmarked for terminal leave payments, rehired immediately as temporary employees, Page 360 U. S. 566 and restored to permanent status should the agency's life, in fact, be extended.Petitioner, at the time General Manager of the agency, opposed respondents' plan on the ground that it violated the spirit of the Thomas Amendment, 64 Stat. 768, [Footnote 2] and expressed his opposition to the Housing Expediter. The Expediter decided against general adoption of the plan, but, at respondent Matteo's request, gave permission for its use in connection with approximately fifty employees, including both respondents, on a voluntary basis. [Footnote 3] Thereafter, the life of the agency was, in fact, extendedSome two and a half years later, on January 28, 1953, the Office of Rent Stabilization received a letter from Senator John J. Williams of Delaware, inquiring about the terminal leave payments made under the plan in 1950. Respondent Madigan drafted a reply to the letter, which he did not attempt to bring to the attention of petitioner, and then prepared a reply which he sent to petitioner's office for his signature as Acting Director of the agency. Petitioner was out of the office, and a secretary signed the submitted letter, which was then delivered by Madigan to Senator Williams on the morning of February 3, 1953.On February 4, 1953, Senator Williams delivered a speech on the floor of the Senate strongly criticizing the Page 360 U. S. 567 plan, stating that"to say the least it is an unjustifiable raid on the Federal Treasury, and heads of every agency in the Government who have condoned this practice should be called to task."The letter above referred to was ordered printed in the Congressional Record. Other Senators joined in the attack on the plan. [Footnote 4] Their comments were widely reported in the press on February 5, 1953, and petitioner, in his capacity as Acting Director of the agency, received a large number of inquiries from newspapers and other news media as to the agency's position on the matter.On that day, petitioner served upon respondents letters expressing his intention to suspend them from duty, and at the same time ordered issuance by the office of the press release which is the subject of this litigation, and the text of which appears in the margin. [Footnote 5] Page 360 U. S. 568Respondents sued, charging that the press release, in itself, and as coupled with the contemporaneous news reports of senatorial reaction to the plan, defamed them to their injury, and alleging that its publication and terms had been actuated by malice on the part of petitioner. Petitioner defended, inter alia, on the ground that the issuance of the press release was protected by either a qualified or an absolute privilege. The trial court overruled these contentions, and instructed the jury to return a verdict for respondents if it found the release defamatory. The jury found for respondents.Petitioner appealed, raising only the issue of absolute privilege. The judgment of the trial court was affirmed by the Court of Appeals, which held that, "in explaining his decision [to suspend respondents] to the general public, [petitioner] . . . went entirely outside his line of duty," and that, thus, the absolute privilege, assumed otherwise to be available, did not attach. 100 U.S.App.D.C. 319, 244 F.2d 767. We granted certiorari, vacated the Court of Appeals' judgment, and remanded the case "with directions to pass upon petitioner's claim of a qualified Page 360 U. S. 569 privilege." 355 U. S. 171, 173. On remand, the Court of Appeals held that the press release was protected by a qualified privilege, but that there was evidence from which a jury could reasonably conclude that petitioner had acted maliciously, or had spoken with lack of reasonable grounds for believing that his statement was true, and that either conclusion would defeat the qualified privilege. Accordingly, it remanded the case to the District Court for retrial. 103 U.S.App.D.C. 176, 256 F.2d 890. At this point, petitioner again sought, and we again granted, certiorari, 358 U.S. 917, to determine whether, in the circumstances of this case, petitioner's claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint.The law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making, although the Constitution itself gives an absolute privilege to members of both Houses of Congress in respect to any speech, debate, vote, report, or action done in session. [Footnote 6] This Court early held that judges of courts of superior or general authority are absolutely privileged as respects civil suits to recover for actions taken by them in the exercise of their judicial functions, irrespective of the motives with which those acts are alleged to have been performed, Bradley v. Fisher, 13 Wall. 335, and that a like immunity extends to other officers of government whose duties are related to the judicial process. Yaselli v. Goff, 12 F.2d 396, aff'd per curiam, 275 U.S. 503, involving a Special Assistant to the Attorney General. [Footnote 7] Nor has the privilege been confined to officers of the legislative and judicial Page 360 U. S. 570 branches of the Government and executive officers of the kind involved in Yaselli. In Spalding v. Vilas, 161 U. S. 483, petitioner brought suit against the Postmaster General, alleging that the latter had maliciously circulated widely among postmasters, past and present, information which he knew to be false and which was intended to deceive the postmasters to the detriment of the plaintiff. This Court sustained a plea by the Postmaster General of absolute privilege, stating that ( 161 U. S. 498-499):"In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals. [Footnote 8] "Page 360 U. S. 571The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties -- suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. The matter has been admirably expressed by Judge Learned Hand:"It does indeed go without saying that an official, who is, in fact, guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. Page 360 U. S. 572 In this instance, it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . . .""The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers, and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence, that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act if he had been using his power for any of the purposes on whose account it was vested in him. . . ."Gregoire v. Biddle, 177 F.2d 579, 581.We do not think that the principle announced in Vilas can properly be restricted to executive officers of cabinet rank, and, in fact, it never has been so restricted by the lower federal courts. [Footnote 9] The privilege is not a badge or emolument of exalted office, but an expression of a policy Page 360 U. S. 573 designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy. [Footnote 10]To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion it entails. It is not the title of his office, but the duties with which the particular officer sought to be made to respond in damages is entrusted -- the relation of the act complained of to "matters committed by law to his control or supervision," Spalding v. Vilas, supra, Page 360 U. S. 574 at 498 -- which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.Judged by these standards, we hold that petitioner's plea of absolute privilege in defense of the alleged libel published at his direction must be sustained. The question is a close one, but we cannot say that it was not an appropriate exercise of the discretion with which an executive officer of petitioner's rank is necessarily clothed to publish the press release here at issue in the circumstances disclosed by this record. Petitioner was the Acting Director of an important agency of government, [Footnote 11] and was clothed by redelegation with "all powers, duties, and functions conferred on the President by Title II of the Housing and Rent Act of 1947. . . ." [Footnote 12] The integrity of the internal operations of the agency which he headed, and thus his own integrity in his public capacity, had been directly and severely challenged in charges made on the floor of the Senate and given wide publicity, and, without his knowledge, correspondence which could reasonably be read as impliedly defending a position very different from that which he had from the beginning taken in the matter had been sent to a Senator over his signature and incorporated in the Congressional Record. The issuance of press releases was standard agency practice, as it has become with many governmental agencies in these times. We think that, under these circumstances a publicly expressed statement of the position of the agency head, announcing personnel action which he planned to take in reference to the charges so widely disseminated to Page 360 U. S. 575 the public, was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. It would be an unduly restrictive view of the scope of the duties of a policymaking executive official to hold that a public statement of agency policy in respect to matters of wide public interest and concern is not action in the line of duty. That petitioner was not required by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policymaking rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority. [Footnote 13]The fact that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint, for, as this Court has said of legislative privilege:"The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty not for their private indulgence, but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives."Tenney v. Brandhove, 341 U. S. 367, 341 U. S. 377. Page 360 U. S. 576We are told that we should forbear from sanctioning any such rule of absolute privilege lest it open the door to wholesale oppression and abuses on the part of unscrupulous government officials. It is perhaps enough to say that fears of this sort have not been realized within the wide area of government where a judicially formulated absolute privilege of broad scope has long existed. It seems to us wholly chimerical to suggest that what hangs in the balance here is the maintenance of high standards of conduct among those in the public service. To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. And there are, of course, other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner. We think that we should not be deterred from establishing the rule which we announce today by any such remote forebodings.Reversed

U.S. Supreme CourtBarr v. Matteo, 360 U.S. 564 (1959)Barr v. MatteoNo. 350Argued April 20, 1959Decided June 29, 1959360 U.S. 564SyllabusWhen petitioner was Acting Director of the Office of Rent Stabilization and respondents were subordinate officials of the same office, petitioner caused to be issued a press release announcing his intention to suspend respondents because of the part which they had played in formulating a plan for the utilization of certain agency funds. The plan had been severely criticized on the floor of Congress, and the congressional criticism had been widely reported in the press. Respondents sued petitioner for libel, alleging malice.Held: Petitioner's plea of absolute privilege in defense of the alleged libel must be sustained. Pp. 360 U. S. 564-578.103 U.S.App.D.C. 176, 256 F.2d 890, reversed.For judgment of the Court and opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK and MR. JUSTICE WITTAKER, see pp. 360 U. S. 564-576.For concurring opinion of MR. JUSTICE BLACK, see p. 360 U. S. 576.For dissenting opinion of MR. CHIEF JUSTICE WARREN, joined by MR. JUSTICE DOUGLAS, see p. 360 U.S. 578.For dissenting opinion of MR. JUSTICE BRENNAN, see p. 360 U. S. 586.For dissenting opinion of MR. JUSTICE STEWART, see p. 360 U. S. 592.

1961_3

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a companion case to No. 2, Metlakatla Indian Community v. Egan, ante, p. 369 U. S. 45, but calls for separate treatment. Appellants seek the reversal of a decision of the Supreme Court of Alaska, 362 P.2d 901, affirming the dismissal of their petitions for injunctions against interference with their operation of fish traps in southeastern Alaska.The Organized Village of Kake and the Angoon Community Association are corporations chartered under the Wheeler-Howard Act of 1934, 48 Stat. 984, 988, as amended, 49 Stat. 1250 (1936), 25 U.S.C. §§ 473a, 476, 477. Kake is located on Kupreanof Island, 100 miles south of Juneau. Angoon is located on Admiralty Island, 60 miles south of Juneau. They are occupied by Thlinget or Tlinget Indians, native to Alaska.Both communities are entirely dependent upon salmon fishing. In pursuance of a policy to create a sound fishing economy for the two groups, the United States purchased canneries and related properties for Angoon in 1948 and for Kake in 1950. Since these dates, appellants have operated fish traps at specified locations in nearby waters, under permits granted by the Army Engineers to erect traps in navigable waters and by the United States Forest Service to anchor them in the Tongass National Forest. In March, 1959, the Secretary of the Interior, by regulations issued under authority of the White Act, 43 Stat. 464, as amended, 48 U.S.C. §§ 221-228, and the Alaska Statehood Act, 72 Stat. 339, permitted Angoon to operate three fish traps during the 1959 season and Kake four. 24 Fed.Reg. 2053, 2069. The following year, the Secretary authorized permanent operation of these trap sites and specified one additional site for Angoon and five Page 369 U. S. 62 more for Kake for possible future authorization. 25 CFR (1961 Supp.) pt. 88.The history of this litigation is recited in Metlakatla Indian Community v. Egan, supra. It is sufficient to note here that Alaska, in 1959, threatened to enforce against Kake and Angoon her anti-fish trap conservation law, Alaska Laws 1959, c. 17, as amended by id., c. 95; that the State seized one fish trap at Kake, arrested the President of the Kake Village Council and the foreman of the crew attempting to moor the trap, and filed informations against them; that suit was filed by both Kake and Angoon in the interim United States District Court for Alaska to enjoin this interference with their claimed fishing rights; and that the dismissal of both complaints was affirmed by the Supreme Court of Alaska.The situation here differs from that of the Metlakatlans in that neither Kake nor Angoon has been provided with a reservation, and in that there is no statutory authority under which the Secretary of the Interior might permit either to operate fish traps contrary to state law. Appellants do not rely heavily on the Secretary's regulations. Neither the White Act nor the Statehood Act, cited by the Secretary, supports a grant of immunity from state law. The White Act was a conservation and anti-monopoly measure. It authorized the Secretary to limit fishing times, places, and equipment in order to conserve fish, but forbade him, in so doing, to create exclusive rights, even in Indians. Hynes v. Grimes Packing Co., 337 U. S. 86, 337 U. S. 122-123. Because the rights claimed are exclusive in the Kakes and Angoons, they cannot have been created pursuant to the White Act, even though that statute now applies, if at all, only to Indians. Moreover, the White Act gives the Secretary power only to limit fishing, not to grant rights. The Statehood Act retained "absolute jurisdiction and control" of Indian Page 369 U. S. 63 "property (including fishing rights)" in the United States, but it did not give powers of the nature claimed to the Secretary of the Interior. No other source of authority appears available. The provisions now found in 25 U.S.C. §§ 2 and 9, referring to the President's power to prescribe regulations for effectuating statutes "relating to Indian affairs," to settle accounts of "Indian affairs," and concerning "the management of all Indian affairs and of all matters arising out of Indian relations," derive from statutes of 1832 and 1834, 4 Stat. 564 and 4 Stat. 735, 738. In keeping with the policy of almost total tribal self-government prevailing when these statutes were passed, see pp. 369 U. S. 71-72 infra, the Interior Department itself is of the opinion that the sole authority conferred by the first of these is that to implement specific laws, and, by the second, that over relations between the United States and the Indians -- not a general power to make rules governing Indian conduct. United States Department of the Interior, Federal Indian Law (1958), pp. 54-55; Cohen, Handbook of Federal Indian Law (1945), p. 102. We agree that they do not support the fish trap regulations.Both communities operate their traps under permits granted by the Army Corps of Engineers and by the United States Forest Service. But neither of these permits grants a right to be free of state regulation or prohibition. Like a certification by the Interstate Commerce Commission, each is simply acknowledgment that the activity does not violate federal law, and not an exemption from state licensing or police power requirements. Cf. Maurer v. Hamilton, 309 U. S. 598; South Carolina State Highway Dept. v. Barnwell Bros., 303 U. S. 177. The Engineers have no objection under the Rivers and Harbors Act, 30 Stat. 1121, 1151, 33 U.S.C. § 403, to the obstruction of navigable streams incident to the operation of fish traps at Kake and Angoon; the Forest Service has Page 369 U. S. 64 no objection to the use of National Forest land to anchor them. Neither attempted to exempt these traps from state law.As in the companion case, certain grounds relied on by the Alaska court are no longer urged by the State. The principal dispute now concerns the meaning of § 4 of the Statehood Act, in which the State disclaimed all right and title to and the United States retained "absolute jurisdiction and control" over, inter alia,"any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives."The United States, in its brief amicus curiae, contended that the reservation of absolute jurisdiction over Indian "property (including fishing rights)" ousted the State from any regulation of fishing by Indians in Alaska. Appellants urge that Congress intended to protect the Indians in their freedom to continue fishing as they had done before statehood, so that Alaska cannot interfere with the Indian fishing actually practiced at that time. They argue in addition that, in using fish traps, they were exercising an aboriginal right to fish that was protected by § 4. The court below concluded that aboriginal rights of Alaskan natives have been extinguished, that appellants have no rights not enjoyed in common with all other Alaskans, and that § 4 protects only exclusive rights given Indians by federal law.The United States wisely abandoned its position that Alaska has disclaimed the power to legislate with respect to any fishing activities of Indians in the State. Legislative history reveals no such intention in Congress, which was concerned with the protection of certain Indian claims in existence at the time of statehood. See, e.g., Hearings Before House Committee on Interior and Insular Affairs on H.R. 2535 and related bills, 84th Cong., 1st Sess. Page 369 U. S. 65 124-131, 266-267, 381-383 (1955). But we cannot accept Alaska's contention that Indian "property (including fishing rights)" refers only to property owned by or held for Indians under provisions of federal law. Section 4 must be construed in light of the circumstances of its formulation and enactment. See Alaska Pacific Fisheries v. United States, 248 U. S. 78, 248 U. S. 87. Congress was aware that few such rights existed in Alaska. Its concern was to preserve the status quo with respect to aboriginal and possessory Indians claims, so that statehood would neither extinguish them nor recognize them as compensable. See, e.g., House Hearings, supra, 130, 384 (1955) (Delegate Bartlett); Hearings Before Senate Committee on Interior and Insular Affairs on S. 50, 83d Cong., 2d Sess. 227 (Senator Jackson), 260-261 (1954). [Footnote 1]Discussion during hearings on the 1955 House bill affords further evidence that claims not based on federal law are included. Section 205 of that bill (like § 6 of the bill as enacted) authorized Alaska to select large tracts of United States land for transfer to state ownership. It was understood that the disclaimer provision left the State free to choose Indian "property" if it desired, but that such a taking would leave unimpaired the Indians' right Page 369 U. S. 66 to sue the United States for any compensation that might later be established to be due. See House Hearings, supra, 135 (1955) (Delegate Bartlett). Feeling that experience had shown this procedure too slow to give prompt relief to the Indians, Oklahoma's Representative Edmondson proposed to exempt Indian property from the State's selection. Id. at 381. This was rejected as virtually destroying Alaska's right to select lands. For, although Representative Edmondson pointed out that the disclaimer extended only to property owned by Indians or held in trust for them, four representatives clearly stated their belief that the disclaimer included not just the few Alaska reservations, but also the aboriginal or other unproved claims in dispute, which covered most, if not all, of Alaska. Id. at 383 (Representatives Engle, Dawson, Metcalf, Westland)."Fishing rights" first appeared in a Senate bill reported in 1951, S.Rep. No. 315, 82d Cong., 1st Sess. 2. Earlier bills had mentioned only land. The fishing rights provision is unique to Alaska, although the disclaimer is in other respects the same as in earlier statutes. See pp. 369 U. S. 67-68 infra. It was included because fishing rights are of vital importance to Indians in Alaska. House Hearings, supra, 125 (1955) (Delegate Bartlett). The existence of aboriginal fishing rights was affirmed by the Interior Department's Solicitor in 1942, 57 I.D. 461. There was almost no discussion of "fishing rights" in Congress. In earlier hearings, the Senate Committee was considering a suggestion by Senator Cordon that all Indian property be granted to the State, reserving the right to seek federal compensation, except for property actually occupied by Indians. Asked to describe Indian possessory rights, Governor Heintzleman portrayed a smokehouse beside a stream, 50 miles from the town where they live, visited for fishing purposes perhaps two weeks each year. Senate Hearings, supra, 137 (1954). Page 369 U. S. 67On a similar basis, the Kakes and the Angoons have fished at the disputed locations since 1948 and 1950. It appears to be Alaskan custom that, although traps are taken from the water and replaced each year, one does not "jump" a trap site. The prior claim of the first trapper is respected. See United States v. Libby, McNeil & Libby, 107 F. Supp. 697, 700, 14 Alaska 37, 42 (D.Alaska 1952); Gruening, The State of Alaska (1954), p. 171; 57 I.D. 461, 462 (1942). The Statehood Act by no means makes any claim of appellants to fishing rights compensable against the United States; neither does it extinguish such claims. The disclaimer was intended to preserve unimpaired the right of any Indian claimant to assert his claim, whether based on federal law, aboriginal right, or simply occupancy, against the Government. Appellants' claims are "property (including fishing rights)" within § 4.Because § 4 of the Statehood Act provides that Indian "property (including fishing rights)" shall not only be disclaimed by the State as a proprietary matter, but also "shall be and remain under the absolute jurisdiction and control of the United States," the parties have proceeded on the assumption that, if Kake and Angoon are found to possess "fishing rights" within the meaning of this section, the State cannot apply her law. Consequently, argument has centered upon whether appellants have any such "rights."The assumption is erroneous. Although the reference to fishing rights is unique, the retention of "absolute" federal jurisdiction over Indian lands adopts the formula of nine prior statehood Acts. Indian lands in Arizona remained "under the absolute jurisdiction and control" of the United States, 36 Stat. 557, 569; yet, in Williams v. Lee, 358 U. S. 217, 358 U. S. 220, 358 U. S. 223, we declared that the test of whether a state law could be applied on Indian Page 369 U. S. 68 reservations there was whether the application of that law would interfere with reservation self-government. The identical language appears in Montana's admission Act, 25 Stat. 676, 677, yet, in Draper v. United States, 164 U. S. 240, the Court held that a non-Indian who was accused of murdering another non-Indian on a Montana reservation could be prosecuted only in the state courts. The Montana statute applies also to North Dakota, South Dakota, and Washington. Identical provisions are found in the Acts admitting New Mexico (36 Stat. 557, 558-559) and Utah (28 Stat. 107, 108), and in the Constitutions of Idaho (1890, Art. 21, § 19) and Wyoming (1890, Art. 21, § 26), which were ratified by Congress (26 Stat. 215 (Idaho); 26 Stat. 222 (Wyoming)).Draper and Williams indicate that "absolute" federal jurisdiction is not invariably exclusive jurisdiction. The momentum of substantially identical past admission legislation touching Indians carries the settled meaning governing the jurisdiction of States over Indian property to the Alaska Statehood Act in light of its legislative history.Section 4 of the Statehood Act contains three provisions relating to Indian property. The State must disclaim right and title to such property; the United States retains "absolute jurisdiction and control" over it; the State may not tax it. On the urging of the Interior Department that Alaska be dealt with as had other States, these provisions replaced an earlier section granting to the State all lands not actually possessed and used by the United States. Hearings Before a Subcommittee of the House Committee on Public Lands on H.R. 206 and H.R. 1808, 80th Cong., 1st Sess. 2, 12, 14 (1947). The first and third provisions have nothing to do with this case; the second does not exclude state conservation laws from appellants' fish traps. Page 369 U. S. 69The disclaimer of right and title by the State was a disclaimer of proprietary, rather than governmental, interest. It was determined, after some debate, to be the best way of ensuring that statehood would neither extinguish nor establish claims by Indians against the United States. If lands subject to the claim of Indian rights were transferred to the State, the Indians were not thereby to lose the right to make claims against the United States for damages. See Senate Hearings, supra, 286 (1954).The provision for "absolute jurisdiction and control" received little attention in Congress. In the 1954 Senate hearings, the Committee was considering a provision copied from the Oklahoma statute that Indian lands should remain "subject to the jurisdiction, disposal and control of the United States." Enabling Act, § 3, 34 Stat. 267, 270. Mr. Barney, on behalf of the Justice Department, urged the inclusion of such a provision in order to avoid the possibility that, under United States v. McBratney, 104 U. S. 621, federal criminal jurisdiction over Indian reservations might be extinguished by statehood. Senators Barrett and Jackson thereupon expressed the clear desire that federal jurisdiction not be made exclusive over all disclaimed areas. Mr. Barney denied that the provision would deprive the State of "political jurisdiction" over disclaimed properties. Senator Cordon declared:"The State may well waive its claim to any right or title to the lands and still have all of its political or police power with respect to the actions of people on those lands, as long as that does not affect the title to the land."Senator Jackson said: "All that you are doing here is a disclaimer of proprietary interest," and Mr. Barney agreed. Senator Cordon said:"The act of admission gives to the State of Alaska political jurisdiction, including all that is meant by Page 369 U. S. 70 the term 'police power,' within its boundaries unless there be express or definitely implied, which is the same thing, a reservation of exclusive jurisdiction in the United States."Senators Barrett and Jackson and Mr. Barney agreed. Mr. Slaughter, of the Interior Department, pointed out that a later section of the bill, now § 11, provided for "exclusive" federal jurisdiction over Mt. McKinley National Park. Mr. Barney, in answer to a direct question, stated that "jurisdiction" in the Oklahoma statute and in his proposal for Indian property did not mean exclusive jurisdiction. Senate Hearings, supra, 283-287 (1954). The bill as reported contained no provision on jurisdiction, but only a disclaimer of right and title, a reservation of federal power to extinguish Indian claims as if there had been no statehood Act, and an exemption from state taxation. Id. at 331. Provisions retaining federal "jurisdiction" and "absolute jurisdiction" were considered interchangeable by at least one committee, which reported the disclaimer in an Alaska bill as "almost identical" with those in the preceding 13 admission Acts. S.Rep.No. 315, 82d Cong., 1st Sess. 15 (1951).Most statehood bills contained more common phrasing "absolute jurisdiction and control," rather than the Oklahoma phrase. Although this was the usual language employed to retain federal power in statehood acts, the Senate Committee, in 1958, out of an abundance of caution, deleted the word "jurisdiction" in order that no one might construe the statute as abolishing state power entirely. The Committee declared that it was not its intention by the retention of federal control to make the Alaska situation any different from that prevailing in other States as to state jurisdiction over Indian lands. S.Rep.No. 1163, 85th Cong., 1st Sess. 15 (1957). The House bill, which retained the usual language, was passed Page 369 U. S. 71 first, 104 Cong. Rec. 9756, and the Senate made no amendments to the House bill because it feared that statehood might be lost once again if the House had to act on a conference report. 104 Cong. Rec. 12009-12010. Senator Jackson stated that"the differences are of wording and language, rather than policy . . . designed to define more clearly some of the jurisdictional problems involved. . . . The objective of both bills is identical. There is strong evidence that the end product of both bills would be identical."The Senate amendment was designed simply to make clear what an examination of past statutes and decisions makes clear also: that the words "absolute jurisdiction and control" are not intended to oust the State completely from regulation of Indian "property (including fishing rights)." "Absolute" in § 4 carried the gloss of its predecessor statutes, meaning undiminished, not exclusive. Cf. Boston Sand & Gravel Co. v. United States, 278 U. S. 41, 278 U. S. 47-48. The power of Alaska over Indians, except as granted by Congress in 1958, 72 Stat. 545, is the same as that of many other States.The relation between the Indians and the States has by no means remained constant since the days of John Marshall. In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves. The 1828 treaty with the Cherokee Nation, 7 Stat. 311, guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory. Even the Federal Government itself asserted its power over these reservations only to punish crimes committed by or against non-Indians. 1 Stat. 469, 470; 2 Stat. 139. See 18 U.S.C. § 1152. Page 369 U. S. 72As the United States spread westward, it became evident that there was no place where the Indians could be forever isolated. In recognition of this fact, the United States began to consider the Indians less as foreign nations and more as a part of our country. In 1871, the power to make treaties with Indian tribes was abolished, 16 Stat. 544, 566, 25 U.S.C. § 71. In 1887, Congress passed the General Allotment Act, 24 Stat. 388, as amended, 25 U.S.C. §§ 331-358, authorizing the division of reservation land among individual Indians with a view toward their eventual assimilation into our society. In 1885, departing from the decision in Ex parte Crow Dog, 109 U. S. 556, Congress intruded upon reservation self-government to extend federal criminal law over several specified crimes committed by one Indian against another on Indian land, 23 Stat. 362, 385, as amended, 18 U.S.C. § 1153; United States v. Kagama, 118 U. S. 375. Other offenses remained matters for the tribe, United States v. Quiver, 241 U. S. 602.The general notion drawn from Chief Justice Marshall's opinion in Worcester v. Georgia, 6 Pet. 515, 31 U. S. 561; The Kansas Indians, 5 Wall. 737, 72 U. S. 755-757; and The New York Indians, 5 Wall. 761, that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate, has yielded to closer analysis when confronted, in the course of subsequent developments, with diverse concrete situations. By 1880, the Court no longer viewed reservations as distinct nations. On the contrary, it was said that a reservation was, in many cases, a part of the surrounding State or Territory, and subject to its jurisdiction except as forbidden by federal law. Utah & Northern R. Co. v. Fisher, 116 U. S. 28, 116 U. S. 31. In Langford v. Monteith, 102 U. S. 145, the Court held that process might be served within a reservation for a suit in territorial court between two non-Indians. In United States v. McBratney, 104 U. S. 621, and Draper v. United States, 164 U. S. 240, the Page 369 U. S. 73 Court held that murder of one non-Indian by another on a reservation was a matter for state law. [Footnote 2]The policy of assimilation was reversed abruptly in 1934. A great many allottees of reservation lands had sold them and disposed of the proceeds. Further allotments were prohibited in order to safeguard remaining Indian properties. The Secretary of the Interior was authorized to create new reservations and to add lands to existing ones. Tribes were permitted to become chartered federal corporations with powers to manage their affairs, and to organize and adopt constitutions for their own self-government. 48 Stat. 984, 986, 987, 988. These provisions were soon extended to Alaska, 49 Stat. 1250.Concurrently, the influence of state law increased, rather than decreased. As the result of a report making unfavorable comparisons between Indian Service activities and those of the States, Congress, in 1929. authorized the States to enforce sanitation and quarantine laws on Indian reservations, to make inspections for health and educational purposes, and to enforce compulsory school attendance. 45 Stat. 1185, as amended, 25 U.S.C. § 231. See Meriam, Problem of Indian Administration (1928); H.R.Rep. No. 2135, 70th Cong., 2d Sess. (1929); Cohen, Handbook of Federal Indian Law, p. 83 (1945); United States Department of the Interior, Federal Indian Law (1958), pp. 126-127. In 1934, Congress authorized the Secretary of the Interior to enter into contracts with States for the extension of educational, medical, agricultural, and welfare assistance to reservations, 48 Stat. 596, 25 U.S.C. § 452. During the 1940's, several States were permitted to assert criminal jurisdiction, and sometimes civil jurisdiction as Page 369 U. S. 74 well, over certain Indian reservations. E.g., 62 Stat. 1161; 62 Stat. 1224,; 64 Stat. 845; 63 Stat. 705. A new shift in policy toward termination of federal responsibility and assimilation of reservation Indians resulted in the abolition of several reservations during the 1950's. E.g., 68 Stat. 250 (Menominees); 68 Stat. 718 (Klamaths).In 1953, Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future. 67 Stat. 588, 18 U.S.C. § 1162, 28 U.S.C. § 1360. Alaska was added to the list of such States in 1958, 72 Stat. 545. This statute disclaims the intention to permit States to interfere with federally granted fishing privileges or uses of property. Finally, the sale of liquor on reservations has been permitted subject to state law, on consent of the tribe itself. 67 Stat. 586, 18 U.S.C. § 1161. Thus Congress has, to a substantial degree, opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall.Decisions of this Court are few as to the power of the States when not granted Congressional authority to regulate matters affecting Indians. In Thomas v. Gay, 169 U. S. 264, an Oklahoma territorial tax on the cattle of non-Indian lessees of reservation land was upheld on the authority of the Fisher and Maricopa decisions, supra, which permitted taxation of railroad rights-of-way. The Court conceded that, because the lands on which the taxed cattle grazed were leased from Indians, the tax might, in contrast to the railroad cases, have an indirect effect on Indians, but that effect was declared to be too remote to require a contrary result. In the latest decision, Williams v. Lee, 358 U. S. 217, we held that Arizona had no jurisdiction over a civil action brought by a non-Indian against an Indian for the price of goods sold the latter on the Navajo Reservation. The applicability Page 369 U. S. 75 of state law, we there said, depends upon "whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them," 358 U.S. at 358 U. S. 220. Another recent statement of the governing principle was made in a decision reaffirming the authority of a State to punish crimes committed by non-Indians against non-Indians on reservations:"[I]n the absence of a limiting treaty obligation or Congressional enactment, each state had a right to exercise jurisdiction over Indian reservations within its boundaries,"New York ex rel. Ray v. Martin, 326 U. S. 496, 326 U. S. 499.These decisions indicate that, even on reservations, state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law. Congress has gone even further with respect to Alaska reservations, 72 Stat. 545, 18 U.S.C. § 1162, 28 U.S.C. § 1360. State authority over Indians is yet more extensive over activities, such as in this case, not on any reservation. It has never been doubted that States may punish crimes committed by Indians, even reservation Indians, outside of Indian country. See Cohen, Indian Rights and the Federal Courts, 24 Minn.L.Rev. 145, 153 (1940), citing Pablo v. People, 23 Colo. 134, 46 P. 636. Even where reserved by federal treaties, off-reservation hunting and fishing rights have been held subject to state regulation, Ward v. Race Horse, 163 U. S. 504; Tulee v. Washington, 315 U. S. 681, in contrast to holdings by state and federal courts that Washington could not apply the laws enforced in Tulee to fishing within a reservation, Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 P. 557; Moore v. United States, 157 F.2d 760, 765 (C.A.9th Cir.). See State v. Cooney, 77 Minn. 518, 80 N.W. 696.True, in Tulee, the right conferred was to fish in common with others, while appellants here claim exclusive rights. But state regulation of off-reservation fishing Page 369 U. S. 76 certainly does not impinge on treaty-protected reservation self-government, the factor found decisive in Williams v. Lee. Nor have appellants any fishing rights derived from federal laws. This Court has never held that States lack power to regulate the exercise of aboriginal Indian rights, such as claimed here, or of those based on occupancy. Because of the migratory habits of salmon, fish traps at Kake and Angoon are no merely local matter.Congress has neither authorized the use of fish traps at Kake and Angoon nor empowered the Secretary of the Interior to do so. The judgment of the Supreme Court of Alaska is affirmed. However, in view of all the circumstances and in order to avoid hardship, the stay granted by MR. JUSTICE BRENNAN, and continued by the Court, will remain in force until the end of the 1962 salmon fishing season, as defined in the regulations issued by the Secretary of the Interior.It is so ordered

U.S. Supreme CourtOrganized Village of Kake v. Egan, 369 U.S. 60 (1962)Organized Village of Kake v. EganNo. 3Argued December 14, 1961Decided March 5, 1962369 U.S. 60SyllabusAppellants are incorporated communities of Thlinget Indians in Alaska. No reservation has been established for them. They operate salmon traps under permits issued by the Army Corps of Engineers and the United States Forest Service and regulations issued by the Secretary of the Interior. They sued to enjoin threatened enforcement against them of a statute of the State of Alaska forbidding the use of salmon traps. Their suit was dismissed, and the State Supreme Court affirmed.Held:1. The permits issued by the Corps of Engineers and the Forest Service do not exempt these salmon traps from state law. Pp. 369 U. S. 63-64.2. Congress has neither authorized the use contrary to state law of the salmon traps here involved nor empowered the Secretary of the Interior to do so, and the judgment is affirmed. Pp. 369 U. S. 62-76.3. However, in view of all the circumstances and in order to avoid hardship, the stay heretofore granted will remain in force until the end of the 1962 salmon fishing season. P. 369 U. S. 76.___ Alaska ___, 362 P.2d 901, affirmed. Page 369 U. S. 61

1974_73-1773

Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR. CHIEF JUSTICE BURGER.Through the Military Selective Service Act, Congress has sought to protect veterans returning to civilian jobs from being penalized for having served in the Armed Forces. Section 9 of the Act, 62 Stat. 614, as amended, 50 U.S.C.App. § 459, ensures a returning serviceman the right to be restored to his job with the same levels of seniority, status, and pay that he would have enjoyed if he had held the job throughout the time he was in the military. [Footnote 1] This case presents the question whether the statute entitles a veteran to vacation benefits when, because of his departure for military service, he has failed Page 420 U. S. 94 to satisfy a substantial work requirement upon which the vacation benefits are conditioned.IPetitioner, Earl R. Foster, began working full-time for respondent Dravo Corp. in 1965. He worked 22 weeks for the company during that year, and earned 20 hours of paid vacation eligibility. [Footnote 2] In 1966, he worked the entire year and earned the standard second-year vacation benefits, [Footnote 3] for which he subsequently accepted payment.In March of the following year, petitioner took a military leave of absence from his job. Before leaving, he worked the first seven weeks of 1967 for the company, and, upon his return some 18 months later, he worked the last 13 weeks in 1968. Because the collective bargaining agreement between petitioner's union and Dravo required employees to work a minimum of 25 weeks in each calendar year in order to earn full vacation benefits, [Footnote 4] Page 420 U. S. 95 Foster was not awarded any benefits for either year. Since that time, he has continued to work full time for Dravo, and has received full vacation benefits from the company for each year of his employment.Unhappy with the denial of vacation benefits for 1967 and 1968, petitioner brought suit against Dravo in the District Court for the Western District of Pennsylvania. [Footnote 5] He sought credit for full vacation benefits in both years, claiming that, since he would have earned two vacations if he had worked for respondent throughout the time he was in the service, § 9 of the Military Selective Service Act requires that he be credited with the benefits even though he failed to meet the 25-week work requirement in either year.The District Court held that, since the vacation benefits in question did not accrue automatically with continued employment, it did not violate the statute to deny them to employees on military leave of absence. The Court of Appeals for the Third Circuit agreed with the District Court that petitioner had no statutory right to full vacation benefits. From its examination of the contract and other related factors, the court concluded that the vacation right in dispute was not a perquisite of seniority, but an earned benefit, and was thus unavailable to a returning serviceman who had not satisfied the work requirement. Noting that a limited pro rata vacation provision in the collective bargaining agreement might provide an alternative basis for petitioner to receive some vacation benefits for 1967 and 1968, the Page 420 U. S. 96 court remanded the case to the District Court for further proceedings on that narrow question. 490 F.2d 55 (1973). We granted certiorari, 419 U.S. 823 (1974), because of an apparent conflict with the decisions of the Courts of Appeals for the Seventh and Ninth Circuits. See Ewert v. Wrought Washer Mfg. Co., 477 F.2d 128 (CA7 1973); Locaynia v. American Airlines, 457 F.2d 1253 (CA9), cert. denied, 409 U.S. 982 (1972). We affirm.IIThe Selective Training and Service Act of 1940, 54 Stat. 885, 890, which was very similar to the present 50 U.S.C.App. § 459(c)(1), [Footnote 6] provided that any person leaving a civilian job to enter the military would be entitled to be restored to a position of "like seniority, status, and pay" upon his return unless circumstances had so changed "as to make it impossible or unreasonable to do so." The statute further required that the veteran be restored "without loss of seniority" and be considered "as having been on furlough or leave of absence" during the period of his military service.On the first of several encounters with the Act, this Court interpreted the guarantee against loss of seniority rights to mean that the veteran's time in the service must Page 420 U. S. 97 be credited toward his seniority with his employer just as if he had remained on the job throughout. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 328 U. S. 285 (1946). To deny him credit for time spent in the military would mean that the veteran would lose ground by reason of his absence. This, the Court stated, would violate the statutory principle that the serviceman"does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war."Id. at 328 U. S. 284-285. See also Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, 338 U. S. 283 (1949).After the Fishgold decision, Congress reenacted the statute, adding language that expressly codified the holding in that case. The amendment provided that a veteran must be restored to his position with the status that"he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration."62 Stat. 604, 615-616, 50 U.S.C.App. § 459(c)(2).In subsequent cases, the Court has consistently applied the statute to assure that benefits and advancements that would necessarily have accrued by virtue of continued employment would not be denied the veteran merely because of his absence in the military service. McKinney v. Missouri-Kansas-Texas R. Co., 357 U. S. 265, 357 U. S. 272 (1958). On the other hand, where the claimed benefit requires more than simple continued status as an employee, the Court has held that it is not protected by the statute. See id. at 357 U. S. 273; Tilton v. Missouri Pacific R. Co., 376 U. S. 169, 376 U. S. 181 (1964).In Accardi v. Pennsylvania R. Co., 383 U. S. 225 (1966), the Court applied these principles for the first time to a benefit not traditionally considered a seniority right. Page 420 U. S. 98 The dispute in that case concerned a veteran's eligibility for a severance payment. Under the applicable collective bargaining agreement, the amount of severance pay due each employee depended on the length of the employee's "compensated service" with the respondent railroad. The railroad argued that the Act was inapplicable because the amount of the severance payment did not depend directly on seniority. The Court, however, took a broader view. Looking beyond the narrow characterization of seniority rights in the collective bargaining agreement, the Court concluded that the severance payments were not intended as a form of deferred compensation for work done in the past, but rather as a means of compensating employees for the loss of rights and benefits accumulated over a long period of service. Accordingly, the Court held that the severance payments in that case were "just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall." Id. at 383 U. S. 230.Two years later, in Eagar v. Mama Copper Co., 389 U. S. 323 (1967), the Court applied the statute to a vacation and holiday pay provision in a collective bargaining agreement. The petitioner in that case had satisfied all the work requirements for the benefits in question, but he had not met the further conditions that he be employed on the one-year anniversary date of his starting work with the company, and that he be on the payroll for the three months preceding each paid holiday.In a per curiam opinion, the Court reversed the judgment for the company on the authority of Accardi. Since the petitioner had met all the contractual work requirements and would have been eligible for the contested benefits if he had simply remained on the company payroll, it was unnecessary to consider whether the work requirements would have barred veterans who had not Page 420 U. S. 99 met them. On the facts before the Court, the decision fell within the principle that a returning serviceman must be treated as if he had kept his job continuously throughout the period of his military service. [Footnote 7]IIIPetitioner argues that, under Accardi and Eagar, the vacation benefits in this case must be granted to him as a returning serviceman because the entitlement to a vacation is not closely correlated to the amount of work actually performed by the employee. Under the collective bargaining agreement, a Dravo employee theoretically could earn full vacation benefits by doing as little as one hour's work in each of 25 weeks during the year. From this, petitioner concludes that the agreement really conditions vacation benefits only on continued employment, and that Dravo therefore could not legally deny him full vacation benefits for either 1967 or 1968.This approach would extend the statute well beyond the limits set out in our prior cases. Generally, the presence of a work requirement is strong evidence that the benefit in question was intended as a form of compensation. Of course, as in the Accardi case, the work requirement may be so insubstantial that it appears plainly designed to measure time on the payroll, rather than hours on the job; in that event, the Act requires that the benefit be granted to returning veterans. But where the work requirement constitutes a bona fide effort to compensate for work actually performed, the fact that it correlates Page 420 U. S. 100 only loosely with the benefit is not enough to invoke the statutory guarantee.We agree with the Court of Appeals that, unlike the severance payments in Accardi, the vacation benefits in this case were intended as a form of short-term compensation for work performed. Although Dravo employees who work for 25 weeks receive the same paid vacation rights as those who work a full year, the collective bargaining agreement provides additional vacation credit for employees who work overtime for a substantial period. The benefits under the overtime vacation provision increase with the amount of overtime worked. In addition, the agreement provides that, if an employee is laid off during the year and does not work the requisite 25 weeks, he will be awarded vacation benefits on a pro rata basis.These provisions lend substantial support to respondent's claim that the vacation scheme was intended as a form of deferred compensation. Petitioner's observation that an employee could, in theory, earn a vacation under the collective bargaining agreement with only a few carefully spaced hours of work is not enough to rebut the plain indication that a full vacation was intended in most cases to be awarded for a full year's work. [Footnote 8]On petitioner's theory of the case, the company would be required to provide full vacation benefits to a returning serviceman if he worked no more than one week in Page 420 U. S. 101 each year; indeed, following this approach to its logical limits, a veteran who served in the Armed Forces for four years would be entitled to accumulated vacation benefits for all four years upon his return. This result is so sharply inconsistent with the common conception of a vacation as a reward for and respite from a lengthy period of labor that the statute should be applied only where it clearly appears that vacations were intended to accrue automatically as a function of continued association with the company. Since no such showing was made here, and since petitioner has not met the bona fide work requirement in the collective bargaining agreement, we conclude that § 9 did not guarantee him full vacation rights for the two years in question. [Footnote 9]IVIn the alternative, petitioner asserts that the statute entitles him at least to pro rata vacation benefits for the time he served Dravo during 1967 and 1968. If he is denied even a pro rata share of vacation benefits, petitioner claims he will, in effect, be penalized for taking a military leave of absence, a result that the Act was expressly intended to prevent.We can find nothing in the statute, independent of the rights conferred in the collective bargaining agreement, that would justify such a Solomonic solution. The Page 420 U. S. 102 statute requires that a returning veteran be treated the same as an employee "on furlough or leave of absence," 50 U.S.C.App. § 459(c)(1), but petitioner's suggestion would grant pro rata vacation rights to veterans regardless of whether any other class of employees would be similarly treated.Although we reject petitioner's statutory theory, the potential availability of pro rata vacation rights enters the case in a somewhat different way. The collective bargaining agreement provides pro rata vacation rights to those employees who were unable to accumulate the minimum of 25 weeks of employment because of layoffs. Art. XIV, § 2. In light of this provision, the Court of Appeals noted that petitioner might have a claim for pro rata benefits under the agreement. It therefore remanded the case to the District Court to determine whether petitioner had adequately preserved that point before the District Court, and, if so, whether he was entitled to some vacation benefits. [Footnote 10]We agree with the Court of Appeals that, because it was not litigated at the trial level, this question should be remanded to the District Court for further proceedings. Accordingly, we affirm the judgment of the Court of Appeals.Affirmed

U.S. Supreme CourtFoster v. Dravo Corp., 420 U.S. 92 (1975)Foster v. Dravo Corp.No. 73-1773Argued January 20, 1975Decided February 18, 1975420 U.S. 92SyllabusThe Military Selective Service Act provides that a veteran who applies for reemployment if still qualified shall be restored by his employer to his former position "or a position of like seniority, status, and pay." The Act further assures that benefits and advancements that would necessarily have accrued by virtue of continued employment will not be denied the veteran merely because of his absence in the military service. These provisions, however, do not apply to claimed benefits requiring more than simple continued status as an employee.Held:1. In this case, the Act's provisions do not entitle petitioner employee to full vacation benefits for the years he was in military service, under the terms of a collective bargaining agreement that conditioned the award of such benefits on the receipt of earnings during 25 weeks of the previous year, since the vacation scheme was intended as a form of short-term deferred compensation for work performed, and not as accruing automatically as a function of continued association with the company. Pp. 420 U. S. 96-101.2. Whether petitioner might be entitled to some pro rata vacation benefits under a contract provision applicable to those employees who were unable to accumulate the minimum of 25 weeks' employment because of layoffs should be determined by the District Court on remand. Pp. 420 U. S. 101-102.490 F.2d 55, affirmed. ,MARSHALL, J., wrote the opinion of the Court, in which all other Members joined except DOUGLAS, J., who took no part in the consideration or decision of the case. Page 420 U. S. 93

1991_91-126

attorney, respondent John Robbins II, filed a state court complaint in replevin against Wyatt, accompanied by a replevin bond of $18,000.At that time, Mississippi law provided that an individual could obtain a court order for seizure of property possessed by another by posting a bond and swearing to a state court that the applicant was entitled to that property and that the adversary "wrongfully took and detain[ed] or wrongfully detain[ed]" the property. 1975 Miss. Gen. Laws, ch. 508, § 1. The statute gave the judge no discretion to deny a writ of replevin.After Cole presented a complaint and bond, the court ordered the county sheriff to seize 24 head of cattle, a tractor, and certain other personal property from Wyatt. Several months later, after a postseizure hearing, the court dismissed Cole's complaint in replevin and ordered the property returned to Wyatt. When Cole refused to comply, Wyatt brought suit in Federal District Court, challenging the constitutionality of the statute and seeking injunctive relief and damages from respondents, the county sheriff, and the deputies involved in the seizure.The District Court held that the statute's failure to afford judges discretion to deny writs of replevin violated due process. 710 F. Supp. 180, 183 (SD Miss. 1989).1 It dismissed the suit against the government officials involved in the seizure on the ground that they were entitled to qualified immunity. App. 17-18. The court also held that Cole and Robbins, even if otherwise liable under § 1983, were entitled to qualified immunity from suit for conduct arising prior to the statute's invalidation. Id., at 12-14. The Court of Appeals for the Fifth Circuit affirmed the District Court's grant of qualified immunity to the private defendants. 928 F.2d 718 (1991).IThe State amended the statute in 1990. Miss. Code Ann. § 11-37-101 (Supp. 1991).161We granted certiorari, 502 U. S. 807 (1991), to resolve a conflict among the Courts of Appeals over whether private defendants threatened with 42 U. S. C. § 1983 liability are, like certain government officials, entitled to qualified immunity from suit. Like the Fifth Circuit, the Eighth and Eleventh Circuits have determined that private defendants are entitled to qualified immunity. See Buller v. Buechler, 706 F. 2d 844, 850-852 (CA8 1983); Jones v. Preuit & Mauldin, 851 F.2d 1321, 1323-1325 (CA111988) (en bane), vacated on other grounds, 489 U. S. 1002 (1989). The First and Ninth Circuits, however, have held that in certain circumstances, private parties acting under color of state law are not entitled to such an immunity. See Downs v. Sawtelle, 574 F.2d 1, 15-16 (CA1), cert. denied, 439 U. S. 910 (1978); Conner v. Santa Ana, 897 F.2d 1487, 1492, n. 9 (CA9), cert. denied, 498 U. S. 816 (1990); Howerton v. Gabica, 708 F.2d 380, 385, n. 10 (CA9 1983). The Sixth Circuit has rejected qualified immunity for private defendants sued under § 1983 but has established a good faith defense. Duncan v. Peck, 844 F.2d 1261 (1988).IITitle 42 U. S. C. § 1983 provides a cause of action against "[e]very person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws .... " The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. Carey v. Piphus, 435 U. S. 247, 254-257 (1978).In Lugar v. Edmondson Oil Co., supra, the Court considered the scope of § 1983 liability in the context of garnishment, prejudgment attachment, and replevin statutes. In that case, the Court held that private parties who attached a debtor's assets pursuant to a state attachment statute were subject to § 1983 liability if the statute was constitutionally162infirm. Noting that our garnishment, prejudgment attachment, and replevin cases established that private use of state laws to secure property could constitute "state action" for purposes of the Fourteenth Amendment, id., at 932-935, the Court held that private defendants invoking a state-created attachment statute act "under color of state law" within the meaning of § 1983 if their actions are "fairly attributable to the State," id., at 937. This requirement is satisfied, the Court held, if two conditions are met. First, the "deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." Ibid. Second, the private party must have "acted together with or ... obtained significant aid from state officials" or engaged in conduct "otherwise chargeable to the State." Ibid. The Court found potential § 1983 liability in Lugar because the attachment scheme was created by the State and because the private defendants, in invoking the aid of state officials to attach the disputed property, were "willful participant[s] in joint activity with the State or its agents." Id., at 941 (internal quotation marks omitted).Citing Lugar, the District Court assumed that Cole, by invoking the state statute, had acted under color of state law within the meaning of § 1983, and was therefore liable for damages for the deprivation of Wyatt's due process rights. App. 12. With respect to Robbins, the court noted that while an action taken by an attorney in representing a client "does not normally constitute an act under color of state law, ... an attorney is still a person who may conspire to act under color of state law in depriving another of secured rights." Id., at 13. The court did not determine whether Robbins was liable, however, because it held that both Cole and Robbins were entitled to qualified immunity from suit at least for conduct prior to the statute's invalidation. Id., at 13-14.163Although the Court of Appeals did not review whether, in the first instance, Cole and Robbins had acted under color of state law within the meaning of § 1983, it affirmed the District Court's grant of qualified immunity to respondents. In so doing, the Court of Appeals followed one of its prior cases, Folsom Investment Co. v. Moore, 681 F.2d 1032 (CA5 1982), in which it held that "a § 1983 defendant who has invoked an attachment statute is entitled to an immunity from monetary liability so long as he neither knew nor reasonably should have known that the statute was unconstitutional." Id., at 1037. The court in Folsom based its holding on two grounds. First, it viewed the existence of a common law, probable cause defense to the torts of malicious prosecution and wrongful attachment as evidence that "Congress in enacting § 1983 could not have intended to subject to liability those who in good faith resorted to legal process." Id., at 1038. Although it acknowledged that a defense is not the same as an immunity, the court maintained that it could "transfor[m] a common law defense extant at the time of § 1983's passage into an immunity." Ibid. Second, the court held that while immunity for private parties is not derived from official immunity, it is based on "the important public interest in permitting ordinary citizens to rely on presumptively valid state laws, in shielding citizens from monetary damages when they reasonably resort to a legal process later held to be unconstitutional, and in protecting a private citizen from liability when his role in any unconstitutional action is marginal." Id., at 1037. In defending the decision below, respondents advance both arguments put forward by the Court of Appeals in Folsom. Neither is availing.IIISection 1983 "creates a species of tort liability that on its face admits of no immunities." Imbler v. Pachtman, 424 U. S. 409, 417 (1976). Nonetheless, we have accorded certain government officials either absolute or qualified immu-164nity from suit if the "tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that 'Congress would have specifically so provided had it wished to abolish the doctrine.'" Owen v. City of Independence, 445 U. S. 622, 637 (1980) (quoting Pierson v. Ray, 386 U. S. 547, 555 (1967)). If parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871-§ 1 of which is codified at 42 U. S. C. § 1983-we infer from legislative silence that Congress did not intend to abrogate such immunities when it imposed liability for actions taken under color of state law. See Tower v. Glover, 467 U. S. 914, 920 (1984); Imbler, supra, at 421; Pulliam v. Allen, 466 U. S. 522, 529 (1984). Additionally, irrespective of the common law support, we will not recognize an immunity available at common law if § 1983's history or purpose counsel against applying it in § 1983 actions. Tower, supra, at 920. See also Imbler, supra, at 424-429.In determining whether there was an immunity at common law that Congress intended to incorporate in the Civil Rights Act, we look to the most closely analogous torts-in this case, malicious prosecution and abuse of process. At common law, these torts provided causes of action against private defendants for unjustified harm arising out of the misuse of governmental processes. 2 C. Addison, Law of Torts , 852, and n. 2, , 868, and n. 1 (1876); T. Cooley, Law of Torts 187-190 (1879); J. Bishop, Commentaries on NonContract Law §§228-250, pp. 91-103, §490, p. 218 (1889).Respondents do not contend that private parties who instituted attachment proceedings and who were subsequently sued for malicious prosecution or abuse of process were entitled to absolute immunity. And with good reason; although public prosecutors and judges were accorded absolute immunity at common law, Imbler v. Pachtman, supra, at 421-424, such protection did not extend to complaining witnesses who, like respondents, set the wheels of government in motion by165instigating a legal action. Malley v. Briggs, 475 U. S. 335, 340-341 (1986) ("In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause").Nonetheless, respondents argue that at common law, private defendants could defeat a malicious prosecution or abuse of process action if they acted without malice and with probable cause, and that we should therefore infer that Congress did not intend to abrogate such defenses when it enacted the Civil Rights Act of 1871. We adopted similar reasoning in Pierson v. Ray, 386 U. S., at 555-557. There, we held that police officers sued for false arrest under § 1983 were entitled to the defense that they acted with probable cause and in good faith when making an arrest under a statute they reasonably believed was valid. We recognized this defense because peace officers were accorded protection from liability at common law if they arrested an individual in good faith, even if the innocence of such person were later established. Ibid.The rationale we adopted in Pierson is of no avail to respondents here. Even if there were sufficient common law support to conclude that respondents, like the police officers in Pierson, should be entitled to a good faith defense, that would still not entitle them to what they sought and obtained in the courts below: the qualified immunity from suit accorded government officials under Harlow v. Fitzgerald, 457 U. S. 800 (1982).In Harlow, we altered the standard of qualified immunity adopted in our prior § 1983 cases because we recognized that "[t]he subjective element of the good-faith defense frequently [had] prove[d] incompatible with our admonition ... that insubstantial claims should not proceed to trial." Id., at 815-816. Because of the attendant harms to government effectiveness caused by lengthy judicial inquiry into subjective motivation, we concluded that "bare allegations of malice166should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery." Id., at 817-818. Accordingly, we held that government officials performing discretionary functions are shielded from "liability for civil damages insofar as their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id., at 818. This wholly objective standard, we concluded, would "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Ibid.That Harlow "completely reformulated qualified immunity along principles not at all embodied in the common law," Anderson v. Creighton, 483 U. S. 635, 645 (1987), was reinforced by our decision in Mitchell v. Forsyth, 472 U. S. 511 (1985). Mitchell held that Harlow established an "immunity from suit rather than a mere defense to liability," which, like an absolute immunity, "is effectively lost if a case is erroneously permitted to go to trial." 472 U. S., at 526 (emphasis supplied). Thus, we held in Mitchell that the denial of qualified immunity should be immediately appealable. Id., at 530.It is this type of objectively determined, immediately appealable immunity that respondents asserted below.2 But,2 In arguing that respondents are entitled to qualified immunity under Harlow v. Fitzgerald, 457 U. S. 800 (1982), the dissent mixes apples and oranges. Even if we were to agree with the dissent's proposition that elements a plaintiff was required to prove as part of her case in chief could somehow be construed as a "'defense,'" post, at 176, n. 1, and that this "defense" entitles private citizens to some protection from liability, we cannot agree that respondents are entitled to immunity from suit under Harlow. One could reasonably infer from the fact that a plaintiff's malicious prosecution or abuse of process action failed if she could not affirmatively establish both malice and want of probable cause that plaintiffs bringing an analogous suit under § 1983 should be required to make a similar showing to sustain a § 1983 cause of action. Alternatively, if one accepts the dissent's characterization of the common law as establishing an affirmative "defense" for private defendants, then one could also conclude that private parties sued under § 1983 should likewise be entitled to167as our precedents make clear, the reasons for recognizing such an immunity were based not simply on the existence of a good faith defense at common law, but on the special policy concerns involved in suing government officials. Harlow, supra, at 813; Mitchell, supra, at 526. Reviewing these concerns, we conclude that the rationales mandating qualified immunity for public officials are not applicable to private parties.Qualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions. Harlow, supra, at 819; Pierson, supra, at 554; Anderson, supra, at 638. Accordingly, we have recognized qualified immunity for government officials where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service. See, e. g., Wood v. Strickland, 420 U. S. 308, 319 (1975) (denial of qualified immunity to school board officials" 'would contribute not to principled and fearless decision-making but to intimidation''') (quoting Pierson, supra, at 554); Butz v. Economou, 438 U. S. 478, 506 (1978) (immunity for Presidential aides warranted partly "to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority"); Mitchell, supra, at 526 (immunity designed to prevent the " 'distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service'" (quoting Harlow, supra, at 816)). Inassert an affirmative defense based on a similar showing of good faith and/ or probable cause. In neither case, however, is it appropriate to make the dissent's leap: that because these common law torts partially included an objective component-probable cause-private defendants sued under § 1983 should be entitled to the objectively determined, immediately appealable immunity from suit accorded certain government officials under Harlow.168short, the qualified immunity recognized in Harlow acts to safeguard government, and thereby to protect the public at large, not to benefit its agents.These rationales are not transferable to private parties.Although principles of equality and fairness may suggest, as respondents argue, that private citizens who rely unsuspectingly on state laws they did not create and may have no reason to believe are invalid should have some protection from liability, as do their government counterparts, such interests are not sufficiently similar to the traditional purposes of qualified immunity to justify such an expansion. Unlike school board members, see Wood, supra, or police officers, see Malley v. Briggs, 475 U. S. 335 (1986), or Presidential aides, see Butz, supra, private parties hold no office requiring them to exercise discretion; nor are they principally concerned with enhancing the public good. Accordingly, extending Harlow qualified immunity to private parties would have no bearing on whether public officials are able to act forcefully and decisively in their jobs or on whether qualified applicants enter public service. Moreover, unlike with government officials performing discretionary functions, the public interest will not be unduly impaired if private individuals are required to proceed to trial to resolve their legal disputes. In short, the nexus between private parties and the historic purposes of qualified immunity is simply too attenuated to justify such an extension of our doctrine of immunity.For these reasons, we can offer no relief today. The question on which we granted certiorari is a very narrow one: "[W]hether private persons, who conspire with state officials to violate constitutional rights, have available the good faith immunity applicable to public officials." Pet. for Cert. i. The precise issue encompassed in this question, and the only issue decided by the lower courts, is whether qualified immunity, as enunciated in Harlow, is available for private defendants faced with § 1983 liability for invoking a state replevin,169garnishment, or attachment statute. That answer is no. In so holding, however, we do not foreclose the possibility that private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens. Because those issues are not fairly before us, however, we leave them for another day. Cf. Yee v. Escondido, 503 U. S., 519, 534-538 (1992).IVAs indicated above, the District Court assumed that under Lugar v. Edmondson Oil Co., supra, Cole was liable under § 1983 for invoking the state replevin under bond statute, and intimated that, but did not decide whether, Robbins also was subject to § 1983 liability. The Court of Appeals never revisited this question, but instead concluded only that respondents were entitled to qualified immunity at least for conduct prior to the statute's invalidation. Because we overturn this judgment, we must remand, since there remains to be determined, at least, whether Cole and Robbins, in invoking the replevin statute, acted under color of state law within the meaning of Lugar. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusWYATT v. COLE ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 91-126. Argued January 14, 1992-Decided May 18, 1992With the assistance of respondent Robbins, an attorney, respondent Cole filed a complaint under the Mississippi replevin statute against his partner, petitioner Wyatt. After Cole refused to comply with a state court order to return to Wyatt property seized under the statute, Wyatt brought suit in the Federal District Court under 42 U. S. C. § 1983, challenging the state statute's constitutionality and seeking injunctive relief and damages. Among other things, the court held the statute unconstitutional and assumed that Cole was subject to liability under Lugar v. Edmondson Oil Co., 457 U. S. 922, in which this Court ruled that private defendants invoking state replevin, garnishment, and attachment statutes later declared unconstitutional act under color of state law for § 1983 liability purposes. The court also intimated that, but did not decide whether, Robbins was subject to § 1983 liability. However, Lugar had left open the question whether private defendants are entitled to qualified immunity from suit in such cases, see id., at 942, n. 23, and the District Court held that respondents were entitled to qualified immunity at least for conduct arising prior to the replevin statute's invalidation. The Court of Appeals affirmed the grant of qualified immunity to respondents without revisiting the question of their § 1983 liability.Held:1. Qualified immunity from suit, as enunciated by this Court with respect to government officials, is not available to private defendants charged with § 1983 liability for invoking state replevin, garnishment, or attachment statutes. Immunity for private defendants was not so firmly rooted in the common law and was not supported by such strong policy reasons as to create an inference that Congress meant to incorporate it into § 1983. See, e. g., Owen v. City of Independence, 445 U. S. 622, 637. Even if there were sufficient common law support to conclude that private defendants should be entitled to a good faith and/or probable cause defense to suits for unjustified harm arising out of the misuse of governmental processes, that would still not entitle respondents to what they obtained in the courts below: the type of objectively determined, immediately appealable, qualified immunity from suit accorded government officials under, e. g., Harlow v. Fitzgerald, 457 U. S.159800, and Mitchell v. Forsyth, 472 U. S. 511. Moreover, the policy concerns mandating qualified immunity for officials in such cases-the need to preserve the officials' ability to perform their discretionary functions and to ensure that talented candidates not be deterred by the threat of damages suits from entering public service-are not applicable to private parties. Although it may be that private defendants faced with § 1983 liability under Lugar, supra, could be entitled to an affirmative good faith defense, or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens, those issues are neither before the Court nor decided here. pp. 163-169.2. On remand, it must be determined, at least, whether respondents, in invoking the replevin statute, acted under color of state law within the meaning of Lugar, supra. P. 169.928 F.2d 718, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, in which SCALIA, J., joined, post, p. 169. REHNQUIST, C. J., filed a dissenting opinion, in which SOUTER and THOMAS, JJ., joined, post, p. 175.Jim Waide argued the cause for petitioner. With him on the briefs were Douglas M. Magee and Alan B. Morrison.Joseph Leray McNamara argued the cause and filed a brief for respondents.JUSTICE O'CONNOR delivered the opinion of the Court.In Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), we left open the question whether private defendants charged with 42 U. S. C. § 1983 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional are entitled to qualified immunity from suit. 457 U. S., at 942, n. 23. We now hold that they are not.IThis dispute arises out of a soured cattle partnership. In July 1986, respondent Bill Cole sought to dissolve his partnership with petitioner Howard Wyatt. When no agreement could be reached, Cole, with the assistance of an160Full Text of Opinion

1982_81-431

JUSTICE WHITE announced the judgment of the Court and delivered an opinion, in Parts I, III, IV, and V of which JUSTICE REHNQUIST joined.The threshold issue before the Court is whether the private plaintiffs in this case need to prove discriminatory intent to establish a violation of Title VI of the Civil Rights Act of 194, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq., [Footnote 1] and administrative implementing regulations promulgated thereunder. I conclude, as do four other Justices, in separate opinions, that the Court of Appeals erred in requiring proof of discriminatory intent. [Footnote 2] However, I conclude that the judgment below should be affirmed on other grounds, because, in the absence of proof of discriminatory animus, compensatory relief should not be awarded to private Title VI plaintiffs; unless discriminatory intent is shown, declaratory and limited injunctive relief should be the only available private remedies for Title VI violations. There being four other Justices who would affirm the judgment of the Court of Appeals, that judgment is accordingly affirmed. Page 463 U. S. 585IThis class action involves a challenge by black and Hispanic police officers, petitioners here, [Footnote 3] to several written examinations administered by New York City between 1968 and 1970 that were used to make entry-level appointments to the city's Police Department (Department) through October, 1974. [Footnote 4] The District Court found that the challenged examinations had a discriminatory impact on the scores and pass-rates of blacks and Hispanics, and were not job-related. These findings were not disturbed in the Court of Appeals.Each member of the plaintiff class seeking relief from discrimination achieved a passing score on one of the challenged examinations and was hired as a police officer. Since appointments were made in order of test scores, however, the examinations caused the class members to be hired later than similarly situated whites, which lessened the petitioners' seniority and related benefits. Accordingly, when the Department laid off police officers in June, 1975, on a "last-hired, first-fired" basis, those officers who had achieved the lowest scores on the examinations were laid off first, and the plaintiff black and Hispanic officers were disproportionately affected by the layoffs.On April 30, 1976, petitioners filed the present suit [Footnote 5] against the Department and other New York City officials Page 463 U. S. 586 and entities, the respondents here. Petitioners' amended complaint alleged that the June, 1975, layoffs violated their rights under Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and § 2000e et seq., under 42 U.S.C. § 1983, and under various other state and federal laws. [Footnote 6] The primary allegation of the complaint was that, but for the discriminatory impact of the challenged examinations upon minorities, petitioners would have been hired earlier, and therefore would have accumulated sufficient seniority to withstand the layoffs.After a hearing, the District Court held that, although petitioners had failed to prove that the respondents had acted with discriminatory intent, the use of the examinations violated Title VII, because the tests had a disparate impact upon minorities, and were not proved by respondents to be job-related. [Footnote 7] The court therefore granted petitioners' motion for a preliminary injunction restraining the Department from firing or recalling any police officers until seniority lists were reordered to accord petitioners the seniority they would have had but for respondents' discriminatory practices. 431 F. Supp. 526 (SDNY 1977). In light of its holding under Page 463 U. S. 587 Title VII, the District Court deemed it unnecessary to decide the merits of petitioners' claims under Title VI. Id. at 530, n. 2.On respondents' appeal, the Second Circuit vacated the District Court's decision and remanded the case for reconsideration in light of our holding in Teamsters v. United States, 431 U. S. 324 (1977), in which we ruled that a bona fide seniority system that merely perpetuates the effects of pre-Title VII discrimination is protected by § 703(h) of that statute, 42 U.S.C. § 2000e-2(h). 562 F.2d 38 (1977). On remand, the District Court found that Teamsters had rendered its previous holding untenable to the extent that it granted relief with respect to discrimination occurring prior to March 24, 1972, the date on which Title VII became applicable to municipalities. See Pub.L. 92-261, § 2(1), 86 Stat. 103. This meant that, under Title VII, class members hired prior to the effective date were not entitled to any relief, and that the remaining members of the class were only entitled to back seniority awards that did not take into account time periods prior to that date. 466 F. Supp. 1273, 1280 (SDNY 1979).The court then turned to Title VI, which has been applicable to municipalities since its enactment in 1964, to see if it would provide relief for the time periods prior to March 24, 1972. After considering Cort v. Ash, 422 U. S. 66 (1975), and the various opinions in University of California Regents v. Bakke, 438 U. S. 265 (1978), the District Court concluded that an implied private right of action exists under Title VI. 466 F. Supp. at 1281-1285. Then, citing Lau v. Nichols, 414 U. S. 563 (1974), and Title VI administrative interpretative regulations adopted by several federal agencies, the court reasoned that proof of discriminatory effect is enough to establish a violation of Title VI in a private action, thereby rejecting respondents' contention that only proof of discriminatory intent could suffice. 466 F. Supp. at 1285-1287. Finally, turning to the question of relief, the court held that the Page 463 U. S. 588 same remedies available under Title VII should be available under Title VI, unless they would conflict with some purpose peculiar to Title VI."In the instant case, back seniority, approved as a Title VII remedy in Franks v. Bowman Transportation Co., 424 U. S. 747 . . . (1976), is just as necessary to make discriminatees 'whole' under Title VI."Id. at 1287.Accordingly, relief was granted to the entire class pursuant to Title VI. In a subsequent order, the court set forth a detailed plan for the determination of the constructive seniority to which each individual member of the class would be entitled, and the corresponding monetary and nonmonetary entitlements that would be derived therefrom. The court also ordered respondents to meet and consult with petitioners on the preparation and use of future examinations. App. A99-A107.Respondents appealed once again to the Second Circuit, which affirmed the relief under Title VII but reversed as to Title VI. 633 F.2d 232 (1980). All three members of the panel agreed that the award of Title VI relief could not be sustained, but the panel divided on the rationale for this conclusion. Two judges held that the trial court erred by concluding that Title VI does not require proof of discriminatory intent. They believed that this Court's decision in Lau v. Nichols, supra, which held that proof of discriminatory impact could suffice to establish a Title VI violation, had been implicitly overruled by the judgment and supporting opinions in Bakke, supra. 633 F.2d at 270 (Kelleher, J.); id. at 274-275 (Coffrin, J.).The third member of the panel, Judge Meskill, declined to reach the question whether Title VI requires proof of discriminatory intent. Instead, he concluded that the "compensatory remedies sought by and awarded to plaintiffs in the case at bar are not available to private litigants under Title VI." Id. at 255. Nothing in the legislative history, Judge Meskill observed, indicated that Title VI was intended to compensate individuals excluded from the benefits of a program receiving federal assistance, and, in his view, a compensatory Page 463 U. S. 589 private remedy would work at cross-purposes with the administrative enforcement mechanism expressly provided by § 602 of Title VI, 42 U.S.C. § 2000d-1, and with the objectives of the federal assistance statutes. 633 F.2d at 255-262. [Footnote 8]After the Second Circuit denied petitions for rehearing from both sides, 633 F.2d 232 (1980), we granted the plaintiffs' petition for certiorari, 454 U.S. 1140, [Footnote 9] which claimed error solely on the basis that proof of discriminatory intent is not required to establish a Title VI violation.IIThe Court squarely held in Lau v. Nichols, supra, that Title VI forbids the use of federal funds not only in programs that intentionally discriminate on racial grounds, but also in those endeavors that have a disparate impact on racial minorities. The Court of Appeals recognized this, but was of the view, as are respondents, that University of California Regent v. Bakke, supra, had confined the reach of Title VI to those programs that are operated in an intentionally discriminatory manner. For two reasons, I disagree with this reading of Bakke.AFirst, I recognize that, in Bakke, five Justices, including myself, declared that Title VI, on its own bottom, reaches no Page 463 U. S. 590 further than the Constitution, [Footnote 10] which suggests that, in light of Washington v. Davis, 426 U. S. 229 (1976), Title VI does not, of its own force, proscribe unintentional racial discrimination. The Court of Appeals thought these declarations were inconsistent with Lau's holding that Title VI contains its own prohibition of disparate impact racial discrimination. The issue in Bakke, however, was whether Title VI forbids intentional discrimination in the form of affirmative action intended to remedy past discrimination, even though such affirmative action is permitted by the Constitution. Holding that Title VI does not bar such affirmative action if the Constitution does not is plainly not determinative of whether Title VI proscribes unintentional discrimination in addition to the intentional discrimination that the Constitution forbids. It is sensible to construe Title VI, a statute intended to protect racial minorities, as not forbidding those intentional, but benign, racial classifications that are permitted by the Constitution, yet as proscribing burdensome, nonbenign discriminations of a kind not contrary to the Constitution. Although some of the language in the Bakke opinions has a broader sweep, the holdings in Bakke and Lau are entirely consistent. Absent some more telling indication in the Bakke opinions that Lau was being overruled, I would not so hold. [Footnote 11] Page 463 U. S. 591BEven if I am wrong in concluding that Bakke did not overrule Lau, as so many of my colleagues believe, there is another reason for holding that disproportionate impact discrimination is subject to the Title VI regime. In Lau, the Court was unanimous in affirming a holding that the school district there involved was forbidden by Title VI to practice unintentional, as well as intentional, discrimination against racial minorities. Five Justices were of the view that Title VI itself forbade impact discrimination. Lau, 414 U.S. at 414 U. S. 566-569. Justice Stewart, joined by THE CHIEF JUSTICE and JUSTICE BLACKMUN, concurred in the result. The concurrence stated that it was not at all clear that Title VI, standing alone, would prohibit unintentional discrimination, but that the Title VI implementing regulations, which explicitly forbade impact discrimination, were valid because not inconsistent with the purposes of Title VI. Id. at 414 U. S. 569-571. [Footnote 12] Even if Bakke must be taken as overruling Lau's holding that the statute itself does not reach disparate impact, none of the five Justices whose opinions arguably compel this result considered whether the statute would permit regulations that clearly reached such discrimination. And no Justice in Bakke took issue with the view of the three concurring Justices in Lau, who concluded that, even if Title VI itself did not proscribe unintentional racial discrimination, Page 463 U. S. 592 it nevertheless permitted federal agencies to promulgate valid regulations with such effect. The upshot of Justice Stewart's opinion was that those charged with enforcing Title VI had sufficient discretion to enforce the statute by forbidding unintentional as well as intentional discrimination. Nothing that was said in Bakke is to the contrary.Of course, this leaves the question whether THE CHIEF JUSTICE, Justice Stewart, and JUSTICE BLACKMUN were correct in their reading of the statute. I am convinced that they were. The language of Title VI, on its face, is ambiguous; the word "discrimination" is inherently so. It is surely subject to the construction given the antidiscrimination proscription of Title VII in Griggs v. Duke Power Co., 401 U. S. 424 (1971), at least to the extent of permitting, if not requiring, regulations that reach disparate impact discrimination. As Justice Stewart pointed out, the federal agency given enforcement authority had consistently construed Title VI in that manner. Lau, supra, at 414 U. S. 570 (opinion concurring in result). Moreover, soon after the passage of Title VI, the Department of Justice, which had helped draft the legislation, assisted seven agencies in the preparation of regulations incorporating the disparate impact standard of discrimination. [Footnote 13] These regulations were early interpretations of the statute by the agencies charged with its enforcement, and we should not reject them absent clear inconsistency with the face or structure of the statute, or with the unmistakable mandate of the legislative history. Zenith Radio Corp. v. United States, 437 U. S. 443, 437 U. S. 450 (1978). I discern nothing in the legislative history of Title VI, and nothing has been presented by respondents, that is at odds with the administrative construction of the statutory terms. The Title, furthermore, has been consistently administered in this manner Page 463 U. S. 593 for almost two decades without interference by Congress. [Footnote 14] Under these circumstances, it must be concluded that Title VI reaches unintentional, disparate impact discrimination as well as deliberate racial discrimination.IIIAlthough the Court of Appeals erred in construing Title VI, it does not necessarily follow that its judgment should be reversed. As an alternative ground for affirmance, respondents defend the judgment on the basis that there is no private right of action available under Title VI that will afford petitioners the relief that they seek. [Footnote 15] I agree that the relief denied petitioners under Title VII is unavailable to them under Title VI, at least where no intentional discrimination has been proved, as is the case here.AI deal first with the matter of a private cause of action under Title VI. In Lau v. Nichols, non-English-speaking Chinese students sought relief against the San Francisco School District, claiming that they should be taught the English language, that instruction should proceed in Chinese, or that some other way should be provided to afford them equal educational opportunity. This Court, reversing the Court of Appeals, gave relief under Title VI. The existence of a private cause of action under that Title, however, was not disputed in that case.Four years later, the Court decided University of California Regents v. Bakke, which also involved a private suit Page 463 U. S. 594 seeking relief under Title VI against state educational authorities. Four Justices assumed, but did not decide, that a private action was available under Title VI. [Footnote 16] A fifth Justice was of the view that no private cause of action could be implied under the Title. [Footnote 17] The four remaining Justices concluded that a private action was available. [Footnote 18]Still later, in Cannon v. University of Chicago, 441 U. S. 677 (1979), the Court, applying the factors specified in Cort v. Ash, 422 U. S. 66 (1975), held that private parties could sue to enforce the prohibitions of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., against gender-based discrimination in any educational program supported by federal funds. A major part of the analysis was that Title IX had been derived from Title VI, that Congress understood that private remedies were available under Title VI, and that Congress intended similar remedies to be available under Title IX. 441 U.S. at 441 U. S. 694-703. Furthermore, it was the unmistakable thrust of the Cannon Court's opinion that the congressional view was correct as to the availability of private actions to enforce Title VI. Id. at 441 U. S. 710-716. Two Justices, in dissent, were of the view that private remedies under Title VI itself were not available, and that the same was true under Title IX. Those Justices, however, asserted that 42 U.S.C. § 1983 was available to enforce the proscriptions of Title VI and Title IX where the alleged discriminatory practices were being carried on under the color of state law. Id. at 441 U. S. 717-730 (WHITE, J., dissenting, joined by BLACKMUN, J.). Thus at least eight Justices in Cannon were of the view that Title VI and Title IX could be Page 463 U. S. 595 enforced in a private action against a state or local agency receiving federal funds, such as the respondent Department. [Footnote 19] See also Maine v. Thiboutot, 448 U. S. 1 (1980).BPetitioners, however, are not entitled to a "make whole" remedy for respondents' Title VI violations. Whether a litigant has a cause of action "is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive." Davis v. Passman, 442 U. S. 228, 442 U. S. 239 (1979). The usual rule is that, where legal rights have been invaded and a cause of action is available, a federal court may use any available remedy to afford full relief. Bell v. Hood, 327 U. S. 678, 327 U. S. 684 (1946). The general rule nevertheless yields where necessary to carry out the intent of Congress or to avoid frustrating the purposes of the statute involved.For example, in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 (1979), the Court found that a private right of action for only limited relief could be implied under the Investment Advisers Act of 1940, 15 U.S.C. § 80b-1 et seq., which prohibits certain practices in connection with investment advisory contracts. Section 215 of the Act declared that contracts whose formation or performance would violate the Act were void, and the Court concluded that Congress intended"that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract."444 U.S. at 444 U. S. 19. But the Court refused to allow recovery of monetary relief in a private suit alleging violations of the Act, stating that, in the absence of a contrary legislative intent, "where a statute expressly provides a particular Page 463 U. S. 596 remedy or remedies, a court must be chary of reading others into it." Ibid.We have also indicated that "make whole" remedies are not ordinarily appropriate in private actions seeking relief for violations of statutes passed by Congress pursuant to its "power under the Spending Clause to place conditions on the grant of federal funds." Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 451 U. S. 15 (1981). This is because the receipt of federal funds under typical Spending Clause legislation is a consensual matter: the State or other grantee weighs the benefits and burdens before accepting the funds and agreeing to comply with the conditions attached to their receipt. Typically, before funds are advanced, the appropriate federal official will determine whether the grantee's plan, proposal, or program will satisfy the conditions of the grant or other extension of federal funds, and the grantee will have in mind what its obligations will be. When, in a later private suit brought by those for whose benefit the federal money was intended to be used, it is determined, contrary to the State's position, that the conditions attached to the funds are not being complied with, it may be that the recipient would rather terminate its receipt of federal money than assume the unanticipated burdens.Thus, the Court has more than once announced that, in fashioning remedies for violations of Spending Clause statutes by recipients of federal funds, the courts must recognize that the recipient has "alternative choices of assuming the additional costs" of complying with what a court has announced is necessary to conform to federal law or of "not using federal funds" and withdrawing from the federal program entirely. Rosado v. Wyman, 397 U. S. 397, 397 U. S. 420-421 (1970). Although a court may identify the violation and enjoin its continuance or order recipients of federal funds prospectively to perform their duties incident to the receipt of federal money, the recipient has the option of withdrawing, and hence terminating the prospective force of the injunction. Page 463 U. S. 597Pennhurst State School and Hospital v. Halderman, supra, reiterated the Rosado approach: remedies to enforce spending power statutes must respect the privilege of the recipient of federal funds to withdraw and terminate its receipt of federal money, rather than assume the further obligations and duties that a court has declared are necessary for compliance. 451 U.S. at 451 U. S. 29-30, 451 U. S. 30, n. 23; id. at 451 U. S. 53-55 (WHITE, J., dissenting in part). The Court noted that "in no [Spending Clause] case . . . have we required a State to provide money to plaintiffs, much less required" a State to assume more burdensome obligations. Id. at 451 U. S. 29.IVSince the private cause of action under Title VI is one implied by the judiciary, rather than expressly created by Congress, we should respect the foregoing considerations applicable in Spending Clause cases and take care in defining the limits of this cause of action and the remedies available thereunder. Because it was found that there was no proof of intentional discrimination by respondents, I put aside for present purposes those situations involving a private plaintiff who is entitled to the benefits of a federal program but who has been intentionally discriminated against by the administrators of the program. In cases where intentional discrimination has been shown, there can be no question as to what the recipient's obligation under the program was, and no question that the recipient was aware of that obligation. In such situations, it may be that the victim of the intentional discrimination should be entitled to a compensatory award, as well as to prospective relief in the event the State continues with the program. [Footnote 20] Page 463 U. S. 598However that may be, the Court of Appeals in this case did not disturb the District Court's finding that there was no intentional discrimination on racial grounds. The discrimination was unintentional, and resulted from the disproportionate impact of the entry-level tests on racial minorities. In this and similar situations, it is not immediately obvious what the grantee's obligations under the federal program were, and it is surely not obvious that the grantee was aware that it was administering the program in violation of the statute or regulations. In such cases, proof of discriminatory impact does not end the matter. If the grantee can bear the burden of proving some "business necessity" for practices that have discriminatory impact, it has a complete affirmative defense to claims of violation. Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 431. In the typical case where deliberate discrimination on racial grounds is not shown, the recipient will have at least colorable defenses to charges of illegal disparate impact discrimination, and it often will be the case that, prior to judgment, the grantee will not have known or have had compelling reason to know that it had been violating the federal standards. Hence, absent clear congressional intent or guidance to the contrary, the relief in private actions should be limited to declaratory and injunctive relief ordering future compliance with the declared statutory and regulatory obligations. Additional relief in the form of money or otherwise based on past unintentional violations should be withheld.The foregoing considerations control decision in this case. I note first that Title VI is spending-power legislation: Page 463 U. S. 599"It is not a regulatory measure, but an exercise of the unquestioned power of the Federal Government to 'fix the terms on which Federal funds shall be disbursed.' Oklahoma v. Civil Service Commission, 330 U. S. 127, 330 U. S. 143 (1947). No recipient is required to accept Federal aid. If he does so voluntarily, he must take it on the conditions on which it is offered."110 Cong.Rec. 6546 (1964) (Sen. Humphrey). Accord, id. at 1527 (memorandum by Rep. Celler) (validity of Title VI "rests on the power of Congress to fix the terms on which Federal funds will be made available"); id. at 6562 (Sen. Kuchel); id. at 7063 (Sen. Pastore). Title VI rests on the principle that "taxpayers' money, which is collected without discrimination, shall be spent without discrimination." Id. at 7064 (Sen. Ribicoff). Accord, id. at 7054-7055, 7062 (Sen. Pastore); id. at 7102 (Sen. Javits); id. at 6566 (memorandum by the Republican Members of the House Committee on the Judiciary). The mandate of Title VI is "[v]ery simple. Stop the discrimination, get the money; continue the discrimination, do not get the money." Id. at 1542 (Rep. Lindsay). Title VI imposes no obligations, but simply "extends an option'" that potential recipients are free to accept or reject. Id. at 1527 (memorandum by Rep. Celler) (quoting Massachusetts v. Mellon, 262 U. S. 447, 262 U. S. 480 (1923)). This legislative history clearly shows that Congress intended Title VI to be a typical "contractual" spending power provision.Since Title VI is Spending Clause legislation, it is presumed that private litigants seeking to enforce compliance with its terms are entitled to no more than the limited remedy deemed available to the plaintiffs in Pennhurst. The inquiry is not at this point complete, however, because, like all rules of statutory construction, the Pennhurst presumption must "yield . . . to persuasive evidence of contrary legislative intent." Transamerica, 444 U.S. at 444 U. S. 20. As in Transamerica, however, the relevant legislative history of Title VI reveals that"what evidence of intent exists in this case, circumstantial Page 463 U. S. 600 though it may be, weighs against the implication of a private right of action for a monetary award in a case such as this,"ibid., at least absent proof of intentional discrimination.Title VI does not explicitly allow for any form of a private right of action. This fact did not go unnoticed by Senators Keating and Ribicoff, who unsuccessfully proposed an amendment adding to Title VI a provision expressly allowing the institution of"a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, . . . by the person aggrieved."109 Cong.Rec. 15375 (1963). Senator Keating explained that, under this proposal, if someone violated Title VI, funds could be denied or"a suit for specific performance of the nondiscrimination requirement could be brought . . . by the victim of the discrimination."Id. at 15376. The relevant language of the proposed amendment was identical to that of § 204(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(a), the provision creating a private right of action to enforce Title II of the Act, which deals with discrimination in public accommodations. Suits under § 204(a) are"private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone, but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority."Neuman v. Piggie Park Enterprises, 390 U. S. 400, 390 U. S. 401-402 (1968). Senator Keating thought that elementary fairness required that victims of Title VI-proscribed discrimination be accorded the same private right of action as allowed in the "proposed education and public accommodations titles of the [Civil Rights] bill." [Footnote 21]The Keating-Ribicoff proposal was not included in Title VI, but the important point for present purposes is that even the Page 463 U. S. 601 most ardent advocates of private enforcement of Title VI contemplated that private plaintiffs would only be awarded "preventive relief." Like the drafters of Title II, they did not intend to allow private plaintiffs to recover monetary awards. Although the expressed intent of Senators Keating and Ribicoff is alone not determinative of whether a compensatory remedy may be obtained in a private action to enforce Title VI,"it is one more piece of evidence that Congress did not intend to authorize a cause of action for anything beyond limited equitable relief."Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 444 U. S. 22. Surely it did not intend to do so where intentional discrimination is not shown.The remaining indications of congressional intent are also circumstantial, but they all militate in favor of the conclusion that only prospective relief ordering compliance with the terms of the grant is appropriate as a private remedy for Title VI violations in cases such as this. The "greatest possible emphasis" was given to the fact that the "real objective" of Title VI was "the elimination of discrimination in the use and receipt of Federal funds." 110 Cong.Rec. 6544 (1964) (Sen. Humphrey). See also id. at 7062 (Sen. Pastore). The remedy of termination of assistance was regarded as "a last resort, to be used only if all else fails," because"cut-offs of Federal funds would defeat important objectives of Federal legislation, without commensurate gains in eliminating racial discrimination or segregation."Id. at 6544, 6546 (Sen. Humphrey). [Footnote 22]To ensure that this intent would be respected, Congress included an explicit provision in § 602 of Title VI that requires that any administrative enforcement action be"consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken."42 U.S.C. § 2000d-1. Although an award of damages would not be as drastic a remedy as a cutoff of funds, Page 463 U. S. 602 the possibility of large monetary liability for unintended discrimination might well dissuade potential nondiscriminating recipients from participating in federal programs, thereby hindering the objectives of the funding statutes. See 633 F.2d at 261-262 (opinion of Meskill, J.).In summary, there is no legislative history that in any way rebuts the Pennhurst presumption that only limited injunctive relief should be granted as a remedy for unintended violations of statutes passed pursuant to the spending power. What little evidence there is evinces an intent not to allow any greater relief. [Footnote 23] I conclude that compensatory relief, or Page 463 U. S. 603 other relief based on past violations of the conditions attached to the use of federal funds, is not available as a private remedy for Title VI violations not involving intentional discrimination. [Footnote 24]VIf the relief unavailable under Title VII and ordered under Title VI is the kind of relief that should be withheld in enforcing a Spending Clause statute, the Court should affirm the judgment of the Court of Appeals without more. Only if all or some of this relief is the kind of declaratory or prospective relief that private enforcement of Title VI properly contemplates should the Court of Appeals be reversed in whole or in part. To resolve this matter, I now consider the items of relief Page 463 U. S. 604 ordered by the District Court to determine if any element is a permissible injunctive remedy.Although the Eleventh Amendment cases are not dispositive here, in holding that only prospective relief is available to remedy violations of federal law by state officials, the Court in Edelman v. Jordan, 415 U. S. 651, 415 U. S. 667 (1974), observed that the difference between permissible and impermissible relief "will not in many instances be that between day and night." It seems as patent here as in the Eleventh Amendment context that the relief cannot include a monetary award for past wrongs, even if the award is in the form of "equitable restitution" instead of damages. See id. at 415 U. S. 665-667. However, prospective relief need not be "totally without effect on the [defendant's] revenues"; injunctive relief is permissible even if it means that the defendants, in order to shape their conduct to the mandate of the court's decree, will have to spend more money "than if they had been left free to pursue their previous course of conduct." Id. at 415 U. S. 667-668. The key question for present purposes is whether the decree requires the payment of funds or grants other relief"not as a necessary consequence of compliance in the future with a substantive federal question determination, but as a form of compensation"or other relief based on or flowing from violations at a prior time when the defendant "was under no court-imposed obligation to conform to a different standard." Id. at 415 U. S. 668.The District Court in the present case granted a number of relatively discrete items of relief. First, each class member was awarded constructive seniority, which included the right to: (1) "all monetary entitlements which [the class members] would have received had they been appointed on their constructive seniority date," including backpay and back medical and insurance benefits; and (2) all other entitlements relative to the award of constructive seniority, including salary, benefits, and pension rights. Also, respondents were directed to give a sergeant's examination to those class members whose Page 463 U. S. 605 constructive seniority would have entitled them to take the last such examination. Finally, in an effort to insure that future hiring practices would be nondiscriminatory, respondents were ordered to consult with petitioners on the preparation and use of future police officer examinations for the next two years, and to provide petitioners with race and ethnicity information regarding the scores of the next scheduled examination. App. A99-A107. [Footnote 25]On the one hand, it is obvious that the award of backpay and back benefits constitutes relief based upon past conduct no longer permissible; it therefore should not stand. On the other hand, it is without doubt that the portion of the order requiring consultation to insure that future examinations will not have discriminatory effects constitutes permissible injunctive relief aimed at conforming respondents' future conduct to the declared law.This leaves the award of constructive seniority for purposes of future entitlements: the right to take the special sergeant's examination ordered by the District Court and the right to an increase of salary and benefits to the level warranted by the constructive seniority. Because such an award affects only the future conduct of a defendant, it arguably could be categorized as permissible prospective relief. I conclude, however, that an award of constructive seniority, for any purpose whatsoever, must be deemed impermissible retroactive relief.In Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 766-767 (1976), we identified two types of seniority -- "benefit" and "competitive status." The first of these,"which determines pension rights, length of vacations, size of insurance coverage and unemployment benefits, and the like, is analogous to backpay. . . . Benefit-type seniority, like backpay, serves to work complete equity by penalizing the wrongdoer economically at the same time that it tends to make whole the Page 463 U. S. 606 one who was wronged."Id. at 424 U. S. 786-787 (POWELL, J.). A general bar to the award of retroactive seniority"reduces the restitution required of an employer at such time as he is called upon to account for his discriminatory actions perpetrated in violation of the law."Id. at 424 U. S. 767, n. 27 (opinion of the Court). Since constructive benefit-type seniority in this case is obviously restitutionary and remedial in nature, it is "a form of compensation" to those whose rights were violated at a time when the respondents were "under no court-imposed obligation to conform to a different standard." Edelman v. Jordan, 415 U.S. at 415 U. S. 668. It is therefore not an appropriate remedy for the Title VI violations alleged here.An award of "competitive status" seniority, although prospective in form, nevertheless constitutes a form of compensation or relief based on past conduct now deemed violative of the Act. In no respect can such an award be said to be "a necessary consequence," ibid., of future Title VI compliance by the employer. It therefore must also be considered an inappropriate Title VI remedy. I also note that competitive-type seniority"determines an employee's preferential rights to various economic advantages at the expense of other employees. These normally include the order of layoff and recall of employees, job and trip assignments, and consideration for promotion."Franks, supra, at 424 U. S. 787 (POWELL, J.). Although an award of constructive seniority of this nature does not result in any increased costs to the wrongdoing employer, it "directly implicate[s] the rights and expectations of perfectly innocent employees," 424 U.S. at 424 U. S. 788, and it can only be viewed as compensation for a past wrong. Accordingly, I conclude that neither "benefit" nor "competitive status" constructive seniority may be obtained as a private remedy for Title VI violations, at least in the absence of proof of intentional discrimination.In view of the foregoing, it is apparent to me that the only proper Title VI relief granted by the District Court is the order directing the respondents to take actions and make disclosures intended to insure that future hiring practices will Page 463 U. S. 607 be nondiscriminatory and valid. However, this relief is wholly sustainable under the District Court's findings and conclusions with respect to petitioners' Title VII claim, and all members of the class will fully benefit from it. [Footnote 26] There is thus no need to disturb the judgment of the Court of Appeals.VIIn conclusion, for the reasons expressed above, I am convinced that discriminatory intent is not an essential element of a Title VI violation, but that a private plaintiff should recover only injunctive, noncompensatory relief for a defendant's unintentional violations of Title VI. Such relief should not include an award of constructive seniority. Albeit on different grounds, the judgment below isAffirmed

U.S. Supreme CourtGuardians Assn. v. Civil Svc. Comm'n, 463 U.S. 582 (1983)Guardians Association v. Civil ServiceCommission of the City of New YorkNo. 81-431Argued November 1, 1982Decided July 1, 1983463 U.S. 582SyllabusPetitioner black and Hispanic police officers were appointed to the New York City Police Department upon achieving passing scores on the examinations administered to make entry-level appointments. Since appointments were made in order of test scores, however, the examinations caused blacks and Hispanics to be hired later than similarly situated whites, which lessened petitioner officers' seniority and related benefits. Accordingly, when the Department subsequently laid off police officers on a "last-hired, first-fired" basis, those officers who had achieved the lowest scores were laid off first, and petitioner officers were disproportionately affected by the layoffs. Petitioner officers and petitioner organizations then brought a class action in Federal District Court against respondents (the Department and other New York City officials and entities), alleging that the layoffs violated their rights under, inter alia, Titles VI and VII of the Civil Rights Act of 1964. Citing administrative regulations promulgated under Title VI, the District Court ultimately held that an implied private right of action existed under Title VI, and that proof of discriminatory effect was enough to establish a violation of Title VI, thereby rejecting respondents' contention that only proof of discriminatory intent could suffice. The District Court granted certain relief under Title VII, and also granted the following relief under Title VI: (1) Each class member was awarded constructive seniority, including the right to backpay and back medical and insurance benefits which he would have received had he been appointed on his constructive seniority date; (2) respondents were directed to give a sergeant's examination to those class members whose constructive seniority would have entitled them to take the last such examination; and (3) respondents were ordered to consult with petitioners on the preparation and use of future examinations to insure that future hiring practices would be nondiscriminatory. The Court of Appeals affirmed the relief under Title VII, but reversed as to Title VI, holding that the awards of Title VI relief could not be sustained because proof of discriminatory intent was required.Held: The judgment is affirmed. 633 F.2d 232, affirmed. Page 463 U. S. 583JUSTICE WHITE concluded that discriminatory intent is not an essential element of a Title VI violation. JUSTICE WHITE, joined by JUSTICE REHNQUIST, also concluded that a private plaintiff should recover only injunctive, noncompensatory relief for a defendant's unintentional violation of Title VI, that such relief should not include an award of constructive seniority, and that the Court of Appeals' judgment should be affirmed on this basis, since the relief denied petitioners under that judgment is unavailable to them under Title VI. Pp. 463 U. S. 593-607.JUSTICE POWELL, joined by THE CHIEF JUSTICE, would affirm the Court of Appeals' judgment on the ground that private suits to enforce Title VI are not authorized or, joined by THE CHIEF JUSTICE and JUSTICE REHNQUIST, would affirm the judgment on the alternative ground that the Court of Appeals correctly held that a showing of intentional discrimination is a prerequisite to a successful Title VI claim. Pp. 463 U. S. 608-611.JUSTICE O'CONNOR would affirm the Court of Appeals' judgment on the ground that proof of purposeful discrimination is a necessary element of a valid Title VI claim, and that hence implementing regulations incorporating an impact standard are not valid. Pp. 463 U. S. 612-615.WHITE, J., announced the judgment of the Court and delivered an opinion, in Parts I, III, IV, and V of which REHNQUIST, J., joined. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C.J., joined, and in Part II of which REHNQUIST, J., joined, post, p. 463 U. S. 607. REHNQUIST, J., post, p. 463 U. S. 612, and O'CONNOR, J., post, p. 463 U. S. 612, filed opinions concurring in the judgment. MARSHALL, J., filed a dissenting opinion, post, p. 463 U. S. 615. STEVENS, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 463 U. S. 635. Page 463 U. S. 584

1963_74

MR. JUSTICE STEWART delivered the opinion of the Court.In 1959, the appellant Southern Railway Company filed a petition with the North Carolina Utilities Commission for an order permitting it to discontinue operation of two intrastate passenger trains between Greensboro and Goldsboro, North Carolina, a distance of about 130 miles. The trains in question are No. 16, which operates eastbound in the morning from Greensboro to Goldsboro, and No. 13, consisting of the same equipment, which operates westbound in the late afternoon. Since 1958, these two trains have provided the last remaining railway passenger service between the two communities. The State Commission denied the petition, and its decision was upheld by the North Carolina Supreme Court. State of North Carolina ex rel. Utilities Commission v. Southern Railway Co., 254 N.C. 73, 118 S.E.2d 21 (1961).Thereafter, the railway company filed a petition with the Interstate Commerce Commission pursuant to § 13a(2) Page 376 U. S. 95 of the Interstate Commerce Act, [Footnote 1] seeking authority to discontinue operation of the trains. After a hearing at which several protestants, including the State of North Carolina, appeared, the examiner recommended that the petition be granted. Division 3 of the Commission agreed with the examiner, and ordered discontinuance of the trains. The Division issued a report in which it found, inter alia, that the trains, which in 1948 had carried 56,739 passengers, carried only 14,776 passengers in Page 376 U. S. 96 1960, the last full year for which figures were available; that the direct expenses of operating the trains during the latter year were over three times their total revenue; that discontinuance of the trains would result in savings of at least $90,589 per year; that the need shown for these trains was relatively insubstantial when viewed in light of the density of the population of the area served; that existing alternate transportation service by rail, bus, airline, and other means was reasonably adequate; and that the discontinuance of the passenger train service would not seriously affect the industrial growth of the area. Against the background of these findings, the examiner and Commission considered, but gave "little or no weight" to the overall prosperity of the carrier. The Commission's basic conclusions were summed up as follows:"that the public will not be materially inconvenienced by the discontinuance of the service here involved; that the savings to be realized by the carrier outweigh the inconvenience to which the public may be subjected by such discontinuance; that such savings will enable the carrier more efficiently to provide transportation service to the public which remains in substantial demand; and that the continued operation of trains Nos. 13 and 16 would constitute a wasteful service, and would impose an undue burden on interstate commerce."317 I.C.C. 255, 260.After a petition for reconsideration by the entire Commission had been denied, the protestants instituted an action in a three-judge District Court seeking to set aside the order of the Commission. The court held, first, that it was erroneous as a matter of law for the Commission to order discontinuance of passenger trains under the provisions of § 13a(2) without first determining whether, once the profits from freight operations on Page 376 U. S. 97 the same line were taken into account, "the particular segment of the railway involved is contributing its fair share to the overall company operations. . . ." 210 F. Supp. 675, 688. The court also proceeded to find, inter alia, that, "[t]aking into account total operation of this line, there is a profit not a loss, a benefit, not a burden," 210 F. Supp. at 688; that passenger traffic had slightly increased during the first five months of 1961; that the carrier had done little to promote the use of the passenger trains; that continued existence of the alternative of railway passenger service might be considered a necessity under such circumstances as airline strikes or bad weather; and that, in light of the overall prosperity of the Southern Railway Company, "[t]he effect of the losses of the Greensboro-Goldsboro passenger service on the financial structure of the railroad is inconsequential." [Footnote 2] 210 F. Supp. at 688. On this basis, although it explicitly refused to set aside any of the subsidiary findings of fact on which the Commission's order was based, 210 F. Supp. at 689, 690, the court held that"the ultimate conclusions of the Interstate Commerce Commission that the service in question constitutes an undue burden on interstate commerce and that the present or future public convenience and necessity permits such discontinuance . . . are arbitrary and capricious because . . . not supported by Page 376 U. S. 98 substantial evidence,"210 F. Supp. at 689. The court itself then concluded that discontinuance was not warranted. It therefore set aside the Commission's order and perpetually enjoined the carrier from discontinuing the Greensboro-Goldsboro passenger trains. The United States, the Interstate Commerce Commission, and the carrier all appealed. We noted probable jurisdiction and consolidated the cases for argument. 373 U.S. 907.The District Court's action in setting aside the Commission's conclusions as to public convenience and necessity and undue burden on interstate commerce was explicitly based upon the court's view that the Commission had applied erroneous legal standards in reaching those conclusions. The court did not question that the Commission's subsidiary findings of fact were supported by a substantial evidentiary foundation. It simply disagreed with the Commission as to the kind of evidence required to support an order permitting discontinuance of an intrastate passenger train under § 13a(2).The court reached its conclusion that the Commission had erred in not taking into account profits from freight operations along the Greensboro-Goldsboro line primarily in reliance upon this Court's decisions in Public Service Comm. of Utah v. United States, 356 U. S. 421, and Chicago, Milwaukee, St. P. & P.R. Co. v. Illinois, 355 U. S. 300. Both those cases dealt with § 13(4), which requires the Commission to change intrastate rates wherever such rates are found to discriminate against interstate commerce. This Court held in those cases that the Commission could not authorize higher intrastate rates either for passenger or freight operations without first taking into account the revenues derived by the carrier from the totality of intrastate operations. In 1958, the year in which § 13a(2) was enacted, § 13(4) was amended to Page 376 U. S. 99 permit the Commission to act"without a separation of interstate and intrastate property, revenues, and expenses, and without considering in totality the operations or results thereof of any carrier . . . wholly within any State. [Footnote 3]"The District Court's holding that the same kind of data should be considered in § 13a(2) proceedings was premised upon the fact that no language similar to that of the 13(4) amendment was included in § 13a(2), and that proceedings under the latter provision, which permits discontinuance of given operations, have a far more serious impact upon intrastate passengers than proceedings under the former, which provides only for an increase in the rates to be charged.But when § 13(4) was amended in 1958 as a result of the two decisions relied on by the District Court, Congress was simply reaffirming what it conceived as the original intent of the section. [Footnote 4] There is therefore no reason to Page 376 U. S. 100 assume that Congress regarded the new language as embodying a standard which had to be specifically incorporated into every statutory provision to which it was intended to apply.The legislative history clearly indicates that Congress, in enacting § 13a(2), was addressing itself to a problem quite distinct from that reflected by overall unprofitable operation of an entire segment of railroad line. The Commission already had authority prior to 1958, under §§ 1(18)-(20), [Footnote 5] to authorize discontinuance of all services on any given intrastate line where continuance of Page 376 U. S. 101 such services would impose an undue burden on interstate commerce. Colorado v. United States, 271 U. S. 153. However, the Commission totally lacked power to discontinue particular trains or services while leaving the remaining services in operation. It was precisely this gap which § 13a(2) was intended to fill. New Jersey v. New York, S. & W. R. Co., 372 U. S. 1, 372 U. S. 5-6. As both the House and Senate Committee Reports on the legislation which became § 13a(2) make clear, Congress was primarily concerned with the problems posed by passenger services for which significant public demand no longer existed and which were consistently deficit-producing, thus forcing the carriers to subsidize their operation out of freight profits. [Footnote 6] Far from permitting the carrier's need for discontinuance of passenger services to be balanced against profits from other operations conducted Page 376 U. S. 102 along the same line, the bill, as originally reported by the Senate Committee, would have required the Commission to permit discontinuance, even if there was great public need for the service, so long as the continued operation of a particular service would result in a net loss to the carrier. [Footnote 7] Senator Javits unsuccessfully attempted to amend the bill on the floor of the Senate to delete the net loss standard and to substitute a requirement that the Commission balance the public need for the service against the deficit resulting from it. [Footnote 8] Such an amendment, proposed by Chairman Harris of the House Interstate and Foreign Commerce Committee, was adopted by the House, [Footnote 9] and accepted by the Senate in conference. The deletion of the net loss standard, however, by no means implied that freight profits along a given line could be offset against deficits incurred by passenger services for purposes of determining whether the latter constituted an undue burden on interstate operations or commerce. As Congressman Harris made clear after his amendment had been accepted, the situation "we are trying to get at" is that in which "the [freight] shippers of this country are making up a deficit every year . . . in losses in passenger service." [Footnote 10]The bill as originally reported by the Senate Committee would have applied the net loss standard to both interstate and intrastate operations, the Committee Report having concluded that state regulatory bodies required Page 376 U. S. 103 "the maintenance of uneconomic and unnecessary services and facilities." [Footnote 11] The bill was amended on the Senate floor to limit the Commission's discontinuance authority to interstate trains, [Footnote 12] and the House version of the bill was similarly limited. [Footnote 13] In conference, however, the Commission's authority over intrastate trains was restored and, except for differences in the procedures prerequisite to a hearing in the case of a wholly intrastate train, [Footnote 14] the Commission was required to apply the same standard to interstate and intrastate operations in determining whether discontinuance of a train or service is justified. [Footnote 15] Contrary to the suggestion of the District Court that its interpretation of § 13a(2) must be accepted to avoid "requir[ing] the intrastate operations to bear more than their share," 210 F. Supp. at 680, the statutory scheme which Congress has embodied in § 13a thus prescribes precisely the same substantive standard to govern discontinuance of either interstate or intrastate operations. [Footnote 16] Page 376 U. S. 104All that need properly be considered under this standard, as both the language and history of § 13a(2) thus make abundantly clear, is what effect the discontinuance of the specific train or service in question will have upon the public convenience and necessity and upon interstate operations or commerce. As the Commission has correctly summed up the matter in another case:"The burden [upon the carrier's interstate operations or upon interstate commerce, as expressed in section 13a(2)] . . . is to be measured by the injurious effect that the continued operation of the train proposed for discontinuance would have upon interstate commerce. As is indicated by its legislative history, the purpose of section 13a(2) is to permit the discontinuance of the operation of services that 'no longer pay their way and for which there is no longer sufficient public need to justify the heavy financial losses involved.' (S.Rep. 1647, 85th Cong.). Nowhere in section 13a(2) or elsewhere in the law is there any requirement that the prosperity of the intrastate operations of the carrier as a whole, or any particular segment thereof, must be given effect in determining whether the operation of an individual intrastate train imposes an unjust and undue burden on interstate commerce. To hold otherwise would be contrary to the apparent intent of the Congress."Southern Pac. Co., Partial Discontinuance, 312 I.C.C. 631, 633-634 (1961).This Court has long recognized that the Commission may properly give varying weights to the overall prosperity Page 376 U. S. 105 of the carrier in differing situations. Thus, in Colorado v. United States, 271 U. S. 153, which also involved a situation in which the Commission was required to balance public convenience and necessity against undue burdens on interstate commerce, it was specifically noted that,"In many cases, it is clear that the extent of the whole traffic, the degree of dependence of the communities directly affected upon the particular means of transportation, and other attendant conditions are such that the carrier may not justly be required to continue to bear the financial loss necessarily entailed by operation. In some cases . . . the question is whether abandonment may justly be permitted in view of the fact that it would subject the communities directly affected to serious injury, while continued operation would impose a relatively light burden upon a prosperous carrier."271 U.S. at 271 U. S. 168-169. In cases falling within the latter category, such as those involving vital commuter services in large metropolitan areas where the demands of public convenience and necessity are large, it is, of course, obvious that the Commission would err if it did not give great weight to the ability of the carrier to absorb even large deficits resulting from such services. But where, as here, the Commission's findings make clear that the demands of public convenience and necessity are slight, and that the situation is, therefore, one falling within the first category delineated in Colorado, it is equally proper for the Commission, in determining the existence of the burden on interstate commerce, to give little weight to the factor of the carrier's overall prosperity.Whatever room there may be for differing views as to the wisdom of the policy reflected in § 13a(2), it is the duty of the Commission to effectuate the statutory scheme. We cannot agree with the District Court that the Commission departed in any respect from that duty Page 376 U. S. 106 here. We therefore reverse the judgment of the District Court, and remand with instructions to reinstate the report and order of the Commission.Reversed

U.S. Supreme CourtSouthern Railway Co. v. North Carolina, 376 U.S. 93 (1964)Southern Railway Co. v. North CarolinaNo. 74Argued January 14-15, 1964Decided February 17, 1964*376 U.S. 93SyllabusThe Interstate Commerce Commission, under §§ 13a(2) of the Interstate Commerce Act, authorized appellant railway company to discontinue two intrastate passenger trains, which provided the last remaining railway passenger service between two cities, having found that the service constituted an undue burden on interstate commerce and that the present or future public convenience and necessity permitted discontinuance of the service. A three-judge District Court set aside the Commission's order on the ground that the Commission had applied erroneous legal standards by not taking proper account of the freight profits on the line and the overall prosperity of the carrier.Held:1. Under § 13a(2), the Commission need not give effect to the prosperity of the intrastate operations of the carrier as a whole or any particular segment thereof in determining whether the operation of a specific intrastate train or service imposes an unjust or undue burden on interstate commerce. P. 376 U. S. 104.2. The Commission may properly give varying weights to the overall prosperity of the carrier in different situations, balancing public convenience and necessity against undue burdens on interstate commerce. Colorado v. United States, 271 U. S. 153. Where the demands of public convenience and necessity are slight, as in this case, it is proper under § 13a(2) for the Commission, in determining the existence of a burden on interstate commerce, to give little weight to the carrier's overall prosperity. Pp. 376 U. S. 104-105.210 F. Supp. 675, reversed. Page 376 U. S. 94

1996_95-1764

S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858 (1986), the Court held that an admiralty tort plaintiff cannot recover for the physical damage the defective product causes to the "product itself"; but the plaintiff can recover for physical damage the product causes to "other property." In this case all agree that the "product itself" consists at least of a ship as built and outfitted by its original manufacturer and sold to an initial user. This case asks how this corner of tort law treats the physical destruction of extra equipment (a skiff, a fishing net, spare parts) added by the initial user after the first sale and then resold as part of the ship when the ship itself is later resold to a subsequent user. Is that added equipment part of the "product itself," in which case the plaintiff cannot recover in tort for its physical loss? Or is it "other property," in which case the plaintiff can recover? We conclude that it is "other property." Hence (assuming other tort law requirements are satisfied) admiralty's tort rules permit recovery.IThis case arises out of an engine room fire and flood that led to the sinking of the fishing vessel M/V Saratoga in J anuary 1986. We must assume that a hydraulic system defectively designed by respondent Marco Seattle Inc. was one significant cause of the accident. About 15 years before the accident, respondent J. M. Martinac & Co. had built the ship, installed the hydraulic system, and sold the ship new to Joseph Madruga. Madruga then added extra equipment-a skiff, a seine net, and various spare parts-and used the ship for tuna fishing. In 1974, Madruga resold the ship to petitioner, Saratoga Fishing Co., which continued to use the ship for fishing. In 1987, after the ship caught fire and sank, Saratoga Fishing brought this tort suit in admiralty against Marco Seattle and J. M. Martinac.The District Court found that the hydraulic system had been defectively designed, and it awarded Saratoga Fishing damages (adjusted to reflect Saratoga Fishing's own partial878fault). Those damages included damages for the loss of the equipment that Madruga had added after the initial purchase of the ship.The Ninth Circuit held that the District Court should not have awarded damages for the added equipment. Saratoga Fishing Co. v. Marco Seattle Inc., 69 F.3d 1432, 1445 (1995). A majority noted that the equipment, though added by Madruga, was part of the ship when Madruga resold the ship to Saratoga Fishing, and, for that reason, the majority held, the added equipment was part of the defective product that itself caused the harm. Applying East River's distinction between the product that itself caused the harm and "other property," the majority concluded that Saratoga Fishing could not recover in tort for the loss. A dissenting judge believed that the "product itself" was the ship when launched into the stream of commerce by Martinac, its original builder. Consequently, the added equipment was "other property." We granted certiorari to resolve this uncertainty about the proper application of East River. We now agree with the dissenting judge.IIThe facts before us show: (1) a Component Supplier who (2) provided a defective component (the hydraulic system) to a Manufacturer, who incorporated it into a manufactured product (the ship), which (3) the Manufacturer sold to an Initial User, who (4) after adding equipment and using the ship, resold it to a Subsequent User (Saratoga Fishing). The applicable law is general maritime law, "an amalgam of traditional common-law rules, modifications of those rules, and newly created rules," drawn from both state and federal sources. East River, supra, at 865; see also Fitzgerald v. United States Lines Co., 374 U. S. 16, 20 (1963); Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 630 (1959). The context is purely commercial. The particular question before us requires us to interpret the Court's deci-879sion in East River: Does the term "other property," as used in that case, include the equipment added by the Initial User before he sold the ship to the Subsequent User? We conclude that it does: When a manufacturer places an item in the stream of commerce by selling it to an Initial User, that item is the "product itself" under East River. Items added to the product by the Initial User are therefore "other property," and the Initial User's sale of the product to a Subsequent User does not change these characterizations.East River arose at the intersection of two principles that govern recovery in many commercial cases involving defective products. The first principle is that tort law in this area ordinarily (but with exceptions) permits recovery from a manufacturer and others in the initial chain of distribution for foreseeable physical harm to property caused by product defects. See Restatement (Second) of Torts § 402A (1965); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 101 (5th ed. 1984); East River, 476 U. S., at 867. The second principle is that tort law in this area ordinarily (but with exceptions) does not permit recovery for purely economic losses, say, lost profits. See Restatement (Third) of Torts: Products Liability § 6, Comment d (Proposed Final Draft, Preliminary Version, Oct. 18, 1996); e. g., Rardin v. T & D Machine Handling, Inc., 890 F.2d 24,27-30 (CA7 1989). The Court in East River favored the second principle, for it held that an injury to the defective product itself, even though physical, was a kind of "economic loss," for which tort law did not provide compensation. 476 U. S., at 871.The Court reasoned that the loss of the value of a product that suffers physical harm-say, a product that destroys itself by exploding-is very much like the loss of the value of a product that does not work properly or does not work at all. See id., at 870. In all such cases, the Court held, "[c]ontract law, and the law of warranty in particular, is well suited" to setting the responsibilities of a seller of a product880that fails to perform the function for which it was intended. Id., at 872-873. The commercial buyer and commercial seller can negotiate a contract-a warranty-that will set the terms of compensation for product failure. If the buyer obtains a warranty, he will receive compensation for the product's loss, whether the product explodes or just refuses to start. If the buyer does not obtain a warranty, he will likely receive a lower price in return. Given the availability of warranties, the courts should not ask tort law to perform a job that contract law might perform better. Ibid.; Seely v. White Motor Co., 63 Cal. 2d 9, 18-19, 403 P. 2d 145, 151 (1965) (en banc).The Ninth Circuit reasoned that East River required it to define the defective "product itself" by looking to that which the plaintiff had purchased, for that is the product that, in principle, the plaintiff could have asked the seller to warrant. Since Saratoga Fishing, the Subsequent User, might have asked Madruga, the Initial User, to warrant the M/V Saratoga, skiff, nets, and all, that product, skiff, nets, and all, is the "product itself" that stands outside the reach of tort recovery. In our view, however, this holding pushes East River's principle beyond the boundary set by the principle's rationale.For one thing, the Ninth Circuit's holding creates a tort damage immunity beyond that set by any relevant tort precedent that we have found. State law often distinguishes between items added to or used in conjunction with a defective item purchased from a Manufacturer (or its distributors) and (following East River) permits recovery for the former when physically harmed by a dangerously defective product. Thus the owner of a chicken farm, for example, recovered for chickens killed when the chicken house ventilation system failed, suffocating the 140,000 chickens inside. A. J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 245, 634 A. 2d 1330 (1994). A warehouse owner recovered for damage to a building caused by a defective roof. United Air Lines,881Inc. v. CEI Industries of Ill., Inc., 148 Ill. App. 3d 332, 499 N. E. 2d 558 (1986). And a prior case in admiralty (not unlike the one before us) held that a ship charterer, who adds expensive seismic equipment to the ship, may recover for its loss in a fire caused by a defective engine. Nicor Supply Ships Assocs. v. General Motors Corp., 876 F.2d 501 (CA5 1989). Indeed, respondents here conceded that, had the ship remained in the hands of the Initial User, the loss of the added equipment could have been recovered in tort. See Tr. of Oral Arg. 29-30. We have found no suggestion in state (or in federal) law that these results would change with a subsequent sale-that is, we have found no case, other than the Ninth Circuit case before us, that suggests that the courts would deny recovery to a subsequent chicken farmer, who had later purchased the farm, chickens, coop, ventilation system, and all.Indeed, the denial of recovery for added equipment simply because of a subsequent sale makes the scope of a manufacturer's liability turn on what seems, in one important respect, a fortuity, namely, whether a defective product causes foreseeable physical harm to the added equipment before or after an Initial User (who added the equipment) resells the product to a Subsequent User. One important purpose of defective-product tort law is to encourage the manufacture of safer products. The various tort rules that determine which foreseeable losses are recoverable aim, in part, to provide appropriate safe-product incentives. And a liability rule that diminishes liability simply because of some such resale is a rule that, other things being equal, diminishes that basic incentive. That circumstance requires a justification. That is to say, why should a series of resales, after replacement and additions of ever more physical items, progressively immunize a manufacturer to an ever greater extent from the liability for foreseeable physical damage that would otherwise fall upon it?882The East River answer to this question-because the parties can contract for appropriate sharing of the risks of harm-is not as satisfactory in the context of resale after an initial use. That is because, as other courts have suggested, the Subsequent User does not contract directly with the manufacturer (or distributor). Cf. Peterson v. Idaho First Nat. Bank, 117 Idaho 724, 727, 791 P. 2d 1303, 1306 (1990); Tillman v. Vance Equipment Co., 286 Ore. 747, 755-756, 596 P. 2d 1299, 1304 (1979). Moreover, it is likely more difficult for a consumer-a commercial user and reseller-to offer an appropriate warranty on the used product he sells akin to a manufacturer's (or distributor's) warranty of the initial product. The user/reseller did not make (or initially distribute) the product and, to that extent, he normally would know less about the risks that such a warranty would involve. Cf. Tillman, supra, at 755, 596 P. 2d, at 1303-1304; Peterson, supra, at 726-727, 791 P. 2d, at 1305-1306. That is to say, it would seem more difficult for a reseller to warrant, say, a ship's engine; as time passes, the ship ages, the ship undergoes modification, and it passes through the hands of users and resellers.Of course, nothing prevents a user/reseller from offering a warranty. But neither does anything prevent a Manufacturer and an Initial User from apportioning through their contract potential loss of any other items-say, added equipment or totally separate physical property-that a defective manufactured product, say, an exploding engine, might cause. No court has thought that the mere possibility of such a contract term precluded tort recovery for damage to an Initial User's other property. Similarly, in the absence of a showing that it is ordinary business practice for user/resellers to offer a warranty comparable to those typically provided by sellers of new products, the argument for extending East River, replacing tort law with contract law, is correspondingly weak. That is to say, respondents have not explained why the ordinary rules governing the manufacturer's tort883liability should be supplanted merely because the user/ reseller may in theory incur an overlapping liability in contract.Respondents make two other important arguments.First, they say that our reasoning proves too much. They argue that, if a Subsequent User can recover for damage a defective manufactured product causes to property added by the Initial User, then a user might recover for damage a defective component causes the manufactured product, other than the component itself. Saratoga Fishing, for example, could recover the damage the defective hydraulic system caused to any other part of the ship. But the lower courts, following East River, have held that it is not a component part, but the vessel-as placed in the stream of commerce by the manufacturer and its distributors-that is the "product" that itself caused the harm. See Shipco 2295, Inc. v. Avondale Shipyards, Inc., 825 F.2d 925, 928 (CA5 1987); see also, e. g., National Union Fire Ins. Co. of Pittsburgh v. Pratt & Whitney Canada, Inc., 107 Nev. 535, 539-542, 815 P. 2d 601, 604-605 (1991). As the Court said in East River:"'Since all but the very simplest of machines have component parts, [a contrary] holding would require a finding of "property damage" in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability.'" 476 U. S., at 867 (quoting Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P. 2d 324, 330 (Alaska 1981)).Our holding here, however, does not affect this rule, for the relevant relations among initial users, manufacturers, and component suppliers are typically different from those at issue here. Initial users, when they buy, typically depend upon, and likely seek warranties that depend upon, a manufacturer's primary business skill, namely, the assembly of workable product components into a marketable whole.884King v. Hilton-Davis, 855 F.2d 1047, 1052 (CA3 1988); Shipco 2295, supra, at 929; National Union Fire Ins., supra, at 541, 815 P. 2d, at 605. Moreover, manufacturers and component suppliers can allocate through contract potential liability for a manufactured product that does not work, thereby ensuring that component suppliers have appropriate incentives to prevent component defects that might destroy the product. King, supra, at 1054; cf. Shipco 2295, supra, at 930. There is no reason to think that initial users systematically control the manufactured product's quality or, as we have said, systematically allocate responsibility for useradded equipment, in similar ways. Regardless, the case law does suggest a distinction between the components added to a product by a manufacturer before the product's sale to a user, e. g., Airlift Int'l, Inc. v. McDonnell Douglas Corp., 685 F. 2d 267 (CA9 1982); King, supra; Shipco 2295, supra; and those items added by a user to the manufactured product, e. g., Nicor Supply Ships Assocs. v. General Motors Corp., 876 F.2d 501 (CA5 1989); and we would maintain that distinction.Second, respondents argue that our holding would impose too great a potential tort liability upon a manufacturer or a distributor. But we do not see how that is so. For one thing, a host of other tort principles, such as foreseeability, proximate cause, and the "economic loss" doctrine, already do, and would continue to, limit liability in important ways. For another thing, where such principles are satisfied, liability would exist anyway had the manufactured product simply remained in the hands of the Initial User. Our holding merely maintains liability, for equipment added after the initial sale, despite the presence of a resale by the Initial User.We conclude that equipment added to a product after the Manufacturer (or distributor selling in the initial distribution chain) has sold the product to an Initial User is not part of the product that itself caused physical harm. Rather, in East River's language, it is "other property." (We are885speaking, of course, of added equipment that itself played no causal role in the accident that caused the physical harm.) Thus the extra skiff, nets, spare parts, and miscellaneous equipment at issue here, added to the ship by a user after an initial sale to that Initial User, are not part of the product (the original ship with the defective hydraulic system) that itself caused the harm.The decision of the Ninth Circuit isReversed

OCTOBER TERM, 1996SyllabusSARATOGA FISHING CO. v. J. M. MARTINAC & CO.ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 95-1764. Argued February 18, 1997-Decided June 2,1997In East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, this Court held that an admiralty tort plaintiff cannot recover for the physical damage a defective product causes to the "product itself," but can recover for physical damage the product causes to "other property." The parties here agree that the "product itself" consists at least of a ship as built and outfitted by its original manufacturer and sold to an initial user. Respondent J. M. Martinac & Co. built the fishing vessel M/V Saratoga, installing a hydraulic system designed by respondent Marco Seattle Inc. Joseph Madruga, the Initial User, bought the ship new, added extra equipment, used the ship, and resold it to petitioner Saratoga Fishing Co., the Subsequent User, who used it until it caught fire and sank. In this admiralty tort suit against respondents, the District Court found that the hydraulic system had been defectively designed and awarded Saratoga Fishing damages, including damages for the loss of the equipment added by Madruga. The Ninth Circuit reversed, holding that the added equipment was part of the ship when it was resold to Saratoga Fishing, and, for that reason, the equipment was part of the defective product that itself caused the harm.Held: Equipment added by the Initial User before he sold the ship to the Subsequent User is "other property," not part of the product that itself caused physical harm. This Court held in East River that an injury to the defective product itself, even though physical, was a kind of "economic loss," for which tort law did not provide compensation. 476 U. S., at 871. Reasoning that "[cJontract law, and the law of warranty in particular, is well suited" to setting the responsibilities of a seller of a product that fails to perform its intended function, id., at 872-873, the Court found that, given the availability of warranties, the courts should not ask tort law to perform a job that contract law might perform better, ibid. The Ninth Circuit's holding that recovery should be denied for added equipment because the Subsequent User could have asked the Initial User for a warranty creates a tort damage immunity beyond that set by any relevant tort precedent. Had the ship remained in the Initial User's hands, the added equipment's loss could have been recovered in tort, and there is no suggestion in state or federal law that these876results would change with a subsequent sale. Indeed, other things being equal, a rule that diminishes liability because of resale would diminish a basic incentive of defective-product tort law: to encourage the manufacture of safer products. East River provides an unsatisfactory answer to the question why a series of resales should progressively immunize a manufacturer from liability for foreseeable physical damage that would otherwise fall upon it, since the Subsequent User does not contract directly with the manufacturer, and it is likely more difficult for a consumer to offer the appropriate warranty on used products. While nothing prevents a user/reseller from offering a warranty, respondents have not explained why the ordinary rules of a manufacturer's tort liability should be supplanted merely because the user/reseller may in theory incur an overlapping contract liability. The holding here does not affect East River's rule that it is not a component part, but the vesselas placed in the stream of commerce by the manufacturer and its distributors-that is the "product" that itself causes the harm. Nor does the holding impose too great a potential tort liability upon a manufacturer or a distributor. It merely maintains liability, for equipment added after the initial sale, despite the presence of a resale by the Initial User. Pp. 878-885.69 F.3d 1432, reversed.BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. O'CONNOR, J., filed a dissenting opinion, post, p. 885. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 885.Keith Zakarin argued the cause for petitioner. With him on the briefs was Forrest Booth.Daniel B. MacLeod argued the cause for respondents.With him on the brief was Duncan Koler.*JUSTICE BREYER delivered the opinion of the Court.The issue before us concerns limits upon the damages that a tort plaintiff in admiralty can recover for physical damage to property caused by a defective product. In East River*Steven B. Fisher and Michael H. Williamson filed a brief for All Alaskan Seafoods, Inc., as amicus curiae urging reversal.Jan S. Amundson, Quentin Riegel, and Gregory S. Gilchrist filed a brief for the National Association of Manufacturers et al. as amici curiae urging affirmance.877Full Text of Opinion

1959_503

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE HARLAN.Grand River is a nonnavigable tributary of the navigable Arkansas River, and flows through Oklahoma. Respondent was created by the Oklahoma Legislature to develop hydroelectric power on the Grand River. It is, to use the statutory language of the law creating it, "a governmental agency and body politic and corporate." Session Laws of Oklahoma, 1935, c. 70, Art. 4, § 1, 82 O.S.1951 § 861. A report of the Army Corps of Engineers, made in 1930, indicated that federal development at Pensacola, Markham Ferry, and Ft. Gibson -- all sites on the Grand River -- was not then economically justified. [Footnote 1] Respondent, following its creation in 1935, proposed a river development plan at these three sites. In 1939, the Army Engineers recommended a three-dam coordinated project as a federal undertaking. [Footnote 2] Congress, by the Flood Control Act of August 18, 1941, [Footnote 3] incorporated that Grand River plan into a comprehensive plan for the Arkansas River basin.Meanwhile respondent obtained a license under § 23(b) of the Federal Power Act [Footnote 4] to build and operate a project at Pensacola, and completed it in 1940. The United States took over the operation of this project during World War II, after which it was returned to respondent. In 1946, the United States started the construction of a project at Ft. Gibson. It has been completed as an integral part of a comprehensive plan for the regulation of navigation, the control of floods, and the production of power on the Arkansas River and its tributaries. Congress, by modifying its plan for the Arkansas River basin, [Footnote 5] cleared Page 363 U. S. 231 the way for respondent to obtain from the Federal Power Commission a license for a project at Markham Ferry. Thus, the United States operates the Ft. Gibson project, which is the farthest downstream, while the respondent has the two upstream projects. A 70-acre tract owned by the respondent was condemned when the Ft. Gibson project was built; flowage rights over its lands were acquired; and payment was made for relocation of its transmission lines. Respondent claimed more. It demanded of the United States $10,000,000 for the "taking" of its water power rights at Ft. Gibson and its franchise to develop electric power and energy at that site. [Footnote 6] The Court of Claims, while reserving the question as to the amount of compensation due, held by a divided vote that the United States was liable. Ct.Cl., 175 F. Supp. 153. The case is here on a writ of certiorari. 361 U.S. 922.The Court of Claims recognized that, if the Grand River were a navigable stream, the United States would not be liable for depriving another entrepreneur of the opportunity to utilize the flow of the water to produce power. Our cases hold that such an interest is not compensable, because, when the United States asserts its superior authority under the Commerce Clause, Const. art. 1, § 8, cl. 3, to utilize or regulate the flow of the water of a navigable stream, there is no "taking" of "property" in the sense of the Fifth Amendment because the United States has a superior navigation easement which precludes private ownership of the water Page 363 U. S. 232 or its flow. See United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 229 U. S. 69; United States v. Twin City Power Co., 350 U. S. 222, 350 U. S. 224-225. The Government contends that the navigational servitude of the United States extends also to nonnavigable waters, preempting state-created property rights in such waters, at least when asserted against the Government. In the view we take in this case, however, it is not necessary that we reach that contention. Congress, by the 1941 Act already mentioned, [Footnote 7] adopted as one work of improvement "for the benefit of navigation and the control of destructive floodwaters" the reservoirs in the Grand River. That action to protect the "navigable capacity" of the Arkansas River (United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 174 U. S. 708) was within the constitutional power of Congress. We held in Oklahoma v. Atkinson Co., 313 U. S. 508, that the United States, over the objection of Oklahoma, could build the Denison Dam on the Red River, also nonnavigable, but a tributary of the Mississippi. We there stated,"There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries."Id. at 313 U. S. 525. And see United States v. Appalachian Electric Power Co., 311 U. S. 377, 311 U. S. 426; Grand River Dam Authority v. Grand-Hydro, 335 U. S. 359, 335 U. S. 373. We also said in Oklahoma v. Atkinson Co., supra, that ". . . the power of flood control extends to the tributaries of navigable streams." Id. at 313 U. S. 525. We added,"It is for Congress alone to decide whether a particular project, by itself or as part of a more comprehensive scheme, will have such a beneficial effect on the arteries of interstate commerce as to warrant it. That determination is legislative in character."Id. at 313 U. S. 527. We held that the fact that the project had a multiple purpose was irrelevant to the Page 363 U. S. 233 constitutional issue, id. at 313 U. S. 528-534, as was the fact that power was expected to pay the way. Id. at 313 U. S. 533."[T]he fact that ends other than flood control will also be served, or that flood control may be relatively of lesser importance, does not invalidate the exercise of the authority conferred on Congress."Id. at 313 U. S. 533-534.We cannot say on this record that the Ft. Gibson dam is any less essential or useful or desirable from the viewpoint of flood control and navigation than was Denison Dam. [Footnote 8] When the United States appropriates the flow either of a navigable or a nonnavigable stream pursuant to its superior power under the Commerce Clause, it is exercising established prerogatives and is beholden to no one. Plainly, under our decisions, it could license another to build the project and operate it. If respondent sued for damages for failure of the Federal Government to grant it a license to build the Ft. Gibson project, it could not claim that something of right had been withheld from it. So it is when the United States exercises its prerogative by building the project itself. [Footnote 9]Respondent, however, argues that it had a vested interest in the waters of the Grand River, and points to the grant made by Oklahoma to it for the development of hydroelectric power on the Grand River. It seeks to trace the title of Oklahoma through the Cherokees, who, in consideration of their agreement to remove to the territory which included the Grand River, received, on December 31, 1838, a deed from the United States to the Page 363 U. S. 234 territory. [Footnote 10] By § 15 of the Act of March 3, 1893, 27 Stat. 612, 645, Congress agreed that this Cherokee land could be allotted to the members of the nation in severalty. The argument is that the United States had divested itself entirely of any rights in the water of the Grand River prior to Oklahoma's admission as a State in 1907. Assuming arguendo that that is true, respondent's claim is not advanced. In dealing with a grant by the United States to the Osage Indians over a nonnavigable stretch of the Arkansas River, the Court, in Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 260 U. S. 87-88, said:"The title of the Indians grows out of a federal grant when the Federal government had complete sovereignty over the territory in question. Oklahoma, when she came into the Union, took sovereignty over the public lands in the condition of ownership as they were then, and if the bed of a nonnavigable stream had then become the property of the Osages, there was nothing in the admission of Oklahoma into a constitutional equality of power with other states which required or permitted a divesting of the title."Respondent argues that, if any rights in the waters of the Grand River remained in the United States after the grant to the Indians in 1838, rights over them were later given to Oklahoma. The reference is to § 25 of the Act of April 26, 1906, 34 Stat. 137, 146, which granted light and power companies the right to construct dams across nonnavigable streams in Cherokee territory for power and other purposes. The right to acquire or condemn property was granted the companies in prescribed situations "subject to approval by the Secretary of the Interior." And § 25 contained at the end a proviso critical to respondent's case and reading as follows:"Provided, That all rights Page 363 U. S. 235 granted hereunder shall be subject to the control of the future Territory or State within which the Indian Territory may be situated."But this Act was no more than a regulatory measure. It did not purport to grant title to waters and appurtenant lands. The 1906 Act was an assertion of power possessed by the Federal Government to regulate Indian territory. Moreover, no water rights condemned under this Act are shown to have passed to Oklahoma and from Oklahoma to respondent. Yet the Federal Government was the initial proprietor in these western lands, and any claim by a State or by others must derive from this federal title. See United States v. Gerlach Live Stock Co., 339 U. S. 725, 339 U. S. 747; Federal Power Commission v. Oregon, 349 U. S. 435. Congress has made various grants or conveyances or by statute recognized certain appropriations of lands or waters in the public domain made through machinery of the States. United States v. Gerlach Live Stock Co., supra, at 339 U. S. 747-748; Federal Power Commission v. Oregon, supra, at 349 U. S. 446-448. Yet the only Federal Act on which reliance is based by respondent for the grant of these water rights to Oklahoma is § 25 of the Act of April 26, 1906. As we have seen, that was a regulatory measure through which title might be obtained, but no water rights under it were acquired by a light or power company which is now asserted to be in respondent's chain of title. If the 1906 Act be less clear than we believe, nevertheless the construction urged by respondent would be precluded by the principle that all federal grants are construed in favor of the Government lest they be enlarged to include more than what was expressly included. See United States v. Union Pacific R. Co., 353 U. S. 112, 353 U. S. 116.Respondent argues that, since Oklahoma gave it rights to the waters of the Grand River, it has a compensable interest in them under the decision in Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239. Page 363 U. S. 236 That decision merely held that the Federal Power Act treats "usufructuary water rights like other property rights," id. at 347 U. S. 251, making it necessary for a licensee to compensate the claimant for them. Here no licensee claims under the Federal Act; the United States builds the project on its own account.The Court of Claims erred in failing to distinguish between an appropriation of property and the frustration of an enterprise by reason of the exercise of a superior governmental power. Here, respondent has done no more than prove that a prospective business opportunity was lost. More than that is necessary, as Omnia Commercial Co. v. United States, 261 U. S. 502, holds. In that case, the claimant stood to make large profits from a contract it had with a steel company. But the United States, pursuant to the War Power, requisitioned the company's entire steel production. Suit was brought in the Court of Claims for just compensation. The Court, after pointing out that many laws and rulings of Government reduce the value of property held by individuals, noted that there the Government did not appropriate what the claimant owned, but only ended his opportunity to exploit a contract. "Frustration and appropriation are essentially different things." Id. at 261 U. S. 513. And see Mitchell v. United States, 267 U. S. 341, 267 U. S. 345; United States ex rel. TVA v. Powelson, 319 U. S. 266, 319 U. S. 281-283. No more need be said here.In conclusion, the United States did not appropriate any business, contract, land, or property of respondent. It had the superior right by reason of the Commerce Clause to build the Ft. Gibson project itself or to license another to do it. The frustration of respondent's plans and expectations which resulted when the United States chose to undertake the project on its own account did not take property from respondent in the sense of the Fifth Amendment.Reversed

U.S. Supreme CourtUnited States v. Grand River Dam Authority, 363 U.S. 229 (1960)United States v. Grand River Dam AuthorityNo. 503Argued May 17, 1960Decided June 13, 1960363 U.S. 229SyllabusRespondent is an agency of the State of Oklahoma created to develop hydroelectric power on the Grand River, a nonnavigable tributary of the navigable Arkansas River. It proposed a river development plan at Pensacola, Markham Ferry, and Ft. Gibson, all sites on the Grand River, and, under license from the Federal Power Commission, completed a project at Pensacola in 1940. Subsequently, by the Flood Control Act of 1941, Congress incorporated the Grand River plan into a comprehensive plan for regulation of navigation, control of floods and production of power on the Arkansas River and its tributaries, and the United States constructed a project at Ft. Gibson, in connection with which it compensated respondent for a condemned tract of land, flowage rights over its lands, and relocation of its transmission lines. Respondent sued in the Court of Claims for additional compensation for the "taking" of its water power rights at Ft. Gibson and its franchise to develop electric power and energy at that site.Held: Respondent is not entitled to recover. It failed to show that it had any rights in the flow of the river. The United States had the superior right under the Commerce Clause to build the Ft. Gibson project itself to protect the navigable capacity of the Arkansas River, and the frustration of respondent's plans and expectations which resulted when the United States chose to do so did not take property from respondent in the sense of the Fifth Amendment. Pp. 363 U. S. 230-236.___ Ct. Cl. ___ 175 F. Supp. 153, reversed. Page 363 U. S. 230

1972_71-1459

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted the writ in this case to consider whether state law may retroactively abrogate the terms of written agreements made by the United States when it acquires land for public purposes explicitly authorized by Congress.The United States initiated this litigation in 1969 in the United States District Court for the Western District of Louisiana, seeking to quiet title to two adjacent parcels of land in Cameron Parish, Louisiana, which the Government had acquired pursuant to the Migratory Bird Conservation Act, 45 Stat. 1222, 16 U.S.C. § 715 et seq., as part of the Lacassine Wildlife Refuge. [Footnote 1] Title to one parcel was acquired by the United States by purchase on July 23, 1937; to the other parcel by a judgment of condemnation entered August 30, 1939. Both the 1937 act of sale and the 1939 judgment of condemnation reserved to the respondent Little Lake Misere oil, gas, sulphur, and other minerals for a period of 10 years from the date of vesting of title in the United States. [Footnote 2] The reservation Page 412 U. S. 583 was to continue in effect"as long [after the initial ten-year period] as oil, gas, sulphur or other mineral is produced . . . or so long thereafter as [respondents] shall conduct drilling or reworking operations thereon with no cessation of more than sixty (60) days consecutively until production results; and, if production results, so long as such mineral is produced."The deed and the judgment of condemnation further recited that, at the end of 10 years or at the end of any period after 10 years during which the above conditions had not been met,"the right to mine, produce and market said oil, gas, sulphur or other mineral shall terminate . . . and the complete fee title to said lands shall thereby become vested in the United States."The parties stipulated, and the District Court found, that, as to both the parcels in issue here, no drilling, reworking, or other operations were conducted, and no minerals were obtained for a period of more than 10 years following the act of sale and judgment of condemnation, respectively. Thus, under the terms of these instruments, fee title in the United States ripened as of 1947 and 1949, respectively -- 10 years from the dates of creation. Page 412 U. S. 584 In 1955, the United States issued oil and gas leases applicable to the lands in question.Respondents, however, continued to claim the mineral rights and accordingly entered various transactions purporting to dispose of those rights. Respondents relied upon Louisiana Act 315 of 1940, La.Rev.Stat. § 9:5806A (Supp. 1973), which provides:"When land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America, or any of its subdivisions or agencies from any person, firm or corporation, and by the act of acquisition, order or judgment, oil, gas or other minerals or royalties are reserved, or the land so acquired is by the act of acquisition conveyed subject to a prior sale or reservation of oil, gas or other minerals or royalties, still in force and effect, the rights so reserved or previously sold shall be imprescriptible."Respondents contended that the 1940 enactment rendered inoperative the conditions set forth in 1937 and 1939 for the extinguishment of the reservations. The District Court concluded that the Court of Appeals' prior decision in Leiter Minerals, Inc. v. United States, 329 F.2d 85 (CA5 1964), required resolution of this case in favor of respondents, notwithstanding that we had vacated the Court of Appeals' judgment in Leiter Minerals and remanded with instructions to dismiss the complaint as moot. 381 U. S. 413 (1965). The Court of Appeals affirmed, for the reasons stated in its Leiter Minerals holding. It rejected the Government's Contract Clause and Supremacy Clause objections on the authority of United States v. Nebo Oil Co., 190 F.2d 1003 (CA5 1951), and further rejected the Government's argument that Act 315 was unconstitutionally discriminatory against the United States. The Court of Appeals Page 412 U. S. 585 observed"that the same principle applies to acquisitions by the State of Louisiana [La.Rev.Stat. § 9:5806B], and that the act really does nothing more than place citizens of Louisiana in the same position as citizens of other states whose land has been purchased or condemned by the United States."453 F.2d 360, 362 (1971). We reverse.ILitigation involving Act 315 began more than a quarter century ago. The Leiter Minerals case, upon which the Court of Appeals based its decision in this case, is only the principal holding in the area. The first case to arise involving Act 315, Whitney Nat. Bank v. Little Creek Oil Co., grew out of a 1932 sale of mineral rights that specified a 10-year period of prescription. The surface property was conveyed to the United States in 1936, subject to the 1932 mineral sale, and in 1947 the question arose whether Act 315 of 1940 had the effect of extending indefinitely the servitude created by the 1932 sale. The Louisiana Supreme Court held that Act 315 of 1940 was fully applicable to the 1936 transaction --"not because there is anything in the terms of the statute to indicate that it was intended to have a retroactive application, but because of the general rule of law established by the jurisprudence of this court that laws of prescription and those limiting the time within which actions may be brought are retrospective in their operation."212 La. 949, 958, 33 So. 2d 693, 696 (1947). [Footnote 3] The court acknowledged the contention that, if Page 412 U. S. 586 Act 315 were applied retroactively, it might be unconstitutional, but dismissed the constitutional issue without resolving it for failure to join the United States, a necessary party.Whitney Bank set the stage for the first federal court test of Act 315, as construed to have retroactive application, in United States v. Nebo Oil Co., supra, aff'g 90 F. Supp. 73 (WD La.1950). There, the United States brought suit against Nebo Oil (the successor to the 1932 mineral purchaser of the Whitney Bank case) to secure a declaratory judgment that the United States owned the acreage it purchased in 1936 subject only to the 10-year rule of prescription specified at the time of the original 1932 sale of mineral rights. But the Court of Appeals upheld the application of Act 315 to the previously consummated transaction, stressing that reversionary estates are unknown in Louisiana law and that, as a result, the United States in 1936 took"nothing more than a mere expectation, or hope, based upon an anticipated continuance of the applicable general laws. . . . [This] mere expectancy . . . cannot be regarded as a vested right protected by the Constitution."190 F.2d at 1008-1009. [Footnote 4] Page 412 U. S. 587In the Leiter Minerals litigation, retrospective application of Act 315 to a detailed, conditional mineral reservation was in issue for the first time. Leiter Minerals, Inc., succeeded to the interests of the Leiter family, which, in 1938, had sold a substantial tract in Plaquemines Parish, Louisiana, to the United States. Leiter's federal sale was subject to a mineral reservation in Leiter's favor, providing, in essence, that the reservation would be extended for five years beyond its initial 10-year duration whenever commercially advantageous mineral extraction had occurred during 50 days of a defined period. [Footnote 5] At the expiration of any period during which the conditions for extension had not been met, the right to mine would terminate "and complete fee in the land becomes vested in the United States." The mineral reservation expired by its own terms; the Government granted a valuable mineral lease; and Leiter invoked Act 315 to support its claim to a servitude of continuing duration.After a false start in the Louisiana courts, the ensuing litigation found its way into a federal forum. The United States sued in the Eastern District of Louisiana to quiet title and to enjoin the concurrent state court proceedings initiated by Leiter. The Court of Appeals affirmed an injunction granted by the District Page 412 U. S. 588 Court, [Footnote 6] and this Court agreed, but remanded to the Court of Appeals with instructions to secure an authoritative construction of Act 315 before proceeding to the difficult constitutional issues in the case. Leiter Minerals, Inc. v. United States, 352 U. S. 220, 352 U. S. 229 (1957). [Footnote 7]Adhering to the terms of the remand, Leiter sought a declaratory judgment in the Louisiana courts, which expressed some continuing doubt over the breadth of their responsibility for resolving the Leiter controversy on its own facts. Ultimately, the Louisiana Supreme Court took jurisdiction of the case and rendered a declaratory judgment limited to general elucidation of Act 315, without applying the Act to the specific terms of the Leiter mineral reservation itself. Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So. 2d 845 (1961). The Louisiana Supreme Court expressed its conclusions as follows:"First, that, if the reservation in the Leiter deed is construed as establishing a mineral servitude for a definite, fixed, and specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied; and second, that, if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if Page 412 U. S. 589 it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional extinguishment of the mineral servitude created, then Act 315 of 1940 is applicable and constitutional."Id. at 942, 132 So. 2d at 854-855. Recognizing that "the interpretation of this reservation is for the United States courts, and not for us in this proceeding," id. at 930, 132 So. 2d at 850, that court nevertheless hinted broadly that it viewed the Leiter reservation as one establishing a reservation for an indefinite period of time, and thus one subject to retroactive application of Act 315. See id. at 936, 938, 132 So. 2d at 852, 853.The parties then returned to federal court. The District Court held that the mineral reservation in the Leiter deed created a mineral servitude for a fixed period and that, under the terms of the Louisiana Supreme Court's declaratory ruling, as a matter of state law the reservation was not affected by Act 315. 204 F. Supp. 560 (ED La.1962). The Court of Appeals reversed. It rejected the Government's contention that federal law controlled the rights of the United States under the reservation, and held, instead, that those rights were to be governed by Louisiana law. The Court of Appeals believed that the Louisiana Supreme Court had viewed Leiter's servitude as "one of indefinite duration" and it agreed with that view. Under Louisiana law, therefore, the reservation"provide[d] for a contractual prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by [Act 315]."329 F.2d at 93. As to the Government's contention that the Act, as so construed, unconstitutionally impaired the obligation of contract, the Court of Appeals concluded that the discussion Page 412 U. S. 590 of that matter in its prior decision in Nebo Oil, supra, and in the Louisiana Supreme Court's Leiter opinion, made it "unnecessary further to labor" the point. Id. at 94. Judge Gewin dissented. On being advised by the parties that the case had been settled, we granted certiorari, vacated the judgment of the Court of Appeals, and remanded the cause to the District Court with instructions to dismiss the complaint as moot. 381 U. S. 413 (1965).IIThe essential premise of the Court of Appeals' decision in the Leiter Minerals case was that state law governs the interpretation of a federal land acquisition authorized by the Migratory Bird Conservation Act. The Court of Appeals did not set forth in detail the basis for this premise, [Footnote 8] but that court's opinion seems to say Page 412 U. S. 591 that state law governs this land acquisition because, at bottom, it is an "ordinary" "local" land transaction to which the United States happens to be a party. The suggestion is that this Court's decision in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), compels application of state law here because the Rules of Decisions Act, 28 U.S.C. § 1652, [Footnote 9] requires application of state law in the absence of an explicit congressional command to the contrary. We disagree.The federal jurisdictional grant over suits brought by the United States is not, in itself, a mandate for applying federal law in all circumstances. This principle follows from Erie itself, where, although the federal courts had jurisdiction over diversity cases, we held that the federal courts did not possess the power to develop a concomitant body of general federal law. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 799 (1957). It is true, too, that"[t]he great body of law in this country which controls acquisition, transmission, and transfer of property, and defines the rights of its owners in relation to the state or to private parties, is found in the statutes and decisions of the state."Davies Warehouse Co. v. Bowles, 321 U. S. 144, 321 U. S. 155 (1944). Even when federal general law was in its heyday, an exception was carved out for local laws of real property. Swift v. Tyson, 16 Pet. 1, 41 U. S. 18 (1842); see Kuhn v. Fairmont Coal Co., 215 U. S. 349, 215 U. S. 360 (1910). Indeed, before Erie R. Co. v. Tompkins, supra, this Court's opinions left open the possibility that even"the United States, while protected by the Constitution from Page 412 U. S. 592 discriminatory state action, and perhaps certain other special forms of state control, was nevertheless governed generally in its ordinary proprietary relations by state law."Hart, The Relations Between State and Federal Law, 54 Col.L.Rev. 489, 533 (1954). See, e.g., Mason v. United States, 260 U. S. 545, 260 U. S. 558 (1923).Despite this arguable basis for its reasoning the Court of Appeals in the instant case seems not to have recognized that this land acquisition, like that in Leiter Minerals, is one arising from and bearing heavily upon a federal regulatory program. Here, the choice of law task is a federal task for federal courts, as defined by Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). Since Erie, and as a corollary of that decision, we have consistently acted on the assumption that dealings which may be "ordinary" or "local" as between private citizens raise serious questions of national sovereignty when they arise in the context of a specific constitutional or statutory provision; particularly is this so when transactions undertaken by the Federal Government are involved, as in this case. [Footnote 10] In such cases, the Constitution or Acts of Page 412 U. S. 593 Congress "require" otherwise than that state law govern of its own force.There will often be no specific federal legislation governing a particular transaction to which the United States is a party; here, for example, no provision of the Migratory Bird Conservation Act guides us to choose state or federal law in interpreting federal land acquisition agreements under the Act. But silence on that score in federal legislation is no reason for limiting the reach of federal law, as the Court of Appeals thought in Leiter Minerals. To the contrary, the inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts."At the very least, effective Constitutionalism requires recognition of power in the federal courts to declare, as a matter of common law or 'judicial legislation,' rules which may be necessary to fill in interstitially or otherwise effectuate the statutory patterns enacted in the large by Congress. In other words, it must mean recognition of federal judicial competence to declare the governing law in an area comprising issues substantially related to an established program of government operation."Mishkin, 105 U.Pa.L.Rev. at 800.This, then, is what has aptly been described as the "first" of the two holdings of Clearfield Trust Co. v. United States, supra -- that the right of the United States to seek legal redress for duly authorized proprietary transactions "is a federal right, so that the courts of the United States may formulate a rule of decision." Friendly, In Praise of Erie -- And of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 410 (1964). At Page 412 U. S. 594 least this first step of the Clearfield analysis is applicable here. We deal with the interpretation of a land acquisition agreement (a) explicitly authorized, though not precisely governed, by the Migratory Bird Conservation Act and (b) to which the United States itself is a party. Cf. Bank of America v. Parnell, 352 U. S. 29, 352 U. S. 33 (1956). As in Clearfield and its progeny,"[t]he duties imposed upon the United States and the rights acquired by it . . . find their roots in the same federal sources. . . . In absence of an applicable Act of Congress, it is for the federal courts to fashion the governing rule of law according to their own standards."318 U.S. at 318 U. S. 366-367; United States v. Allegheny County, 322 U. S. 174, 322 U. S. 183 (1944); United States v. Standard Oil Co., 332 U. S. 301, 332 U. S. 305 (1947); Board of County Comm'rs v. United States, 308 U. S. 343, 308 U. S. 349-350 (1939). [Footnote 11]IIIThe next step in our analysis is to determine whether the 1937 and 1939 land acquisition agreements in issue should be interpreted according to "borrowed" state law -- Act 315 of 1940. The availability of this choice was explicitly recognized in Clearfield Trust itself, [Footnote 12] and fully elaborated some years later in United States v. Standard Oil Co., supra. There, we acknowledged that,"in many situations, and apart from any supposed influence of the Erie decision, rights, interests and legal relations of the United States are determined by application of state law, where Congress has not acted specifically."332 U.S. at Page 412 U. S. 595 332 U. S. 308. We went on to observe that whether state law is to be applied is a question"of federal policy, affecting not merely the federal judicial establishment and the groundings of its action, but also the Government's legal interests and relations, a factor not controlling in the types of cases producing and governed by the Erie ruling. And the answer to be given necessarily is dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law."Id. at 332 U. S. 309-310. See also De Sylva v. Ballentine, 351 U. S. 570, 351 U. S. 580 (1956); RFC v. Beaver County, 328 U. S. 204 (1946); Board of County Comn'rs v. United States, 308 U.S. at 308 U. S. 351-352; Royal Indemnity Co. v. United States, 313 U. S. 289, 313 U. S. 296 (1941); United States v. Yazell, 382 U. S. 341, 382 U. S. 356-357 (1966); cf. United States v. Mitchell, 403 U. S. 190 (1971).The Government urges us to decide, virtually without qualification, that land acquisition agreements of the United States should be governed by federally created federal law. Cf. United States v. 9.970 Acres, 360 U. S. 328 (1959). We find it unnecessary to resolve this case on such broad terms. For even if it be assumed that the established body of state property law should generally govern federal land acquisitions, we are persuaded that the particular rule of law before us today -- Louisiana's Act 315 of 1940, as retroactively applied -- may not. The "reasons which may make state law at times the appropriate federal rule are singularly inappropriate here." Clearfield Trust, 318 U.S. at 318 U. S. 367. [Footnote 13]The Court in the past has been careful to state that, even assuming in general terms the appropriateness of Page 412 U. S. 596 "borrowing" state law, specific aberrant or hostile state rules do not provide appropriate standards for federal law. In De Sylva v. Ballentine, supra, we held that whether an illegitimate child was a "child" of the author entitled under the Copyright Act to renew the author's copyright was to be determined by whether, under state law, the child would be an heir of the author. But Mr. Justice Harlan's opinion for the Court took pains to caution that the Court's holding"does not mean that a State would be entitled to use the word 'children' in a way entirely strange to those familiar with its ordinary usage. . . ."351 U.S. at 351 U. S. 581. In RFC v. Beaver County, supra, the issue was whether the definition of "real property," owned by the RFC and authorized by Congress to be subject to state and local taxation, was to be derived from state law or to be fashioned as an independent body of federal law. The Court concluded that "the congressional purpose can best be accomplished by application of settled state rules as to what constitutes real property'" -- but again the Court foresaw that its approach would be acceptable only"so long as it is plain, as it is here, that the state rules do not effect a discrimination against the Government, or patently run counter to the terms of the Act."328 U.S. at 328 U. S. 210. See also U.A.W. v. Hoosier Cardinal Corp., 383 U. S. 696, 383 U. S. 706 (1966).Under Louisiana's Act 315, land acquisitions of the United States, [Footnote 14] explicitly authorized by the Migratory Page 412 U. S. 597 Bird Conservation Act, are made subject to a rule of retroactive imprescriptibility, a rule that is plainly hostile to the interests of the United States. As applied to a consummated land transaction under a contract which specifically defined conditions for prolonging the vendor's mineral reservation retroactive application of Act 315 to the United States deprives it of bargained-for contractual interests.To permit state abrogation of the explicit terms of a federal land acquisition would deal a serious blow to the congressional scheme contemplated by the Migratory Bird Conservation Act and indeed all other federal land acquisition programs. These programs are national in scope. They anticipate acute and active bargaining by officials of the United States charged with making the best possible use of limited federal conservation appropriations. Certainty and finality are indispensable in any land transaction, but they are especially critical when, as here, the federal officials carrying out the mandate of Congress irrevocably commit scarce funds.The legislative history of the Migratory Bird Conservation Act confirms the importance of contractual certainty to the federal land acquisition program it authorizes. As originally enacted in 1929, the Act provided that land acquisitions might include reservations, easements, Page 412 U. S. 598 and rights of way but that these were to be subject to "such rules and regulations" as the Secretary of Agriculture might prescribe "from time to time." § 6, 45 Stat. 1223. This sweeping statement of the Secretary's power to modify contract terms in favor of the Government had an unsettling effect on potential vendors; in 1935, the Act was amended to require the Secretary either to include his rules or regulations in the contract itself or to state in the contract that the reservation or easement would be subject to rules and regulations promulgated "from time to time." [Footnote 15] A Congress solicitous of the interests of private vendors Page 412 U. S. 599 in the certainty of contract would hardly condone state modification of the contractual terms specified by the United States itself as vendee, whether or not those terms may be characterized as "rules and regulations" within the meaning of the Act.Conceivably, our conclusion might be influenced if Louisiana's Act 315 of 1940, as applied retroactively, served legitimate and important state interests the fulfillment of which Congress might have contemplated through application of state law. But that is not the case. We do not deprecate Louisiana's concern with facilitating federal land acquisitions by removing uncertainty on the part of reluctant vendors over the duration of mineral reservations retained by them. From all appearances, this concern was a significant force behind the enactment of the 1940 legislation. [Footnote 16] But today we are not asked to consider Act 315 on its face, or as applied to transactions consummated after 1940; we are concerned with the application of Act 315 to a pair of acquisition agreements in 1937 and 1939. And however legitimate the State's interest in facilitating federal land acquisitions, that interest has no application to transactions already completed at the time of the enactment of Act 315: the legislature cannot "facilitate" transactions already consummated. [Footnote 17]The Louisiana Supreme Court has candidly acknowledged two additional purposes which help to explain retroactive application of Act 315: to clarify the taxability Page 412 U. S. 600 by the State of mineral interests in the large federal land holdings in Louisiana, otherwise in doubt by virtue of the arcane and fluctuating doctrines of intergovernmental tax immunity; and to ensure that federal mineral interests could be subjected to state mineral conservation laws without federal preemption. [Footnote 18] We are not unsympathetic to Louisiana's concern for the consequences of a continuing, substantial, even if contingent, federal interest in Louisiana minerals. Congress, however, could scarcely have viewed that concern as a proper justification for retroactive application of state legislation which effectively deprives the Government of its bargained-for contractual interests. Our Federal Union is a complicated organism, but its legal processes cannot legitimately be simplified through the inviting expedient Page 412 U. S. 601 of special legislation which has the effect of confiscating interests of the United States. [Footnote 19]Respondents point out that"[o]ne who owns land subject to an outstanding mineral reservation possesses no vested property interest [under Louisiana law], inasmuch as 'estates in reversion' are unknown to Louisiana law. Such an owner of the land possesses only a hope or expectancy to acquire these mineral rights, and . . . this hope or expectancy is not an object that can be legally sold."Brief for Respondents 27, citing, e.g., Hicks v. Clark, 225 La. 133, 72 So. 2d 322 (1954). But whether Louisiana recognizes the interests at stake here as transferable interests in real property, as such, has Page 412 U. S. 602 no bearing on our conclusion that after-the-fact modification of explicit contractual terms would be adverse to the United States and contrary to the requirements of the Migratory Bird Conservation Act.It is also of no import that, under Louisiana law as it might be articulated in 1973, the United States acquired from respondents only the reversion to a mineral interest of indefinite duration, a "hope" or "expectancy" revocable at any time by after-enacted legislation. Respondents place heavy reliance on the opinion of the Louisiana Supreme Court in Leiter Minerals, where that court held that a mineral reservation for an indefinite duration was one traditionally subject to retroactive prescriptive change. But even if this rule of law could have been anticipated in 1937 and 1939, when the United States agreed to the mineral reservations in issue here, that the 1937 and 1939 reservations were of "indefinite" duration could not have been. Indeed, some 20 years later, in 1957, when Leiter Minerals came to this Court for the first time, we were not in a position to resolve the Government's contention that the Leiter reservation was one of specific duration. Uncertainty over this question of Louisiana law was the guiding force behind our remand in hopes of obtaining the view of the Louisiana Supreme Court. In its advisory opinion, the Louisiana Supreme Court did not decide whether the Leiter-type reservation was "indefinite" and subject to retroactive modification -- to the extent that the Federal District Court, in Louisiana, subsequently concluded that the servitude in the Leiter reservation was not, under state law, freely revocable. In Leiter Minerals, one Court of Appeals judge dissented on this state law issue, and, with reason, the Government renews the issue before the Court in this case.Were the terms of the mineral reservations at issue here less detailed and specific, it might be said that the Page 412 U. S. 603 Government acknowledged and intended to be bound by unforeseeable changes in state law. But the mineral reservations before us are flatly inconsistent with the respondents' suggestion that the United States, in fact, expected that these reservations would be wholly subject to retroactive modification. Nor, given the absence of any reliable contemporaneous Louisiana signpost and the absence even today of any final resolution of the pertinent state law question, can we say that the United States ought to have anticipated that its deed contained an empty promise. Respondents' reliance on the Louisiana Supreme Court's holding in its opinion in 1961 in Leiter Minerals assumes that a late-crystallizing doctrine of state law is appropriately applied to modify the expectations of the United States established by the terms of 1937 and 1939 bargains. The argument, however, is indistinguishable from respondents' defense of Act 315 itself. Years after the fact, state law may not redefine federal contract terminology "in a way entirely strange to those familiar with its ordinary usage. . . ." De Sylva v. Ballentine, 351 U.S. at 351 U. S. 581.IVIn speaking of the choice of law to be applied, the alternatives are plain although in this case identifying them in fixed categories is somewhat elusive. One "choice" would be to apply the law urged on us by respondents, i.e., Louisiana Act 315 of 1940. In some circumstances, such as those suggested by RFC v. Beaver County, 328 U. S. 204 (1946), or Wallis v. Pan American Petroleum Corp., 384 U. S. 63 (1966), [Footnote 20] state law may be found an acceptable choice, possibly even Page 412 U. S. 604 when the United States itself is a contracting party. However, in a setting in which the rights of the United States are at issue in a contract to which it is a party and"the issue's outcome bears some relationship to a federal program, no rule may be applied which would not be wholly in accord with that program."Mishkin, 105 U.Pa.L.Rev. at 805-806.Since Act 315 is plainly not in accord with the federal program implemented by the 1937 and 1939 land acquisitions, state law is not a permissible choice here. The choice of law merges with the constitutional demands of controlling federal legislation; we turn away from state law by default. Once it is clear that Act 315 has no application here, we need not choose between "borrowing" some residual state rule of interpretation or formulating an independent federal "common law" rule; neither rule is the law of Louisiana, yet either rule resolves this dispute in the Government's favor. The contract itself is unequivocal; the District Court concluded, and it is not disputed here, that, by the clear and explicit terms of the contract reservations,"[respondents'] interests in the oil, gas, sulphur and other minerals terminated . . . no later than July 23, 1947, and August 30, 1949, unless Act 315 of 1940 has caused the reservations of the servitudes in favor of [respondents] to be imprescriptible."We hold that, under settled principles governing the choice of law by federal courts, Louisiana's Act 315 of 1940 has no application to the mineral reservations agreed to by the United States and respondents in 1937 and 1939, and that, as a result, any contract interests of respondents expired on the dates identified by the District Court. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for entry of an order consistent with this opinion.Reversed

U.S. Supreme CourtUnited States v. Little Lake Misere Land Co., Inc., 412 U.S. 580 (1973)United States v. Little Lake Misere Land Co.No. 71-1459Argued January 15-16, 1973Decided June 18, 1973412 U.S. 580SyllabusPursuant to the Migratory Bird Conservation Act, the United States acquired land parcels in Louisiana for a wildlife refuge, one by deed in 1937, the other by condemnation in 1939. Mineral rights were reserved to the respondent former owners for a period of 10 years, subject to extension if certain detailed exploration and production conditions were met, after which complete fee title was to vest in the United States. The 10-year period expired without the extension conditions being met. Respondents continued to claim the mineral rights, relying on Louisiana Act 315 of 1940, which, as applied retroactively, provides that mineral rights reserved in land conveyances to the United States shall be "imprescriptible," thus, in effect, extending indefinitely the former owners' mineral reservations. The Government brought this suit to quiet title. The District Court entered summary judgment for the respondents, concluding that Leiter Minerals, Inc. v. United States, 329 F.2d 85, was dispositive of the issues, notwithstanding that that judgment had been vacated by this Court and the case remanded with instructions to dismiss the complaint as moot. The Court of Appeals affirmed.Held: Under settled principles governing the choice of law by federal courts, Louisiana's Act 315 of 1940 does not apply to the mineral reservations agreed to by the parties in 1937 and 1939. Pp. 412 U. S. 590-604.(a) Here, where the land acquisition to which the United States is a party arises from and bears heavily upon a federal regulatory program, the choice of law task is a federal one for federal courts, as defined by Clearfield Trust Co. v. United States, 318 U. S. 363. Pp. 412 U. S. 590-593.(b) Absence of a provision dealing with choice of law in the Migratory Bird Conservation Act does not limit the reach of federal law, as interstitial federal lawmaking is a basic responsibility of the federal courts. P. 412 U. S. 593.(c) Even assuming that the established body of state property law should generally govern federal land acquisitions, Act 315, Page 412 U. S. 581 as retroactively applied, may not, because, in determining the appropriateness of "borrowing" state law, specific aberrant or hostile state rules do not provide appropriate standards for federal law. Under Act 315, land acquisitions explicitly authorized by federal statute are made subject to a rule of retroactive imprescriptibility, a rule plainly hostile to the United States, and one that deprives the United States of bargained-for contractual interests. Pp. 412 U. S. 594-597.(d) To permit state legislation to abrogate the explicit terms of a prior federal land acquisition would seriously impair federal statutory programs and the certainty and finality that are indispensable to land transactions. Pp. 412 U. S. 597-599.(e) Act 315, as applied retroactively, serves no legitimate and important state interests the fulfillment of which Congress might have contemplated through application of "borrowed" state law. Pp. 412 U. S. 599-601.(f) In 1937 and 1939, the Government could not anticipate that the mineral reservations in issue might be characterized, under present Louisiana law, as indefinite in duration and freely revocable. A late-crystallizing state law doctrine may not modify the clear and explicit contractual expectations of the United States. Pp. 412 U. S. 602-603.(g) As it is clear that Act 315 does not apply here, it is not necessary to choose between "borrowing" some residual state rule of interpretation or formulating an independent federal "common law" rule; neither rule is the law of Louisiana, yet either rule resolves this dispute in the Government's favor. Pp. 412 U. S. 603-604.453 F.2d 360, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEWART, J., post, p. 412 U. S. 605, and REHNQUIST, J., post, p. 412 U. S. 606, filed opinions concurring in the judgment. Page 412 U. S. 582

1987_86-1552

JUSTICE BLACKMUN delivered the opinion of the Court.Respondent Thomas M. Egan lost his laborer's job at the Trident Naval Refit Facility in Bremerton, Wash., when he was denied a required security clearance. The narrow question presented by this case is whether the Merit Systems Protection Board (Board) has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action. The Board ruled that it had no such authority. The Court of Appeals for the Federal Circuit, by a divided vote, reversed. We granted certiorari because of the importance of the issue in its relation to national security concerns. 481 U.S. 1068 (1987).IRespondent Egan was a new hire and began his work at the facility on November 29, 1981. He served as a veteran's preference-eligible civilian employee of the Navy subject to the provisions of the Civil Service Reform Act of 1978 (Act), 5 U.S.C. § 1201 et seq.The mission of the Refit Facility is to provide quick-turnaround repair, replenishment, and systems check-out of the Trident submarine over its extended operating cycle. The Trident is nuclear powered, and carries nuclear weapons. It has been described as the most sophisticated and sensitive weapon in the Navy's arsenal, and as playing a crucial part in our Nation's defense system. See Concerned About Trident v. Schlesinger, 400 F. Supp. 454, 462-466 (DC 1975), aff'd in part and rev'd in part, 180 U.S.App.D.C. 345, 555 F.2d 817 (1977). As a consequence, all employee positions at the Refit Facility are classified as sensitive. Thus, as shown on his Standard Form, a condition precedent to Egan's retention of his employment was "satisfactory completion of security and medical reports." Page 484 U. S. 521In April 1982, respondent gained the "noncritical-sensitive" position of laborer leader. [Footnote 1] Pending the outcome of his security investigation, however, he performed only limited duties, and was not permitted to board any submarine.On February 16, 1983, [Footnote 2] the Director of the Naval Civilian Personnel Command issued a letter of intent to deny respondent a security clearance. This was based upon California and Washington state criminal records reflecting respondent's convictions for assault and for being a felon in possession of a gun, and further based upon his failure to disclose on his application for federal employment two earlier convictions for carrying a loaded firearm. The Navy also referred to respondent's own statements that he had had drinking problems in the past, and had served the final 28 days of a sentence in an alcohol rehabilitation program.Respondent was informed that he had a right to respond to the proposed security clearance denial. On May 6, he answered the Navy's letter of intent, asserting that he had paid his debt to society for his convictions, that he had not listed convictions older than seven years because he did not interpret the employment form as requiring that information, and that alcohol had not been a problem for him for three years preceding the clearance determination. He also provided favorable material from supervisors as to his background and character. Page 484 U. S. 522The Director, after reviewing this response, concluded that the information provided did not sufficiently explain, mitigate, or refute the reasons on which the proposed denial was based. Accordingly, respondent's security clearance was denied.Respondent took an appeal to the Personnel Security Appeals Board, but his removal was effected before that Board acted (which it eventually did by affirming the denial of clearance).Without a security clearance, respondent was not eligible for the job for which he had been hired. Reassignment to a nonsensitive position at the facility was not possible because there was no nonsensitive position there. Accordingly, the Navy issued a notice of proposed removal, and respondent was placed on administrative leave pending final decision. Respondent did not reply to the notice. On July 15, 1983, he was informed that his removal was effective July 22.Respondent, pursuant to 5 U.S.C. § 7513(d), sought review by the Merit Systems Protection Board. [Footnote 3] Under § 7513(a), an agency may remove an employee "only for such cause as will promote the efficiency of the service." The statute, together with § 7701 to which § 7513(d) specifically refers, provides the employee with a number of procedural protections, including notice, an opportunity to respond and be represented by counsel, and a decision in writing. The employee, unless he is a nonveteran in the excepted service, may appeal the agency's decision to the Board, as respondent did, which is to sustain the action if it is "supported by a preponderance of the evidence." § 7701(c)(1)(B). [Footnote 4] The Page 484 U. S. 523 stated "cause" for respondent's removal was his failure to meet the requirements for his position due to the denial of security clearance. Before the Board, the Government argued that the Board's review power was limited to determining whether the required removal procedures had been followed and whether a security clearance was a condition for respondent's position. It contended that the Board did not have the authority to judge the merits of the underlying security clearance determination.The Board's presiding official reversed the agency's decision, ruling that the Board did have authority to review the merits. She further ruled that the agency must specify the precise criteria used in its security clearance decision, and must show that those criteria are rationally related to national security. App. to Pet. for Cert. 62a-63a. The agency then must show, by a preponderance of the evidence, that the employee's acts precipitating the denial of his clearance actually occurred, and that his "alleged misconduct has an actual or potentially detrimental effect on national security interests." Id. at 63a. The official then held that the ultimate burden was upon the agency to persuade the Board of the appropriateness of its decision to deny clearance. Id. at 64a.The official concluded that it was not possible to determine whether the Navy's denial of respondent's security clearance was justified, because it had not submitted a list of the criteria it employed and because it did not present evidence that it had"conscientiously weighed the circumstances surrounding [respondent's] alleged misconduct and reasonably balanced it against the interests of national security."Id. at 65a. She accordingly concluded that the Navy had "failed to show it reached a reasonable and warranted decision concerning the Page 484 U. S. 524 propriety of the revocation of [respondent's] security clearance." Id. at 66a. The decision to remove respondent, therefore, could not stand.The Navy petitioned for full Board review of the presiding official's ruling. [Footnote 5] In a unanimous decision, the Board reversed the presiding official's ruling and sustained the agency's removal action. 28 M.S.P.R. 509 (1985). It observed that §§ 7512 and 7513 "do not specifically address the extent of the Board's review of the underlying determinations." 28 M.S.P.R. at 514. Neither did the legislative history of the Act"address the extent of the authority Congress intended the Board to exercise in reviewing revocations or denials of security clearances which result in Chapter 75 actions."Id. at 515. The Board found no binding legal precedent. It acknowledged the presence of the decision in Hoska v. Department of Army, 219 U.S.App.D.C. 280, 677 F.2d 131 (1982) (security clearance revocation leading to dismissal reviewed on its merits), but explained that case away on the ground that the court did not "expressly address the Board's authority to review the underlying reasons for the agency's security clearance determination." 28 M.S.P.R. at 516. Thus, earlier Board cases that had relied upon Hoska, see, e.g., Bogdanowicz v. Department of Army, 16 M.S.P.R. 653 (1983), involved a "reliance misplaced," and the holding that they stood "for the proposition that the Board has the authority to review the propriety of the agency's . . . denial of a security clearance" was "now overrule[d]." 28 M.S.P.R. at 516. It went on to say that Page 484 U. S. 525 "section 7532 is not the exclusive basis for removals based upon security clearance revocations." Id. at 521.Respondent, pursuant to § 7703, appealed to the Court of Appeals for the Federal Circuit. By a divided vote, that court reversed the Board's decision that it had no authority to review the merits of a security clearance determination underlying a removal. 802 F.2d 1563 (1986). It agreed with the Board that § 7532 is not the sole authority for a removal based upon national security concerns. 802 F.2d at 1568. It noted, however, that the agency had chosen to remove respondent under § 7512, rather than § 7532, and thus that it chose the procedure "that carrie[d] Board review under section 7513," 802 F.2d at 1569, including review of the merits of the underlying agency determination to deny a security clearance. The court then remanded the case to the Board for such review, stating that the question of an appropriate remedy, should the Board now rule that a security clearance was improperly denied, was not yet ripe. Id. at 1573-1575.The dissenting judge in the Court of Appeals concluded that respondent had received all the procedural protections to which he was entitled, Id. at 1577-1578; that the majority in effect was transferring a discretionary decision vested in an executive agency to a body that had neither the responsibility nor the expertise to make that decision; that the ruling raised separation of powers concerns; and that the Board would be unable to provide an appropriate remedy. Id. at 1578, 1580-1583.IIWe turn first to the statutory structure. Chapter 75 of Title 5 of the United States Code is entitled "Adverse Actions." Its subchapter II (§§ 7511-7514) relates to removals for "cause." Subchapter IV (§§ 7531-7533) relates to removals based upon national security concerns. An employee removed for "cause" has the right, under § 7513(d), to appeal to the Board. In contrast, an employee suspended under Page 484 U. S. 526 § 7532(a) is not entitled to appeal to the Board. That employee, however, is entitled to specified preremoval procedural rights, including a hearing by an agency authority. § 7532(c)(3).Chapter 77 of Title 5 (§§ 7701-7703) is entitled "Appeals," and Chapter 12 (§§ 1201-1209) relates to the "Merit Systems Protection Board and Special Counsel." Section 1205(a) provides that the Board shall "hear, adjudicate, or provide for the hearing or adjudication of all matters within the jurisdiction of the Board," and shall "order any Federal agency or employee to comply with any order or decision issued by the Board." In the present litigation, there is no claim that the Board did not have jurisdiction to hear and adjudicate respondent's appeal.It is apparent that the statutes provide a "two-track" system. A removal for "cause" embraces a right of appeal to the Board and a hearing of the type prescribed in detail in § 7701. Suspension and removal under § 7532, however, entail no such right of appeal. Respondent takes the straightforward position that, inasmuch as this case proceeded under § 7513, a hearing before the Board was required. The Government agrees. What is disputed is the subject matter of that hearing and the extent to which the Board may exercise reviewing authority. In particular, may the Board, when § 7513 is pursued, examine the merits of the security clearance denial, or does its authority stop short of that point, that is, upon review of the fact of denial, of the position's requirement of security clearance, and of the satisfactory provision of the requisite procedural protections?IIIThe Court of Appeals' majority stated:"The absence of any statutory provision precluding appellate review of security clearance denials in section 7512 removals creates a strong presumption in favor of appellate review,"citing Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 141 (1967). 802 F.2d Page 484 U. S. 527 at 1569. One perhaps may accept this as a general proposition of administrative law, but the proposition is not without limit, and it runs aground when it encounters concerns of national security, as in this case, where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S.Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 890 (1961). This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U. S. 507, 444 U. S. 509, n. 3 (1980). See also United States v. Robel, 389 U. S. 258, 389 U. S. 267 (1967); United States v. Reynolds, 345 U. S. 1, 345 U. S. 10 (1953); Totten v. United States, 92 U. S. 105, 92 U. S. 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.Since World War I, the Executive Branch has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity. See Note, Developments in the Law -- The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1193-1194 (1972). After World War II, certain civilian agencies, including the Central Intelligence Agency, the National Security Agency, and the Atomic Energy Commission, were entrusted Page 484 U. S. 528 with gathering, protecting, or creating information bearing on national security. Presidents, in a series of Executive Orders, have sought to protect sensitive information and to ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of agencies. See Exec.Order No. 10290, 3 CFR 789 (1949-1953 Comp.); Exec.Order No. 10501, 3 CFR 979 (1949-1953 Comp.); Exec.Order No. 11652, 3 CFR 678 (1971-1975 Comp.); Exec.Order No. 12065, 3 CFR 190 (1979); Exec.Order No. 12356, § 4.1(a), 3 CFR 174 (1983). Pursuant to these directives, departments and agencies of the Government classify jobs in three categories: critical sensitive, noncritical sensitive, and nonsensitive. Different types and levels of clearance are required, depending upon the position sought. A Government appointment is expressly made subject to a background investigation that varies according to the degree of adverse effect the applicant could have on the national security. See Exec.Order No. 10450, § 3, 3 CFR 937 (1949-1953 Comp.).It should be obvious that no one has a "right" to a security clearance. The grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when "clearly consistent with the interests of the national security." See, e.g., Exec.Order No. 10450, §§ 2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR § 710.10(a) (1987) (Department of Energy); 32 CFR § 156.3(a) (1987) (Department of Defense). A clearance does not equate with passing judgment upon an individual's character. Instead, it is only an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information. It may be based, to be sure, upon past or present conduct, but it also may be based upon concerns completely unrelated to conduct, Page 484 U. S. 529 such as having close relatives residing in a country hostile to the United States. "[T]o be denied [clearance] on unspecified grounds in no way implies disloyalty or any other repugnant characteristic." Molerio v. FBI, 242 U.S.App.D.C. 137, 146, 749 F.2d 815, 824 (1984). The attempt to define not only the individual's future actions but those of outside and unknown influences renders the "grant or denial of security clearances . . . an inexact science at best." Adams v. Laird, 136 U.S.App.D.C. 388, 397, 420 F.2d 230, 239 (1969), cert. denied, 397 U.S. 1039 (1970).Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For "reasons . . . too obvious to call for enlarged discussion," CIA v. Sims, 471 U. S. 159, 471 U. S. 170 (1985), the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk. The Court accordingly has acknowledged that, with respect to employees in sensitive positions,"there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information."Cole v. Young, 351 U. S. 536, 351 U. S. 546 (1956). As noted above, this must be a judgment call. The Court also has recognized "the generally accepted view that foreign policy was the province and responsibility of the Executive." Haig v. Agee, 453 U. S. 280, 453 U. S. 293-294 (1981). "As to these areas of Page 484 U. S. 530 Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities." United States v. Nixon, 418 U. S. 683, 418 U. S. 710 (1974). Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs. See, e.g., Orloff v. Willoughby, 345 U. S. 83, 345 U. S. 93-94 (1953); Burns v. Wilson, 346 U. S. 137, 346 U. S. 142, 346 U. S. 144 (1953); Gilligan v. Morgan, 413 U. S. 1, 413 U. S. 10 (1973); Schlesinger v. Councilman, 420 U. S. 738, 420 U. S. 757-758 (1975); Chappell v. Wallace, 462 U. S. 296 (1983).We feel that the contrary conclusion of the Court of Appeals' majority is not in line with this authority.IVFinally, we are fortified in our conclusion when we consider generally the statute's "express language" along with "the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Block v. Community Nutrition Institute, 467 U. S. 340, 467 U. S. 345 (1984).The Act, by its terms, does not confer broad authority on the Board to review a security clearance determination. As noted above, the Board does have jurisdiction to review "adverse actions," a term, however, limited to a removal, a suspension for more than 14 days, a reduction in grade or pay, and a furlough of 30 days or less. §§ 7513(d), 7512. A denial of a security clearance is not such an "adverse action," and, by its own force, is not subject to Board review. An employee who is removed for "cause" under § 7513, when his required clearance is denied, is entitled to the several procedural protections specified in that statute. The Board then may determine whether such cause existed, whether in fact clearance was denied, and whether transfer to a nonsensitive position was feasible. Nothing in the Act, however, directs or empowers the Board to go further. Cf. Zimmerman Page 484 U. S. 531 v. Department of Army, 755 F.2d 156 (CA Fed.1985); Buriani v. Department of Air Force, 777 F.2d 674, 677 (CA Fed.1985); Bacon v. Department of Housing & Urban Development, 757 F.2d 265, 269-270 (CA Fed.1985); Madsen v. VA, 754 F.2d 343 (CA Fed.1985). [Footnote 6]As noted above, security clearance normally will be granted only if it is "clearly consistent with the interests of the national security." The Board, however, reviews adverse actions under a preponderance of the evidence standard. § 7701(c)(1)(B). These two standards seem inconsistent. It is difficult to see how the Board would be able to review security clearance determinations under a preponderance of the evidence standard without departing from the "clearly consistent with the interests of the national security" test. The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials. Placing the burden on the Government to support the denial by a preponderance of the evidence would inevitably shift this emphasis and involve the Board in second-guessing the agency's national security determinations. We consider it extremely Page 484 U. S. 532 unlikely that Congress intended such a result when it passed the Act and created the Board.Respondent presses upon us the existence of § 7532, with its provision for an employee's summary removal. The Court of Appeals' majority concluded that § 7532 was not the exclusive means for removal on national security grounds. 802 F.2d at 1568. [Footnote 7] The parties to the present litigation are in no dispute about the alternative availability of § 7513 or § 7532. They assume, as the Federal Circuit held, that § 7532 does not preempt § 7513, and that the two statutes stand separately and provide alternative routes for administrative action. There is no reason for us to dispute that conclusion here for, in this respect, we accept the case as it comes to us.Respondent points out the Government's acknowledgment that the remedy under § 7532 is "drastic," in that the employee may be suspended summarily, and thereafter removed after such investigation and review as the agency head considers necessary; in that neither the suspension nor the removal is subject to outside review; in that the employee is not eligible for any other position in the agency, and may not be appointed to a position elsewhere in the Government without consultation with the Office of Personnel Management; and in that the section requires the head of the agency to act personally. At the same time, respondent would say, as did the Court of Appeals, 802 F.2d at 1572, that the Board's decision Page 484 U. S. 533 in the present case suggests an anomaly in that an employee removed under § 7513 is entitled to less process than one removed under § 7532. The argument is that the availability of the § 7532 procedure is a "compelling" factor in favor of Board review of a security clearance denial in a case under § 7513. We are not persuaded.We do not agree that respondent would have received greater procedural protections under § 7532 than he received in the present case. Respondent received notice of the reasons for the proposed denial, an opportunity to inspect all relevant evidence, a right to respond, a written decision, and an opportunity to appeal to the Personnel Security Appeals Board. Until the time of his removal, he remained on full-pay status. His removal was subject to Board review that provided important protections outlined above. In contrast, had he been removed under § 7532, he would have received notice to "the extent that the head of the agency determines that the interests of national security permit," a hearing before an agency board, and a decision by the head of the agency. He could have been suspended without pay pending the outcome. He would not have been entitled to any review outside the agency, and, once removed, he would have been barred from employment with the agency. In short, § 7532, instead, provides a procedure that is harsh and drastic both for the employee and for the agency head, who must act personally in suspending and removing the employee. See §§ 7532(a) and (b).Respondent's argument that the Board's decision in this case creates an anomaly seems to come down to his contention that, had he been removed under § 7532, he would have been entitled to a trial-type hearing prior to his removal. Even assuming he would be entitled to such a hearing under § 7532, however, we would still consider the two procedures not anomalous, but merely different. As explained above, we doubt whether removal under § 7532, even as envisioned Page 484 U. S. 534 by respondent, would have amounted to "more" procedural protection.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtDepartment of the Navy v. Egan, 484 U.S. 518 (1988)Department of the Navy v. EganNo. 86-1552Argued December 2, 1987Decided February 23, 1988484 U.S. 518SyllabusTitle 5 U.S.C. Ch. 75, provides a "two-track" system for undertaking "adverse actions" against certain Government employees. An employee removed for "cause," §§ 7511-7514, has a right of appeal to the Merit Systems Protection Board (Board), § 7513(d), that includes a hearing. The Board reviews such removals under a preponderance of the evidence standard. § 7701. An employee is also subject to summary removal based on national security concerns. Such a removal is not appealable to the Board, but the employee has certain specified procedural rights, including a hearing by an agency authority. § 7532. Respondent was removed from his laborer's job at a submarine facility after the Navy denied him a required security clearance. Without a security clearance, respondent was not eligible for any job at the facility. Upon respondent's appeal of his removal under § 7513(d), the Board's presiding official reversed the Navy's decision, holding that the Board had the authority to review the merits of the underlying security clearance determination and that the Navy had failed to show that it reached a reasonable and warranted decision on this question. The full Board reversed and sustained the Navy's removal action, but the Court of Appeals reversed and remanded, holding that, since the Navy had chosen to remove respondent under § 7512 rather than § 7532, review under § 7513 applied, including review of the merits of the underlying security clearance determination.Held: In an appeal pursuant to § 7513, the Board does not have authority to review the substance of an underlying security clearance determination in the course of reviewing an adverse action. Pp. 484 U. S. 526-534.(a) The grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment, and such review cannot be presumed merely because the statute does not expressly preclude it. Pp. 484 U. S. 526-530.(b) The statute's express language and structure confirm that it does not confer broad authority on the Board to review security clearance determinations. A clearance denial is not one of the enumerated "adverse actions" that are subject to Board review, and nothing in the Page 484 U. S. 519 Act directs or empowers the Board to go beyond determining whether "cause" for a denial existed, whether in fact clearance was denied, and whether transfer to a nonsensitive position was feasible. The application of § 7701's preponderance of the evidence standard to security clearance determinations would inevitably alter the "clearly consistent with the interests of the national security" standard normally applied in making such determinations, and would involve the Board in second-guessing an agency's national security determinations, a result that it is extremely unlikely Congress intended. Respondent's argument that the availability of the alternative § 7532 summary removal procedure compels a conclusion of reviewability, since an anomalous situation would otherwise exist whereby the more "drastic" § 7532 remedy would actually entitle a removed employee to greater procedural protections -- particularly to a preremoval trial-type hearing -- than would § 7513, is unpersuasive. Section 7532 provides a procedure that is harsh and drastic both for the employee and for the agency head, who must act personally in suspending and removing the employee, and removal thereunder, even as envisioned by respondent, would not have amounted to "more" procedural protection than respondent received under § 7513. The procedures under the two sections are not anomalous, but merely different. Pp. 484 U. S. 530-534.802 F.2d 1563, reversed.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, and SCALIA, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 484 U. S. 534. KENNEDY, J., took no part in the consideration or decision of the case. Page 484 U. S. 520

1986_85-899

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Respondent William Barrett was convicted after a jury trial of sexual assault, unlawful restraint, and possession of a controlled substance. The Connecticut Supreme Court reversed the convictions. It held that incriminating statements made by Barrett should have been suppressed under our decision in Edwards v. Arizona, 451 U. S. 477 (1981), because Barrett, though stating his willingness to speak to police, had indicated that he would not make a written statement outside the presence of counsel. 197 Conn. 50, 495 A.2d 1044 (1985). We granted certiorari to consider the federal constitutional issues presented by this holding. 476 U.S. 1114 (1986). We reverse.In the early morning of October 24, 1980, Barrett was transported from New Haven, Connecticut, to Wallingford, where he was a suspect in a sexual assault that had occurred the previous evening. Upon arrival at the Wallingford police station, Officer Peter Cameron advised Barrett of his rights, and Barrett signed and dated an acknowledgment that he had received the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). Barrett stated that "he would not give the police any written statements, but he had no problem in talking about the incident." App. 12A.Approximately 30 minutes later, Barrett was questioned by Officer Cameron and Officer John Genovese. Before this questioning, he was again advised of his Miranda rights and signed a card acknowledging that he had been read the rights. Respondent stated that he understood his rights, and told the officers that he would not give a written statement unless his attorney was present, but had "no problem" talking about the incident. Id. at 21A. Barrett then gave an oral statement admitting his involvement in the sexual assault.After discovering that a tape recorder used to preserve the statement had malfunctioned, the police conducted a second Page 479 U. S. 526 interview. For the third time, Barrett was advised of his Miranda rights by the Wallingford police, and once again stated that "he was willing to talk about [the incident] verbally, but he did not want to put anything in writing until his attorney came." Id. at 44A. He then repeated to the police his confession regarding the previous evening's events.When the officers discovered that their tape recorder had again failed to record the statement, Officer Cameron reduced to writing his recollection of respondent's statement.The trial court, after a suppression hearing, held that the confession was admissible. It found that respondent not only indicated that he understood the warnings, but also"offered the statements that he did not need anything explained to him, because he understood. So it was not merely a passive acquiescence. . . ."Id. at 70A. Barrett's decision to make no written statement without his attorney"indicate[d] to the Court that he certainly understood from having his rights read to him that . . . he was under no obligation to give any statement."Ibid. The court held that Barrett had voluntarily waived his right to counsel and thus allowed testimony at trial as to the content of Barrett's statement. Barrett took the stand in his own defense and testified that he had understood his rights as they were read to him. Id. at 130A. He was convicted and sentenced to a prison term of 9 to 18 years.The Connecticut Supreme Court reversed the conviction, holding that respondent had invoked his right to counsel by refusing to make written statements without the presence of his attorney. In the court's view, Barrett's expressed desire for counsel before making a written statement served as an invocation of the right for all purposes:"The fact that the defendant attached his request for counsel to the making of a written statement does not affect the outcome of . . . our inquiry. No particular form of words has ever been required to trigger an individual's fifth amendment protections; nor have requests for Page 479 U. S. 527 counsel been narrowly construed. The defendant's refusal to give a written statement without his attorney present was a clear request for the assistance of counsel to protect his rights in his dealings with the police. Such a request continues to be constitutionally effective despite the defendant's willingness to make oral statements. We conclude, therefore, that the defendant did invoke his right to counsel under the fifth and fourteenth amendments."197 Conn. at 57, 495 A.2d at 1049 (citations omitted). This invocation, the court believed, brought the case within what it called the "bright-line rule for establishing a waiver of this right." Id. at 58, 495 A.2d at 1049. That rule requires a finding that the suspect "(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." Smith v. Illinois, 469 U. S. 91, 469 U. S. 95 (1984) (per curiam). See also Edwards, supra, at 451 U. S. 485, 451 U. S. 486, n. 9. Because Barrett had not initiated further discussions with police, the court found his statement improperly admitted.We think that the Connecticut Supreme Court erred in holding that the United States Constitution required suppression of Barrett's statement. Barrett made clear to police his willingness to talk about the crime for which he was a suspect. The trial court found that this decision was a voluntary waiver of his rights, and there is no evidence that Barrett was "threatened, tricked, or cajoled" into this waiver. Miranda, 384 U.S. at 384 U. S. 476. The Connecticut Supreme Court nevertheless held as a matter of law [Footnote 1] that respondent's Page 479 U. S. 528 limited invocation of his right to counsel prohibited all interrogation absent initiation of further discussion by Barrett. Nothing in our decisions, however, or in the rationale of Miranda, requires authorities to ignore the tenor or sense of a defendant's response to these warnings.The fundamental purpose of the Court's decision in Miranda was "to assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process." Id. at 384 U. S. 469 (emphasis added). See also Moran v. Burbine, 475 U. S. 412, 475 U. S. 426 (1986) ("Miranda attempted to reconcile [competing] concerns by giving the defendant the power to exert some control over the course of the interrogation") (emphasis in original); Oregon v. Elstad, 470 U. S. 298, 470 U. S. 308 (1985) ("Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities") (emphasis added). To this end, the Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights from the government "compulsion, subtle or otherwise," that "operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." Miranda, supra, at 384 U. S. 474. See also Smith, supra, at 469 U. S. 98; Oregon v. Bradshaw, 462 U. S. 1039, 462 U. S. 1044 (1983). One such rule requires that, once the accused "states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda, supra, at 384 U. S. 474. See also Edwards, 451 U.S. at 451 U. S. 484. It remains clear, however, that this prohibition on further questioning -- like other aspects of Miranda -- is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose. See New York v. Quarles, 467 U. S. 649, 467 U. S. 654 (1984). By prohibiting further interrogation after the invocation of these rights, we erect an auxiliary barrier against police coercion. Page 479 U. S. 529But we know of no constitutional objective that would be served by suppression in this case. It is undisputed that Barrett desired the presence of counsel before making a written statement. Had the police obtained such a statement without meeting the waiver standards of Edwards, it would clearly be inadmissible. [Footnote 2] Barrett's limited requests for counsel, however, were accompanied by affirmative announcements of his willingness to speak with the authorities. The fact that officials took the opportunity provided by Barrett to obtain an oral confession is quite consistent with the Fifth Amendment. Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.The Connecticut Supreme Court's decision to the contrary rested on the view that requests for counsel are not to be narrowly construed. 197 Conn. at 67, 495 A.2d at 1049. In support of this premise, respondent observes that our prior decisions have given broad effect to requests for counsel that were less than all-inclusive. See Bradshaw, supra, at 1041-1042 ("I do want an attorney before it goes very much further"); Edwards, supra, at 451 U. S. 479 ("I want an attorney before making a deal"). We do not denigrate the"settled approach to questions of waiver [that] requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel,"Michigan v. Jackson, 475 U. S. 625, 475 U. S. 633 (1986), when we observe that this approach does little to aid respondent's cause. Interpretation is only required where the defendant's words, understood as ordinary people would understand them, are ambiguous. Here, however, Barrett made clear his intentions, and they were honored by police. [Footnote 3] To conclude that respondent invoked his right to Page 479 U. S. 530 counsel for all purposes requires not a broad interpretation of an ambiguous statement, but a disregard of the ordinary meaning of respondent's statement.We also reject the contention that the distinction drawn by Barrett between oral and written statements indicates an understanding of the consequences so incomplete that we should deem his limited invocation of the right to counsel effective for all purposes. This suggestion ignores Barrett's testimony -- and the finding of the trial court not questioned by the Connecticut Supreme Court -- that respondent fully understood the Miranda warnings. These warnings, of course, made clear to Barrett that "[i]f you talk to any police officers, anything you say can and will be used against you in court." App. at 48A. The fact that some might find Barrett's decision illogical [Footnote 4] is irrelevant, for we have never "embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness." Elstad, supra, at 470 U. S. 316; Colorado v. Spring, post p. 479 U. S. 564.For the reasons stated, the judgment of the Connecticut Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtConnecticut v. Barrett, 479 U.S. 523 (1987)Connecticut v. BarrettNo. 85-899Argued December 9, 1986Decided January 27, 1987479 U.S. 523SyllabusRespondent, while in custody on suspicion of sexual assault, was three times advised by the police of his Miranda rights. On each occasion, after signing and dating an acknowledgment that he had been given those rights, respondent indicated to the police that he would not make a written statement, but that he was willing to talk about the incident that led to his arrest. On the second and third such occasions, he added that he would not make a written statement outside the presence of counsel, and then orally admitted his involvement in the sexual assault. One of the police officers reduced to writing his recollection of respondent's last such statement, and the confession was introduced into evidence at respondent's trial. The trial court refused to suppress the confession, finding that respondent had fully understood the Miranda warnings and had voluntarily waived his right to counsel. Respondent's conviction of sexual assault, inter alia, was reversed by the Connecticut Supreme Court, which held that his expressed desire for counsel before making a written statement constituted an invocation of his right to counsel for all purposes, that he had not waived that right by initiating further discussion with the police, and that, therefore, the incriminating statement was improperly admitted into evidence under Edwards v. Arizona, 451 U. S. 477.Held: The Constitution did not require suppression of respondent's incriminating statement. Pp. 479 U. S. 527-530.(a) Respondent's statements to the police made clear his willingness to talk about the sexual assault, and, there being no evidence that he was "threatened, tricked, or cajoled" into speaking to the police, the trial court properly found that his decision to do so constituted a voluntary waiver of his right to counsel. Although the Miranda rules were designed to protect defendants from being compelled by the government to make statements, they also give defendants the right to choose between speech and silence. Pp. 479 U. S. 527-529.(b) Respondent's invocation of his right to counsel was limited by its terms to the making of written statements, and did not prohibit all further discussion with police. Requests for counsel must be given broad, all-inclusive effect only when the defendant's words, understood as ordinary people would understand them, are ambiguous. Here, respondent Page 479 U. S. 524 clearly and unequivocally expressed his willingness to speak to police about the sexual assault. Pp. 479 U. S. 529-530.(c) The distinction drawn by respondent between oral and written statements did not indicate an understanding so incomplete as to render his limited invocation of the right to counsel effective for all purposes. To so hold would contravene his testimony, and the trial court's finding, that he fully understood his Miranda warnings, including the warning that anything he said to police could be used against him. A defendant's ignorance of the full consequences of his decisions does not vitiate their voluntariness. P. 479 U. S. 530.197 Conn.60, 496 A.2d 1044, reversed and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 479 U. S. 530. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 479 U. S. 536. Page 479 U. S. 525

2002_01-7662

Syllabusjurists would find the district court's assessment of the constitutional claims debatable or wrong, ibid. Pp. 335-338.(b) Since petitioner's claim rests on a Batson violation, resolution of his COA application requires a preliminary, though not definitive, consideration of the three-step Batson framework. The State now concedes that petitioner satisfied step one, and petitioner acknowledges that the State proceeded through step two by proffering facially raceneutral explanations for these strikes. The critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. E. g., Purkett v. Elem, 514 U. S. 765, 768 (per curiam). The issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. A plurality of this Court has concluded in the direct review context that a state court's finding of the absence of discriminatory intent is "a pure issue of fact" that is accorded significant deference and will not be overturned unless clearly erroneous. Hernandez v. New York, 500 U. S. 352, 364-365. Where 28 U. S. C. § 2254 applies, the Court's habeas jurisprudence embodies this deference. Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2). Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. In the context of the threshold examination in this Batson claim, it can suffice to support the issuance of a COA to adduce evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133. Pp. 338-341.(c) On review of the record at this stage, this Court concludes that the District Court did not give full consideration to the substantial evidence petitioner put forth in support of the prima facie case. Instead, it accepted without question the state court's evaluation of the demeanor of the prosecutors and jurors in petitioner's trial. The Fifth Circuit evaluated petitioner's COA application in the same way. In ruling that petitioner's claim lacked sufficient merit to justify appellate proceedings, that court recited the requirements for granting a writ under § 2254,325which it interpreted as requiring petitioner to prove that the state-court decision was objectively unreasonable by clear and convincing evidence.This was too demanding a standard because it incorrectly merged the clear and convincing evidence standard of §2254(e)(1), which pertains only to state-court determinations of factual issues, rather than decisions, and the unreasonableness requirement of § 2254(d)(2), which relates to the state-court decision and applies to the granting of habeas relief. More fundamentally, the court was incorrect in not inquiring whether a "substantial showing of the denial of a constitutional right" had been proved, as § 2253(c)(2) requires. The question is the debatability of the underlying constitutional claim, not the resolution of that debate. In this case, debate as to whether the prosecution acted with a race-based reason when striking prospective jurors was raised by the statistical evidence demonstrating that 91% of the eligible MricanAmericans were excluded from petitioner's venire; by the fact that the state trial court had no occasion to judge the credibility of the prosecutors' contemporaneous race-neutral justifications at the time of the pretrial hearing because the Court's equal protection jurisprudence then, dictated by Swain, did not require it; by the fact that three of the State's proffered race-neutral rationales for striking African-Americans-ambivalence about the death penalty, hesitancy to vote to execute defendants capable of being rehabilitated, and the jurors' own family history of criminality-pertained just as well to some white jurors who were not challenged and who did serve on the jury; by the evidence of the State's use of racially disparate questioning; and by the state courts' failure to consider the evidence as to the prosecution's use of the jury shuffle and the historical evidence of racial discrimination by the Dallas County District Attorney's Office. Pp.341-348.261 F.3d 445, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 348. THOMAS, J., filed a dissenting opinion, post, p. 354.Seth P. Waxman argued the cause for petitioner. With him on the briefs were David W Ogden, Robin A. Lenhardt, Jim Marcus, and Andrew Hammel.Gena Bunn, Assistant Attorney General of Texas, argued the cause for respondent. With her on the brief were John Cornyn, Attorney General, Howard G. Baldwin, Jr., First Assistant Attorney General, Michael T. McCaul, Deputy326Attorney General, and Edward L. Marshall, Charles A. Palmer, and Deni S. Garcia, Assistant Attorneys General. *JUSTICE KENNEDY delivered the opinion of the Court.In this case we once again examine when a state prisoner can appeal the denial or dismissal of his petition for writ of habeas corpus. In 1986 two Dallas County assistant district attorneys used peremptory strikes to exclude 10 of the 11 African-Americans eligible to serve on the jury which tried petitioner Thomas Joe Miller-El. During the ensuing 17 years, petitioner has been unsuccessful in establishing, in either state or federal court, that his conviction and death sentence must be vacated because the jury selection procedures violated the Equal Protection Clause and our holding in Batson v. Kentucky, 476 U. S. 79 (1986). The claim now arises in a federal petition for writ of habeas corpus. The procedures and standards applicable in the case are controlled by the habeas corpus statute codified at Title 28, chapter 153, of the United States Code, most recently amended in a substantial manner by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In the interest of finality AEDPA constrains a federal court's power to disturb state-court convictions.The United States District Court for the Northern District of Texas, after reviewing the evidence before the state trial court, determined that petitioner failed to establish a constitutional violation warranting habeas relief. The Court of Appeals for the Fifth Circuit, concluding there was insufficient merit to the case, denied a certificate of appeal-*Briefs of amici curiae urging reversal were filed for Former Prosecutors and Judges by Elisabeth Semel, Charles D. Weisselberg, and Carter G. Phillips; and for the NAACP Legal Defense and Educational Fund, Inc., et al. by Elaine R. Jones, Norman J. Chachkin, James L. Cott, George Kendall, Deborah Fins, and Miriam Gohara.327ability (COA) from the District Court's determination. The COA denial is the subject of our decision.At issue here are the standards AEDPA imposes before a court of appeals may issue a COA to review a denial of habeas relief in the district court. Congress mandates that a prisoner seeking postconviction relief under 28 U. s. C. § 2254 has no automatic right to appeal a district court's denial or dismissal of the petition. Instead, petitioner must first seek and obtain a COA. In resolving this case we decide again that when a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. Slack v. McDaniel, 529 U. S. 473, 481 (2000). Consistent with our prior precedent and the text of the habeas corpus statute, we reiterate that a prisoner seeking a COA need only demonstrate "a substantial showing of the denial of a constitutional right." 28 U. S. C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Slack, supra, at 484. Applying these principles to petitioner's application, we conclude a COA should have issued.I APetitioner, his wife Dorothy Miller- EI, and one Kenneth Flowers robbed a Holiday Inn in Dallas, Texas. They emptied the cash drawers and ordered two employees, Doug Walker and Donald Hall, to lie on the floor. Walker and Hall were gagged with strips of fabric, and their hands and feet were bound. Petitioner asked Flowers if he was going to kill Walker and Hall. When Flowers hesitated or refused,328petitioner shot Walker twice in the back and shot Hall in the side. Walker died from his wounds.The State indicted petitioner for capital murder. He pleaded not guilty, and jury selection took place during five weeks in February and March 1986. When voir dire had been concluded, petitioner moved to strike the jury on the grounds that the prosecution had violated the Equal Protection Clause of the Fourteenth Amendment by excluding African-Americans through the use of peremptory challenges. Petitioner's trial occurred before our decision in Batson, supra, and Swain v. Alabama, 380 U. S. 202 (1965), was then the controlling precedent. As Swain required, petitioner sought to show that the prosecution's conduct was part of a larger pattern of discrimination aimed at excluding African-Americans from jury service. In a pretrial hearing held on March 12, 1986, petitioner presented extensive evidence in support of his motion. The trial judge, however, found "no evidence ... that indicated any systematic exclusion of blacks as a matter of policy by the District Attorney's office; while it may have been done by individual prosecutors in individual cases." App. 813. The state court then denied petitioner's motion to strike the jury. Ibid. Twelve days later, the jury found petitioner guilty; and the trial court sentenced him to death.Petitioner appealed to the Texas Court of Criminal Appeals. While the appeal was pending, on April 30, 1986, the Court decided Batson v. Kentucky and established its threepart process for evaluating claims that a prosecutor used peremptory challenges in violation of the Equal Protection Clause. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. 476 U. S., at 96-97. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Id., at 97-98. Third, in light of the parties' submissions, the trial court must deter-329mine whether the defendant has shown purposeful discrimination. Id., at 98.After acknowledging petitioner had established an inference of purposeful discrimination, the Texas Court of Criminal Appeals remanded the case for new findings in light of Batson. Miller-El v. State, 748 S. W. 2d 459 (1988). A post-trial hearing was held on May 10, 1988 (a little over two years after petitioner's jury had been empaneled). There, the original trial court admitted all the evidence presented at the Swain hearing and further evidence and testimony from the attorneys in the original trial. App. 843-844.On January 13, 1989, the trial court concluded that petitioner's evidence failed to satisfy step one of Batson because it "did not even raise an inference of racial motivation in the use of the state's peremptory challenges" to support a prima facie case. App. 876. Notwithstanding this conclusion, the state court determined that the State would have prevailed on steps two and three because the prosecutors had offered credible, race-neutral explanations for each African-American excluded. The court further found "no disparate prosecutorial examination of any of the veniremen in question" and "that the primary reasons for the exercise of the challenges against each of the veniremen in question [was] their reluctance to assess or reservations concerning the imposition of the death penalty." Id., at 878. There was no discussion of petitioner's other evidence.The Texas Court of Criminal Appeals denied petitioner's appeal, and we denied certiorari. Miller-El v. Texas, 510 U. S. 831 (1993). Petitioner's state habeas proceedings fared no better, and he was denied relief by the Texas Court of Criminal Appeals.Petitioner filed a petition for writ of habeas corpus in Federal District Court pursuant to 28 U. S. C. § 2254. Although petitioner raised four issues, we concern ourselves here with only petitioner's jury selection claim premised on Batson. The Federal Magistrate Judge who considered the merits330was troubled by some of the evidence adduced in the statecourt proceedings. He, nevertheless, recommended, in deference to the state courts' acceptance of the prosecutors' race-neutral justifications for striking the potential jurors, that petitioner be denied relief. The United States District Court adopted the recommendation. Pursuant to § 2253, petitioner sought a COA from the District Court, and the application was denied. Petitioner renewed his request to the Court of Appeals for the Fifth Circuit, and it also denied the COA.The Court of Appeals noted that, under controlling habeas principles, a COA will issue" 'only if the applicant has made a substantial showing of the denial of a constitutional right.'" Miller-El v. Johnson, 261 F.3d 445, 449 (2001) (quoting 28 U. S. C. § 2253(c)(2)). Citing our decision in Slack v. McDaniel, 529 U. S. 473 (2000), the court reasoned that "[a] petitioner makes a 'substantial showing' when he demonstrates that his petition involves issues which are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are adequate to deserve encouragement to proceed further." 261 F. 3d, at 449. The Court of Appeals also interjected the requirements of 28 U. S. C. § 2254 into the COA determination: "As an appellate court reviewing a federal habeas petition, we are required by § 2254(d)(2) to presume the state court findings correct unless we determine that the findings result in a decision which is unreasonable in light of the evidence presented. And the unreasonableness, if any, must be established by clear and convincing evidence. See 28 U. S. C. § 2254(e)(1)." 261 F. 3d, at 451.Applying this framework to petitioner's COA application, the Court of Appeals concluded "that the state court's findings are not unreasonable and that Miller- EI has failed to present clear and convincing evidence to the contrary." Id., at 452. As a consequence, the court "determined that the state court's adjudication neither resulted in a decision that331was unreasonable in light of the evidence presented nor resulted in a decision contrary to clearly established federal law as determined by the Supreme Court," ibid.; and it denied petitioner's request for a COA. We granted certiorari. 534 U. S. 1122 (2002).BWhile a COA ruling is not the occasion for a ruling on the merit of petitioner's claim, our determination to reverse the Court of Appeals counsels us to explain in some detail the extensive evidence concerning the jury selection procedures. Petitioner's evidence falls into two broad categories. First, he presented to the state trial court, at a pretrial Swain hearing, evidence relating to a pattern and practice of race discrimination in the voir dire. Second, two years later, he presented, to the same state court, evidence that directly related to the conduct of the prosecutors in his case. We discuss the latter first.A comparative analysis of the venire members demonstrates that African-Americans were excluded from petitioner's jury in a ratio significantly higher than Caucasians were. Of the 108 possible jurors reviewed by the prosecution and defense, 20 were African-American. Nine of them were excused for cause or by agreement of the parties. Of the 11 African-American jurors remaining, however, all but 1 were excluded by peremptory strikes exercised by the prosecutors. On this basis 91% of the eligible black jurors were removed by peremptory strikes. In contrast the prosecutors used their peremptory strikes against just 13% (4 out of 31) of the eligible nonblack prospective jurors qualified to serve on petitioner's jury.These numbers, while relevant, are not petitioner's whole case. During voir dire, the prosecution questioned venire members as to their views concerning the death penalty and their willingness to serve on a capital case. Responses that disclosed reluctance or hesitation to impose capital punishment were cited as a justification for striking a potential332juror for cause or by peremptory challenge. Wainwright v. Witt, 469 U. S. 412 (1985). The evidence suggests, however, that the manner in which members of the venire were questioned varied by race. To the extent a divergence in responses can be attributed to the racially disparate mode of examination, it is relevant to our inquiry.Most African-Americans (53%, or 8 out of 15) were first given a detailed description of the mechanics of an execution in Texas:"[I]f those three [sentencing] questions are answered yes, at some pointe,] Thomas Joe Miller-EI will be taken to Huntsville, Texas. He will be placed on death row and at some time will be taken to the death house where he will be strapped on a gurney, an IV put into his arm and he will be injected with a substance that will cause his death ... as the result of the verdict in this case if those three questions are answered yes." App. 215.Only then were these African-American venire members asked whether they could render a decision leading to a sentence of death. Very few prospective white jurors (6%, or 3 out of 49) were given this preface prior to being asked for their views on capital punishment. Rather, all but three were questioned in vague terms: "Would you share with us ... your personal feelings, if you could, in your own words how you do feel about the death penalty and capital punishment and secondly, do you feel you could serve on this type of a jury and actually render a decision that would result in the death of the Defendant in this case based on the evidence?" Id., at 506.There was an even more pronounced difference, on the apparent basis of race, in the manner the prosecutors questioned members of the venire about their willingness to impose the minimum sentence for murder. Under Texas law at the time of petitioner's trial, an unwillingness to do so warranted removal for cause. Huffman v. State, 450 S. W.3332d 858, 861 (Tex. Crim. App. 1970), vacated in part, 408 U. s. 936 (1972). This strategy normally is used by the defense to weed out pro-state members of the venire, but, ironically, the prosecution employed it here. The prosecutors first identified the statutory minimum sentence of five years' imprisonment to 34 out of 36 (94%) white venire members, and only then asked: "If you hear a case, to your way of thinking [that] calls for and warrants and justifies five years, you'll give it?" App. 509. In contrast, only one out of eight (12.5%) African-American prospective jurors were informed of the statutory minimum before being asked what minimum sentence they would impose. The typical questioning of the other seven black jurors was as follows:"[Prosecutor]: Now, the maximum sentence for [murder] ... is life under the law. Can you give me an idea of just your personal feelings what you feel a minimum sentence should be for the offense of murder the way I've set it out for you?"[Juror]: Well, to me that's almost like it's premeditated. But you said they don't have a premeditated statute here in Texas."[Prosecutor]: Again, we're not talking about selfdefense or accident or insanity or killing in the heat of passion or anything like that. We're talking about the knowing-"[Juror]: I know you said the minimum. The minimum amount that I would say would be at least twenty years." Id., at 226-227.Furthermore, petitioner points to the prosecution's use of a Texas criminal procedure practice known as jury shuffling. This practice permits parties to rearrange the order in which members of the venire are examined so as to increase the likelihood that visually preferable venire members will be moved forward and empaneled. With no information about334the prospective jurors other than their appearance, the party requesting the procedure literally shuffles the juror cards, and the venire members are then reseated in the new order. Tex. Code Crim. Proc. Ann., Art. 35.11 (Vernon Supp. 2003). Shuffling affects jury composition because any prospective jurors not questioned during voir dire are dismissed at the end of the week, and a new panel of jurors appears the following week. So jurors who are shuffled to the back of the panel are less likely to be questioned or to serve.On at least two occasions the prosecution requested shuffles when there were a predominant number of AfricanAmericans in the front of the panel. On yet another occasion the prosecutors complained about the purported inadequacy of the card shuffle by a defense lawyer but lodged a formal objection only after the postshuffle panel composition revealed that African-American prospective jurors had been moved forward.Next, we turn to the pattern and practice evidence adduced at petitioner's pretrial Swain hearing. Petitioner subpoenaed a number of current and former Dallas County assistant district attorneys, judges, and others who had observed firsthand the prosecution's conduct during jury selection over a number of years. Although most of the witnesses denied the existence of a systematic policy to exclude African-Americans, others disagreed. A Dallas County district judge testified that, when he had served in the District Attorney's Office from the late-1950's to early-1960's, his superior warned him that he would be fired if he permitted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former assistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries.Of more importance, the defense presented evidence that the District Attorney's Office had adopted a formal policy to exclude minorities from jury service. A 1963 circular by the335District Attorney's Office instructed its prosecutors to exercise peremptory strikes against minorities: "'Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.'" App. 710. A manual entitled "Jury Selection in a Criminal Case" was distributed to prosecutors. It contained an article authored by a former prosecutor (and later a judge) under the direction of his superiors in the District Attorney's Office, outlining the reasoning for excluding minorities from jury service. Although the manual was written in 1968, it remained in circulation until 1976, if not later, and was available at least to one of the prosecutors in Miller-EI's trial. Id., at 749, 774, 783.Some testimony casts doubt on the State's claim that these practices had been discontinued before petitioner's trial. For example, a judge testified that, in 1985, he had to exclude a prosecutor from trying cases in his courtroom for racebased discrimination in jury selection. Other testimony indicated that the State, by its own admission, once requested a jury shuffle in order to reduce the number of AfricanAmericans in the venire. Id., at 788. Concerns over the exclusion of African-Americans by the District Attorney's Office were echoed by Dallas County's Chief Public Defender.This evidence had been presented by petitioner, in support of his Batson claim, to the state and federal courts that denied him relief. It is against this background that we examine whether petitioner's case should be heard by the Court of Appeals.II AAs mandated by federal statute, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U. S. C. § 2253. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and336obtain a COA from a circuit justice or judge. This is a jurisdictional prerequisite because the COA statute mandates that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals .... " § 2253(c)(1). As a result, until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.A COA will issue only if the requirements of § 2253 have been satisfied. "The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal." Slack, 529 U. S., at 482; Hohn v. United States, 524 U. S. 236, 248 (1998). As the Court of Appeals observed in this case, § 2253(c) permits the issuance of a COA only where a petitioner has made a "substantial showing of the denial of a constitutional right." In Slack, supra, at 483, we recognized that Congress codified our standard, announced in Barefoot v. Estelle, 463 U. S. 880 (1983), for determining what constitutes the requisite showing. Under the controlling standard, a petitioner must "sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" 529 U. S., at 484 (quoting Barefoot, supra, at 893, n.4).The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based337on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.To that end, our opinion in Slack held that a COA does not require a showing that the appeal will succeed. Accordingly, a court of appeals should not decline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief. The holding in Slack would mean very little if appellate review were denied because the prisoner did not convince a judge, or, for that matter, three judges, that he or she would prevail. It is consistent with § 2253 that a COA will issue in some instances where there is no certainty of ultimate relief. After all, when a COA is sought, the whole premise is that the prisoner "'has already failed in that endeavor.'" Barefoot, supra, at 893, n. 4.Our holding should not be misconstrued as directing that a COA always must issue. Statutes such as AEDPA have placed more, rather than fewer, restrictions on the power of federal courts to grant writs of habeas corpus to state prisoners. Duncan v. Walker, 533 U. S. 167, 178 (2001) (" 'AEDPA's purpose [is] to further the principles of comity, finality, and federalism'" (quoting Williams v. Taylor, 529 U. S. 420, 436 (2000))); Williams v. Taylor, 529 U. S. 362, 399 (2000) (opinion of O'CONNOR, J.). The concept of a threshold, or gateway, test was not the innovation of AEDPA. Congress established a threshold prerequisite to appealability in 1908, in large part because it was "concerned with the increasing number of frivolous habeas corpus petitions challenging capital sentences which delayed execution pending completion of the appellate process .... " Barefoot, supra, at 892, n. 3. By enacting AEDPA, using the specific standards the Court had elaborated earlier for the threshold test, Congress confirmed the necessity and the requirement of differential treatment for those appeals deserving of attention from those that plainly do not. It follows that issuance of a COA must not be pro forma or a matter of course.338A prisoner seeking a COA must prove "'something more than the absence of frivolity''' or the existence of mere "good faith" on his or her part. Barefoot, supra, at 893. We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack, "[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." 529 U. S., at 484.BSince Miller- El's claim rests on a Batson violation, resolution of his COA application requires a preliminary, though not definitive, consideration of the three-step framework mandated by Batson and reaffirmed in our later precedents. E. g., Purkett v. Elem, 514 U. S. 765 (1995) (per curiam); Hernandez v. New York, 500 U. S. 352 (1991) (plurality opinion). Contrary to the state trial court's ruling on remand, the State now concedes that petitioner, Miller-EI, satisfied step one: "[T]here is no dispute that Miller-EI presented a prima facie claim" that prosecutors used their peremptory challenges to exclude venire members on the basis of race. Brief for Respondent 32. Petitioner, for his part, acknowledges that the State proceeded through step two by proffering facially race-neutral explanations for these strikes. Under Batson, then, the question remaining is step three: whether Miller-EI "has carried his burden of proving purposeful discrimination." Hernandez, supra, at 359.As we confirmed in Purkett v. Elem, 514 U. S., at 768, the critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persua-339siveness of the prosecutor's justification for his peremptory strike. At this stage, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Ibid. In that instance the issue comes down to whether the trial court finds the prosecutor's raceneutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.In Hernandez v. New York, a plurality of the Court concluded that a state court's finding of the absence of discriminatory intent is "a pure issue of fact" accorded significant deference:"Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding 'largely will turn on evaluation of credibility.' 476 U. S., at 98, n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' Wainwright v. Witt, 469 U. S. 412, 428 (1985), citing Patton v. Yount, 467 U. S. 1025, 1038 (1984)." 500 U. S., at 365.Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations. "[I]f an appellate court accepts a trial court's finding that a prosecutor's race-neutral explanation for his peremptory challenges should be believed, we fail to see how the340appellate court nevertheless could find discrimination. The credibility of the prosecutor's explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review." Id., at 367.In the context of direct review, therefore, we have noted that "the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal" and will not be overturned unless clearly erroneous. Id., at 364. A federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system. Where 28 U. s. C. § 2254 applies, our habeas jurisprudence embodies this deference. Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2); see also Williams, 529 U. S., at 399 (opinion of O'CONNOR, J.).Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence. In the context of the threshold examination in this Batson claim the issuance of a COA can be supported by any evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based. It goes without saying that this includes the facts and circumstances that were adduced in support of the prima facie case. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000) (in action under Title VII of the Civil Rights Act of 1964, employee's prima facie case and evidence that employer's341race-neutral response was a pretext can support a finding of purposeful discrimination). Only after a COA is granted will a reviewing court determine whether the trial court's determination of the prosecutor's neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary. At this stage, however, we only ask whether the District Court's application of AEDPA deference, as stated in §§2254(d)(2) and (e)(l), to petitioner's Batson claim was debatable amongst jurists of reason.CApplying these rules to Miller-EI's application, we have no difficulty concluding that a COA should have issued. We conclude, on our review of the record at this stage, that the District Court did not give full consideration to the substantial evidence petitioner put forth in support of the prima facie case. Instead, it accepted without question the state court's evaluation of the demeanor of the prosecutors and jurors in petitioner's trial. The Court of Appeals evaluated Miller-El's application for a COA in the same way. In ruling that petitioner's claim lacked sufficient merit to justify appellate proceedings, the Court of Appeals recited the requirements for granting a writ under § 2254, which it interpreted as requiring petitioner to prove that the state-court decision was objectively unreasonable by clear and convincing evidence.This was too demanding a standard on more than one level.It was incorrect for the Court of Appeals, when looking at the merits, to merge the independent requirements of §§ 2254(d)(2) and (e)(l). AEDPA does not require petitioner to prove that a decision is objectively unreasonable by clear and convincing evidence. The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions. Subsection (d)(2) contains the unreasonable342requirement and applies to the granting of habeas relief rather than to the granting of a COA.The Court of Appeals, moreover, was incorrect for an even more fundamental reason. Before the issuance of a COA, the Court of Appeals had no jurisdiction to resolve the merits of petitioner's constitutional claims. True, to the extent that the merits of this case will turn on the agreement or disagreement with a state-court factual finding, the clear and convincing evidence and objective unreasonableness standards will apply. At the COA stage, however, a court need not make a definitive inquiry into this matter. As we have said, a COA determination is a separate proceeding, one distinct from the underlying merits. Slack, 529 U. S., at 481; Hohn, 524 U. S., at 241. The Court of Appeals should have inquired whether a "substantial showing of the denial of a constitutional right" had been proved. Deciding the substance of an appeal in what should only be a threshold inquiry undermines the concept of a COA. The question is the debatability of the underlying constitutional claim, not the resolution of that debate.In this case, the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors. The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members, and only one served on petitioner's jury. In total, 10 of the prosecutors' 14 peremptory strikes were used against African-Americans. Happenstance is unlikely to produce this disparity.The case for debatability is not weakened when we examine the State's defense of the disparate treatment. The Court of Appeals held that "[t]he presumption of correctness is especially strong, where, as here, the trial court and state habeas court are one and the same." 261 F. 3d, at 449. As we have noted, the trial court held its Batson hearing two years after the voir dire. While the prosecutors had proffered contemporaneous race-neutral justifications for many343of their peremptory strikes, the state trial court had no occasion to judge the credibility of these explanations at that time because our equal protection jurisprudence then, dictated by Swain, did not require it. As a result, the evidence presented to the trial court at the Batson hearing was subject to the usual risks of imprecision and distortion from the passage of time.In this case, three of the State's proffered race-neutral rationales for striking African-American jurors pertained just as well to some white jurors who were not challenged and who did serve on the jury. The prosecutors explained that their peremptory challenges against six African-American potential jurors were based on ambivalence about the death penalty; hesitancy to vote to execute defendants capable of being rehabilitated; and the jurors' own family history of criminality. In rebuttal of the prosecution's explanation, petitioner identified two empaneled white jurors who expressed ambivalence about the death penalty in a manner similar to their African-American counterparts who were the subject of prosecutorial peremptory challenges. One indicated that capital punishment was not appropriate for a first offense, and another stated that it would be "difficult" to impose a death sentence. Similarly, two white jurors expressed hesitation in sentencing to death a defendant who might be rehabilitated; and four white jurors had family members with criminal histories. As a consequence, even though the prosecution's reasons for striking AfricanAmerican members of the venire appear race neutral, the application of these rationales to the venire might have been selective and based on racial considerations. Whether a comparative juror analysis would demonstrate the prosecutors' rationales to have been pretexts for discrimination is an unnecessary determination at this stage, but the evidence does make debatable the District Court's conclusion that no purposeful discrimination occurred.344We question the Court of Appeals' and state trial court's dismissive and strained interpretation of petitioner's evidence of disparate questioning. 261 F. 3d, at 452 ("The findings of the state court that there was no disparate questioning of the Batson jurors ... [is] fully supported by the record"). Petitioner argues that the prosecutors' sole purpose in using disparate questioning was to elicit responses from the African-American venire members that reflected an opposition to the death penalty or an unwillingness to impose a minimum sentence, either of which justified for-cause challenges by the prosecution under the then-applicable state law. This is more than a remote possibility. Disparate questioning did occur. Petitioner submits that disparate questioning created the appearance of divergent opinions even though the venire members' views on the relevant subject might have been the same. It follows that, if the use of disparate questioning is determined by race at the outset, it is likely a justification for a strike based on the resulting divergent views would be pretextual. In this context the differences in the questions posed by the prosecutors are some evidence of purposeful discrimination. Batson, 476 U. S., at 97 ("Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose").As a preface to questions about views the prospective jurors held on the death penalty, the prosecution in some instances gave an explicit account of the execution process. Of those prospective jurors who were asked their views on capital punishment, the preface was used for 53% of the African-Americans questioned on the issue but for just 6% of white persons. The State explains the disparity by asserting that a disproportionate number of African-American venire members expressed doubts as to the death penalty on their juror questionnaires. This cannot be accepted without further inquiry, however, for the State's own evidence is in-345consistent with that explanation. By the State's calculations, 10 African-American and 10 white prospective jurors expressed some hesitation about the death penalty on their questionnaires; however, of that group, 7 out of 10 AfricanAmericans and only 2 out of 10 whites were given the explicit description.There is an even greater disparity along racial lines when we consider disparate questioning concerning minimum punishments. Ninety-four percent of whites were informed of the statutory minimum sentence, compared to only twelve and a half percent of African-Americans. No explanation is proffered for the statistical disparity. Pierre v. Louisiana, 306 U. S. 354, 361-362 (1939) (" 'The fact that the testimony ... was not challenged by evidence appropriately direct, cannot be brushed aside.' Had there been evidence obtainable to contradict and disprove the testimony offered by petitioner, it cannot be assumed that the State would have refrained from introducing it" (quoting Norris v. Alabama, 294 U. S. 587, 594-595 (1935))). Indeed, while petitioner's appeal was pending before the Texas Court of Criminal Appeals, that court found a Batson violation where this precise line of disparate questioning on mandatory minimums was employed by one of the same prosecutors who tried the instant case. Chambers v. State, 784 S. W. 2d 29, 31 (Tex. Crim. App. 1989). It follows, in our view, that a fair interpretation of the record on this threshold examination in the COA analysis is that the prosecutors designed their questions to elicit responses that would justify the removal of African-Americans from the venire. Batson, supra, at 93 ("Circumstantial evidence of invidious intent may include proof of disproportionate impact .... We have observed that under some circumstances proof of discriminatory impact 'may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds' ").346We agree with petitioner that the prosecution's decision to seek a jury shuffle when a predominant number of AfricanAmericans were seated in the front of the panel, along with its decision to delay a formal objection to the defense's shuffle until after the new racial composition was revealed, raise a suspicion that the State sought to exclude AfricanAmericans from the jury. Our concerns are amplified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney's Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past. App. 788 (noting that a prosecutor admitted to requesting a jury shuffle "because a predominant number of the first six, eight or ten jurors were blacks"). Even though the practice of jury shuffling might not be denominated as a Batson claim because it does not involve a peremptory challenge, the use of the practice here tends to erode the credibility of the prosecution's assertion that race was not a motivating factor in the jury selection.Finally, in our threshold examination, we accord some weight to petitioner's historical evidence of racial discrimination by the District Attorney's Office. Evidence presented at the Swain hearing indicates that African-Americans almost categorically were excluded from jury service. Batson, supra, at 94 ("Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the 'result bespeaks discrimination' "); Vasquez v. Hillery, 474 U. S. 254, 259 (1986) ("As early as 1942, this Court rejected a contention that absence of blacks on the grand jury was insufficient to support an inference of discrimination, summarily asserting that 'chance or accident could hardly have accounted for the continuous omission of negroes from the grand jury lists for so long a period as sixteen years or more'" (quoting Hill v. Texas, 316 U. S. 400, 404 (1942))); Hernandez v. Texas, 347 U. S. 475, 482 (1954) ("But it taxes our credulity to say that mere chance resulted in there being347no members of this class among the over six thousand jurors called in the past 25 years"). Only the Federal Magistrate Judge addressed the import of this evidence in the context of a Batson claim; and he found it both unexplained and disturbing. Irrespective of whether the evidence could prove sufficient to support a charge of systematic exclusion of African-Americans, it reveals that the culture of the District Attorney's Office in the past was suffused with bias against African-Americans in jury selection. This evidence, of course, is relevant to the extent it casts doubt on the legitimacy of the motives underlying the State's actions in petitioner's case. Even if we presume at this stage that the prosecutors in Miller-EI's case were not part of this culture of discrimination, the evidence suggests they were likely not ignorant of it. Both prosecutors joined the District Attorney's Office when assistant district attorneys received formal training in excluding minorities from juries. The supposition that race was a factor could be reinforced by the fact that the prosecutors marked the race of each prospective juror on their juror cards.In resolving the equal protection claim against petitioner, the state courts made no mention of either the jury shuffle or the historical record of purposeful discrimination. We adhere to the proposition that a state court need not make detailed findings addressing all the evidence before it. This failure, however, does not diminish its significance. Our concerns here are heightened by the fact that, when presented with this evidence, the state trial court somehow reasoned that there was not even the inference of discrimination to support a prima facie case. This was clear error, and the State declines to defend this particular ruling. "If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause 'would be but a vain and illusory requirement.'" Batson, 476 U. S., at 98 (quoting Norris, 294 U. S., at 598).348To secure habeas relief, petitioner must demonstrate that a state court's finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U. S. C. § 2254(e)(1), and that the corresponding factual determination was "objectively unreasonable" in light of the record before the court. The State represents to us that petitioner will not be able to satisfy his burden. That mayor may not be the case. It is not, however, the question before us. The COA inquiry asks only if the District Court's decision was debatable. Our threshold examination convinces us that it was.The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusMILLER-EL v. COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 01-7662. Argued October 16, 2002-Decided February 25, 2003When Dallas County prosecutors used peremptory strikes to exclude 10 of the 11 Mrican-Americans eligible to serve on the jury at petitioner's capital murder trial, he moved to strike the jury on the ground that the exclusions violated equal protection. Petitioner presented extensive evidence supporting his motion at a pretrial hearing, but the trial judge denied relief, finding no evidence indicating a systematic exclusion of blacks, as was required by the then-controlling precedent, Swain v. Alabama, 380 U. S. 202. Subsequently, the jury found petitioner guilty, and he was sentenced to death. While his appeal was pending, this Court established, in Batson v. Kentucky, 476 U. S. 79, a three-part process for evaluating equal protection claims such as petitioner's. Upon remand from the Texas Court of Criminal Appeals for new findings in light of Batson, the original trial court held a hearing at which it admitted all the Swain hearing evidence and took further evidence, but concluded that petitioner failed to satisfy step one of Batson because the evidence did not even raise an inference of racial motivation in the State's use of peremptory challenges. The court also determined that the State would have prevailed on steps two and three because the prosecutors had proffered credible, race-neutral explanations for the African-Americans excluded-i. e., their reluctance to assess, or reservations concerning, imposition of the death penalty-such that petitioner could not prove purposeful discrimination. After petitioner's direct appeal and state habeas petitions were denied, he filed a federal habeas petition under 28 U. S. C. § 2254, raising a Batson claim and other issues. The Federal District Court denied relief in deference to the state courts' acceptance of the prosecutors' race-neutral justifications for striking the potential jurors, and subsequently denied petitioner's § 2253 application for a certificate of appealability (COA). The Fifth Circuit noted that a COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right," § 2253(c)(2); reasoned that a petitioner must make such a "substantial showing" under the standard set forth in Slack v. McDaniel, 529 U. S. 473; de-323clared that § 2254(d)(2) required it to presume state-court findings correct unless it determined that the findings would result in a decision which was unreasonable in light of clear and convincing evidence; and applied this framework to deny petitioner a COA.Petitioner's extensive evidence concerning the jury selection procedures falls into two broad categories. First, he presented, at the pretrial Swain hearing, testimony and other evidence relating to a pattern and practice of race discrimination in the voir dire by the Dallas County District Attorney's Office, including a 1976 policy by that office to exclude minorities from jury service that was available at least to one of petitioner's prosecutors. Second, two years later, petitioner presented, to the same state trial court, evidence that directly related to the prosecutors' conduct in his case, including a comparative analysis of the venire members demonstrating that Mrican-Americans were excluded from petitioner's jury in a ratio significantly higher than Caucasians; evidence that, during voir dire, the prosecution questioned venire members in a racially disparate fashion as to their death penalty views, their willingness to serve on a capital case, and their willingness to impose the minimum sentence for murder, and that responses disclosing reluctance or hesitation to impose capital punishment or a minimum sentence were cited as a justification for striking potential jurors; and the prosecution's use of a Texas criminal procedure practice known as "jury shuffling" to assure that white venire members were selected in preference to Mrican-Americans.Held: The Fifth Circuit should have issued a COA to review the District Court's denial of habeas relief to petitioner. Pp. 335-348.(a) Before a prisoner seeking postconviction relief under § 2254 may appeal a district court's denial or dismissal of the petition, he must first seek and obtain a COA from a circuit justice or judge, § 2253. This is a jurisdictional prerequisite. A COA will issue only if § 2253's requirements have been satisfied. When a habeas applicant seeks a COA, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. E. g., Slack, 529 U. S., at 481. This inquiry does not require full consideration of the factual or legal bases supporting the claims. Consistent with this Court's precedent and the statutory text, the prisoner need only demonstrate "a substantial showing of the denial of a constitutional right." § 2253(c)(2). He satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his case or that the issues presented were adequate to deserve encouragement to proceed furthe~ E. g., id., at 484. He need not convince a judge, or, for that matter, three judges, that he will prevail, but must demonstrate that reasonable324Full Text of Opinion

1998_97-1802

clude that such conduct by a prosecutor does not violate an attorney's Fourteenth Amendment right to practice his profession.This case arises out of the high-profile California trials of the "Menendez Brothers," Lyle and Erik Menendez, for the murder of their parents. Petitioners David Conn and Carol Najera are Los Angeles County Deputy District Attorneys, and respondent Paul Gabbert is a criminal defense attorney. In early 1994, after the first Menendez trial ended in a hung jury, the Los Angeles County District Attorney's Office assigned Conn and Najera to prosecute the case on retrial. Conn and Najera learned that Lyle Menendez had written a letter to Traci Baker, his former girlfriend, in which he may have instructed her to testify falsely at trial. Gabbert represented Baker, who had testified as a defense witness in the first trial. Conn obtained and served Baker with a subpoena directing her to testify before the Los Angeles County grand jury and also directing her to produce at that time any correspondence that she had received from Lyle Menendez. After Gabbert unsuccessfully sought to quash the portion of the subpoena directing Baker to produce the Menendez correspondence, Conn and Najera obtained a warrant to search Baker's apartment for any such correspondence. When police tried to execute the warrant, Baker told the police that she had given all her letters from Menendez to Gabbert.Three days later, on March 21, 1994, Baker appeared as directed before the grand jury, accompanied by Gabbert. Believing that Gabbert might have the letter on his person, Conn directed a police detective to secure a warrant to search Gabbert. California law provides that a warrant to search an attorney must be executed by a court-appointed special master. When the Special Master arrived, Gabbert requested that the search take place in a private room. He did not request that his client's grand jury testimony be postponed. The Special Master searched Gabbert in the private289room, and Gabbert produced two pages of a three-page letter from Lyle Menendez to Baker.At approximately the same time that the search of Gabbert was taking place, Najera called Baker before the grand jury and began to question her. After being sworn, Najera asked Baker whether she was acquainted with Lyle Menendez. Baker replied that she had been unable to speak with her attorney because he was "still with the special master." Brief for Petitioners 6. A short recess was taken during which time Baker was unable to speak with Gabbert. He was aware that Baker sought to speak with him, but apparently stated that the prosecutors would simply have to delay the questioning until they finished searching him. Baker returned to the grand jury room and declined to answer the question "upon the advice of [my] counsel" on the basis of her Fifth Amendment privilege against self-incrimination. Id., at 7. Najera asked a followup question, and Baker again asked for a short recess to confer with Gabbert. Baker was again unable to locate Gabbert, and she again returned to the grand jury room and asserted her Fifth Amendment privilege. At this point, the grand jury recessed.Believing that the actions of the prosecutors were illegal, Gabbert brought suit against them and other officials in Federal District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983. Relevant to this appeal by Conn and Najera, he contended that his Fourteenth Amendment right to practice his profession without unreasonable government interference was violated when the prosecutors executed a search warrant at the same time his client was testifying before the grand jury. * Conn and Najera moved for summary judgment on the basis of qualified immunity, and the District Court granted the motion.*Gabbert also brought a claim under § 1983 that Conn and Najera had violated his rights under the Fourth Amendment. That claim is not before us and we express no opinion on it.290The Court of Appeals reversed in part, holding that Conn and Najera were not entitled to qualified immunity on Gabbert's Fourteenth Amendment claim. 131 F.3d 793 (CA9 1997). Relying on Board of Regents of State Colleges v. Roth, 408 U. S. 564, 572 (1972), and earlier cases of this Court recognizing a right to choose one's vocation, the Court of Appeals concluded that Gabbert had a right to practice his profession without undue and unreasonable government interference. 131 F. 3d, at 800. The Court of Appeals also held that based upon notions of "'common sense,'" id., at 801, the right allegedly violated in this case was clearly established, and as a result, Conn and Najera were not entitled to qualified immunity: "The plain and intended result [of the prosecutors' actions] was to prevent Gabbert from consulting with Baker during her grand jury appearance. These actions were not objectively reasonable, and thus the prosecutors are not protected by qualified immunity from answering Gabbert's Fourteenth Amendment claim." Id., at 802-803. We granted certiorari and now reverse.Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights. 42 U. S. C. § 1983. In order to prevail in a § 1983 action for civil damages from a government official performing discretionary functions, the defense of qualified immunity that our cases have recognized requires that the official be shown to have violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Thus a court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation. See Siegert v. Gilley, 500 U. S. 226, 232-233 (1991); see also County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998).291We find no support in our cases for the conclusion of the Court of Appeals that Gabbert had a Fourteenth Amendment right which was violated in this case. The Court of Appeals relied primarily on Board of Regents v. Roth. In Roth, this Court repeated the pronouncement in Meyer v. Nebraska, 262 U. S. 390, 399 (1923), that the liberty guaranteed by the Fourteenth Amendment "'denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.''' Roth, supra, at 572 (quoting Meyer, supra, at 399). But neither Roth nor Meyer even came close to identifying the asserted "right" violated by the prosecutors in this case. Meyer held that substantive due process forebade a State from enacting a statute that prohibited teaching in any language other than English. 262 U. S., at 399, 402-403. And Roth was a procedural due process case which held that an at-will college professor had no "property" interest in his job within the meaning of the Fourteenth Amendment so as to require the university to hold a hearing before terminating him. 408 U. S., at 578. Neither case will bear the weight placed upon it by either the Court of Appeals or Gabbert: Neither case supports the conclusion that the actions of the prosecutors in this case deprived Gabbert of a liberty interest in practicing law.Similarly, none of the other cases relied upon by the Court of Appeals or suggested by Gabbert provide any more than scant metaphysical support for the idea that the use of a search warrant by government actors violates an attorney's right to practice his profession. In a line of earlier cases, this Court has indicated that the liberty component of the Fourteenth Amendment's Due Process Clause includes some292generalized due process right to choose one's field of private employment, but a right which is nevertheless subject to reasonable government regulation. See, e. g., Dent v. West Virginia, 129 U. S. 114 (1889) (upholding a requirement oflicensing before a person can practice medicine); Truax v. Raich, 239 U. S. 33, 41 (1915) (invalidating on equal protection grounds a state law requiring companies to employ 80% United States citizens). These cases all deal with a complete prohibition of the right to engage in a calling, and not the sort of brief interruption which occurred here.Gabbert also relies on Schware v. Board of Bar Examiners of N. M., 353 U. S. 232, 238-239 (1957), for the proposition that a State cannot exclude a person from the practice of law for reasons that contravene the Due Process Clause. Schware held that former membership in the Communist Party and an arrest record relating to union activities could not be the basis for completely excluding a person from the practice of law. Like Dent, supra, and Truax, supra, it does not deal with a brief interruption as a result of legal process. No case of this Court has held that such an intrusion can rise to the level of a violation of the Fourteenth Amendment's liberty right to choose and follow one's calling. That right is simply not infringed by the inevitable interruptions of our daily routine as a result of legal process, which all of us may experience from time to time.Gabbert next argues that the improper timing of the search interfered with his client's right to have him outside the grand jury room and available to consult with her. A grand jury witness has no constitutional right to have counsel present during the grand jury proceeding, United States v. Mandujano, 425 U. S. 564, 581 (1976), and no decision of this Court has held that a grand jury witness has a right to have her attorney present outside the jury room. We need not decide today whether such a right exists, because Gabbert clearly had no standing to raise the alleged infringement of the rights of his client Tracy Baker. "[T]he plaintiff293generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U. S. 490, 499 (1975).Gabbert of course does have standing to complain of the allegedly unreasonable timing of the execution of the search warrant to prevent him from advising his client. In essence then, he argues that the prosecutors searched him in an unreasonable manner. We have held that where another provision of the Constitution "provides an explicit textual source of constitutional protection," a court must assess a plaintiff's claims under that explicit provision and "not the more generalized notion of 'substantive due process.'" Graham v. Connor, 490 U. S. 386, 395 (1989). Challenges to the reasonableness of a search by government agents clearly fall under the Fourth Amendment, and not the Fourteenth.We hold that the Fourteenth Amendment right to practice one's calling is not violated by the execution of a search warrant, whether calculated to annoy or even to prevent consultation with a grand jury witness. In so holding, we thus of course pretermit the question whether such a right was "clearly established" as of a given day. The judgment of the Court of Appeals holding to the contrary is therefore reversed.It is so ordered

OCTOBER TERM, 1998SyllabusCONN ET AL. v. GABBERTCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 97-1802. Argued February 23, 1999-Decided April 5, 1999Petitioners Conn and Najera, prosecutors in the "Menendez Brothers" case on retrial, learned that Lyle Menendez had written a letter to Traci Baker, in which he may have instructed her to testify falsely at the first trial. Baker was subpoenaed to testify before a grand jury and to produce any correspondence that she had received from Menendez. She later responded that she had given Menendez's letters to her attorney, respondent Gabbert. When Baker appeared to testify before the grand jury, accompanied by Gabbert, Conn directed police to secure a warrant to search Gabbert for the letter. At the same time that Gabbert was being searched, Najera called Baker before the grand jury for questioning. Gabbert brought suit against the prosecutors under 42 U. S. C. § 1983, contending, inter alia, that his Fourteenth Amendment right to practice his profession without unreasonable government interference was violated when the prosecutors executed a search warrant at the same time his client was testifying before the grand jury. The Federal District Court granted petitioners summary judgment, but the Ninth Circuit reversed in part, holding that Gabbert had a right to practice his profession without undue and unreasonable government interference, and that because the right was clearly established, petitioners were not entitled to qualified immunity.Held: A prosecutor does not violate an attorney's Fourteenth Amendment right to practice his profession by executing a search warrant while the attorney's client is testifying before a grand jury. To prevail in a § 1983 action for civil damages from a government official performing discretionary functions, the qualified immunity defense requires that the official be shown to have violated clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U. S. 800, 818. There is no support in this Court's cases for the Ninth Circuit's conclusion that the prosecutors' actions in this case deprived Gabbert of a liberty interest in practicing law. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 578; Meyer v. Nebraska, 262 U. S. 390, 399. The cases relied upon by the Ninth Circuit or suggested by Gabbert all deal with a complete prohibition of the right to engage in a calling, and not the sort of brief interruption as a result of legal process which occurred here. See, e. g., Dent v. West287Virginia, 129 U. S. 114. Gabbert's argument that the search's improper timing interfered with his client's right to have him outside the grand jury room and available to consult with her is unavailing, since a grand jury witness has no constitutional right to have counsel present during the proceeding, and none of this Court's decisions has held that such a witness has a right to have her attorney present outside the jury room. This Court need not decide whether such a right exists, because Gabbert had no standing to raise the alleged infringement of his client's rights. Although he does have standing to complain of the allegedly unreasonable timing of the search warrant's execution to prevent him from advising his client, challenges to the reasonableness of the execution of a search warrant must be assessed under the Fourth Amendment, not the Fourteenth, see Graham v. Connor, 490 U. S. 386, 395. Pp. 290-293.131 F.3d 793, reversed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p.293.Kevin C. Brazile argued the cause for petitioners. With him on the briefs were Lloyd W Pellman, Donovan Main, and Louis v: Aguilar.Michael J. Lightfoot argued the cause for respondent.With him on the brief were Stephen B. Sadowsky and Melissa N. Widdifield.*CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.We granted certiorari in this case, 525 U. S. 809 (1998), to decide whether a prosecutor violates an attorney's Fourteenth Amendment right to practice his profession when the prosecutor causes the attorney to be searched at the same time his client is testifying before a grand jury. We con-* Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.A brief of amici curiae urging affirmance was filed for the National Association of Criminal Defense Lawyers et al. by John D. Cline and Barbara E. Bergman.288Full Text of Opinion

1994_94-226

JUSTICE O'CONNOR delivered the opinion of the Court. Rules of the Florida Bar prohibit personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. This case asks us to consider whether such Rules violate the First and Fourteenth Amendments of the Constitution. We hold that in the circumstances presented here, they do not.IIn 1989, the Florida Bar (Bar) completed a 2-year study of the effects of lawyer advertising on public opinion. After conducting hearings, commissioning surveys, and reviewing extensive public commentary, the Bar determined that several changes to its advertising rules were in order. In late 1990, the Florida Supreme Court adopted the Bar's proposed amendments with some modifications. The Florida Bar:Petition to Amend the Rules Regulating the Florida BarAdvertising Issues, 571 So. 2d 451 (Fla. 1990). Two of these amendments are at issue in this case. Rule 4-7.4(b)(1) provides that "[a] lawyer shall not send, or knowingly permit to be sent, ... a written communication to a prospective client for the purpose of obtaining professional employment if: (A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication." Rule 4-7.8(a) states that "[a] lawyer shall not accept referrals from a lawyer referral service unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer." Together, these Rules create a brief 30-day blackout period after an accident during which lawyers may not, directly or621indirectly, single out accident victims or their relatives in order to solicit their business.In March 1992, G. Stewart McHenry and his wholly owned lawyer referral service, Went For It, Inc., filed this action for declaratory and injunctive relief in the United States District Court for the Middle District of Florida challenging Rules 4-7.4(b)(1) and 4-7.8(a) as violative of the First and Fourteenth Amendments to the Constitution. McHenry alleged that he routinely sent targeted solicitations to accident victims or their survivors within 30 days after accidents and that he wished to continue doing so in the future. Went For It, Inc., represented that it wished to contact accident victims or their survivors within 30 days of accidents and to refer potential clients to participating Florida lawyers. In October 1992, McHenry was disbarred for reasons unrelated to this suit, Florida Bar v. McHenry, 605 So. 2d 459 (Fla. 1992). Another Florida lawyer, John T. Blakely, was substituted in his stead.The District Court referred the parties' competing summary judgment motions to a Magistrate Judge, who concluded that the Bar had substantial government interests, predicated on a concern for professionalism, both in protecting the personal privacy and tranquility of recent accident victims and their relatives and in ensuring that these individuals do not fall prey to undue influence or overreaching. Citing the Bar's extensive study, the Magistrate Judge found that the Rules directly serve those interests and sweep no further than reasonably necessary. The Magistrate recommended that the District Court grant the Bar's motion for summary judgment on the ground that the Rules pass constitutional muster.The District Court rejected the Magistrate Judge's report and recommendations and entered summary judgment for the plaintiffs, 808 F. Supp. 1543 (MD Fla. 1992), relying on Bates v. State Bar of Ariz., 433 U. S. 350 (1977), and sub-622sequent cases. The Eleventh Circuit affirmed on similar grounds, McHenry v. Florida Bar, 21 F.3d 1038 (1994). The panel noted, in its conclusion, that it was "disturbed that Bates and its progeny require the decision" that it reached, 21 F. 3d, at 1045. We granted certiorari, 512 U. S. 1289 (1994), and now reverse.II AConstitutional protection for attorney advertising, and for commercial speech generally, is of recent vintage. Until the mid-1970's, we adhered to the broad rule laid out in Valentine v. Chrestensen, 316 U. S. 52, 54 (1942), that, while the First Amendment guards against government restriction of speech in most contexts, "the Constitution imposes no such restraint on government as respects purely commercial advertising." In 1976, the Court changed course. In Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, we invalidated a state statute barring pharmacists from advertising prescription drug prices. At issue was speech that involved the idea that" 'I will sell you the X prescription drug at the Y price.'" Id., at 761. Striking the ban as unconstitutional, we rejected the argument that such speech "is so removed from 'any exposition of ideas,' and from 'truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,' that it lacks all protection." Id., at 762 (citations omitted).In Virginia Bd., the Court limited its holding to advertising by pharmacists, noting that "[p]hysicians and lawyers ... do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising." Id., at 773, n. 25 (emphasis in original). One year later, however, the Court applied the Virginia Bd. principles to invalidate a state rule prohibiting lawyers from advertising in news-623papers and other media. In Bates v. State Bar of Arizona, supra, the Court struck a ban on price advertising for what it deemed "routine" legal services: "the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like." 433 U. S., at 372. Expressing confidence that legal advertising would only be practicable for such simple, standardized services, the Court rejected the State's proffered justifications for regulation.Nearly two decades of cases have built upon the foundation laid by Bates. It is now well established that lawyer advertising is commercial speech and, as such, is accorded a measure of First Amendment protection. See, e. g., Shapero v. Kentucky Bar Assn., 486 U. S. 466, 472 (1988); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 637 (1985); In re R. M. J., 455 U. S. 191, 199 (1982). Such First Amendment protection, of course, is not absolute. We have always been careful to distinguish commercial speech from speech at the First Amendment's core. "'[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,' and is subject to 'modes of regulation that might be impermissible in the realm of noncommercial expression.''' Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989), quoting Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978). We have observed that" '[t]o require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech.''' 492 U. S., at 481, quoting Ohralik, supra, at 456.Mindful of these concerns, we engage in "intermediate" scrutiny of restrictions on commercial speech, analyzing them under the framework set forth in Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557 (1980). Under Central Hudson, the government may624freely regulate commercial speech that concerns unlawful activity or is misleading. Id., at 563-564. Commercial speech that falls into neither of those categories, like the advertising at issue here, may be regulated if the government satisfies a test consisting of three related prongs: First, the government must assert a substantial interest in support of its regulation; second, the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, the regulation must be " 'narrowly drawn.''' Id., at 564-565.B"Unlike rational basis review, the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions," Edenfield v. Fane, 507 U. S. 761, 768 (1993). The Bar asserts that it has a substantial interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers. See Brief for Petitioner 8,25-27; 21 F. 3d, at 1043-1044.1 This interest obviously factors into the Bar's paramount (and repeatedly professed) objective of curbing activities that "negatively affec[t] the administration of justice." The Florida Bar:Petition to Amend the Rules Regulating the Florida BarAdvertising Issues, 571 So. 2d, at 455; see also Brief for Petitioner 7, 14, 24; 21 F. 3d, at 1043 (describing Bar's effort "to preserve the integrity of the legal profession").1 At prior stages of this litigation, the Bar asserted a different interest, in addition to that urged now, in protecting people against undue influence and overreaching. See 21 F. 3d, at 1042-1043; cf. Shapero v. Kentucky Bar Assn., 486 U. S. 466, 474-476 (1988); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 462 (1978). Because the Bar does not press this interest before us, we do not consider it. Of course, our precedents do not require the Bar to point to more than one interest in support of its 30-day restriction; a single substantial interest is sufficient to satisfy Central Hudson's first prong. See Rubin v. Coors Brewing Co., 514 U. S. 476, 485 (1995) (deeming only one of the government's proffered interests "substantial").625Because direct-mail solicitations in the wake of accidents are perceived by the public as intrusive, the Bar argues, the reputation of the legal profession in the eyes of Floridians has suffered commensurately. See Pet. for Cert. 14-15; Brief for Petitioner 28-29. The regulation, then, is an effort to protect the flagging reputations of Florida lawyers by preventing them from engaging in conduct that, the Bar maintains, "'is universally regarded as deplorable and beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families.'" Brief for Petitioner 28, quoting In re Anis, 126 N. J. 448, 458, 599 A. 2d 1265, 1270 (1992).We have little trouble crediting the Bar's interest as substantial. On various occasions we have accepted the proposition that "States have a compelling interest in the practice of professions within their boundaries, and ... as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions." Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975); see also Ohralik, supra, at 460; Cohen v. Hurley, 366 U. S. 117, 124 (1961). Our precedents also leave no room for doubt that "the protection of potential clients' privacy is a substantial state interest." See Edenfield, supra, at 769. In other contexts, we have consistently recognized that "[t]he State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." Carey v. Brown, 447 U. S. 455,471 (1980). Indeed, we have noted that "a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions." Frisby v. Schultz, 487 U. S. 474, 484485 (1988).Under Central Hudson's second prong, the State must demonstrate that the challenged regulation "advances the Government's interest 'in a direct and material way.'"626Rubin v. Coors Brewing Co., 514 U. S. 476, 487 (1995), quoting Edenfield, supra, at 767. That burden, we have explained, "'is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.''' 514 U. S., at 487, quoting Edenfield, supra, at 770-771. In Edenfield, the Court invalidated a Florida ban on in-person solicitation by certified public accountants (CPA's). We observed that the State Board of Accountancy had "present[ed] no studies that suggest personal solicitation of prospective business clients by CPA's creates the dangers of fraud, overreaching, or compromised independence that the Board claims to fear." 507 U. S., at 771. Moreover, "[t]he record [did] not disclose any anecdotal evidence, either from Florida or another State, that validate[d] the Board's suppositions." Ibid. In fact, we concluded that the only evidence in the record tended to "contradic[t], rather than strengthe[n], the Board's submissions." Id., at 772. Finding nothing in the record to substantiate the State's allegations of harm, we invalidated the regulation.The direct-mail solicitation regulation before us does not suffer from such infirmities. The Bar submitted a 106page summary of its 2-year study of lawyer advertising and solicitation to the District Court. That summary contains data-both statistical and anecdotal-supporting the Bar's contentions that the Florida public views direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the profession. As of June 1989, lawyers mailed 700,000 direct solicitations in Florida annually, 40% of which were aimed at accident victims or their survivors. Summary of the Record in No. 74,987 (Fla.) on Petition to Amend the Rules Regulating Lawyer Advertising (hereinafter Summary of Record), App. H, p. 2. A survey of Florida adults commissioned by the Bar indicated that Floridians "have negative feelings about627those attorneys who use direct mail advertising." Magid Associates, Attitudes & Opinions Toward Direct Mail Advertising by Attorneys (Dec. 1987), Summary of Record, App. C(4), p. 6. Fifty-four percent of the general population surveyed said that contacting persons concerning accidents or similar events is a violation of privacy. Id., at 7. A random sampling of persons who received direct-mail advertising from lawyers in 1987 revealed that 45% believed that directmail solicitation is "designed to take advantage of gullible or unstable people"; 34% found such tactics "annoying or irritating"; 26% found it "an invasion of your privacy"; and 24% reported that it "made you angry." Ibid. Significantly, 27% of direct-mail recipients reported that their regard for the legal profession and for the judicial process as a whole was "lower" as a result of receiving the direct mail. Ibid.The anecdotal record mustered by the Bar is noteworthy for its breadth and detail. With titles like "Scavenger Lawyers" (The Miami Herald, Sept. 29, 1987) and "Solicitors Out of Bounds" (St. Petersburg Times, Oct. 26, 1987), newspaper editorial pages in Florida have burgeoned with criticism of Florida lawyers who send targeted direct mail to victims shortly after accidents. See Summary of Record, App. B, pp. 1-8 (excerpts from articles); see also Peltz, Legal Advertising-Opening Pandora's Box, 19 Stetson L. Rev. 43, 116 (1989) (listing Florida editorials critical of direct-mail solicitation of accident victims in 1987, several of which are referenced in the record). The study summary also includes page upon page of excerpts from complaints of direct-mail recipients. For example, a Florida citizen described how he was " 'appalled and angered by the brazen attempt'" of a law firm to solicit him by letter shortly after he was injured and his fiancée was killed in an auto accident. Summary of Record, App. 1(1), p. 2. Another found it "'despicable and inexcusable'" that a Pensacola lawyer wrote to his mother three days after his father's funeral. Ibid. Another described how she was "'astounded'" and then "'very angry'" when628she received a solicitation following a minor accident. Id., at 3. Still another described as "'beyond comprehension'" a letter his nephew's family received the day of the nephew's funeral. Ibid. One citizen wrote, "'I consider the unsolicited contact from you after my child's accident to be of the rankest form of ambulance chasing and in incredibly poor taste .... I cannot begin to express with my limited vocabulary the utter contempt in which I hold you and your kind.' " Ibid.In light of this showing-which respondents at no time refuted, save by the conclusory assertion that the Rule lacked "any factual basis," Plaintiffs' Motion for Summary Judgment and Supplementary Memorandum of Law in No. 92-370Civ. (MD Fla.), p. 5-we conclude that the Bar has satisfied the second prong of the Central Hudson test. In dissent, JUSTICE KENNEDY complains that we have before us few indications of the sample size or selection procedures employed by Magid Associates (a nationally renowned consulting firm) and no copies of the actual surveys employed. See post, at 640. As stated, we believe the evidence adduced by the Bar is sufficient to meet the standard elaborated in Edenfield v. Fane, 507 U. S. 761 (1993). In any event, we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information. Indeed, in other First Amendment contexts, we have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, see Renton v. Playtime Theatres, Inc., 475 U. S. 41, 50-51 (1986); Barnes v. Glen Theatre, Inc., 501 U. S. 560, 584-585 (1991) (SOUTER, J., concurring in judgment), or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and "simple common sense," Burson v. Freeman, 504 U. S. 191, 211 (1992). Nothing in Edenfield, a case in which the State offered no evidence or anecdotes in support of its restriction, requires more. After scouring the record, we are satisfied that the ban on direct-629mail solicitation in the immediate aftermath of accidents, unlike the rule at issue in Edenfield, targets a concrete, nonspeculative harm.In reaching a contrary conclusion, the Court of Appeals determined that this case was governed squarely by Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988). Making no mention of the Bar's study, the court concluded that" 'a targeted letter [does not] invade the recipient's privacy any more than does a substantively identical letter mailed at large. The invasion, if any, occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with the discovery.'" 21 F. 3d, at 1044, quoting Shapero, supra, at 476. In many cases, the Court of Appeals explained, "this invasion of privacy will involve no more than reading the newspaper." 21 F. 3d, at 1044.While some of Shapero's language might be read to support the Court of Appeals' interpretation, Shapero differs in several fundamental respects from the case before us. First and foremost, Shapero's treatment of privacy was casual. Contrary to the dissent's suggestions, post, at 637-638, the State in Shapero did not seek to justify its regulation as a measure undertaken to prevent lawyers' invasions of privacy interests. See generally Brief for Respondent in Shapero v. Kentucky Bar Assn., O. T. 1987, No. 87-16. Rather, the State focused exclusively on the special dangers of overreaching inhering in targeted solicitations. Ibid. Second, in contrast to this case, Shapero dealt with a broad ban on all direct-mail solicitations, whatever the time frame and whoever the recipient. Finally, the State in Shapero assembled no evidence attempting to demonstrate any actual harm caused by targeted direct mail. The Court rejected the State's effort to justify a prophylactic ban on the basis of blanket, untested assertions of undue influence and overreaching. 486 U. S., at 475. Because the State did not make a privacy-based argument at all, its empirical showing on that issue was similarly infirm.630We find the Court's perfunctory treatment of privacy in Shapero to be of little utility in assessing this ban on targeted solicitation of victims in the immediate aftermath of accidents. While it is undoubtedly true that many people find the image of lawyers sifting through accident and police reports in pursuit of prospective clients unpalatable and invasive, this case targets a different kind of intrusion. The Bar has argued, and the record reflects, that a principal purpose of the ban is "protecting the personal privacy and tranquility of [Florida's] citizens from crass commercial intrusion by attorneys upon their personal grief in times of trauma." Brief for Petitioner 8; cf. Summary of Record, App. 1(1) (citizen commentary describing outrage at lawyers' timing in sending solicitation letters). The intrusion targeted by the Bar's regulation stems not from the fact that a lawyer has learned about an accident or disaster (as the Court of Appeals notes, in many instances a lawyer need only read the newspaper to glean this information), but from the lawyer's confrontation of victims or relatives with such information, while wounds are still open, in order to solicit their business. In this respect, an untargeted letter mailed to society at large is different in kind from a targeted solicitation; the untargeted letter involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession unearthed by the Bar's study.Nor do we find Bolger v. Youngs Drug Products Corp., 463 U. S. 60 (1983), dispositive of the issue, despite any superficial resemblance. In Bolger, we rejected the Federal Government's paternalistic effort to ban potentially "offensive" and "intrusive" direct-mail advertisements for contraceptives. Minimizing the Government's allegations of harm, we reasoned that "[r]ecipients of objectionable mailings ... may '''effectively avoid further bombardment of their sensibilities simply by averting their eyes."'" Id., at 72, quoting Con-631solidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y., 447 U. S. 530, 542 (1980), in turn quoting Cohen v. California, 403 U. S. 15, 21 (1971). We found that the" 'short, though regular, journey from mail box to trash can ... is an acceptable burden, at least so far as the Constitution is concerned.''' 463 U. S., at 72 (ellipses in original), quoting Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (SDNY), summarily aff'd, 386 F.2d 449 (CA2 1967). Concluding that citizens have at their disposal ample means of averting any substantial injury inhering in the delivery of objectionable contraceptive material, we deemed the State's intercession unnecessary and unduly restrictive.Here, in contrast, the harm targeted by the Bar cannot be eliminated by a brief journey to the trash can. The purpose of the 30-day targeted direct-mail ban is to forestall the outrage and irritation with the state-licensed legal profession that the practice of direct solicitation only days after accidents has engendered. The Bar is concerned not with citizens' "offense" in the abstract, see post, at 638-639, but with the demonstrable detrimental effects that such "offense" has on the profession it regulates. See Brief for Petitioner 7, 14, 24, 28.2 Moreover, the harm posited by the Bar is as much a function of simple receipt of targeted solicitations within days of accidents as it is a function of the letters' contents. Throwing the letter away shortly after opening it may minimize the latter intrusion, but it does little to combat the former. We see no basis in Bolger, nor in the other, similar cases cited by the dissent, post, at 638-639, for dismissing the Bar's assertions of harm, particularly2 Missing this nuance altogether, the dissent asserts apocalyptically that we are "unsett1[ing] leading First Amendment precedents," post, at 635, 639-640. We do no such thing. There is an obvious difference between situations in which the government acts in its own interests, or on behalf of entities it regulates, and situations in which the government is motivated primarily by paternalism. The cases cited by the dissent, post, at 638-639, focus on the latter situation.632given the unrefuted empirical and anecdotal basis for the Bar's conclusions.Passing to Central Hudson's third prong, we examine the relationship between the Bar's interests and the means chosen to serve them. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S., at 480. With respect to this prong, the differences between commercial speech and noncommercial speech are manifest. In Fox, we made clear that the "least restrictive means" test has no role in the commercial speech context. Ibid. "What our decisions require," instead, "is a 'fit' between the legislature's ends and the means chosen to accomplish those ends,' a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is 'in proportion to the interest served,' that employs not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective." Ibid. (citations omitted). Of course, we do not equate this test with the less rigorous obstacles of rational basis review; in Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417, n. 13 (1993), for example, we observed that the existence of "numerous and obvious less-burdensome alternatives to the restriction on commercial speech ... is certainly a relevant consideration in determining whether the 'fit' between ends and means is reasonable."Respondents levy a great deal of criticism, echoed in the dissent, post, at 642-644, at the scope of the Bar's restriction on targeted mail. "[B]y prohibiting written communications to all people, whatever their state of mind," respondents charge, the Rule "keeps useful information from those accident victims who are ready, willing and able to utilize a lawyer's advice." Brief for Respondents 14. This criticism may be parsed into two components. First, the Rule does not distinguish between victims in terms of the severity of their injuries. According to respondents, the Rule is unconstitutionally overinclusive insofar as it bans targeted mail-633ings even to citizens whose injuries or grief are relatively minor. Id., at 15. Second, the Rule may prevent citizens from learning about their legal options, particularly at a time when other actors-opposing counsel and insurance adjusters-may be clamoring for victims' attentions. Any benefit arising from the Bar's regulation, respondents implicitly contend, is outweighed by these costs.We are not persuaded by respondents' allegations of constitutional infirmity. We find little deficiency in the ban's failure to distinguish among injured Floridians by the severity of their pain or the intensity of their grief. Indeed, it is hard to imagine the contours of a regulation that might satisfy respondents on this score. Rather than drawing difficult lines on the basis that some injuries are "severe" and some situations appropriate (and others, presumably, inappropriate) for grief, anger, or emotion, the Bar has crafted a ban applicable to all postaccident or disaster solicitations for a brief 30-day period. Unlike respondents, we do not see "numerous and obvious less-burdensome alternatives" to Florida's short temporal ban. Cincinnati, supra, at 417, n. 13. The Bar's rule is reasonably well tailored to its stated objective of eliminating targeted mailings whose type and timing are a source of distress to Floridians, distress that has caused many of them to lose respect for the legal profession.Respondents' second point would have force if the Bar's Rule were not limited to a brief period and if there were not many other ways for injured Floridians to learn about the availability of legal representation during that time. Our lawyer advertising cases have afforded lawyers a great deal of leeway to devise innovative ways to attract new business. Florida permits lawyers to advertise on prime-time television and radio as well as in newspapers and other media. They may rent space on billboards. They may send untargeted letters to the general population, or to discrete segments thereof. There are, of course, pages upon pages de-634voted to lawyers in the Yellow Pages of Florida telephone directories. These listings are organized alphabetically and by area of specialty. See generally Rule 4-7.2(a), Rules Regulating The Florida Bar ("[A] lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, billboards and other signs, radio, television, and recorded messages the public may access by dialing a telephone number, or through written communication not involving solicitation as defined in rule 4-7.4"); The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar-Advertising Issues, 571 So. 2d, at 461. These ample alternative channels for receipt of information about the availability of legal representation during the 30-day period following accidents may explain why, despite the ample evidence, testimony, and commentary submitted by those favoring (as well as opposing) unrestricted direct-mail solicitation, respondents have not pointed to-and we have not independently found-a single example of an individual case in which immediate solicitation helped to avoid, or failure to solicit within 30 days brought about, the harms that concern the dissent, see post, at 643. In fact, the record contains considerable empirical survey information suggesting that Floridians have little difficulty finding a lawyer when they need one. See, e. g., Summary of Record, App. C(4), p. 7; id., App. C(5), p. 8. Finding no basis to question the commonsense conclusion that the many alternative channels for communicating necessary information about attorneys are sufficient, we see no defect in Florida's regulation.IIISpeech by professionals obviously has many dimensions.There are circumstances in which we will accord speech by attorneys on public issues and matters of legal representation the strongest protection our Constitution has to offer. See, e. g., Gentile v. State Bar of Nevada, 501 U. S. 1030 (1991); In re Primus, 436 U. S. 412 (1978). This case, how-635ever, concerns pure commercial advertising, for which we have always reserved a lesser degree of protection under the First Amendment. Particularly because the standards and conduct of state-licensed lawyers have traditionally been subject to extensive regulation by the States, it is all the more appropriate that we limit our scrutiny of state regulations to a level commensurate with the "'subordinate position' " of commercial speech in the scale of First Amendment values. Fox, 492 U. S., at 477, quoting Ohralik, 436 U. S., at 456.We believe that the Bar's 30-day restriction on targeted direct-mail solicitation of accident victims and their relatives withstands scrutiny under the three-pronged Central Hudson test that we have devised for this context. The Bar has substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered. The Bar's proffered study, unrebutted by respondents below, provides evidence indicating that the harms it targets are far from illusory. The palliative devised by the Bar to address these harms is narrow both in scope and in duration. The Constitution, in our view, requires nothing more.The judgment of the Court of Appeals, accordingly, isReversed

OCTOBER TERM, 1994SyllabusFLORIDA BAR v. WENT FOR IT, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 94-226. Argued January 11, 1995-Decided June 21, 1995Respondent lawyer referral service and an individual Florida attorney filed this action for declaratory and injunctive relief challenging, as violative of the First and Fourteenth Amendments, Florida Bar (Bar) Rules prohibiting personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. The District Court entered summary judgment for the plaintiffs, relying on Bates v. State Bar of Ariz., 433 U. S. 350, and subsequent cases. The Eleventh Circuit affirmed on similar grounds.Held: In the circumstances presented here, the Bar Rules do not violate the First and Fourteenth Amendments. Pp. 622-635.(a) Bates and its progeny establish that lawyer advertising is commercial speech and, as such, is accorded only a limited measure of First Amendment protection. Under the "intermediate" scrutiny framework set forth in Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, a restriction on commercial speech that, like the advertising at issue, does not concern unlawful activity and is not misleading is permissible if the government: (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is "'narrowly drawn,'" id., at 564-565. Pp. 622-624.(b) The Bar's 30-day ban on targeted direct-mail solicitation withstands Central Hudson scrutiny. First, the Bar has substantial interest both in protecting the privacy and tranquility of personal injury victims and their loved ones against invasive, unsolicited contact by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered. Second, the fact that the harms targeted by the ban are quite real is demonstrated by a Bar study, effectively unrebutted by respondents below, that contains extensive statistical and anecdotal data suggesting that the Florida public views direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the profession. Edenfield v. Fane, 507 U. S. 761, 771-772; Shapero v. Kentucky Bar Assn., 486 U. S. 466, 475-476; and Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 72, distinguished. Third, the ban's scope is reasonably well619tailored to its stated objectives. Moreover, its duration is limited to a brief 30-day period, and there are many other ways for injured Floridians to learn about the availability of legal representation during that time. Pp. 624-634.21 F.3d 1038, reversed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, THOMAS, and BREYER, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined, post, p. 635.Barry Scott Richard argued the cause for petitioner.With him on the briefs were William F. Blews and John A. De Vault III.Bruce S. Rogow argued the cause for respondents. With him on the briefs were Beverly A. Pohl and Howell L. Ferguson. **Briefs of amici curiae urging reversal were filed for the Dade County Trial Lawyers Association et al. by Robert D. Peltz and Robert G. Vial; for the Academy of Florida Trial Lawyers by C. Rufus Pennington III; and for the Association of Trial Lawyers of America by Jeffrey Robert White and Larry S. Stewart.Briefs of amici curiae urging affirmance were filed for the Institute for Injury Reduction by Larry E. Coben; for the Media Institute et al. by John J. Walsh, Steven G. Brody, Mary Elizabeth Taylor, P. Cameron De Vore, and David M. Hunsaker; and for Public Citizen by David C. Vladeck.Briefs of amici curiae were filed for the Alabama State Bar Association et al. by James L. Branton, Broox G. Holmes, Robert L. Jones III, Miriam Cyrulnik, Frances A. Koncilja, Francisco R. Angones, R. Franklin Balotti, Floyd Shapiro, Harold Turner Daniel, Jr., David A. Decker, Nicholas V. Critelli, Jr., Hedo Zacherle, Henry M. Coxe III, Stephen D. Wolnitzek, Marcia L. Proctor, W Scott Welch III, Michael B. Martz, Robert J. Phillips, Grace D. Moran, Benedict J. Pollio, William B. McGuire, Albert L. Bell, J. Rutledge Young, Jr., John H. Gross, Harris A. Gilbert, and Steven Trost; for the New York State Bar Association by G. Robert Witmer, Jr.; for Hyatt Legal Services by Andrew Kohn; and for the Institute for Access to Legal Services et al. by Bruce J. Ennis, Jr., Donald B. Verrilli, Jr., and Nory Miller.620Full Text of Opinion

1974_73-1742

MR. JUSTICE REHNQUIST delivered the opinion of the Court.We granted certiorari in this case, 419 U.S. 823 (1974), to review a judgment of the Court of Appeals for the Fifth Circuit which required petitioner Administrator of the Environmental Protection Agency to disapprove a portion of the implementation plan submitted to him by the State of Georgia pursuant to the Clean Air Amendments of 1970. [Footnote 1] The case presents an issue of statutory construction which is illuminated by the anatomy of the statute itself, by its legislative history, and by the history of congressional efforts to control air pollution.ICongress initially responded to the problem of air pollution by offering encouragement and assistance to the States. In 1955, the Surgeon General was authorized to study the problem of air pollution, to support research, training, and demonstration projects, and to provide technical assistance to state and local governments attempting to abate pollution. 69 Stat. 322. In 1960, Congress directed the Surgeon General to focus his attention on the health hazards resulting from motor vehicle emissions. Pub.L. 86-493, 74 Stat. 162. The Clean Air Act of 1963, 77 Stat. 392, authorized federal authorities to expand their research efforts, to make grants to state air pollution Page 421 U. S. 64 control agencies, and also to intervene directly to abate interstate pollution in limited circumstances. Amendments in 1965, § 101, 79 Stat. 992, and in 1966, 80 Stat. 954, broadened federal authority to control motor vehicle emissions and to make grants to state pollution control agencies.The focus shifted somewhat in the Air Quality Act of 1967, 81 Stat. 485. It reiterated the premise of the earlier Clean Air Act "that the prevention and control of air pollution at its source is the primary responsibility of States and local governments." Ibid. Its provisions, however, increased the federal role in the prevention of air pollution by according federal authorities certain powers of supervision and enforcement. But the States generally retained wide latitude to determine both the air quality standards which they would meet and the period of time in which they would do so.The response of the States to these manifestations of increasing congressional concern with air pollution was disappointing. Even by 1970, state planning and implementation under the Air Quality Act of 1967 had made little progress. Congress reacted by taking a stick to the States in the form of the Clean Air Amendments of 1970, Pub.L. 91-604, 84 Stat. 1676, enacted on December 31 of that year. These Amendments sharply increased federal authority and responsibility in the continuing effort to combat air pollution. Nonetheless, the Amendments explicitly preserved the principle: "Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State. . . ." § 107(a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S.C. § 1857c-2(a). The difference under the Amendments was that the States were no longer given any choice as to whether they would meet this responsibility. For the first time, they were required to Page 421 U. S. 65 attain air quality of specified standards, and to do so within a specified period of time.The Amendments directed that, within 30 days of their enactment, the Environmental Protection Agency should publish proposed regulations describing national quality standards for the "ambient air," which is the statute's term for the outdoor air used by the general public. After allowing 90 days for comments on the proposed standards, the Agency was then obliged to promulgate such standards. § 109(a)(1) of the Clean Air Act, as added, 84 Stat. 1679, 42 U.S.C. § 1857c-4(a)(1). The standards were to be of two general types: "primary" standards, which, in the judgment of the Agency, were "requisite to protect the public health," § 109(b)(1), and "secondary" standards, those that, in the judgment of the Agency, were"requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air."§ 109(b)(2).Within nine months after the Agency's promulgation of primary and secondary air quality standards, each of the 50 States was required to submit to the Agency a plan designed to implement and maintain such standards within its boundaries. § 110(a)(1) of the Clean Air Act, as added, 84 Stat. 1680, 42 U.S.C. § 1857c-5(a)(1). The Agency was, in turn, required to approve each State's plan within four months of the deadline for submission, if it had been adopted after public hearings and if it satisfied eight general conditions set forth in § 110(a)(2). [Footnote 2] Page 421 U. S. 66 Probably the principal of these conditions, and the heart of the 1970 Amendments, is that the plan provide for the attainment of the national primary ambient air Page 421 U. S. 67 quality standards in the particular State "as expeditiously as practicable but . . . in no case later than three years from the date of approval of such plan." § 110(a)(2)(A). In providing for such attainment, a State's plan must include "emission limitations, schedules, and timetables for compliance with such limitations"; it must also contain such other measures as may be necessary to insure both timely attainment and subsequent maintenance of national ambient air standards. § 110(a)(2)(B).Although the Agency itself was newly organized, the States looked to it for guidance in formulating the plans they were required to submit. On April 7, 1971 -- scarcely three months after the enactment of the Clean Air Amendments -- the Agency published proposed guidelines for the preparation, adoption, and submission of such plans. 36 Fed.Reg. 6680. After receiving numerous comments, including those from respondent Natural Resources Defense Council, Inc. (NRDC), it issued final guidelines on August 14, 1971, 36 Fed.Reg. 1586. See 40 CFR Part 51 (1974). The national standards themselves were timely promulgated on April 30, 1971, 36 Fed.Reg. 8186. See 40 CFR Part 50 (1974). Page 421 U. S. 68No one can doubt that Congress imposed upon the Agency and States a comprehensive planning task of the first magnitude which was to be accomplished in a relatively short time. In the case of the States, it was soon realized that, in order to develop the requisite plans within the statutory nine-month deadline, efforts would have to be focused on determining the stringent emission limitations necessary to comply with national standards. This was true even though compliance with the standards would not be necessary until the attainment date, which normally would be three years after Agency approval of a plan. The issue then arose as to how these stringent limitations, which often could not be satisfied without substantial research and investment, should be applied during the period prior to that date. One approach was that adopted by Florida, under which the plan's emission limitations would not take effect until the attainment date. Under this approach, no source is subject to enforcement actions during the pre-attainment period, but all are put on notice of the limitations with which they must eventually comply. [Footnote 3] Since the Florida approach basically does not require pre-attainment date pollution reductions on the part of those sources which might be able to effect them, [Footnote 4] the Agency encouraged an alternative approach. Under it a State's emission limitations would be immediately effective. The State, however, Page 421 U. S. 69 would have the authority to grant variances to particular sources which could not immediately comply with the stringent emission limitations necessary to meet the standards.Georgia chose the Agency's preferred approach. [Footnote 5] Its plan provided for immediately effective categorical emission limitations, but also incorporated a variance procedure whereby particular sources could obtain individually tailored relief from general requirements. This variance provision, Ga.Code Ann. 88-912 (1971), [Footnote 6] was one of the Page 421 U. S. 70 bases upon which the Agency's approval of the Georgia plan was successfully challenged by respondents in the Court of Appeals. It is the only aspect of that court's decision as to which the Agency petitioned for certiorari.IIThe Agency's approval of Georgia's variance provision was based on its interpretation of § 110(a)(3), [Footnote 7] which provides that the Agency shall approve any revision of an implementation plan which meets the § 110(a)(2) requirements applicable to an original plan. The Agency concluded that § 110(a)(3) permits a State to grant individual variances from generally applicable emission standards, both before and after the attainment date, so long as the variance does not cause the plan to fail to comply with the requirements of § 110(a)(2). Since that section requires, inter alia, that primary ambient air standards be attained by a particular date, it is of some consequence under this approach whether the period for which the variance is sought extends beyond that date. If it does not, the practical effect of treating such pre-attainment date variances as revisions is that they can be granted rather freely.This interpretation of § 110(a)(3) was incorporated in the Agency's original guidelines for implementation Page 421 U. S. 71 plans, 40 CFR §§ 51.6(c), 51.32(f) (1973). [Footnote 8] Although a spokesman for respondent NRDC had earlier stated that the Agency's guideline in this regard "correctly provides that variances which do not threaten attainment of a national standard are to be considered revisions of the plan," [Footnote 9] that organization later developed second thoughts on the matter. Its present position, in which it is joined by another environmental organization and by two individual respondents who reside in affected air quality control regions within the State of Georgia, is that variances applicable to individual sources may be approved only if they meet the stringent procedural and substantive standards of § 110(f). [Footnote 10] This section permits one-year "postponements" of any requirement of a plan, subject to conditions which will be discussed below.The Court of Appeals agreed with respondents, and ordered the Agency to disapprove Georgia's variance provision, although it did not specify which of the § 110(a)(2) requirements were thereby violated. [Footnote 11] It held Page 421 U. S. 72 that, while the revision authority of § 110(a)(3) was available for generally applicable changes of an implementation plan, the postponement provision of § 110(f) was the only method by which individual sources could obtain relief from applicable emission limitations. In reaching this conclusion, the court rejected petitioners' suggestion that whether a proposed variance should be treated as a "revision" under § 110(a)(3), or as a "postponement" under § 110(f), depended on whether it would affect attainment of a national ambient air standard, rather than on whether it applied to one source or to many.Other Circuits have also been confronted with this issue, and while none has adopted the Agency's position, all have differed from the Fifth Circuit. The first case was Natural Resources Defense Council v. EPA, 478 F.2d 875 (CA1 1973). For reasons to be discussed, infra at 421 U. S. 91-94, the First Circuit rejected the revision authority as a basis for a variance procedure. It nonetheless concluded that, prior to the three-year date for mandatory attainment of primary standards, a State could grant variances to sources which could not immediately meet applicable emission limitations. The court reasoned:"We can see value in permitting a state to impose strict emission limitations now, subject to individual exemptions if practicability warrants; otherwise, it may be forced to adopt less stringent limitations in order to accommodate those who, notwithstanding reasonable efforts, are as yet unable to comply.""The Administrator sees his power to allow such exemption procedures as deriving from the 'revision' authority in § [110](a)(3). We tend to view it more as a necessary adjunct to the statutory scheme, which anticipates greater flexibility during the pre-attainment period."478 F.2d at 887. Page 421 U. S. 73 The First Circuit's resolution, which has been described as "Solomonesque," is not tied to any specific provision of the Clean Air Act. Rather, it is quite candidly a judicial creation providing flexibility which, according to its creators, Congress, may be inferred to have intended to provide. Two other Circuits subsequently followed the First Circuit. Natural Resources Defense Council v. EPA, 483 F.2d 690, 693-694 (CA8 1973); Natural Resources Defense Council v. EPA, 494 F.2d 519, 523 (CA2 1974). Neither expanded on the First Circuit's reasoning.The Ninth Circuit has adopted a third approach to this question, in Natural Resources Defense Council v. EPA, 507 F.2d 905, 911-917 (1974). After considering legislative history, the Ninth Circuit concluded that Congress did not intend the postponement mechanism to be the exclusive source for variances. But the court also did not adopt the Agency's view that variances could be authorized as § 110(a)(3) revisions, although it did not explain its rejection of this interpretation. Rather, the Ninth Circuit agreed with the First Circuit that flexibility was "a necessary adjunct to the statutory scheme." It explained:"As long as a possible variance from a state plan will not preclude the attainment or maintenance of such standards, we discern no legislative intent to commit a state, in toto, to its initial plan, without any flexibility whatsoever."507 F.2d at 913. The Ninth Circuit, however, rejected the First Circuit's distinction between the pre-attainment and post-attainment periods. It concluded that statutory support for flexibility was as strong after the attainment date as before, especially in light of the Act's encouragement of the States to adopt plans even stricter than those required Page 421 U. S. 74 to attain national standards. [Footnote 12] The court thus adopted an approach which differs from the Agency's, but which reaches the same result -- authorization of variances on standards other than those required for § 110(f) postponements, both before and after the attainment date, so long as the variance does not prevent timely attainment and subsequent maintenance of national ambient air standards.After the Courts of Appeals for the First, Eighth, Fifth, and Second Circuits had spoken, but prior to the decision of the Ninth Circuit, the Agency modified its guidelines to comply with the then-unanimous rulings that, after the attainment date, the postponement provision was the only basis for obtaining a variance. 39 Fed.Reg. 34533-34535, adding 40 CFR §§ 51.11(g), 51.15(d), and revising § 51.32(f). At the same time, the Agency formally disapproved variance provisions to the extent they authorized variances extending beyond attainment dates, unless the standards of § 110(f) were met. 39 Fed.Reg. 34535, adding 40 CFR § 52.26.Because the Agency has conformed its regulations to the decisions of the First, Eighth, and Second Circuits, this case, on its facts, is now limited to the validity of the Georgia variance provision insofar as it authorizes variances effective before Georgia's attainment date, which is in July, 1975. [Footnote 13] The Agency nonetheless has not abandoned its original view that the revision section authorizes variances which do not interfere with the attainment or maintenance of national ambient air standards. Moreover, the Agency is candid in admitting that, should we Page 421 U. S. 75 base our decision on its interpretation of § 110(a)(3), the decision would support the approval of implementation plans which provide for variances effective after the attainment date.The disparity among the Courts of Appeals rather strongly indicates that the question does not admit of an easy answer. Without going so far as to hold that the Agency's construction of the Act was the only one it permissibly could have adopted, we conclude that it was, at the very least, sufficiently reasonable that it should have been accepted by the reviewing courts.IIIBoth of the sections in controversy are contained in § 110 of the amended Clean Air Act, which is entitled "Implementation Plans." Section 110(a)(3) provides in pertinent part:"(A) The Administrator shall approve any revision of an implementation plan applicable to an air quality control region if he determines that it meets the requirement of paragraph (2) and has been adopted by the State after reasonable notice and public hearings."Section 110(f) provides:"(1) Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan, the Governor of the State to which such plan applies may apply to the Administrator to postpone the applicability of such requirement to such source (or class) for not more than one year. If the Administrator determines that -- ""(A) good faith efforts have been made to comply with such requirement before such date,""(B) such source (or class) is unable to comply Page 421 U. S. 76 with such requirement because the necessary technology or other alternative methods of control are not available or have not been available for a sufficient period of time,""(C) any available alternative operating procedures and interim control measures have reduced or will reduce the impact of such source on public health, and""(D) the continued operation of such source is essential to national security or to the public health or welfare,""then the Administrator shall grant a postponement of such requirement. [Footnote 14] "Page 421 U. S. 77As previously noted, respondents contend that "variances" applicable to individual sources -- for example, a particular factory -- may be approved only if they meet the stringent procedural and substantive standards set forth in § 110(f). As is apparent from the text of § 110(f), its postponements may be for no more than one year, may be granted only if application is made prior to the date of required compliance, and must be supported by the Agency's determination that the source's continued operation "is essential to national security or to the public health or welfare." Petitioners, on the other hand, rely on the revision authority of § 110(a)(3) for the contention that a state plan may provide for an individual variance from generally applicable emission limitations so long as the variance does not cause the plan to fail to comply with the requirements of § 110(a)(2). Since a variance would normally implicate only the § 110(a)(2)(A) requirement that plans provide for attainment and maintenance of national ambient air standards, treatment as revisions would result in variances being readily approved in two situations: first, where the variance does not defer compliance beyond the attainment date, [Footnote 15] and second, where the national standards have been attained and the variance is not so great that a plan incorporating it could not insure their continued maintenance. Moreover, a § 110(a)(3) revision may be granted on the basis of hearings conducted by the State, whereas a § 110(f) Page 421 U. S. 78 postponement is available only after the Agency itself conducts hearings.There is thus considerable practical importance attached to the issue of whether variances are to be treated as revisions or as postponements, or, for that matter, as the First Circuit would have it, as neither until the mandatory attainment date, but as postponements thereafter. This practical importance reaches not merely the operator of a particular source who believes that circumstances justify his receiving a variance from categorical limitations. It also reaches the broader issue of whether Congress intended the States to retain any significant degree of control of the manner in which they attain and maintain national standards, at least once their initial plans have been approved or, under the First Circuit's approach, once the mandatory attainment date has arrived. To explain our conclusion as to Congress' intent, it is necessary that we consider the revision and postponement sections in the context of other provisions of the amended Clean Air Act, particularly those which distinguish between national ambient air standards and emission limitations.As we have already noted, primary ambient air standards deal with the quality of out-door air, and are fixed on a nationwide basis at levels which the Agency determines will protect the public health. It is attainment and maintenance of these national standards which § 110(a)(2)(A) requires that state plans provide. In complying with this requirement, a State's plan must include "emission limitations," which are regulations of the composition of substances emitted into the ambient air from such sources as power plants, service stations, and the like. They are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. Page 421 U. S. 79The Agency is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. [Footnote 16] Under §110(a)(2), the Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2), and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards. § 110(c). Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation.This analysis of the Act's division of responsibilities is not challenged by respondents insofar as it concerns the process of devising and promulgating an initial implementation Page 421 U. S. 80 plan. Respondents do, however, deny that the States have such latitude once the initial plan is approved. Yet the third paragraph of § 110(a), and the one immediately following the paragraphs which specify that States shall file implementation plans and that the Agency shall approve them if they satisfy certain broad criteria, is the section which requires the Agency to "approve any revision of an implementation plan" if it "determines that it meets the requirements" of § 1 10(a)(2). On its face, this provision applies to any revision, without regard either to its breadth of applicability or to whether it is to be effective before or after the attainment date; rather, Agency approval is subject only to the condition that the revised plan satisfy the general requirements applicable to original implementation plans. Far from evincing congressional intent that the Agency assume control of a State's emission limitations mix once its initial plan is approved, the revision section is, to all appearances, the mechanism by which the States may obtain approval of their developing policy choices as to the most practicable and desirable methods of restricting total emissions to a level which is consistent with the national ambient air standards.In order to challenge this characterization of § 1 10(a)(3), respondents principally rely on the contention that the postponement provision, § 110(f), is the only mechanism by which exceptions to a plan's requirements may be obtained, under any circumstances. Were this an accurate description of § 110(f), we would agree that the revision authority does not have the broad application asserted by the Agency. Like the Ninth Circuit, [Footnote 17] however, we believe that § 110(f) serves a function different from that of supervising state efforts to modify the initial Page 421 U. S. 81 mix of emission limitations by which they implement national standards.In our view, § 110(f) is a safety valve by which may be accorded, under certain carefully specified circumstances, exceptions to the national standards themselves. That this is its role is strongly suggested by the process by which it became a part of the Clean Air Act. The House version of the Amendment, H.R. 17255, 91st Cong., 2d Sess., contained no provisions for either postponements or, most significantly, mandatory deadlines for the attainment of national ambient air standards. The Senate bill, S. 4358, 91st Cong., 2d Sess., did contain both the three-year deadline, which now appears in § 110(a)(2), and the predecessor of the present § 110(f). That predecessor [Footnote 18] permitted the governor of a Page 421 U. S. 82 State to petition a three-judge district court for "relief from the effect" of expiration of the three-year deadline as to a region or persons, and provided for the grant of such relief upon a showing of conditions similar to those Page 421 U. S. 83 now appearing in § 110(f). Under its language, the postponement provision plainly applied only when deferral of a national deadline was sought. [Footnote 19]The Conference Committee adopted the Senate's general approach to the deadline issue. Its report states:"The conference substitute follows the Senate amendment in establishing deadlines for implementing primary ambient air quality standards, but leaves the States free to establish a reasonable time period within which secondary ambient air quality standards will be implemented. The conference substitute modifies the Senate amendment in that it allows the Administrator to grant extensions for good causes shown upon application by the Governors."H.R.Conf.Rep. No. 91-1783, p. 45 (1970). (Emphasis added.) Nowhere does the report suggest that other changes in the Senate's proposed § 111(f) were intended to dramatically broaden its reach, such that it would not merely be available to obtain deferral of the strict deadlines for compliance with national standards, but would also be the exclusive mechanism for any ameliorative modification of a plan, no matter how minor. Page 421 U. S. 84That the postponement provision was intended merely as a method of escape from the mandatory deadlines becomes even clearer when one considers the summary of the conference's work which Senator Muskie presented to the Senate. The summary referred to a provision under which a single two-year extension of the deadline could be obtained were it shown to be necessary at the time a State's initial plan was submitted. It then immediately discussed the postponement provision, as follows:"A Governor may also apply for a postponement of the deadline if, when the deadline approaches, it is impossible for a source to meet a requirement under an implementation plan, interim control measures have reduced (or will reduce) the adverse health effects of the source, and the continued operation of the source is essential to national security or the public health or welfare of that State."116 Cong.Rec. 42384-42385. (Emphasis added.)This limited view of the role of § 110(f) is reinforced by comparison with the section which immediately precedes it in the statute, § 110(e). [Footnote 20] This is the provision Page 421 U. S. 85 to which Senator Muskie's summary was obviously referring when it stated that the three-year deadline could be extended for up to two years if proper application were made at the time a State first submitted its plan. Like § 110(f), § 110(e) is available only if an emission source is unable to comply with plan requirements because "the necessary technology or other alternatives are not available or will not be available soon enough to permit compliance." Section 110(e) also contains a requirement, parallel to that of § 110(f)(1)(C), that available alternative procedures and control measures have been considered and utilized. Unlike § 110(f), however, § 110(e) contains no requirement that "the continued operation of such source is essential to national security or to the public health or welfare." Section 110(e) thus permits a two-year extension on a showing considerably less stringent than that required for a § 110(f) one-year postponement. This disparity is quite logical, however, because the relief under 110(e) is limited to an initial two-year period, whereas that under § 110(f) is available at any time, so long as application is made prior to the effective date of the relevant requirement. [Footnote 21] Page 421 U. S. 86On the other hand, the disparity between the standards of § 110(e) and those of § 110(f) would be inexplicable were § 110(f) also the sole mechanism by which States could modify the particular emission limitations mix incorporated in their initial implementation plans, even though the desired modifications would have no impact on the attainment or maintenance of national standards. Respondents' interpretation requires the anomalous conclusion that Congress, having stated its goal to be the attainment and maintenance of specified ambient air standards, nonetheless made it significantly more difficult for a State to modify an emission limitations mix which met those standards both before and after modification than for a State to obtain a two-year deferral in the attainment of the standards themselves. The interpretation suffers, therefore, not only from its contrariety to the revision authority which Congress provided, but also from its willingness to ascribe inconsistency to a carefully considered congressional enactment.We believe that the foregoing analysis of the structure and legislative history of the Clean Air Amendments shows that Congress intended to impose national ambient air standards to be attained within a specific period of time. It also shows that, in §§ 110(e) and (f), Congress carefully limited the circumstances in which timely attainment and subsequent maintenance of these standards could be compromised. We also believe that Congress, consistent with its declaration that "[e]ach State Page 421 U. S. 87 shall have the primary responsibility for assuring air quality" within its boundaries, § 107(a), left to the States considerable latitude in determining specifically how the standards would be met. This discretion includes the continuing authority to revise choices about the mix of emission limitations. We therefore conclude that the Agency's interpretation of §§ 110(a)(3) and 110(f) was "correct," to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the "correct" one. Given this conclusion, as well as the facts that the Agency is charged with administration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency. Udall v. Tallman, 380 U. S. 1, 380 U. S. 16-18 (1965); McLaren v. Fleischer, 256 U. S. 477, 256 U. S. 480-481 (1921). We are not persuaded to the contrary by any of the arguments advanced by respondents or by the Courts of Appeals which have rejected § 110(a)(3) as authority for granting variances. To these various arguments we now turn.IVThe principal basis on which the Fifth Circuit rejected the Agency's view of the revision and postponement sections was its analysis of their language. The court focused first on the fact that § 110(f) speaks in terms of "any stationary source," and of the postponement of "any requirement of an applicable implementation plan." (Emphasis added.) This language, according to the Fifth Circuit, belies the Agency's contention that the postponement section is inapplicable to those variances which do not jeopardize the attainment or maintenance Page 421 U. S. 88 of national standards. The court went on to state, without citation or supporting reasoning:"A revision is a change in a generally applicable requirement; a postponement or variance [is a] change in the application of a requirement to a particular party. The distinction between the two is familiar and clear."489 F.2d 390, 401.We think that the Fifth Circuit has read more into § 110(f), and more out of § 110(a)(3), than careful analysis can sustain. In the first place, the "any stationary source" and "any requirement" language of § 110(f) serves only to define the matters with respect to which the governor of a State may apply for a postponement. The language does not, as the Fifth Circuit would have it, state that all sources desirous of any form of relief must rely solely on the postponement provision. While § 110(f) makes its relief available to any source which can qualify for it, regardless of whether the relief would jeopardize national standards, the section does not even suggest that other forms of relief, having no impact on the national goal of achieving air quality standards, are not also available on appropriately less rigorous showings.As for the Fifth Circuit's observation that "a revision is a change in a generally applicable requirement," whereas a "postponement or variance" deals with particular parties, we are not satisfied that the distinction is so "familiar and clear." While a variance is generally thought to be of specific applicability, [Footnote 22] whether a revision Page 421 U. S. 89 is general or specific depends on what is being revised. In this instance, it is implementation plans which are being revised, and it is clear that such plans may be quite detailed, both as to sources and the remedial steps required of the sources. Not only does § 110(a)(2)(B) specify that a plan shall include "emission limitations, schedules, and timetables for compliance," [Footnote 23] but respondents themselves have urged that the very specific variances which have already been granted in Georgia should have been, and may still be, treated as "compliance schedules" contained within the original plan. [Footnote 24]A further difficulty with the Fifth Circuit's analysis of the language of §§ 110(a)(3) and 110(f) is that it entirely overlooks an obvious distinction between revisions and postponements. In normal usage, to "postpone" is to defer, whereas to "revise" is to remake or amend. In the implementation plan context, normal usage would suggest that a postponement is a deferral of the effective date of a requirement which remains a part of the applicable plan, whereas a revision is a change in the plan itself which deletes or modifies the requirement. If, by revision, a requirement of a plan is removed, then a person seeking relief from that requirement has no Page 421 U. S. 90 need to seek its postponement, and § 110(f) is, by its terms, inapplicable. But if such a person cannot obtain a revision because, for example, the plan as so revised would no longer insure timely attainment of the national standards, then, under the Act, he has no alternative but to comply or to obtain a postponement of the requirement's effective date -- if he can satisfy the stringent conditions of § 110(f). This distinction between the two is so straightforward, and so consistent with the structure and history of the Act, as discussed in 421 U. S. that we perceive no basis for the Fifth Circuit's strained line of analysis. [Footnote 25]The Fifth Circuit also relied on the "technology-forcing" nature of the Clean Air Amendments of 1970. It reasoned that, because the statute was intended to force technology to meet specified, scheduled standards, Page 421 U. S. 91 it was essential to insure that commitments made at the planning stage could not be readily abandoned when the time for compliance arrived. According to the Fifth Circuit, § 110(f) "is the device Congress chose to assure this." 489 F.2d at 401. Clearly § 110(f) does present a formidable hurdle for those proposed departures from earlier commitments which are, in fact, subject to its stringent conditions. What the Fifth Circuit failed to consider, however, is that, so long as the national standards are being attained and maintained, there is no basis in the present Clean Air Act for forcing further technological developments. Agency review assures that variances granted under § 110(a)(3) will be consistent with the § 110(a)(2)(A) requirement that the national standards be attained as expeditiously as practicable, and maintained thereafter. Thus, § 110(a)(3) variances, ex hypothesi, do not jeopardize national standards, and the technology-forcing character of the Amendments is no reason at all for judging them under the provisions of § 110(f).The First Circuit also rejected the Agency's contention that variances could be handled under the revision procedure, supra at 421 U. S. 72-73, but it did so for reasons different from those relied upon by the Fifth Circuit. [Footnote 26] It stated:"Had Congress meant [§ 110(f)] to be followed only if a polluter, besides violating objective state Page 421 U. S. 92 requirements, was shown to be preventing maintenance of a national standard, it would have said so. To allow a polluter to raise and perhaps litigate that issue is to invite protracted delay. The factual question could have endless refinements: is it the individual variance-seeker or others whose pollution is preventing maintenance of standards? See e.g., Getty Oil Company v. Ruckelshaus, 342 F. Supp. 1006 (D. Del.1972), remanded with directions, 467 F.2d 349 (3rd Cir.1972), . . . where Getty raised this issue in various forums."478 F.2d at 886.Respondents also stress this argument: treating variances as revisions, rather than as postponements, would invite litigation, would be impractical in application, and would therefore result in degradation of the environment. Aside from the fact that it goes more to the wisdom of what Congress has chosen to do than to determining what Congress has done, we believe this argument to be overstated. As made clear in the Getty case cited by the First Circuit, a polluter is subject to existing requirements until such time as he obtains a variance, and variances are not available under the revision authority until they have been approved by both the State and the Agency. Should either entity determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter is presumably within his rights in seeking judicial review. This litigation, however, is carried out on the polluter's time, not the public's, for, during its pendency, the original regulations remain in effect, and the polluter's failure to comply may subject him to a variety of enforcement procedures. [Footnote 27] Page 421 U. S. 93We are further impressed that the Agency itself has displayed no concern for the purported administrative difficulty of treating variances as revisions. Ordinarily, an agency may be assumed capable of meeting the responsibilities which it contends are placed upon it. Were respondents able to make a contrary showing, that fact might have some weight in interpreting Congress' intent, although we would doubt its relevance unless Congress were also shown to have been aware of the problem when it drafted legislation which otherwise is consistent with the Agency's contentions. Respondents have made no such showings. The judgments which the Agency must make when passing on variances under § 110(a)(3) are whether the ambient air complies with national standards, and, if so, whether a proposed variance would cause a plan to fail to insure maintenance of those standards. These judgments are little different from those which the Agency had to make when it approved the initial plans into which respondents seek to have the States frozen. In each instance, the Agency must measure the existing level of pollution, compare it with the national standards, and determine the effect on this comparison of specified emission modifications. [Footnote 28] That Congress is of the opinion Page 421 U. S. 94 that the Agency can feasibly and reliably perform these functions is manifest not only in its 1970 legislation, but also in a 1974 amendment designed to conserve energy. The amendment provides that the Agency should report to each State on whether its implementation plan could be revised in relation to fuel burning stationary sources, "without interfering with the attainment and maintenance of any national ambient air quality standard." § 110(a)(3)(b) of the Clean Air Act, as added, 88 Stat. 256, 42 U.S.C. § 1857c-5(a)(3)(B) (1970 ed., Supp. IV). (Emphasis added.)VRespondents have put forward several additional arguments which have not been specifically adopted by any court of appeals. The first is based on legislative history. Respondents focus on the fact that, while the Conference Committee accepted the Senate's concept of a three-year maximum deadline for attainment of national standards, Page 421 U. S. 95 it also strengthened the Senate's provision by specifying that attainment should be achieved "as expeditiously as practicable, but . . . in no case later than three years." (Emphasis added.) Respondents further make the contention that the Conference Committee altered the Senate's version of the postponement provision to "provide that a source's attempt to delay compliance with any requirement' of a State Plan would be considered a `postponement.'" Brief for Respondents 36. According to respondents, the latter change "was necessary to conform" the postponement provision with the Conference Committee's "as expeditiously as practicable" requirement. [Footnote 29] Page 421 U. S. 96 The argument is that, because any variance would delay attainment of national standards beyond the date previously considered the earliest practicable, and that, because the Act requires attainment as soon as practicable, any variance must therefore be treated as a postponement. This argument is not persuasive, for multiple reasons.First, this interpretation of the Conference Committee's work finds no specific support in legislative documents or debates. This is true despite the significance of the change which, under respondents' interpretation, was made -- the expansion of § 110(f) from a safety valve against mandatory deadlines into the exclusive mechanism by which a State could make even minor modifications of its emission limitations mix. Respondents' interpretation arises instead from their own reading of the statute and inferences as to legislative purpose. Second, as we have already discussed, and contrary to respondents' contention, § 110(f) simply does not state that any deferral of compliance with "any requirement" of a state plan "would be considered a postponement." Rather, it merely states that a postponement may be sought with respect to any source and any requirement.Third, respondents' reading equates "practicable" in § 110(a)(2)(A) with § 110(f)'s "essential to national security or to the public health or welfare." Yet plainly there could be many circumstances in which attainment in less than three years would be impracticable, and thus not required, but in which deferral could not possibly be justified as essential to the national security, or public Page 421 U. S. 97 health or welfare. [Footnote 30] Fourth, the statute requires only attainment as expeditiously as practicable, not attainment as expeditiously as was thought practicable when the initial implementational plan was devised. Finally, even if respondents' argument had force with regard to a pre-attainment variance, it would still be of no relevance whatsoever once the national standards were attained. A variance which does not compromise national standards that have been attained does no damage to the congressional goals of attaining the standards as expeditiously as practicable, and maintaining them thereafter.The last of respondents' arguments which merit our attention is related to the Fifth Circuit's conclusion that revisions are restricted to general requirement, and that all specific modifications must therefore be funneled through the postponement provision. Respondents go one step further and contend that the revision authority is limited not only to general changes, but to those which also are initiated by the Agency in order to "accelerate abatement or attain it in greater concert with other national goals." Brief for Respondents 26. This highly restrictive view of § 110(a)(3) is based on § 110(a)(2)(H), [Footnote 31] which specifics that, to obtain Agency approval, Page 421 U. S. 98 a State's plan must provide a mechanism for revision to take account of revised national standards, of more expeditious methods of achieving the standards, and of Agency determinations that a plan is substantially inadequate.The argument is specious. Section 110(a)(2)(H) does nothing more than impose a minimum requirement that state plans be capable of such modifications as are necessary to meet the basic goal of cleansing the ambient air to the extent necessary to protect public health, as expeditiously as practicable within a three-year period. The section in no way prevents the States from also permitting ameliorative revisions which do not compromise the basic goal. Nor does it, by requiring a particular type of revision, preclude those of a different type. As we have already noted, § 110(a)(3) requires the Agency to approve "any revision" which is consistent with § 110(a)(2)'s minimum standards for an initial plan, and which the State adopted after reasonable public notice and hearing; no other restrictions whatsoever are placed on the Agency's duty to approve revisions. [Footnote 32]VIFor the foregoing reasons, the Court of Appeals for the Fifth Circuit was in error when it concluded that the postponement provision of § 110(f) is the sole method by which may be obtained specific ameliorative modifications Page 421 U. S. 99 of state implementation plans. The Agency had properly concluded that the revision mechanism of § 110(a)(3) is available for the approval of those variances which do not compromise the basic statutory mandate that, with carefully circumscribed exceptions, the national primary ambient air standards be attained in not more than three years, and maintained thereafter. To the extent that the judgment of the Court of Appeals for the Fifth Circuit was to the contrary, it is reversed, and the cause is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTrain v. NRDC, Inc., 421 U.S. 60 (1975)Train v. Natural Resources Defense Council, Inc.No. 73-1742Argued January 15, 1975Decided April 16, 1975421 U.S. 60SyllabusUnder the Clean Air Amendments of 1970, which establish a program for controlling air pollution, the Environmental Protection Agency (EPA) is required to set "ambient air" quality standards which, in the EPA's judgment, are "requisite to protect the public health," § 109(b)(1) ("primary" standards), and"requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air,"§ 109(b)(2) ("secondary" standards). Each State, after promulgation of these standards, must submit an implementing and maintenance plan, which must be approved by the EPA if, inter alia, it meets eight general conditions set forth in § 110(a)(2), the principal one of which is that the plan provide for the attainment of the national primary ambient air quality standards in the State "as expeditiously as practicable," but no later than three years from the date of the plan's approval. § 110(a)(2)(A). The State's plan must include emission limitations, schedules, compliance timetables, and other measures insuring timely attainment and subsequent maintenance of the national standards. In order to develop the requisite plan within the statutory deadline, Georgia elected to follow an EPA-endorsed approach providing for immediately effective categorical emission limitations accompanied, however, by a variance procedure whereby particular sources could obtain individually tailored relief from the general requirements. Section 110(a)(3) provides that the EPA shall approve any "revision" of an implementation plan that meets the § 110(a)(2) requirements applicable to an original plan, and the EPA, concluding that that provision permits a State to grant individual variances meeting § 110(a)(2) requirements from generally applicable emission standards, both before and after the attainment date, approved the Georgia plan. Respondents initiated review proceedings in the Court of Appeals, taking the position that variances applicable to individual sources may be approved only if they meet the much Page 421 U. S. 61 more stringent procedural and substantive standards of § 110(f), which, upon application prior to the compliance date for a stationary source or class of moving sources, permits "postponements" of no more than one year of any requirement of plan, subject to specified conditions. That court upheld respondents' contentions, and ordered the EPA to disapprove Georgia's variance provision.Held: The EPA's construction of the Act permitting treatment of individual variances from state requirements as "revisions," under § 110(a)(3), of state implementation plans if they will not interfere with timely attainment and subsequent maintenance of national air quality standards, rather than as "postponements" under § 110(f), was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the EPA. Pp. 421 U. S. 75-99.(a) Section 110(f) is a safety valve by which may be accorded, under certain carefully specified circumstances, exceptions to the mandatory deadlines for meeting national standards, and, contrary to respondents' contention, does not constitute the sole mechanism by which exceptions to a plan's requirements may be obtained. Pp. 421 U. S. 78-84.(b) This concept of § 110(f)'s limited role is reinforced by comparison with § 110(e), which permits a two-year extension of the three-year period referred to in § 110(a)(2)(A)(i) on a showing far less stringent than that required for a § 110(f) one-year postponement, which would be inexplicable were § 110(f) the sole mechanism for States to modify their initial formulations of emission limitations. Pp. 421 U. S. 84-86.(c) Noting that § 110(f) provides that a postponement may be granted with respect to the date that "any stationary source" must comply with "any requirement of an applicable state implementation plan," the Court of Appeals reached an erroneous conclusion that the § 110(f) procedure was exclusive; the language of that provision does not mandate that all modifications of a plan's requirements necessarily be treated as postponements, precluding other forms of relief. Pp. 421 U. S. 87-88.(d) The Court of Appeals also erred in its conclusion that "a revision is a change in a generally applicable requirement," whereas a "postponement or variance" deals with particular parties, for here the implementation plans being revised are quite detailed; moreover, the court's analysis overlooks obvious distinctions between revisions and postponements in the statutory context. Pp. 421 U. S. 88-90. Page 421 U. S. 62(e) Section 110(a)(3) revisions are granted by the EPA only if they comport with the § 110(a)(2)(A) requirement that the national standards be attained as expeditiously as practicable and thereafter maintained, so the "technology-forcing" nature of the Amendments is no reason for judging under § 110(f) variances which qualify for approval under § 110(a)(3). Pp. 421 U. S. 90-91.(f) Congress felt that the EPA could feasibly and reliably perform the measurement and predictive functions necessary to pass on variances as revisions under § 110(a)(3). Pp. 421 U. S. 91-94.(g) Respondents' argument that, because any variance would delay attainment of national standards beyond what was previously considered as the earliest practicable date, and that, because the Act requires attainment as soon as practicable, any variance must therefore be treated as a postponement, is not supported by the legislative history or otherwise. Pp. 421 U. S. 94-97.(h) Respondents' contention, based on § 110(a)(2)(H), that revision authority is limited to general changes initiated by the EPA in order to "accelerate abatement or attain it in greater concert with other national goals," is specious. That provision, which does no more than impose a minimum requirement that state plans be capable of such modifications as are necessary to meet the basic goal of cleansing the ambient air to the extent necessary to protect public health, as expeditiously as possible within the three-year period, does not prevent the States from also permitting ameliorative revisions not contrary to that goal. Pp. 421 U. S. 97-98.489 F.2d 390, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., dissented. POWELL, J., took no part in the consideration or decision of the case. Page 421 U. S. 63

1991_90-1846

Richard W Nichols, by appointment of the Court, 502 U. S. 966, argued the cause and filed a brief for respondent. *JUSTICE O'CONNOR delivered the opinion of the Court. The federal in forma pauperis statute, codified at 28 U. S. C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." § 1915(d). In Neitzke v. Williams, 490 U. S. 319 (1989), we considered the standard to be applied when determining whether the legal basis of an in forma pauperis complaint is frivolous under § 1915(d). The issues in this case are the appropriate inquiry for determining when an in forma pauperis litigant's factual allegations justify a § 1915(d) dismissal for frivolousness, and the proper standard of appellate review of such a dismissal.IPetitioners are 15 officials at various institutions in the California penal system. Between 1983 and 1985, respondent Mike Hernandez, a state prisoner proceeding pro se, named petitioners as defendants in five civil rights suits filed in forma pauperis. In relevant part, the complaints in these five suits allege that Hernandez was drugged and homosexually raped a total of 28 times by inmates and prison*Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Roberts filed a brief for the United States as amicus curiae urging reversal.Elizabeth Alexander, David C. Fathi, John A. Powell, Steven R. Shapiro, and Matthew Coles filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.28officials at different institutions. * With few exceptions, the alleged perpetrators are not identified in the complaints, because Hernandez does not claim any direct recollection of the incidents. Rather, he asserts that he found needle marks on different parts of his body, and fecal and semen stains on his clothes, which led him to believe that he had been drugged and raped while he slept.Hernandez's allegations that he was sexually assaulted on the nights of January 13, 1984, and January 27, 1984, are supported by an affidavit signed by fellow prisoner Armando Esquer (Esquer Affidavit), which states:"On January 13, 1984, at approximately 7:30 a.m., I was on my way to the shower, when I saw correctional officer McIntyre, the P-2 Unit Officer, unlock inmate Mike Hernandez's cell door and subsequently saw as two black inmates stepped inside his cell. I did not see Officer McIntyre order these two black inmates out of inmate Mike Hernandez's cell after they stepped inside, even though inmate Mike Hernandez was asleep inside. After about ten minutes, I returned from the shower, and I noticed my friend, Mike Hernandez, was being sexually assaulted by the two black inmates. Officer McIn-*8ee Amended Complaint in Hernandez v. Ylst, et al., No. crv 8-830645 (Feb. 9, 1984) (alleging rape by unidentified correctional officers at California 8tate Prison at Folsom on the night of July 29, 1982), Brief for Respondent 2-4; Motion to Amend Complaint in Hernandez v. Denton, et al., No. crv 8-83-1348 (June 19, 1984) (alleging rape by one or more prisoners at California Medical Facility at Vacaville on the night of July 29, 1983, and one additional episode in December 1983), Brief for Respondent 5; Complaint in Hernandez v. Ylst, et al., No. crv 8-84-1074 (Aug. 20, 1984) (alleging six additional druggings and rapes occurring between August 12 and November 4, 1983), Brief for Respondent 6; Complaint in Hernandez v. Ylst, et al., No. crv 8-84-1198 (8ept. 17, 1984) (alleging three additional incidents occurring between November 26 and December 12, 1983), Brief for Respondent 6-7; Complaint in Hernandez v. Ylst, et al., No. crv 8-85-0084 (Jan. 21, 1985) (alleging 16 additional incidents occurring between January 13 and December 10, 1984), Brief for Respondent 7.29tyre returned to lock inmate Mike Hernandez's cell door after the two black inmates stepped out. I watch[ed] all this activity from the hallway and my cell door."On January 27th, 1984, I was again on my way to the shower, when I noticed the same correctional officer as he unlocked inmate Mike Hernandez's cell door, and also saw as two black inmates stepped inside inmate Mike Hernandez's cell. Then I knew right away that both they and Officer McIntyre were up to no good. After this last incident, I became convinced that Officer McIntyre was deliberately unlocking my friend, Mike Hernandez's cell as he [lay] asleep, so that these two black inmates could sexually assault him in his cell." Exhibit H in No. CIV 8-85-0084, Brief for Respondent 9.Hernandez also attempted to amend one complaint to include an affidavit signed by fellow inmate Harold Pierce, alleging that on the night of July 29, 1983, he "witnessed inmate Dushane B-71187 and inmate Milliard B-30802 assault and rape inmate Mike Hernandez as he lay ... asleep in bed 206 in the N-2 Unit Dorm." 8ee Exhibit G to Motion to Amend Complaint in Hernandez v. Denton, et aI., No. CIV 8-831348 (June 19, 1984), Brief for Respondent 6.The District Court determined that the five cases were related and referred them to a Magistrate, who recommended that the complaints be dismissed as frivolous. The Magistrate reasoned that" 'each complaint, taken separately, is not necessarily frivolous,'" but that" 'a different picture emerges from a reading of all five complaints together.'" Id., at 11. As he explained: "'[Hernandez] alleges that both guards and inmates, at different institutions, subjected him to sexual assaults. Despite the fact that different defendants are allegedly responsible for each assault, the purported modus operandi is identical in every case. Moreover, the attacks occurred only sporadically throughout a three year period. The facts thus appear to be "wholly fanciful" and justify this court's dismissal of the actions as frivolous.'"30Ibid. By order dated May 5, 1986, the District Court adopted the recommendation of the Magistrate and dismissed the complaints.Hernandez appealed the dismissal of three of the five cases (Nos. CIV S-83-0645, CIV S-83-1348, CIV S-85-0084; see n. 1, supra). Reviewing the dismissal de novo, the Court of Appeals for the Ninth Circuit reversed and remanded. Hernandez v. Denton, 861 F.2d 1421 (1988). In relevant part, Judge Schroeder's lead opinion concluded that a district court could dismiss a complaint as factually frivolous only if the allegations conflicted with judicially noticeable facts, that is, facts "'capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'" Id., at 1426 (quoting Fed. Rule Evid. 201). In this case, Judge Schroeder wrote, the court could not dismiss Hernandez's claims as frivolous because it was impossible to take judicial notice that none of the alleged rapes occurred. 861 F. 2d, at 1426. Judge Wallace concurred on the ground that Circuit precedent required that Hernandez be given notice that his claims were to be dismissed as frivolous and a chance to amend his complaints to remedy the deficiencies. Id., at 1427. Judge Aldisert dissented. He was of the opinion that the allegations were "the hallucinations of a troubled man," id., at 1440, and that no further amendment could save the complaint, id., at 1439-1440.We granted petitioners' first petition for a writ of certiorari, 493 U. S. 801 (1989), vacated the judgment, and remanded the case to the Court of Appeals for consideration of our intervening decision in Neitzke v. Williams, 490 U. S. 319 (1989). On remand, the Court of Appeals reaffirmed its earlier decision. 929 F.2d 1374 (1991). Judge Schroeder modified her original opinion to state that judicial notice was just "one useful standard" for determining factual frivolousness under § 1915(d), but adhered to her position that the case could not be dismissed because no judicially noticeable fact could contradict Hernandez's claims of rape. Id., at311376. Judge Wallace and Judge Aldisert repeated their earlier views.We granted the second petition for a writ of certiorari to consider when an in forma pauperis claim may be dismissed as factually frivolous under § 1915(d). 502 U. S. 937 (1991). We hold that the Court of Appeals incorrectly limited the power granted the courts to dismiss a frivolous case under § 1915(d), and therefore vacate and remand the case for application of the proper standard.IIIn enacting the federal in forma pauperis statute, Congress "intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because ... poverty makes it impossible ... to payor secure the costs" of litigation. Adkins v. E. 1. DuPont de Nemours & Co., 335 U. S. 331, 342 (1948) (internal quotation marks omitted). At the same time that it sought to lower judicial access barriers to the indigent, however, Congress recognized that "a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Neitzke, supra, at 324. In response to this concern, Congress included subsection (d) as part of the statute, which allows the courts to dismiss an in forma pauperis complaint "if satisfied that the action is frivolous or malicious."Neitzke v. Williams, supra, provided us with our first occasion to construe the meaning of "frivolous" under § 1915(d). In that case, we held that "a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Id., at 325. In Neitzke, we were concerned with the proper standard for determining frivolousness of legal conclusions, and we determined that a complaint filed in forma pauperis32which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) may nonetheless have "an arguable basis in law" precluding dismissal under § 1915(d). 490 U. S., at 328329. In so holding, we observed that the in forma pauperis statute, unlike Rule 12(b)(6), "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id., at 327. "Examples of the latter class," we said, "are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar." Id., at 328.Petitioners contend that the decision below is inconsistent with the "unusual" dismissal power we recognized in Neitzke, and we agree. Contrary to the Ninth Circuit's assumption, our statement in Neitzke that § 1915(d) gives courts the authority to "pierce the veil of the complaint's factual allegations" means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations. We therefore reject the notion that a court must accept as "having an arguable basis in fact," id., at 325, all allegations that cannot be rebutted by judicially noticeable facts. At the same time, in order to respect the congressional goal of "assur[ing] equality of consideration for all litigants," Coppedge v. United States, 369 U. S. 438, 447 (1962), this initial assessment of the in forma pauperis plaintiff's factual allegations must be weighted in favor of the plaintiff. In other words, the § 1915(d) frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts.As we stated in Neitzke, a court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," 490 U. S., at 327, a category encompassing allegations33that are "fanciful," id., at 325, "fantastic," id., at 328, and "delusional," ibid. As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be "strange, but true; for truth is always strange, Stranger than fiction." Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan, & w. Pratt eds. 1977).Although Hernandez urges that we define the "clearly baseless" guidepost with more precision, we are confident that the district courts, who are "all too familiar" with factually frivolous claims, Neitzke, supra, at 328, are in the best position to determine which cases fall into this category. Indeed, the statute's instruction that an action may be dismissed if the court is "satisfied" that it is frivolous indicates that frivolousness is a decision entrusted to the discretion of the court entertaining the in forma pauperis petition. We therefore decline the invitation to reduce the "clearly baseless" inquiry to a monolithic standard.Because the frivolousness determination is a discretionary one, we further hold that a § 1915(d) dismissal is properly reviewed for an abuse of that discretion, and that it was error for the Court of Appeals to review the dismissal of Hernandez's claims de novo. Cf. Boag v. MacDougall, 454 U. S. 364, 365, n. (1982) (per curiam) (reversing dismissal of an in forma pauperis petition when dismissal was based on an erroneous legal conclusion and not exercise of the "broad discretion" granted by § 1915(d)); Coppedge, supra, at 446 (district court's certification that in forma pauperis appellant is taking appeal in good faith, as required by § 1915(a),34is "entitled to weight"). In reviewing a § 1915(d) dismissal for abuse of discretion, it would be appropriate for the Court of Appeals to consider, among other things, whether the plaintiff was proceeding pro se, see Haines v. Kerner, 404 U. S. 519, 520-521 (1972); whether the court inappropriately resolved genuine issues of disputed fact, see supra, at 32-33; whether the court applied erroneous legal conclusions, see Boag, 454 U. S., at 365, n.; whether the court has provided a statement explaining the dismissal that facilitates "intelligent appellate review," ibid.; and whether the dismissal was with or without prejudice.With respect to this last factor: Because a § 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. It could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions. See, e. g., Bryant v. Civiletti, 214 U. S. App. D. C. 109, 110-111, 663 F.2d 286, 287-288, n. 1 (1981) (§ 1915(d) dismissal for frivolousness is res judicata); Warren v. McCall, 709 F.2d 1183, 1186, and n. 7 (CA7 1983) (same); cf. Rogers v. Bruntrager, 841 F.2d 853, 855 (CA8 1988) (noting that application of res judicata principles after § 1915(d) dismissal can be "somewhat problematical"). Therefore, if it appears that frivolous factual allegations could be remedied through more specific pleading, a court of appeals reviewing a § 1915(d) disposition should consider whether the district court abused its discretion by dismissing the complaint with prejudice or without leave to amend. Because it is not properly before us, we express no opinion on the Ninth Circuit rule, applied below, that a pro se litigant bringing suit in forma pauperis is entitled to notice and an opportunity to amend the complaint to overcome any deficiency unless it is clear that no amendment can cure the defect. E. g., Potter v. McCall, 433 F.2d 1087, 1088 (1970); Noll v. Carlson, 809 F.2d 1446 (1987).35Accordingly, we vacate the judgment below and remand the case for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusDENTON, DIRECTOR OF CORRECTIONS OF CALIFORNIA, ET AL. v. HERNANDEZCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 90-1846. Argued February 24, 1992-Decided May 4,1992Respondent Hernandez, a prisoner proceeding pro se, filed five civil rights suits in forma pauperis against petitioner California prison officials, alleging, inter alia, that he was drugged and homosexually raped 28 times by various inmates and prison officials at different institutions. Finding that the facts alleged appeared to be wholly fanciful, the District Court dismissed the cases under 28 U. S. C. § 1915(d), which allows courts to dismiss an in forma pauperis complaint "if satisfied that the action is frivolous." Reviewing the dismissals de novo, the Court of Appeals reversed and remanded three of the cases. The court's lead opinion concluded that a court can dismiss a complaint as factually frivolous only if the allegations conflict with judicially noticeable facts and that it was impossible to take judicial notice that none of the alleged rapes occurred; the concurring opinion concluded that Circuit precedent required that Hernandez be given notice that his claims were to be dismissed as frivolous and a chance to amend his complaints. The Court of Appeals adhered to these positions on remand from this Court for consideration of the Court's intervening decision in Neitzke v. Williams, 490 U. S. 319, which held that an in forma pauperis complaint "is frivolous [under § 1915(d)] where it lacks an arguable basis either in law or in fact," id., at 325.Held:1. The Court of Appeals incorrectly limited the power granted the courts to dismiss a frivolous case under § 1915(d). Section 1915(d) gives the courts "the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id., at 327. Thus, the court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations. However, in order to respect the congressional goal of assuring equality of consideration for all litigants, the initial assessment of the in forma pauperis plaintiff's factual allegations must be weighted in the plaintiff's favor. A factual frivolousness finding is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,26Syllabuswhether or not there are judicially noticeable facts available to contradict them, but a complaint cannot be dismissed simply because the court finds the allegations to be improbable or unlikely. The "clearly baseless" guidepost need not be defined with more precision, since the district courts are in the best position to determine which cases fall into this category, and since the statute's instruction allowing dismissal if a court is "satisfied" that the complaint is frivolous indicates that the frivolousness decision is entrusted to the discretion of the court entertaining the complaint. Pp.31-33.2. Because the frivolousness determination is a discretionary one, a § 1915(d) dismissal is properly reviewed for an abuse of that discretion. It would be appropriate for a court of appeals to consider, among other things, whether the plaintiff was proceeding pro se, whether the district court inappropriately resolved genuine issues of disputed fact, whether the court applied erroneous legal conclusions, whether the court has provided a statement explaining the dismissal that facilitates intelligent appellate review, and whether the dismissal was with or without prejudice. With respect to the last factor, the reviewing court should determine whether the district court abused its discretion by dismissing the complaint with prejudice or without leave to amend if it appears that the allegations could be remedied through more specific pleading, since dismissal under § 1915(d) could have a res judicata effect on frivolousness determinations for future in forma pauperis petitions. This Court expresses no opinion on the Court of Appeals' rule that a pro se litigant bringing suit in forma pauperis is entitled to notice and an opportunity to amend the complaint to overcome any deficiency unless it is clear that no amendment can cure the defect. Pp. 33-35.929 F.2d 1374, vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 35.James Ching, Supervising Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Assistant Attorney General, and Joan W Cavanagh, Supervising Deputy Attorney General.27Full Text of Opinion

1982_82-5576

JUSTICE BRENNAN delivered the opinion of the Court.This case requires us to decide the constitutionality of a provision of a Tennessee statute [Footnote 1] that imposes a 2-year limitations period on paternity and child support actions brought on behalf of certain illegitimate children.IUnder Tennessee law, both fathers and mothers are responsible for the support of their minor children. See Tenn.Code Ann. § 34-101 (1977); Rose Funeral Home, Inc. v. Julian, 176 Tenn. 534, 539, 144 S.W.2d 755, 757 (1940); Brooks v. Brooks, 166 Tenn. 255, 257, 61 S.W.2d 654 (1933). This duty of support is enforceable throughout the child's minority. See Blackburn v. Blackburn, 526 S.W.2d 463, 466 (Tenn.1975); Whitt v. Whitt, 490 S.W.2d 159, 160 (Tenn.1973). See also Tenn.Code Ann. §§ 36-820, 36-828 (1977). Tennessee law also makes the father of a child born out of wedlock responsible for "the necessary support and education of the child." § 36-223. See also Brown v. Thomas, 221 Tenn. 319, 323, 426 S.W.2d 496, 498 (1968). Enforcement of this obligation depends on the establishment of paternity. Tennessee Code Ann. § 36-224(1) (1977) [Footnote 2] provides for the filing Page 462 U. S. 4 of a petition which can lead both to the establishment of paternity and to enforcement of the father's duty of support. With a few exceptions, however, the petition must be filed within two years of the child's birth. See § 36-224(2); n 1, supra.In May, 1978, Frances Annette Pickett filed an action pursuant to § 36-224(1) seeking to establish that Braxton Brown was the father of her son, Jeffrey Lee Pickett, who was born on November 1, 1968. App. 3. Frances Pickett also sought an order from the court requiring Brown to contribute to the support and maintenance of the child. Ibid. Brown denied that he was the father of the child. Id. at 13. It is uncontested that he had never acknowledged the child as his own or contributed to the child's support. Id. at 5-6, 13-14; Brief for Appellants 5. Brown moved to dismiss the suit on the ground that it was barred by the 2-year limitations period established by § 36-224(2). Frances Pickett responded with a motion challenging the constitutionality of the limitations period. App. 6-7, 13. [Footnote 3]The Juvenile Court held that the 2-year limitations period violated the Equal Protection Clause of the Fourteenth Page 462 U. S. 5 Amendment of the Federal Constitution and certain provisions of the Tennessee Constitution. Id. at 14. The court based its conclusion on the fact that the limitations period governing paternity actions imposed a restriction on the support rights of some illegitimate children that was not imposed on the identical rights of legitimate children. Ibid. Without articulating any clear standard of review, the court rejected the State's argument that the 2-year limitations period was justified by the State's interest in preventing the litigation of "stale or spurious" claims. Id. at 15. In the court's view, this argument was undermined by the exception to the limitations period established for illegitimate children who are, or are likely to become, public charges, for"the possibilities of fraud, perjury, or litigation of stale claims [are] no more inherent in a case brought [for] a child who is not receiving public assistance than [in] a case brought for a child who is a public charge."Ibid. [Footnote 4]On appeal, [Footnote 5] the Tennessee Supreme Court reversed the judgment of the Juvenile Court and upheld the constitutionality of the 2-year limitations period. 638 S.W.2d 369 (1982). In addressing Frances Pickett's equal protection and due process challenges to the statute, the court first reviewed our decision in Mills v. Habluetzel, 456 U. S. 91 (1982), and several decisions from other state courts. Based on this review, the court stated that the inquiry with respect to both claims was"essentially the same: whether the state's policy as Page 462 U. S. 6 reflected in the statute affords a fair and reasonable opportunity for the mother to decide in a rational way whether or not the child's best interest would be served by her bringing a paternity suit."638 S.W.2d at 376. The court concluded that"[t]he Legislature could rationally determine that two years is long enough for most women to have recovered physically and emotionally, and to be able to assess their and their children's situations logically and realistically."Id. at 379.The court also found that the 2-year statute of limitations was substantially related to the State's valid interest in preventing the litigation of stale or fraudulent claims. Id. at 380. The court justified the longer limitations period for illegitimates who are, or are likely to become, public charges, on the ground that"[t]he state's countervailing interest in doing justice and reducing the number of people on welfare is served by allowing the state a longer time during which to sue."Ibid. The court also suggested that"the Tennessee statute is 'carefully tuned' to avoid hardship in predictable groups of cases, since it contains an exception for actions against men who have acknowledged their children in writing or by supporting them, and it has been held that . . . regular or substantial payments are not required in order to constitute 'support.'"Id. at 379 (footnote omitted). Finally, the court found that the uniqueness of the limitations period in not being tolled during the plaintiff's minority did not"alone requir[e] a holding of unconstitutionality of a two-year period, as opposed to any other period which can end during the plaintiff's minority."Id. at 380. [Footnote 6] Page 462 U. S. 7We noted probable jurisdiction. 459 U.S. 1068 (1982). We reverse.IIWe have considered on several occasions during the past 15 years the constitutional validity of statutory classifications based on illegitimacy. See, e.g., Mills v. Habluetzel, supra; United States v. Clark, 445 U. S. 23 (1980); Lalli v. Lalli, 439 U. S. 259 (1978); Trimble v. Gordon, 430 U. S. 762 (1977); Mathews v. Lucas, 427 U. S. 495 (1976); Jimenez v. Weinberger, 417 U. S. 628 (1974); New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Gomez v. Perez, 409 U. S. 535 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73 (1968); Levy v. Louisiana, 391 U. S. 68 (1968). In several of these cases, we have held the classifications invalid. See, e.g., Mills v. Habluetzel, supra; Trimble v. Gordon, supra; Jimenez v. Weinberger, supra; New Jersey Welfare Rights Org. v. Cahill, supra; Gomez v. Perez, supra; Weber v. Aetna Casualty & Surety Co., supra; Glona v. American Guarantee & Liability Insurance Co., supra; Levy v. Louisiana, supra. Our consideration of these cases has been animated by a special concern for discrimination against illegitimate children. As the Court stated in Weber:"The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual -- as well as an unjust -- way of deterring the parent. Courts are powerless to prevent the Page 462 U. S. 8 social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth, whereas, in this case, the classification is justified by no legitimate state interest, compelling or otherwise."406 U.S. at 406 U. S. 175-176 (footnotes omitted).In view of the history of treating illegitimate children less favorably than legitimate ones, we have subjected statutory classifications based on illegitimacy to a heightened level of scrutiny. Although we have held that classifications based on illegitimacy are not "suspect," or subject to "our most exacting scrutiny," Trimble v. Gordon, supra, at 430 U. S. 767; Mathews v. Lucas, 427 U.S. at 427 U. S. 506, the scrutiny applied to them "is not a toothless one. . . ." Id. at 427 U. S. 510. In United States v. Clark, supra, we stated that"a classification based on illegitimacy is unconstitutional unless it bears 'an evident and substantial relation to the particular . . . interests [the] statute is designed to serve.'"445 U.S. at 445 U. S. 27. See also Lalli v. Lalli, supra, at 439 U. S. 265 (plurality opinion) ("classifications based on illegitimacy . . . are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests"). We applied a similar standard of review to a classification based on illegitimacy last Term in Mills v. Habluetzel, 456 U. S. 91 (1982). We stated that restrictions on support suits by illegitimate children "will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." Id. at 456 U. S. 99.Our decisions in Gomez and Mills are particularly relevant to a determination of the validity of the limitations period at issue in this case. In Gomez, we considered"whether the laws of Texas may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers and at the same time deny that right to illegitimate children."409 U.S. at 409 U. S. 535. We stated that "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally," Page 462 U. S. 9 id. at 409 U. S. 538, and held that."once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers, there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother."Ibid. The Court acknowledged the "lurking problems with respect to proof of paternity," ibid., and suggested that they could not "be lightly brushed aside." Ibid. But those problems could not be used to form "an impenetrable barrier that works to shield otherwise invidious discrimination." Ibid.In Mills, we considered the sufficiency of Texas' response to our decision in Gomez. In particular, we considered the constitutionality of a 1-year statute of limitations governing suits to identify the natural fathers of illegitimate children. 456 U.S. at 456 U. S. 92. The equal protection analysis focused on two related requirements: the period for obtaining paternal support has to be long enough to provide a reasonable opportunity for those with an interest in illegitimate children to bring suit on their behalf; and any time limit on that opportunity has to be substantially related to the State's interest in preventing the litigation of stale or fraudulent claims. Id. at 456 U. S. 99-100.The Texas statute failed to satisfy either requirement. The 1-year period for bringing a paternity suit did not provide illegitimate children with an adequate opportunity to obtain paternal support. Id. at 456 U. S. 100. The Court cited a variety of factors that make it unreasonable to require that a paternity suit be brought within a year of a child's birth. Ibid. [Footnote 7] In addition, the Court found that the 1-year limitations Page 462 U. S. 10 period was not "substantially related to the State's interest in avoiding the prosecution of stale or fraudulent claims." Id. at 456 U. S. 101. The problems of proof surrounding paternity suits do not "justify a period of limitation which so restricts [support rights] as effectively to extinguish them." Ibid. The Court could"conceive of no evidence essential to paternity suits that invariably will be lost in only one year, nor is it evident that the passage of 12 months will appreciably increase the likelihood of fraudulent claims."Ibid. (footnote omitted). [Footnote 8]In a concurring opinion, JUSTICE O'CONNOR, joined by four other Members of the Court, [Footnote 9] suggested that longer limitations periods also might be unconstitutional. Id. at 456 U. S. 106. [Footnote 10] JUSTICE O'CONNOR pointed out that the strength of the State's interest in preventing the prosecution of stale or fraudulent claims was "undercut by the countervailing state interest in ensuring that genuine claims for child support are satisfied." Id. at 456 U. S. 103. This interest "stems not only from a desire to see that justice is done,' but also from a desire to reduce the number of individuals forced to enter the welfare rolls." Ibid. (footnote omitted). JUSTICE O'CONNOR also Page 462 U. S. 11 suggested that the State's concern about stale or fraudulent claims"is substantially alleviated by recent scientific developments in blood testing dramatically reducing the possibility that a defendant will be falsely accused of being the illegitimate child's father."Id. at 456 U. S. 104, n. 2. Moreover, JUSTICE O'CONNOR found it significant that a paternity suit was "one of the few Texas causes of action not tolled during the minority of the plaintiff." Id. at 456 U. S. 104 (footnote omitted). She stated:"Of all the difficult proof problems that may arise in civil actions generally, paternity, an issue unique to illegitimate children, is singled out for special treatment. When this observation is coupled with the Texas Legislature's efforts to deny illegitimate children any significant opportunity to prove paternity and thus obtain child support, it is fair to question whether the burden placed on illegitimates is designed to advance permissible state interests."Id. at 456 U. S. 104-105. Finally, JUSTICE O'CONNOR suggested that "practical obstacles to filing suit within one year of birth could as easily exist several years after the birth of the illegitimate child." Id. at 456 U. S. 105. In view of all these factors, JUSTICE O'CONNOR concluded that there was "nothing special about the first year following birth" that compelled the decision in the case. Id. at 456 U. S. 106.Against this background, we turn to an assessment of the constitutionality of the 2-year statute of limitations at issue here.IIIMuch of what was said in the opinions in Mills is relevant here, and the principles discussed in Mills require us to invalidate this limitations period on equal protection grounds. [Footnote 11] Page 462 U. S. 12Although Tennessee grants illegitimate children a right to paternal support, Tenn.Code Ann. § 36-223 (1977), and provides a mechanism for enforcing that right, § 36-224(1), the imposition of a 2-year period within which a paternity suit must be brought, § 36-224(2), restricts the right of certain illegitimate children to paternal support in a way that the identical right of legitimate children is not restricted. In this respect, some illegitimate children in Tennessee are treated differently from, and less favorably than, legitimate children. Under Mills, the first question is whether the 2-year limitations period is sufficiently long to provide a reasonable opportunity to those with an interest in illegitimate children to bring suit on their behalf. 456 U.S. at 456 U. S. 99. In this regard, it is noteworthy that § 36-224(2) addresses some of the practical obstacles to bringing suit within a short time after the child's birth that were described in the opinions in Mills. See 456 U.S. at 456 U. S. 100; id. at 456 U. S. 105-106 (O'CONNOR, J., concurring). The statute creates exceptions to the limitations period if the father has provided support for the child or has acknowledged his paternity in writing. The statute also allows suit to be brought by the State or by any person at any time prior to a child's 18th birthday if the child is, or is liable to become, a public charge. See n 1, supra. This addresses JUSTICE O'CONNOR's point in Mills that a State has a strong interest in preventing increases in its welfare rolls. 456 U.S. at 456 U. S. 103-104 (concurring opinion). For the illegitimate child whose claim is not covered by one of the exceptions in the statute, however, the 2-year limitations period severely restricts his right to paternal support. The obstacles to filing a paternity and child support suit within a year after the child's birth, which the Court discussed in Mills, see id. at 456 U. S. 100; n 7, supra, are likely to persist during the child's second year as well. The mother may experience financial difficulties caused not only by the child's birth, but also by a loss of income attributable to the need to care for the child. Moreover,"continuing affection for the child's father, a desire to Page 462 U. S. 13 avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child,"456 U.S. at 456 U. S. 100, may inhibit a mother from filing a paternity suit on behalf of the child within two years after the child's birth. JUSTICE O'CONNOR suggested in Mills that the emotional strain experienced by a mother and her desire to avoid family or community disapproval "may continue years after the child is born." Id. at 456 U. S. 105, n. 4 (concurring opinion). [Footnote 12] These considerations compel a conclusion that the 2-year limitations period does not provide illegitimate children with "an adequate opportunity to obtain support." Id. at 456 U. S. 100.The second inquiry under Mills is whether the time limitation placed on an illegitimate child's right to obtain support is substantially related to the State's interest in avoiding the litigation of stale or fraudulent claims. Id. at 456 U. S. 99-100. In this case, it is clear that the 2-year limitations period governing paternity and support suits brought on behalf of certain illegitimate children does not satisfy this test.First, a 2-year limitations period is only a small improvement in degree over the 1-year period at issue in Mills. It, too, amounts to a restriction effectively extinguishing the support rights of illegitimate children that cannot be justified by the problems of proof surrounding paternity actions. As was the case in Mills,"[w]e can conceive of no evidence essential to paternity suits that invariably will be lost in only Page 462 U. S. 14 [two years], nor is it evident that the passage of [24] months will appreciably increase the likelihood of fraudulent claims."Id. at 456 U. S. 101 (footnote omitted).Second, the provisions of § 36-224(2) undermine the State's argument that the limitations period is substantially related to its interest in avoiding the litigation of stale or fraudulent claims. As noted, see supra at 462 U. S. 6, § 36-224(2) establishes an exception to the statute of limitations for illegitimate children who are, or are likely to become, public charges. Paternity and support suits may be brought on behalf of these children by the State or by any person at any time prior to the child's 18th birthday. The State argues that this distinction between illegitimate children receiving public assistance and those who are not is justified by the State's interest in protecting public revenue. See Brief for Appellee Leech 26-30. Putting aside the question of whether this interest can justify such radically different treatment of two groups of illegitimate children, [Footnote 13] the State's argument does not address the different treatment accorded illegitimate children who are not receiving public assistance and legitimate children. This difference in treatment is allegedly justified by the Page 462 U. S. 15 State's interest in preventing the litigation of stale or fraudulent claims. But as the exception for children receiving public assistance demonstrates, the State perceives no prohibitive problem in litigating paternity claims throughout a child's minority. There is no apparent reason why claims filed on behalf of illegitimate children who are receiving public assistance when they are more than two years old would not be just as stale, or as vulnerable to fraud, as claims filed on behalf of illegitimate children who are not public charges at the same age. The exception in the statute, therefore, seriously undermines the State's argument that the different treatment accorded legitimate and illegitimate children is substantially related to the legitimate state interest in preventing the prosecution of stale or fraudulent claims, and compels a conclusion that the 2-year limitations period is not substantially related to a legitimate state interest.Third, Tennessee tolls most actions during a child's minority. See Tenn.Code Ann. § 28-1-106 (1980). [Footnote 14] In Parlato v. Howe, 470 F. Supp. 996 (ED Tenn.1979), the court stated that"[t]he legal disability statute represents a longstanding policy of the State of Tennessee to protect potential causes of actions by minors during the period of their minority."Id. at 998-999. In view of this policy, the court held that a statute imposing a limitations period on medical malpractice actions "was not intended to interfere with the operation of the legal disability statute." Id. at 998. Accord, Braden v. Yoder, 592 S.W.2d 896 (Tenn. App.1979). But see Jones v. Black, 539 S.W.2d 123 (Tenn.1976) (1-year limitations Page 462 U. S. 16 period governing wrongful death actions applies "regardless of the minority or other disability of any beneficiary of the action"). Many civil actions are fraught with problems of proof, but Tennessee has chosen to overlook these problems in most instances in favor of protecting the interests of minors. In paternity and child support actions brought on behalf of certain illegitimate children, however, the State instead has chosen to focus on the problems of proof, and to impose on these suits a short limitations period. Although the Tennessee Supreme Court stated that the inapplicability of the tolling provision to paternity actions did not "alone" require invalidation of the limitations period, 638 S.W.2d at 380, it is clear that this factor, when considered in combination with others already discussed, may lead one "to question whether the burden placed on illegitimates is designed to advance permissible state interests." Mills v. Habluetzel, 456 U.S. at 456 U. S. 105 (O'CONNOR, J., concurring). See also id. at 456 U. S. 106 (POWELL, J., concurring in judgment). [Footnote 15] Page 462 U. S. 17Finally, the relationship between a statute of limitations and the State's interest in preventing the litigation of stale or fraudulent paternity claims has become more attenuated as scientific advances in blood testing have alleviated the problems of proof surrounding paternity actions. As JUSTICE O'CONNOR pointed out in Mills, these advances have "dramatically reduc[ed] the possibility that a defendant will be falsely accused of being the illegitimate child's father." Id. at 456 U. S. 104, n. 2 (concurring opinion). See supra at 462 U. S. 10-11. See also Little v. Streater, 452 U. S. 1, 452 U. S. 6-8, 452 U. S. 12, 452 U. S. 14 (1981). Although Tennessee permits the introduction of blood test results only in cases "where definite exclusion [of paternity] is established," Tenn.Code Ann. § 36-228 (1977); see also § 24-7-112 (1980), it is noteworthy that blood tests currently can achieve a "mean probability of exclusion [of] at least . . . 90 percent. . . ." Miale, Jennings, Rettberg, Sell, & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247, 256 (1976). [Footnote 16] In Mills, the Court rejected the argument that recent advances in blood testing negated the State's interest in avoiding the prosecution of stale or fraudulent claims. 456 U.S. at 456 U. S. 98, n. 4. It is not inconsistent with this view, however, to suggest that advances in blood testing render more attenuated the relationship between a statute of limitations and the State's interest in preventing the prosecution of stale or fraudulent paternity claims. This is an appropriate consideration in determining whether a Page 462 U. S. 18 period of limitations governing paternity actions brought on behalf of illegitimate children is substantially related to a legitimate state interest.IVThe 2-year limitations period established by Tenn.Code Ann. § 36-224(2) (1977) does not provide certain illegitimate children with an adequate opportunity to obtain support, and is not substantially related to the legitimate state interest in preventing the litigation of stale or fraudulent claims. It therefore denies certain illegitimate children the equal protection of the laws guaranteed by the Fourteenth Amendment. Accordingly, the judgment of the Tennessee Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtPickett v. Brown, 462 U.S. 1 (1982)Pickett v. BrownNo. 82-5576Argued April 27, 1983Decided June 6, 1983462 U.S. 1SyllabusUnder Tennessee law, the father of an illegitimate child is responsible for the child's support. Enforcement of this obligation depends on the establishment of paternity. A Tennessee statute provides that a paternity and support action must be filed within two years of the child's birth unless the father has provided support or has acknowledged his paternity in writing, or unless the child is, or is liable to become, a public charge, in which case the State or any person can bring suit at any time prior to the child's 18th birthday. In May, 1978, appellant mother of an illegitimate child born in November, 1968, brought a paternity and support action in the Tennessee Juvenile Court against appellee Brown, who moved to dismiss the action on the ground that it was barred by the 2-year limitations period. The court held that the limitations period violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment, because it imposed a restriction on the support rights of some illegitimate children that was not imposed on the identical rights of legitimate children. The Tennessee Supreme Court reversed and upheld the constitutionality of the 2-year limitations period.Held: The 2-year limitations period in question denies certain illegitimate children the equal protection of the law guaranteed by the Fourteenth Amendment. Pp. 462 U. S. 7-18.(a) Restrictions on support suits by illegitimate children "will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." Mills v. Habluetzel, 456 U. S. 91, 456 U. S. 99. The period for obtaining paternal support has to be long enough to provide a Page 462 U. S. 2 reasonable opportunity for those with an interest in illegitimate children to bring suit on their behalf; and any time limit on that opportunity has to be substantially related to the State's interest in preventing the litigation of stale or fraudulent claims. Id. at 465 U. S. 99-100. Pp. 462 U. S. 7-11.(b) Here, the 2-year limitations period does not provide an illegitimate child who is not covered by one of the exceptions in the statute with an adequate opportunity to obtain support. The mother's financial difficulties caused by the child's birth, the loss of income attributable to the need to care for the child, continuing affection for the child's father, a desire to avoid family and community disapproval, and emotional strain and confusion that often attend the birth of an illegitimate child, all may inhibit a mother from filing a paternity suit within two years after the child's birth. Pp. 462 U. S. 12-13.(c) Nor is the 2-year limitations period substantially related to the legitimate state interest in preventing the litigation of stale or fraudulent claims. It amounts to a restriction effectively extinguishing the support rights of illegitimate children that cannot be justified by the problems of proof surrounding paternity actions. The State's argument that the different treatment accorded legitimate and illegitimate children is substantially related to the above legitimate state interest is seriously undermined by the exception for illegitimate children who are, or are likely to become, public charges, since claims filed on behalf of these children when they are more than two years old would be just as stale or as vulnerable to fraud as claims filed on behalf of illegitimate children who are not public charges at the same age. Moreover, the fact that Tennessee tolls most actions during a child's minority, when considered in combination with the above factors, leads one to question whether the burden placed on illegitimate children is designed to advance permissible state interests. And the advances in blood testing render more attenuated the relationship between a statute of limitations and the State's interest in preventing the litigation of stale or fraudulent claims. Pp. 462 U. S. 13-18.638 S.W.2d 369, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. Page 462 U. S. 3

1994_94-6790

Constitution," we explained, "if any consecutive sentence [the prisoner is] scheduled to serve was imposed as the result of a deprivation of constitutional rights." Id., at 64-65.The case before us is appropriately described as Peyton's complement, or Peyton in reverse. Like the habeas petitioners in Peyton, petitioner Harvey Garlotte is incarcerated under consecutive sentences. Unlike the Peyton petitioners, however, Garlotte does not challenge a conviction underlying a sentence yet to be served. Instead, Garlotte seeks to attack a conviction underlying the sentence that ran first in a consecutive series, a sentence already served, but one that nonetheless persists to postpone Garlotte's eligibility for parole. Following Peyton, we do not disaggregate Garlotte's sentences, but comprehend them as composing a continuous stream. We therefore hold that Garlotte remains "in custody" under all of his sentences until all are served, and now may attack the conviction underlying the sentence scheduled to run first in the series.IOn September 16, 1985, at a plea hearing held in a Mississippi trial court, Harvey Garlotte entered simultaneous guilty pleas to one count of possession with intent to distribute marijuana and two counts of murder. Pursuant to a plea agreement, the State recommended that Garlotte be sentenced to a prison term of three years on the marijuana count, to run consecutively with two concurrent life sentences on the murder counts. App. 43. State law required Garlotte to serve at least ten months on the marijuana count, Miss. Code Ann. §47-7-3(1)(c)(ii) (Supp. 1994), and at least ten years on the concurrent life sentences. §47-7-3(1).At the plea hearing, the trial judge inquired whether the State wanted Garlotte to serve the life sentences before the three-year sentence: "[A] three year sentence [on the marijuana possession count] to run consecutive to thee] two life42sentences?" the judge asked. The prosecutor expressed indifference about the order in which the sentences would run:"Either that way, your Honor or allow the three years to run first. In other words, we're just talking about a total of three years and then life or life and then three years." App. 43. The judge next asked Garlotte's counsel about his understanding of the State's recommendation. Defense counsel replied, without elaboration: "[I]t's my understanding that the possession case is to run first and then the two life sentences." Id., at 44. The court saw "no reason not to go along with the recommendation of the State." Id., at 50. Without further explanation, the court imposed the sentences in this order: the three-year sentence first, then, consecutively, the concurrent life sentences. Ibid.Garlotte wrote to the trial court seven months after the September 16, 1985 hearing, asking for permission to withdraw his guilty plea on the marijuana count. The court's reply notified Garlotte of the Mississippi statute under which he could pursue postconviction collateral relief. Id., at 51. Garlotte unsuccessfully moved for such relief. Nearly two years after the denial of Garlotte's motion, the Mississippi Supreme Court rejected his appeal. Garlotte v. State, 530 So. 2d 693 (1988). On January 18, 1989, the Mississippi Supreme Court denied further postconviction motions filed by Garlotte. By this time, Garlotte had completed the period of incarceration set for the marijuana offense, and had commenced serving the life sentences.On October 6, 1989, Garlotte filed a habeas corpus petition in the United States District Court for the Southern District of Mississippi, naming as respondent Kirk Fordice, the Governor of Mississippi.1 Adopting the recommendation of a1 Garlotte asserted that he was entitled to relief because his guilty plea was not knowing, intelligent, and voluntary, he did not receive effective assistance of trial counsel, he was subjected to double jeopardy, and his sentence was unusual and disproportionate. App. 6.43Federal Magistrate Judge, the District Court denied Garlotte's petition on the merits. App. 18.Before the United States Court of Appeals for the Fifth Circuit, the State argued for the first time that the District Court lacked jurisdiction over Garlotte's petition. 29 F.3d 216, 217 (1994). The State asserted that Garlotte, prior to the District Court filing, had already served out the prison time imposed for the marijuana conviction; therefore, the State maintained, Garlotte was no longer "in custody" under that conviction within the meaning of the federal habeas statute. Ibid. Garlotte countered that he remained "in custody" until all sentences were served, emphasizing that the marijuana conviction continued to postpone the date on which he would be eligible for parole. Id., at 218.Adopting the State's position, the Fifth Circuit dismissed Garlotte's habeas petition for want of jurisdiction. Ibid. The Courts of Appeals have divided over the question whether a person incarcerated under consecutive sentences remains "in custody" under a sentence that (1) has been completed in terms of prison time served, but (2) continues to postpone the prisoner's date of potential release.2 We granted certiorari to resolve this conflict, 513 U. S. 1123 (1995), and now reverse.3IIThe federal habeas statute authorizes United States district courts to entertain petitions for habeas relief from state-court judgments only when the petitioner is "in custody in violation of the Constitution or laws or treaties of2 Compare Fawcett v. Bablitch, 962 F.2d 617, 618 (CA7 1992) ("in custody"); Bernard v. Garraghty, 934 F.2d 52, 55 (CA4 1991) (same); and Fox v. Kelso, 911 F.2d 563, 568 (CAll 1990) (same), with Allen v. Dowd, 9643 Garlotte, who proceeded pro se in the courts below, filed along with his petition for certiorari a motion for appointment of counsel. After we granted certiorari, we appointed Brian D. Boyle, of Washington, D. C., to represent Garlotte. 513 U. S. 1125 (1995).44the United States." 28 U. S. C. § 2254(a); see also 28 U. S. C. § 2241(c)(3). In Peyton v. Rowe, 391 U. S. 54 (1968), we held that the statute authorized the exercise of habeas jurisdiction over the petitions of two State of Virginia prisoners, Robert Rowe and Clyde Thacker. Rowe and Thacker were incarcerated under consecutive sentences; both sought to challenge sentences slated to run in the future. Virginia, relying on McNally v. Hill, 293 U. S. 131 (1934), argued that the habeas petitions were premature. Overruling McNally, we explained:"[I]n common understanding 'custody' comprehends respondents' status for the entire duration of their imprisonment. Practically speaking, Rowe is in custody for 50 years, or for the aggregate of his 30- and 20-year sentences. For purposes of parole eligibility, under Virginia law he is incarcerated for 50 years. Nothing on the face of § 2241 militates against an interpretation which views Rowe and Thacker as being 'in custody' under the aggregate of the consecutive sentences imposed on them. Under that interpretation, they are 'in custody in violation of the Constitution' if any consecutive sentence they are scheduled to serve was imposed as the result of a deprivation of constitutional rights." 391 U. S., at 64-65 (citations omitted).The habeas petitioners in Peyton sought to present challenges that, if successful, would advance their release dates. That was enough, we concluded, to permit them to invoke the Great Writ. Id., at 66-67.Had the Mississippi trial court ordered that Garlotte's life sentences run before his marijuana sentence-an option about which the prosecutor expressed indifference-Peyton unquestionably would have instructed the District Court to entertain Garlotte's present habeas petition. Because the marijuana term came first, and Garlotte filed his habeas peti-45tion (following state-court proceedings) after prison time had run on the marijuana sentence, Mississippi urges that Maleng v. Cook, 490 U. S. 488 (1989) (per curiam), rather than Peyton, controls.The question presented in Maleng was "whether a habeas petitioner remains 'in custody' under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted." 490 U. S., at 492. We held that the potential use of a conviction to enhance a sentence for subsequent offenses did not suffice to render a person "in custody" within the meaning of the habeas statute. Ibid.Maleng recognized that we had "very liberally construed the 'in custody' requirement for purposes of federal habeas," but stressed that the Court had "never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction." Ibid. "[A]lmost all States have habitual offender statutes, and many States provide ... for specific enhancement of subsequent sentences on the basis of prior convictions," ibid.; hence, the construction of "in custody" urged by the habeas petitioner in Maleng would have left nearly all convictions perpetually open to collateral attack. The Maleng petitioner's interpretation, we therefore commented, "would read the 'in custody' requirement out of the statute." Ibid.4Unlike the habeas petitioner in Maleng, Garlotte is serving consecutive sentences. In Peyton, we held that "a prisoner serving consecutive sentences is 'in custody' under any one of them" for purposes of the habeas statute. 391 U. S.,4 We left open the possibility, however, that the conviction underlying the expired sentence might be subject to challenge in a collateral attack upon the subsequent sentence that the expired sentence was used to enhance. Maleng, 490 U. S., at 494.46at 67. Having construed the statutory term "in custody" to require that consecutive sentences be viewed in the aggregate, we will not now adopt a different construction simply because the sentence imposed under the challenged conviction lies in the past rather than in the future.5Mississippi urges, as a prime reason for its construction of the "in custody" requirement, that allowing a habeas attack on a sentence nominally completed would "encourage and reward delay in the assertion of habeas challenges." Brief for Respondent 28. As Mississippi observes, in Peyton we rejected the prematurity rule of McNally in part because of "the harshness of a rule which may delay determination of federal claims for decades." Peyton, 391 U. S., at 61. Mississippi argues that Garlotte's reading of the words "in custody" would undermine the expeditious adjudication rationale of Peyton. Brief for Respondent 6-7, 27-28.Our holding today, however, is unlikely to encourage delay.A prisoner naturally prefers release sooner to release later. Further, because the habeas petitioner generally bears the burden of proof, delay is apt to disadvantage the petitioner more than the State. Nothing in this record, we note, suggests that Garlotte has been dilatory in challenging his marijuana conviction. Finally, under Habeas Corpus Rule 9(a), a district court may dismiss a habeas petition if the State5 That Mississippi itself views consecutive sentences in the aggregate for various penological purposes reveals the difficulties courts and prisoners would face trying to determine when one sentence ends and a consecutive sentence begins. For example, Mississippi aggregates consecutive sentences for the purpose of determining parole eligibility, see Miss. Code Ann. §47-7-3(1) (Supp. 1994) ("Every prisoner ... who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced ... may be released on parole as hereinafter provided .... ") (emphasis added), and for the purpose of determining commutation of sentences for meritorious earned-time credit. See Miss. Code Ann. §47-5-139(3) (1981) ("An offender under two (2) or more consecutive sentences shall be allowed commutation based upon the total term of the sentences.") (emphasis added).47"has been prejudiced in its ability to respond to the petition by [inexcusable] delay in its filing."***Under Peyton, we view consecutive sentences in the aggregate, not as discrete segments. Invalidation of Garlotte's marijuana conviction would advance the date of his eligibility for release from present incarceration. Garlotte's challenge, which will shorten his term of incarceration if he proves unconstitutionality, implicates the core purpose of habeas review. We therefore hold that Garlotte was "in custody" under his marijuana conviction when he filed his federal habeas petition. Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusGARLOTTE v. FORDICE, GOVERNOR OF MISSISSIPPICERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 94-6790. Argued April 24, 1995-Decided May 30,1995A Mississippi trial court ordered that petitioner Garlotte serve, consecutively, a 3-year prison sentence on a marijuana conviction, followed by concurrent life sentences on two murder convictions. State law required Garlotte to serve at least 10 months on the first sentence and 10 years on the concurrent sentences. Garlotte unsuccessfully sought state postconviction collateral relief on the marijuana conviction. By the time those proceedings ended, he had completed the period of incarceration set for the marijuana offense, and had commenced serving the life sentences. The Federal District Court denied his subsequent federal habeas petition on the merits, but the Court of Appeals dismissed the petition for want of jurisdiction. The Court of Appeals adopted the State's position that Garlotte had already served out the prison time imposed for the marijuana conviction and, therefore, was no longer "in custody" under the conviction within the meaning of the federal habeas statute, 28 U. S. C. § 2254(a). The court rejected Garlotte's argument that he remained "in custody" because the marijuana conviction continued to postpone the date on which he would be eligible for parole.Held: Garlotte was "in custody" under his marijuana conviction when he filed his federal habeas petition. Pp. 43-47.(a) In Peyton v. Rowe, 391 U. S. 54, this Court allowed two prisoners incarcerated under consecutive sentences to apply for federal habeas relief from sentences they had not yet begun to serve. Viewing consecutive sentences in the aggregate, the Court held that a prisoner serving consecutive sentences is "in custody" under anyone of them for purposes of the habeas statute. A different construction of the statutory term "in custody" will not be adopted here simply because the sentence imposed under the challenged conviction lies in the past rather than in the future. Maleng v. Cook, 490 U. S. 488-in which the Court held that a habeas petitioner could not challenge a conviction after the sentence imposed for it had fully expired-does not control this case, for the habeas petitioner in Maleng, unlike Garlotte, was not serving consecutive sentences. Pp. 43-46.(b) Allowing a habeas attack on a sentence nominally completed is unlikely to encourage delay in the assertion of habeas challenges. A40prisoner naturally prefers release sooner to release later, and delay is apt to disadvantage a petitioner-who has the burden of proof-more than the State. Moreover, under Habeas Corpus Rule 9(a), a district court may dismiss a habeas petition if the State has been prejudiced in its ability to respond because of inexcusable delay in the petition's filing. Pp.46-47.29 F.3d 216, reversed and remanded.GINSBURG, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined, post, p. 47.Brian D. Boyle, by appointment of the Court, 513 U. S. 1125, argued the cause for petitioner. With him on the briefs were James R. Asperger and Matthew B. Pachman.Marvin L. White, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief were Mike Moore, Attorney General, and Jo Anne M. McLeod and John L. Gadow, Special Assistant Attorneys General. *JUSTICE GINSBURG delivered the opinion of the Court.To petition a federal court for habeas corpus relief from a state-court conviction, the applicant must be "in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. § 2254(a); see also 28 U. S. C. § 2241(c)(3). In Peyton v. Rowe, 391 U. S. 54 (1968), we held that the governing federal prescription permits prisoners incarcerated under consecutive state-court sentences to apply for federal habeas relief from sentences they had not yet begun to serve. We said in Peyton that, for purposes of habeas relief, consecutive sentences should be treated as a continuous series; a prisoner is "in custody in violation of the* Harold J. Krent filed a brief for the Post-Conviction Assistance Project of the University of Virginia et al. as amici curiae urging reversal.Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.41Full Text of Opinion

1980_79-408

JUSTICE REHNQUIST delivered the opinion of the Court.When this litigation was first before us, we recognized the existence of a federal "common law" which could give rise to a claim for abatement of a nuisance caused by interstate water pollution. Illinois v. Milwaukee, 406 U. S. 91 (1972). Subsequent to our decision, Congress enacted the Federal Water Pollution Control Act Amendments of 1972. We granted certiorari Page 451 U. S. 308 to consider the effect of this legislation on the previously recognized cause of action. 445 U.S. 926.IPetitioners, the city of Milwaukee, the Sewerage Commission of the city of Milwaukee, and the Metropolitan Sewerage Commission of the County of Milwaukee, are municipal corporations organized under the laws of Wisconsin. Together, they construct, operate, and maintain sewer facilities serving Milwaukee County, an area of some 420 square miles with a population of over one million people. [Footnote 1] The facilities consist of a series of sewer systems and two sewage treatment plants located on the shores of Lake Michigan 25 and 39 miles from the Illinois border, respectively. The sewer systems are of both the "separated" and "combined" variety. A separated sewer system carries only sewage for treatment; a combined sewer system gathers both sewage and storm water runoff and transports them in the same conduits for treatment. On occasion, particularly after a spell of wet weather, overflows occur in the system which result in the discharge of sewage Page 451 U. S. 309 directly into Lake Michigan or tributaries leading into Lake Michigan. [Footnote 2] The overflows occur at discrete discharge points throughout the system.Respondent Illinois complains that these discharges, as well as the inadequate treatment of sewage at the two treatment plants, constitute a threat to the health of its citizens. Pathogens, disease-causing viruses and bacteria, are allegedly discharged into the lake with the overflows and inadequately treated sewage, and then transported by lake currents to Illinois waters. Illinois also alleges that nutrients in the sewage accelerate the eutrophication, or aging, of the lake. [Footnote 3] Respondent Michigan intervened on this issue only.Illinois' claim was first brought to this Court when Illinois sought leave to file a complaint under our original jurisdiction. Illinois v. Milwaukee, supra. We declined to exercise original jurisdiction because the dispute was not between two States, and Illinois had available an action in federal district court. The Court reasoned that federal law applied to the dispute, one between a sovereign State and political subdivisions of another State concerning pollution of interstate waters, but that the various laws which Congress had enacted "touching interstate waters" were "not necessarily the only federal remedies available." Id. at 406 U. S. 101, 406 U. S. 103. Illinois could appeal to federal common law to abate a public nuisance in Page 451 U. S. 310 interstate or navigable waters. The Court recognized, however, that"It may happen that new federal laws and new federal regulations may, in time, preempt the field of federal common law of nuisance. But until that time comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution."Id. at 406 U. S. 107. On May 19, 1972, Illinois filed a complaint in the United States District Court for the Northern District of Illinois, seeking abatement, under federal common law, of the public nuisance petitioners were allegedly creating by their discharges. [Footnote 4]Five months later, Congress, recognizing that "the Federal water pollution control program . . . has been inadequate in every vital aspect," S.Rep. No. 9214, p. 7 (1971), 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 91, p. 1425 (1973) (hereinafter Leg.Hist.), passed the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, 86 Stat. 816. The Amendments established a new system of regulation under which it is illegal for anyone to discharge pollutants into the Nation's waters except pursuant Page 451 U. S. 311 to a permit. §§ 301, 402 of the Act, 33 U.S.C. §§ 1311, 1342 (1976 ed. and Supp. III). To the extent that the Environmental Protection Agency, charged with administering the Act, has promulgated regulations establishing specific effluent limitations, those limitations are incorporated as conditions of the permit. See generally EPA v. State Water Resources Control Board, 426 U. S. 200 (1976). Permits are issued either by the EPA or a qualifying state agency. Petitioners operated their sewer systems and discharged effluent under permits issued by the Wisconsin Department of Natural Resources (DNR), which had duly qualified under § 402(b) of the Act, 33 U.S.C. § 1342(b) (1976 ed. and Supp. III), as a permit-granting agency under the superintendence of the EPA. See EPA v. State Water Resources Control Board, supra, at 426 U. S. 208. Petitioners did not fully comply with the requirements of the permits and, as contemplated by the Act, § 402(b)(7), 33 U.S.C. § 1342(b)(7), see Wis.Stat.Ann. § 147.29 (West 1974), the state agency brought an enforcement action in state court. On May 25, 1977, the state court entered a judgment requiring discharges from the treatment plants to meet the effluent limitations set forth in the permits and establishing a detailed timetable for the completion of planning and additional construction to control sewage overflows.Trial on Illinois' claim commenced on January 11, 1977. On July 29, the District Court rendered a decision finding that respondents had proved the existence of a nuisance under federal common law, both in the discharge of inadequately treated sewage from petitioners' plants and in the discharge of untreated sewage from sewer overflows. The court ordered petitioners to eliminate all overflows and to achieve specified effluent limitations on treated sewage. App. to Pet. for Cert. F-25 - F-26. A judgment order entered on November 15 specified a construction timetable for the completion of detention facilities to eliminate overflows. Separated sewer overflows are to be completely eliminated by 1986; combined Page 451 U. S. 312 sewer overflows by 1989. The detention facilities to be constructed must be large enough to permit full treatment of water from any storm up to the largest storm on record for the Milwaukee area. Id. at D-1. Both the aspects of the decision concerning overflows and concerning effluent limitations, with the exception of the effluent limitation for phosphorus, went considerably beyond the terms of petitioners' previously issued permits and the enforcement order of the state court.On appeal, the Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. 599 F.2d 151. The court ruled that the 1972 Amendments had not preempted the federal common law of nuisance, but that,"[i]n applying the federal common law of nuisance in a water pollution case, a court should not ignore the Act, but should look to its policies and principles for guidance."Id. at 164. The court reversed the District Court insofar as the effluent limitations it imposed on treated sewage were more stringent than those in the permits and applicable EPA regulations. The order to eliminate all overflows, however, and the construction schedule designed to achieve this goal, were upheld. [Footnote 5]IIFederal courts, unlike state courts, are not general common law courts and do not possess a general power to develop and apply their own rules of decision. Erie R. Co. v. Tompkins, 304 U. S. 64, 304 U. S. 78 (1938); United States v. Hudson & Goodwin, 7 Cranch 32 (1812). The enactment of a federal rule in an Page 451 U. S. 313 area of national concern, and the decision whether to displace state law in doing so, is generally made not by the federal judiciary, purposefully insulated from democratic pressures, but by the people through their elected representatives in Congress. Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 384 U. S. 68 (1966). [Footnote 6] Erie recognized as much in ruling that a federal court could not generally apply a federal rule of decision, despite the existence of jurisdiction, in the absence of an applicable Act of Congress.When Congress has not spoken to a particular issue, however, and when there exists a "significant conflict between some federal policy or interest and the use of state law," Wallis, supra, at 384 U. S. 68, [Footnote 7] the Court has found it necessary, in a "few and restricted" instances, Wheeldin v. Wheeler, 373 U. S. 647, 373 U. S. 651 (1963), to develop federal common law. See, e.g., Clearfield Trust Co. v. United States, 318 U. S. 363, 318 U. S. 367 (1943). Nothing in this process suggests that courts are better suited to develop national policy in areas governed by federal common law than they are in other areas, or that the usual and important concerns of an appropriate division of functions between the Congress and the federal judiciary are inapplicable. See TVA v. Hill, 437 U. S 153, 194 (1978); Diamond v. Chakrabarty, 447 U. S. 303, 447 U. S. 317 (1980); United States v. Gilman, 347 U. S. 507, 347 U. S. 511-513 (1954). We have always recognized that federal common law is "subject to the paramount authority of Congress." New Jersey v. New Page 451 U. S. 314 York, 283 U. S. 336, 283 U. S. 348 (1931). It is resorted to "[i]n absence of an applicable Act of Congress," Clearfield Trust, supra, at 318 U. S. 367, and because the Court is compelled to consider federal questions "which cannot be answered from federal statutes alone," D'Oench, Duhme Co. v. FDIC, 315 U. S. 447, 315 U. S. 469 (1942) (Jackson, J., concurring). See also Board of Commissioners v. United States, 308 U. S. 343, 308 U. S. 349 (1939); United States v. Little Lake Misere Land Co., 412 U. S. 580, 412 U. S. 594 (1973); Miree v. DeKalb County, 433 U. S. 25, 433 U. S. 35 (1977) (BURGER, C.J., concurring in judgment). Federal common law is a "necessary expedient," Committee for Consideration of Jones Falls Sewage System v. Train, 539 F.2d 1006, 1008 (CA4 1976) (en banc), and when Congress addresses a question previously governed by a decision rested on federal common law, the need for such an unusual exercise of lawmaking by federal courts disappears. This was pointedly recognized in Illinois v. Milwaukee itself, 406 U.S. at 406 U. S. 107 ("new federal laws and new federal regulations may in time preempt the field of federal common law of nuisance"), and in the lower court decision extensively relied upon in that case, Texas v. Pankey, 441 F.2d 236, 241 (CA10 1971) (federal common law applies "[u]ntil the field has been made the subject of comprehensive legislation or authorized administrative standards") (quoted in Illinois v. Milwaukee, supra, at 406 U. S. 107, n. 9).In Arizona v. California, 373 U. S. 546 (1963), for example, the Court declined to apply the federal common law doctrine of equitable apportionment it had developed in dealing with interstate water disputes because Congress, in the view of a majority, had addressed the question:"It is true that the Court has used the doctrine of equitable apportionment to decide river controversies between States. But in those cases, Congress had not made any statutory apportionment. In this case, we have decided that Congress has provided its own method for allocating Page 451 U. S. 315 among the Lower Basin States the mainstream water to which they are entitled under the Compact. Where Congress has so exercised its constitutional power over waters, courts have no power to substitute their own notions of an 'equitable apportionment' for the apportionment chosen by Congress."Id. at 373 U. S. 565-566. In Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978), the Court refused to provide damages for "loss of society" under the general maritime law when Congress had not provided such damages in the Death on the High Seas Act:"We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. . . . The Act does not address every issue of wrongful death law, . . . but when it does speak directly to a question, the courts are not free to 'supplement' Congress' answer so thoroughly that the Act becomes meaningless."Id. at 436 U. S. 625. Thus the question was whether the legislative scheme "spoke directly to a question" -- in that case the question of damages -- not whether Congress had affirmatively proscribed the use of federal common law. Our "commitment to the separation of powers is too fundamental" to continue to rely on federal common law "by judicially decreeing what accords with common sense and the public weal'" when Congress has addressed the problem. TVA v. Hill, supra, at 437 U. S. 195. [Footnote 8] Page 451 U. S. 316Contrary to the suggestions of respondents, the appropriate analysis in determining if federal statutory law governs a question previously the subject of federal common law is not the same as that employed in deciding if federal law preempts state law. In considering the latter question,"'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'"Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525 (1977) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947)). While we have not hesitated to find preemption of state law, whether express or implied, when Congress has so indicated, see Ray v. Atlantic Richfield Co., 435 U. S. 151, 435 U. S. 157 (1978), or when enforcement of state regulations would impair "federal superintendence of the field," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142 (1963), our analysis has included"due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power, not as a matter of doctrinaire localism, but as a promoter of democracy."San Diego Building Trades Council v. Garmon, 359 U. S. 236, 359 U. S. 243 (1959). Such concerns are not implicated in the same fashion when the question is whether federal statutory Page 451 U. S. 317 or federal common law governs, and accordingly the same sort of evidence of a clear and manifest purpose is not required. Indeed, as noted in cases such as the present, "we start with the assumption" that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law. [Footnote 9]IIIWe conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. The 1972 Amendments to the Federal Water Pollution Control Act were not merely another law "touching interstate waters" of the sort surveyed in Illinois v. Milwaukee, 406 U.S. at 406 U. S. 101-103, and found inadequate to supplant federal common law. Rather, the Amendments were viewed by Congress as a "total restructuring" and "complete rewriting" of the existing water pollution legislation considered in that case. 1 Leg.Hist. 350-351 (remarks of Chairman Blatnik of the House Committee which drafted the House version of the Amendments); id. at 359-30 (remarks of Rep. Jones). See S.Rep. No. 92-414, p. 95 (1971), 2 Leg.Hist. 1511; id. at 1271 (remarks of Chairman Randolph of the Senate Committee which drafted the Senate version of the Amendments); see also EPA Page 451 U. S. 318 v. State Water Resources Control Board, 426 U.S. at 426 U. S. 202-203. [Footnote 10] Congress' intent in enacting the Amendments was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge [Footnote 11] is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals. The "major purpose" of the Amendments was "to establish a comprehensive long-range policy for the elimination of water pollution." S.Rep. No. 9214, at 95, 2 Leg.Hist. 1511 (emphasis supplied). No Congressman's remarks on the legislation were complete without reference to the "comprehensive" nature of the Amendments. A House sponsor described the bill as "the most comprehensive and far-reaching water pollution bill we have ever drafted," 1 Leg.Hist. 369 (Rep. Mizell), and Senator Randolph, Chairman of the responsible Committee in the Senate, stated:"It is perhaps the most comprehensive legislation ever developed in its field. It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment."2 id. at 1269. [Footnote 12] This Court was Page 451 U. S. 319 obviously correct when it described the 1972 Amendments as establishing "a comprehensive program for controlling and abating water pollution." Train v. City of New York, 420 U. S. 35, 420 U. S. 37 (1975). [Footnote 13] The establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when Illinois v. Milwaukee was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal common law. See Texas v. Pankey, 441 F.2d at 241. [Footnote 14]Turning to the particular claims involved in this case, the action of Congress in supplanting the federal common law is perhaps clearest when the question of effluent limitations for discharges from the two treatment plants is considered. The duly issued permits under which the city Commission discharges treated sewage from the Jones Island and South Shore treatment plants incorporate, as required by the Act, see § 402(b)(1), 33 U.S.C. § 1342(b)(1) (1976 ed. and Supp. Page 451 U. S. 320 III), the specific effluent limitations established by EPA regulations pursuant to § 301 of the Act, 33 U.S.C. § 1311 (1976 ed. and Supp. III). App. 371-394, 39-524; see 40 CFR § 133.102 (1980). There is thus no question that the problem of effluent limitations has been thoroughly addressed through the administrative scheme established by Congress, as contemplated by Congress. This being so, there is no basis for a federal court to impose more stringent limitations than those imposed under the regulatory regime by reference to federal common law, as the District Court did in this case. The Court of Appeals, we believe, also erred in stating:"Neither the minimum effluent limitations prescribed by EPA pursuant to the provisions of the Act nor the effluent limitations imposed by the Wisconsin agency under the National Pollutant Discharge Elimination System limit a federal court's authority to require compliance with more stringent limitations under the federal common law."599 F.2d at 173. Federal courts lack authority to impose more stringent effluent limitations under federal common law than those imposed by the agency charged by Congress with administering this comprehensive scheme.The overflows do not present a different case. They are point source discharges and, under the Act, are prohibited unless subject to a duly issued permit. As with the discharge of treated sewage, the overflows, through the permit procedure of the Act, are referred to expert administrative agencies for control. All three of the permits issued to petitioners explicitly address the problem of overflows. The Jones Island and South Shore permits, in addition to covering discharges from the treatment plants, also cover overflows from various lines leading to the plants. As issued on December 24, 1974, these permits require the city Commission"to initiate a program leading to the elimination or control of all discharge overflow and/or bypass points in the [Jones Island or South Page 451 U. S. 321 Shore, respectively] Collector System . . . to assure attainment of all applicable Water Quality Standards."App. 378-379, 416. The specific discharge points are identified. The Commission was required to submit a detailed pan to DNR designed to achieve these objectives, including alternative engineering solutions and cost estimates, file a report on an attached form for all overflows that do occur, install monitoring devices on selected overflows discharge points, and file more detailed quarterly reports on the overflows from those points. The Commission was also required to complete "facilities planning" for the combined sewer area."The facilities planning elements include a feasibility study, cost effectiveness analysis, and environmental assessment for elimination or control of the discharges from the combined sewers."Quarterly progress reports on this planning are required. Id. at 379. A permit issued to the city on December 18, 1974, covers discharges "from sanitary sewer crossovers, combined sewer crossovers and combined sewer overflows." Id. at 425. Again the discharge points are specifically identified. As to separated sewers, the city"is required to initiate a program leading to the elimination of the sanitary sewer crossovers (gravity) and the electrically operated relief pumps. . . ."Id. at 438. A detailed plan to achieve this objective must be submitted, again with alternative engineering solutions and cost estimates, any overflows must be reported to DNR on a specified form, and monitoring devices are required to be installed on selected points to provide more detailed quarterly reports. As to the combined sewers, the city "is required to initiate a program leading to the attainment of control of overflows from the city's combined sewer system. . . ." Id. at 443. The city is required to cooperate with and assist the city Commission in facilities planning for combined sewers, see supra, this page, submit quarterly progress reports to DNR, file reports on all discharges, and install monitoring devices on selected discharge points to provide more detailed quarterly Page 451 U. S. 322 reports "until the discharges are eliminated or controlled." App. 444. [Footnote 15]The enforcement action brought by the DNR in state court resulted in a judgment requiring "[e]limination of any bypassing or overflowing which occurs within the sewerage systems under dry weather by not later than July 1, 1982." Id. at 465. Wet weather overflows from separated sewers were to be subject to a coordinated effort by the Commissions resulting in correction of the problem by July 1, 1986, pursuant to a plan submitted to the DNR. Id. at 469-471. As to the combined sewer overflows, the Commissions were required to accomplish an abatement project, with design work completed by July 1, 1981, and construction by July 1, 1993. Annual progress reports were required to be submitted to the DNR. Id. at 471-472.It is quite clear from the foregoing that the state agency Page 451 U. S. 323 duly authorized by the EPA to issue discharge permits under the Act has addressed the problem of overflows from petitioners' sewer system. The agency imposed the conditions it considered best suited to further the goals of the Act, and provided for detailed progress reports so that it could continually monitor the situation. Enforcement action considered appropriate by the state agency was brought, as contemplated by the Act, again specifically addressed to the overflow problem. There is no "interstice" here to be filled by federal common law: overflows are covered by the Act, and have been addressed by the regulatory regime established by the Act. Although a federal court may disagree with the regulatory approach taken by the agency with responsibility for issuing permits under the Act, such disagreement, alone, is no basis for the creation of federal common law. [Footnote 16]Respondents strenuously argue that federal common law continues to be available, stressing that neither in the permits nor the enforcement order are there any effluent limitations on overflows. This argument, we think, is something of a red herring. The difference in treatment between overflows and treated effluent by the agencies is due to differences in the nature of the problems, not the extent to which the problems have been addressed. [Footnote 17] The relevant question with overflow discharges is not, as with discharges of treated sewage, what concentration of various pollutants will be permitted. Rather, the question is what degree of control will be required in Page 451 U. S. 324 preventing overflows and ensuring that the sewage undergoes treatment. This question is answered by construction plans designed to accommodate a certain amount of sewage that would otherwise be discharged on overflow occasions. The EPA has not promulgated regulations mandating specific control guidelines because of a recognition that the problem is "site-specific." See, e.g., EPA Program Requirements Memorandum PRM No. 75-34 (Dec. 16, 1975):"The costs and benefits of control of various portions of pollution due to combined sewer overflows and bypasses vary greatly with the characteristics of the sewer and treatment system, the duration, intensity, frequency, and aerial extent of precipitation, the type and extent of development in the service area, and the characteristics, uses and water quality standards of the receiving waters. Decisions on grants for control of combined sewer overflows, therefore, must be made on a case-by-case basis after detailed planning at the local level."See also EPA, Report to Congress on Control of Combined Sewer overflow in the United States 7-1, 7-13 (MCD-50, 1978). Decision is made on a case-by-case basis, through the permit procedure, as was done here. Demanding specific regulations of general applicability before concluding that Congress has addressed the problem to the exclusion of federal common law asks the wrong question. The question is whether the field has been occupied, not whether it has been occupied in a particular manner. [Footnote 18] Page 451 U. S. 325The invocation of federal common law by the District Court and the Court of Appeals in the face of congressional legislation supplanting it is peculiarly inappropriate in areas as complex as water pollution control. As the District Court noted:"It is well known to all of us that the arcane subject matter of some of the expert testimony in this case was sometimes over the heads of all of us to one height or another. I would certainly be less than candid if I did not acknowledge that my grasp of some of the testimony was less complete than I would like it to be. . . ."App. to Pet. for Cert. F-4. Not only are the technical problems difficult -- doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise -- but the general area is particularly unsuited to the approach inevitable under a regime of federal common law. Congress criticized past approaches to water pollution control as being "sporadic" and "ad hoc," S.Rep. No. 92-414, p. 95 (1971), 2 Leg.Hist. 1511, apt characterizations of any judicial approach applying federal common law, see Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U. S. 310, 348 U. S. 319 (1955).It is also significant that Congress addressed in the 1972 Amendments one of the major concerns underlying the recognition of federal common law in Illinois v. Milwaukee. We were concerned in that case that Illinois did not have any forum in which to protect its interests unless federal common law were created. See 406 U.S. at 406 U. S. 104, 406 U. S. 107. In the 1972 Page 451 U. S. 326 Amendments Congress provided ample opportunity for a State affected by decisions of a neighboring State's permit-granting agency to seek redress. Under § 402(b)(3), 33 U.S.C. § 1342(b)(3), a state permit-granting agency must ensure that any State whose waters may be affected by the issuance of a permit receives notice of the permit application and the opportunity to participate in a public hearing. Wisconsin law accordingly guarantees such notice and hearing, see Wis.Stat.Ann. §§ 147.11, 147.13 (West Supp. 1980-1981). Respondents received notice of each of the permits involved here, and public hearings were held, but they did not participate in them in any way. Section 402(b)(5), 33 U.S.C. § 1342(b)(5), provides that state permit-granting agencies must ensure that affected States have an opportunity to submit written recommendations concerning the permit applications to the issuing State and the EPA, and both the affected State and the EPA must receive notice and a statement of reasons if any part of the recommendations of the affected State are not accepted. Again, respondents did not avail themselves of this statutory opportunity. Under § 402(d)(2)(A), 33 U.S.C. § 1342(d)(2)(A) (1976 ed., Supp. III), the EPA may veto any permit issued by a State when waters of another State may be affected. Respondents did not request such action. Under § 402(d)(4) of the Act, 33 U.S.C. § 1342(d)(4) (1976 ed., Supp. III), added in 1977, the EPA itself may issue permits if a stalemate between an issuing and objecting State develops. The basic grievance of respondents is that the permits issued to petitioners pursuant to the Act do not impose stringent enough controls on petitioners' discharges. The statutory scheme established by Congress provides a forum for the pursuit of such claims before expert agencies by means of the permit-granting process. It would be quite inconsistent with this scheme if federal courts were, in effect, to "write their own ticket" under the guise of federal common law after permits have already been issued and permittees have been planning and operating in reliance on them. Page 451 U. S. 327Respondents argue that congressional intent to preserve the federal common law remedy recognized in Illinois v. Milwaukee is evident in §§ 510 and 505(e) of the statute, 33 U.S.C. §§ 1370, 1365(e). [Footnote 19] Section 510 provides that nothing in the Act shall preclude States from adopting and enforcing limitations on the discharge of pollutants more stringent than those adopted under the Act. [Footnote 20] It is one thing, however, Page 451 U. S. 328 to say that States may adopt more stringent limitations through state administrative processes, or even that States may establish such limitations through state nuisance law, and apply them to in-state dischargers. It is quite another to say that the States may call upon federal courts to employ federal common law to establish more stringent standards applicable to out-of-state dischargers. Any standards established under federal common law are federal standards, and so the authority of States to impose more stringent standards under § 510 would not seem relevant. Section 510 clearly contemplates state authority to establish more stringent pollution limitations; nothing in it, however, suggests that this was to be done by federal court actions premised on federal common law.Subsection 505(e) provides:"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)."(Emphasis supplied.) Respondents argue that this evinces an intent to preserve the federal common law of nuisance. We, however, are inclined to view the quoted provision as meaning what it says: that nothing in § 505, the citizen suit provision, should be read as limiting any other remedies which might exist.Subsection 505(e) is virtually identical to subsections in the citizen suit provisions of several environmental statutes. [Footnote 21] Page 451 U. S. 329 The subsection is common language accompanying citizen suit provisions, and we think that it means only that the provision of such suit does not revoke other remedies. It most assuredly cannot be read to mean that the Act as a whole does not supplant formerly available federal common law actions, but only that the particular section authorizing citizen suits does not do so. No one, however, maintains that the citizen suit provision preempts federal common law.We are thus not persuaded that § 505(e) aids respondents in this case, even indulging the unlikely assumption that the reference to "common law" in § 505(e) includes the limited federal common law, as opposed to the more routine state common law. See Committee for Consideration of Jones Falls Sewage System v. Train, 539 F.2d at 1009, n. 9. [Footnote 22]The dissent considers "particularly revealing," post at 451 U. S. 343, a colloquy involving Senators Griffin, Muskie, and Hart, concerning the pendency of an action by the EPA against Reserve Mining Co. Senator Griffin expressed concern that"one provision in the conference agreement might adversely Page 451 U. S. 330 affect a number of pending lawsuits brought under the Refuse Act of 1899,"including the Reserve Mining litigation. 1 Leg.Hist. 190. The provision which concerned Senator Griffin, enacted as § 402(k), 86 Stat. 883, 33 U.S.C. § 1342(k), provides, in pertinent part:"Until December 31, 1974, in any case where a permit for discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation of (1) section 301, 306, or 402 of this Act, or (2) section 13 of the Act of March 3, 1899, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application."Senator Griffin was concerned about the relation between this provision and § 4(a) of the bill, which provided that"[n]o suit, action or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of the Act shall abate by reason of the taking effect of the amendment made by section 2 of this Act."Senator Griffin stated that,"when these provisions are read together, it is not altogether clear what effect is intended with respect to pending Federal court suits against pollutors violating the Refuse Act of 1899."Senator Muskie responded to Senator Griffin's concerns by quoting § 4(a) and stating that,"[w]ithout any question, it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress."1 Leg.Hist.193. Later, Senator Hart stated:"It is Page 451 U. S. 331 my understanding, . . . after the explanation of the Senator from Maine, that the suit now pending against the Reserve Mining Co. under the Refuse Act of 1899 will in no way be affected, nor will any of the other counts under the existing Federal Water Pollution Control Act or other law."Id. at 211. [Footnote 23] When Senator Muskie's and Hart's remarks are viewed in this context it is clear that they do not bear on the issue now before the Court. In the first place, although there was a federal common law claim in the Reserve Mining litigation, Senator Griffin focused on the Refuse Act of 1899 -- not federal common law. Senator Muskie, with his reference to "other acts of Congress," rather clearly was not discussing federal common law. Most importantly, however, Senator Muskie based his response to Senator Griffin -- that the Reserve Mining suit would not be affected -- on a specific section of the bill, § 4(a), which is not applicable to suits other than those brought by or against the Federal Government and pending when the Amendments were enacted. Senator Hart based his response on the explanation given by Senator Muskie. Even if we assumed that the legislators were focusing on the federal common law aspects of the Reserve Mining litigation (and we do not think they were), Senators Muskie and Hart informed Senator Griffin that the Reserve Mining suit was not affected because of § 4(a), and not at all because the Act did not displace the federal common law of nuisance. Senator Griffin's question focused on § 4(a); understandably, so did the assurances he received. Nothing Page 451 U. S. 332 about the colloquy suggests any intent concerning the continued validity of federal common law. The issue simply did not come up, because Senator Griffin's concerns were fully answered by a particular section not applicable in the case before us. [Footnote 24]We therefore conclude that no federal common law remedy was available to respondents in this case. The judgment of the Court of Appeals is therefore vacated, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCity of Milwaukee v. Illinois, 451 U.S. 304 (1981)City of Milwaukee v. IllinoisNo. 7908Argued December 2, 1980Decided April 28, 1981451 U.S. 304SyllabusIn original proceedings brought by respondent State of Illinois, alleging that petitioners -- the city of Milwaukee, its Sewerage Commission, and Milwaukee County's Metropolitan Sewerage Commission -- and other Wisconsin cities were polluting Lake Michigan because of overflows of untreated sewage from their sewer systems and discharges of inadequately treated sewage from their treatment plants, this Court recognized the existence of a federal "common law" which could give rise to a claim for abatement of a nuisance caused by interstate water pollution, but declined to exercise original jurisdiction because of the availability of a lower court action. Illinois v. Milwaukee, 406 U. S. 91. Accordingly, Illinois filed suit (and respondent State of Michigan intervened) in Federal District Court seeking abatement, under federal common law, of the public nuisance petitioners were allegedly creating by their discharges. Five months later, Congress passed the Federal Water Pollution Control Act (Act) Amendments of 1972, which established a new system of regulation making it illegal to discharge pollutants into the Nation's waters except pursuant to a permit that incorporated as conditions regulations of the Environmental Protection Agency (EPA) establishing specific effluent limitations. Permits are issued either by the EPA or a qualifying state agency, and petitioners operated their sewer systems under permits issued by the Wisconsin Department of Natural Resources (DNR). While the federal court action was pending, DNR brought an action in a Wisconsin state court to compel compliance with the permits' requirements, and the state court entered a judgment requiring discharges from the treatment plants to meet effluent limitations in the permits and establishing a timetable for additional construction to control sewage overflows. Thereafter, the District Court found that the existence of a federal common law nuisance had been proved, and entered a judgment specifying effluent limitations for treated sewage and a construction timetable to eliminate overflows that went considerably beyond the terms of petitioners' permits and the state court's enforcement order. The Court of Appeals, ruling that the 1972 Amendments of the Act had not preempted the federal common law of nuisance, upheld the District Court's order as to elimination of overflows, but reversed insofar as the District Page 451 U. S. 305 Court's effluent limitations on treated sewage were more stringent than those in the petitioners' permits and applicable EPA regulations.Held:1. Federal common law in an area of national concern is resorted to in the absence of an applicable Act of Congress, and because the Court is compelled to consider federal questions which cannot be answered from federal statutes alone. As recognized in Illinois v. Milwaukee, supra, at 451 U. S. 107, when Congress addresses a question previously governed by a decision rested on federal common law, the need for such an unusual exercise of lawmaking by federal courts disappears. Unlike the determination of whether federal law preempts state law, which requires evidence of a clear and manifest congressional purpose to preempt state law, the determination of whether federal statutory or federal common law governs starts with the assumption that it is for Congress, not federal courts, to articulate appropriate standards to be applied as a matter of federal law. Pp. 451 U. S. 312-317.2. No federal common law remedy was available to respondents in this case. Pp. 451 U. S. 317-332.(a) At least so far as concerns respondents' claims, Congress, which viewed the 1972 Amendments of the Act as a "total restructuring" and "complete rewriting" of the existing water pollution legislation considered in Illinois v. Milwaukee, has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. Pp. 451 U. S. 317-319.(b) As contemplated by Congress, the problem of effluent limitations for discharges from petitioners' treatment plants has been thoroughly addressed through the administrative scheme established by Congress, and thus there is no basis for a federal court, by reference to federal common law, to impose more stringent limitations. Similarly, the overflows of untreated sewage from petitioners' sewer system have been addressed by the regulatory regime established by the Act, through DNR's imposing conditions suited to further the Act's goals and bringing an enforcement action specifically addressed to the overflow problem. Nor does the absence of overflow effluent limitations in the permits and the state court enforcement order render federal common law available, since the relevant question is not what concentration of various pollutants will be permitted, but what degree of control will be required in preventing overflows and ensuring that the sewage undergoes treatment. Decision is to be made by the appropriate Page 451 U. S. 306 agency on a case-by-case basis, through the permit procedure, as was done here. Pp. 451 U. S. 319-324.(c) When Illinois v. Milwaukee was decided, Illinois did not have any forum in which to protect its interests unless federal common law were created. However, in the 1972 Amendments, Congress provided ample opportunity for a State affected by decisions of a neighboring State's permit-granting agency to seek redress. Respondents did not avail themselves of the statutory procedures. Pp. 451 U. S. 325-326.(d) Section 510 of the Act, which provides that nothing in the Act shall preclude States from adopting and enforcing limitations on the discharge of pollutants more stringent than those adopted under the Act, does not indicate congressional intent to preserve the federal common law remedy recognized in Illinois v. Milwaukee. Nothing in § 510 suggests that the States may call upon federal courts to employ federal common law to establish more stringent standards applicable to out-of-state discharges. Nor does a subdivision in the citizen suit provision of the Act -- § 505(e), which provides that nothing "in this section" shall limit any other remedies which might exist -- indicate congressional intent to preserve the federal common law remedy. It does not mean that the Act, as a whole, does not supplant formerly available federal common law actions, but means only that the particular section authorizing citizen suits does not do so. Pp. 451 U. S. 327-329.(e) The legislative history of the 1972 Amendments with regard to certain discussions as to provisions relating to the effect of the amendments on pending lawsuits is not relevant. The discussions focused on suits brought under federal statutes, not federal common law, related to suits brought by or against the Federal Government, and did not suggest any intent concerning the continued validity of federal common law. Pp. 451 U. S. 329-332.599 F.2d 151, vacated and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, and POWELL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 451 U. S. 332. Page 451 U. S. 307

1990_89-1166

Justice STEVENS delivered the opinion of the Court.The collective bargaining agreements between the parties provide for voluntary grievance procedures and reserve the parties' respective rights to resort to economic weapons when the procedures fail to resolve a dispute. The collective bargaining agreements are silent as to judicial remedies. The question presented is whether, upon failure of the grievance procedures, such contracts should be construed to bar recourse to the courts under § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185. We granted certiorari to resolve a conflict in the Circuits, [Footnote 1] 494 U.S. 1026 (1990), and we now conclude that the judicial remedy under § 301 is available to petitioners.ITwo almost identical collective bargaining agreements (CBAs) between respondent Ring Screw Works (company) and the union [Footnote 2] prohibit discharges except for "just cause." Page 498 U. S. 170 Petitioners Groves and Evans contend that they were discharged in violation of this provision.Both CBAs provide that the parties will make "an earnest effort" to settle every dispute that may arise under the agreement. App. 16. Both CBAs also contain a voluntary multi-step grievance procedure, but neither includes a requirement that the parties submit disputes to binding arbitration. [Footnote 3] The CBAs prohibit strikes or lockouts until the grievance machinery has been exhausted. The no-strike clause provides:"The Union will not cause or permit its members to cause, nor will any member of the Union take part in any strike, either sit-down, stay-in or any other kind of strike, or other interference, or any other stoppage, total or partial, of production at the Company's plant during the terms of this agreement until all negotiations have failed through the grievance procedure set forth herein. Neither will the Company engage in any lockout Page 498 U. S. 171 until the same grievance procedure has been carried out."Id. at 34 (emphasis added); see id. at 69. [Footnote 4] The dispute in this case arose out of the company's decision to discharge petitioners. [Footnote 5] With the assistance of the union, petitioners invoked the grievance procedures, but without success. [Footnote 6] At the end of the procedures, the company decided not to call for arbitration, and the union decided not to exercise its right to strike. [Footnote 7] Instead, petitioners filed this action invoking federal jurisdiction under § 301, 29 U.S.C. § 185. Following the Sixth Circuit's decision in Fortune v. National Twist Drill & Tool Division, Lear Siegler, Inc., 684 F.2d 374 (1982), the District Court granted the company's motion for summary judgment, and the Court of Appeals affirmed. 882 F.2d 1081 (1989). The Sixth Circuit explained:"We believe that the CBAs in question do bring about an inference that a strike, or other job action, is the perceived remedy for failure of successful resolution of a grievance absent agreed arbitration. Such resolution, by work stoppage or other interference' is not a happy solution from a societal standpoint of an industrial dispute, particularly as it relates to the claim of a single employee Page 498 U. S. 172 that he has been wrongfully discharged. Were we deciding the issue with a clean slate, we might be disposed to adopt the rationale of Dickeson [v. DAW Forest Products Co.], 827 F.2d 627 [(CA9 1987)]." 882 F.2d at 1086. [Footnote 8]IISection 301(a) of the LMRA provides a federal remedy for breach of a collective bargaining agreement. [Footnote 9] We have squarely held that § 301 authorizes "suits by and against individual employees as well as between unions and employers," including actions against an employer for wrongful discharge. Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 424 U. S. 562 Page 498 U. S. 173 (1976). Our opinion in Hines described the strong federal policy favoring judicial enforcement of collective bargaining agreements. We wrote:"Section 301 of the Labor Management Relations Act . . . reflects the interest of Congress in promoting 'a higher degree of responsibility upon the parties to such agreements. . . .' S.Rep. No. 105, 80th Cong., 1st Sess., 17 (1947). The strong policy favoring judicial enforcement of collective bargaining contracts was sufficiently powerful to sustain the jurisdiction of the district courts over enforcement suits even though the conduct involved was arguably or would amount to an unfair labor practice within the jurisdiction of the National Labor Relations Board. Smith v. Evening News Assn., 371 U. S. 195 (1962); Atkinson v. Sinclair Rfg. Co., 370 U. S. 238 (1962); Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962); Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). Section 301 contemplates suits by and against individual employees as well as between unions and employers, and, contrary to earlier indications, § 301 suits encompass those seeking to vindicate 'uniquely personal' rights of employees such as wages, hours, overtime pay, and wrongful discharge. Smith v. Evening News Assn., supra, [371 U.S.] at 198-200. Petitioners' present suit against the employer was for wrongful discharge, and is the kind of case Congress provided for in § 301."Id., 424 U.S. at 424 U. S. 561-562. Thus, under § 301, as in other areas of the law, there is a strong presumption that favors access to a neutral forum for the peaceful resolution of disputes.Respondent correctly points out, however, that a presumption favoring access to a judicial forum is overcome whenever the parties have agreed upon a different method for the adjustment Page 498 U. S. 174 of their disputes. [Footnote 10] The company argues that the union has agreed that, if the voluntary mediation process is unsuccessful, then the exclusive remedy that remains is either a strike or a lockout, depending on which party asserts the breach of contract. According to this view, the dispute is not whether there was "just cause" for the discharge of Groves and Evans, but whether the union has enough muscle to compel the company to rehire them even if there was just cause for their discharge.In our view, the statute's reference to "the desirable method for settlement of grievance disputes," see n 10, supra, refers to the peaceful resolution of disputes over the application or meaning of the collective bargaining agreement. [Footnote 11] Of course, the parties may expressly agree to resort to economic warfare rather than to mediation, arbitration, or judicial review, but the statute surely does not favor such an agreement. For in most situations, a strike or a lockout, though it may be a method of ending the impasse, is not a method of resolving the merits of the dispute over the application or meaning of the contract. Rather, it is simply a method by which one party imposes its will upon its adversary. Such a method is the antithesis of the peaceful methods of dispute resolution envisaged by Congress when it passed the Taft-Hartley Act. [Footnote 12] Page 498 U. S. 175In Associated General Contractors of Illinois v. Illinois Conference of Teamsters, 486 F.2d 972 (1973), the United States Court of Appeals for the Seventh Circuit was confronted with the same issue presented by this case, albeit with the union, rather than the employer, claiming that the contractual provision foreclosed judicial relief. The Seventh Circuit, in response to the union's argument that the CBA's terms provided that deadlocked grievances would be resolved by economic sanctions without resort to the courts, wrote:"Unquestionably 'the means chosen by the parties for settlement of their differences under a collective bargaining agreement [must be] given full play.' See United Steelworkers of America v. American Mfg. Co., 363 U. S. 564, 363 U. S. 566. . . . But it is one thing to hold that an arbitration clause in a contract agreed to by the parties is enforceable. It is quite a different matter to construe a contract provision reserving the Union's right to resort to 'economic recourse' as an agreement to divest the courts of jurisdiction to resolve whatever dispute may arise. This we decline to do.""In our first opinion in this case, we noted that the parties had not agreed to compulsory arbitration and that the Union had expressly reserved the right to 'economic recourse' in the event of a deadlock. We therefore held that the . . . right to strike was protected by the Norris-LaGuardia Act. However, we did not, and do not now, construe the agreement as requiring economic warfare as the exclusive or even as a desirable method for settling deadlocked grievances. The plain language of the Page 498 U. S. 176 statute protects the right to strike, but there is no plain language in the contract compelling the parties to use force instead of reason in resolving their differences. In our view, an agreement to forbid any judicial participation in the resolution of important disputes would have to be written much more clearly than this."Id. at 976 (footnote omitted). This reasoning applies equally to cases in which the union, an employee, or the employer is the party invoking judicial relief.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

U.S. Supreme CourtGroves v. Ring Screw Works, 498 U.S. 168 (1990)Groves v. Ring Screw Works, Ferndale Fastener DivisionNo. 89-1166Argued Oct. 10, 1990Decided Dec. 10, 1990498 U.S. 168SyllabusAfter petitioner employees were discharged from their jobs, they and petitioner union invoked the grievance procedures in the collective bargaining agreements between the union and respondent company. Those agreements provide for voluntary grievance procedures, including arbitration, and reserve the parties' respective rights to resort to economic weapons when the procedures fail to resolve a dispute, but are silent as to judicial remedies. Upon failure of the grievance procedures, petitioners filed an action under § 301 of the Labor Management Relations Act, 1947 (LMRA), which provides a judicial remedy for the breach of a collective bargaining agreement. The District Court granted the company's motion for summary judgment, and the Court of Appeals affirmed, holding that the agreements brought about an inference that a strike or other job action was the perceived remedy for failure of successful resolution of a grievance absent agreed arbitration, such that recourse to the courts under § 301 was barred.Held: Petitioners may seek a judicial remedy under § 301. While § 301's strong presumption favoring judicial enforcement of collective bargaining agreements may be overcome whenever the parties expressly agree to a different method for adjustment of their disputes, Congress, in passing the LMRA, envisaged peaceful methods of dispute resolution. Thus, the statute does not favor an agreement to resort to economic warfare rather than to mediation, arbitration, or judicial review. A contract provision reserving the union's right to resort to economic weapons cannot be construed as an agreement to divest the courts of jurisdiction to resolve disputes. Such an agreement would have to be written much more clearly. Pp. 498 U. S. 172-176.882 F.2d 1081 (CA6 1989), reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court. Page 498 U. S. 169