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1984_83-240

JUSTICE WHITE delivered the opinion of the Court.The issue presented in this appeal is whether a State may regulate the distribution of funds that units of local government Page 469 U. S. 258 in that State receive from the Federal Government in lieu of taxes under 31 U.S.C. § 6902. The Supreme Court of South Dakota sustained a state statute requiring local governments to spend these moneys in the same manner as they distribute taxes, holding that it was not inconsistent with the federal law. Because the language and legislative history of the federal statute indicate that Congress intended local governments to have more discretion in spending federal aid than the State would allow them, we hold that the state statute is invalid under the Supremacy Clause. Hence, we reverse.IThe Payment in Lieu of Taxes Act, 31 U.S.C. § 6901 et seq., [Footnote 1] compensates local governments for the loss of tax revenues resulting from the tax-immune status of federal lands located in their jurisdictions, and for the cost of providing services related to these lands. These "entitlement lands" include wilderness areas, national parks, and lands administered by the Bureau of Land Management. [Footnote 2] Under § 6902, the Secretary of the Interior is required to make annual payments "to each unit of general local government in which entitlement land is located." [Footnote 3] The local unit "may use the payment for any governmental purpose." 31 U.S.C. Page 469 U. S. 259 § 6902(a). [Footnote 4] Appellant Lawrence County has received in excess of $400,000 under the Act.In 1979, South Dakota enacted a statute requiring local governments to distribute federal payments in lieu of taxes in the same way they distribute general tax revenues. S.D.Codified Laws § 5-11-6 (1980). [Footnote 5] Since the county allocates approximately 60% of its general tax revenues to its school districts, the state statute would require the county to give the school districts 60% of the § 6902 payments it receives. The county, however, declined to distribute the funds in accordance with the state statute, claiming that the Payment in Lieu of Taxes Act gave it the discretion to spend the funds for any governmental purpose it chose.This state court litigation arose after the county's federal court challenge to the state law was dismissed on jurisdictional grounds. [Footnote 6] Appellee Lead-Deadwood School District Page 469 U. S. 260 No. 40-1 then filed a complaint in state court, seeking a writ of mandamus to compel the county to distribute the federal funds in accordance with the state statute. The Circuit Court for the Eighth Judicial Circuit of South Dakota held that the state statute conflicted with federal law and was therefore invalid under the Supremacy Clause.The South Dakota Supreme Court reversed. 334 N.W.2d 24 (1983). The court noted that the only limit imposed on the local government by § 6902 is that the funds must be used for a "governmental purpose." Since support of school districts is a valid governmental purpose, the court concluded that the state statute was consistent with federal requirements. The court therefore found it unnecessary to go behind the plain language of the statute and examine its legislative history. Two justices dissented, concluding that the statute as a whole, along with the legislative history, indicated that Congress was directing the States to "keep their noses out of the manner in which a county would distribute these funds." Id. at 27. We noted probable jurisdiction, 466 U.S. 903 (1984).IIEven if Congress has not expressly preempted state law in a given area, a state statute may nevertheless be invalid under the Supremacy Clause if it conflicts with federal law or "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 464 U. S. 248 (1984); Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). In determining whether the state statute at issue here impeded the operation of the federal Act, the South Dakota Supreme Court limited its inquiry to whether the funding of school districts was a "governmental purpose." Concluding that it was, the court found no inconsistency between the state and federal provisions. This plain language analysis, however, is seriously flawed.The Act provides that "each unit of general local government" -- in this case, the county -- "may" use the moneys for Page 469 U. S. 261 "any" governmental purpose. This language appears to endow local governments with the discretion to spend in-lieu payments for any governmental purpose. It seems to say that, if the local unit chooses to spend all of the money on roads, for example, it could do so. Under the state statute, however, that is forbidden: the funds must be allocated among the various services in the same manner as other revenues. The State insists that since money used as the law directs would be spent on proper governmental services, there is no inconsistency with § 6902. Under this interpretation, the word "may" confers no discretion on local governments that is immune from state control. The last sentence of § 6902(a) is drained of almost all meaning, since had it been omitted, the legal position of local governments would be precisely as described by the South Dakota Supreme Court. The sentence would become a mere admonition not to embezzle and to spend federal money on proper purposes. At the very least, § 6902 is ambiguous with respect to the degree of discretion it confers on local governments. Contrary to the views expressed in the court below, it does not of its own force dispose of the county's case. Resort to other indicia of the meaning of the statutory language is therefore appropriate.First, we note that the Department of the Interior, the agency charged with administration of the Act, has consistently adhered to the view that local government units retain the discretion to spend the in-lieu payments for any governmental purpose they choose. In 1977, soon after the Act was passed, the Department promulgated 43 CFR § 1881.2 (1983), which provides that "[t]he monies paid to entitled units of local government may be used for any governmental purpose." The Department has consistently interpreted the statute as foreclosing limitations on the use of in-lieu funds. [Footnote 7] Page 469 U. S. 262 Brief for United States as Amicus Curiae 18. The interpretation of an agency charged with the administration of a statute is entitled to substantial deference, Blum v. Bacon, 457 U. S. 132, 457 U. S. 141 (1982), if it is a sensible reading of the statutory language, which it surely is in this case, and if it is not inconsistent with the legislative history, an inquiry that we now undertake.The Payment in Lieu of Taxes Act was passed in response to a comprehensive review of the policies applicable to the use, management, and disposition of federal lands. Public Land Law Review Commission, One Third of the Nation's Land (1970). [Footnote 8] The Federal Government had for many years been providing payments to partially compensate state and local governments for revenues lost as a result of the presence of tax-exempt federal lands within their borders. But the Public Land Law Review Commission and Congress identified a number of flaws in the existing programs. Prominent among congressional concerns was that, under systems of direct payment to the States, local governments often received funds that were insufficient to cover the full cost of maintaining the federal lands within their jurisdictions. Where these lands consisted of wilderness or park areas, they attracted thousands of visitors each year. State governments might benefit from this federally inspired tourism through the collection of income or sales taxes, but these revenues would not accrue to local governments, who were often restricted to raising revenue from property taxes. Yet it was the local governments that bore the brunt of the expenses associated with federal lands, such as law enforcement, Page 469 U. S. 263 road maintenance, and the provision of public health services. [Footnote 9]A second defect in the existing schemes was that the States had too much leeway with respect to the disbursement of the funds."Many of the revenue sharing provisions permit the States to make the decisions on how the funds will be distributed. In far too many States, the result has been that the funds are either kept at the State level and not distributed to local governments at all or are parcelled out in a manner which provides shares to local governments other than those in which the Federal lands are situated and where the impacts of the revenue and fee generating activities are felt."S.Rep. No. 94-1262, p. 9 (1976). The School District acknowledges that this legislative history evidences a clear intent to distribute funds directly to units of local government, bypassing the State. But it argues that the South Dakota statute poses no impediment to the accomplishment of this goal: federal money still flows directly to the county; none of it is thereafter "parcelled out" to other counties that have no federal lands within their borders; and the federal statute merely defines the "point of distribution" of funds, the State having authority to prescribe the "plan of distribution. "As we see it, however, Congress was not merely concerned that local governments receive adequate amounts of money, and that they receive these amounts directly. Equally important was the objective of ensuring local governments the freedom and flexibility to spend the federal money as they saw fit. The Senate Committee on Interior and Insular Affairs, for example, observed:"[T]oo many of the [existing] revenue sharing provisions restrict the use of funds to only a few governmental Page 469 U. S. 264 services -- most often the construction and maintenance of roads and schools. Yet, local governments are called upon to provide many other services to the Federal lands or as a direct or indirect result of activities on the Federal lands. . . . It is only the most fortunate of local governments which is able to juggle its budget to make use of those earmarked funds in a manner which will accurately correspond to its community's service and facility needs."Ibid. [Footnote 10] Similarly, the House Committee concluded not only that "payments under [the Act] should go directly to units of local government," but also that "these new payments should [not] be restricted or earmarked for use for specific purposes." H.R.Rep. No. 94-1106, p. 12 (1976). The floor debates on the Act are replete with similar statements. [Footnote 11] The South Dakota statute, mandating that local governments spend these funds according to a specific formula, runs directly counter to this objective. If the State may dictate a "plan" of distribution, as the School District contends, it may impose exactly the kinds of restrictions on the use of funds that Congress intended to prohibit.That Congress made a knowing choice to vest discretion in local governments over the expenditure of in-lieu moneys is apparent from the issues posed in the congressional hearings. The question of who should actually receive the payments under the Act was the subject of extensive discussion before the House Committee, and several alternatives were considered. Although a number of witnesses advocated payments directly to the State, others argued that the counties were the appropriate recipients because, among other considerations, Page 469 U. S. 265 the counties were in the best position to determine what local functions were most in need of additional funds. [Footnote 12]Congress also recognized that the costs associated with maintaining and serving federal lands were varied and unpredictable, and that local governments needed the flexibility to allocate in-lieu payments to these needs as they arose. The House and Senate Committee Reports listed, as examples of services required by the presence of federal lands, law enforcement, public health, sewage disposal, libraries, hospitals, recreational facilities, and search and rescue missions. [Footnote 13] The picture that emerges from the hearings on the Act is that there are many counties in which much of the land is owned by the Federal Government, and whose populations are markedly increased by tourists and hunters in the summer, in deer season, or on the weekends. [Footnote 14] These transients suffer Page 469 U. S. 266 accidents requiring emergency services or hospitalization for which they cannot always pay; [Footnote 15] commit crimes that call for police protection, prosecution, and incarceration; [Footnote 16] create waste that necessitates the construction of sewage treatment plants; [Footnote 17] use roads that must be paved and maintained; [Footnote 18] and generally impose a strain on a county's limited resources without providing much in the way of compensating revenues. One cost unlikely to increase with the presence of this largely uninhabited federal land, however, is that of education. [Footnote 19] Page 469 U. S. 267Two other features of the statutory scheme shed some light on the meaning of § 6902. Another provision of the Act, 31 U.S.C. § 6904(b), provides expressly that in the case of certain additional short-term federal payments in connection with the acquisition of park or wilderness areas, the Secretary "shall distribute payments proportionally to units and school districts that lost real property taxes because of the acquisition of the interest." That Congress explicitly provided for a proportionate allocation to school districts under this provision indicates that local governments were not to be required to allocate § 6902 funds to school districts. See Fedorenko v. United States, 449 U. S. 490, 449 U. S. 512 (1981). [Footnote 20]A subsequent amendment to the Act provides additional support for this interpretation. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 380-381 (1969). In 1983, Congress amended the Act to authorize States to make limited redistributions of payments among "units of general purpose local government" within the same county. Pub.L. 98-63, 97 Stat. 324, 31 U.S.C. § 6907 (1982 ed., Supp. II). [Footnote 21] This Page 469 U. S. 268 amendment indicates that Congress found it necessary to provide expressly that States might reallocate funds in certain limited circumstances and that absent such express authority, States may not interfere in a county's decisionmaking with respect to these federal funds. The amendment also demonstrates that even when Congress determined that finds should be reallocated to smaller governmental units, it was careful to provide that those units have responsibility for "general purpose" local government. School districts and water districts, being limited to a single purpose, were thus excluded once again from direct receipt of this form of federal aid. [Footnote 22]Against this background, we have little trouble in concluding that Congress intended to prohibit the kind of state-imposed limitation on the use of in-lieu payments represented by the South Dakota statute challenged in this case. Page 469 U. S. 269IIIThe School District and the State, as amicus curiae, argue that the South Dakota statute is a limited and therefore acceptable intrusion on a county's discretion, merely requiring it to spend in-lieu payments in the same manner as it spends tax revenues. But we are inclined to credit the county's insistence that the intrusion would not be negligible, or even modest. Absent elaborate and speculative calculations and budget juggling, the allocation of federal payments in the same proportion as local revenue would most likely result in a windfall for school districts and other entities that are already fully funded by local revenues. The federal money would not serve its intended purpose of compensating local governments for extraordinary or additional expenditures associated with federal lands. A county conceivably could avoid this result, but the strong congressional concern that local governments have maximum flexibility in this area indicates that counties should not encounter substantial interference from the State in allocating funds to the area of greatest need.The School District and the State also argue that, because of concerns of federalism, the Federal Government may not intrude lightly into the State's efforts to provide fiscal guidance to its subdivisions. The Federal Government, however, has not presumed to dictate the manner in which the counties may spend state in-lieu-of-tax payments. [Footnote 23] Rather, it has merely imposed a condition on its disbursement of federal funds. The condition in this instance is that the counties should not be denied the discretion to spend § 6902 funds for any governmental purpose, including expenditures that are linked to federal lands within their borders. It is far from a novel proposition that pursuant to its powers under the Spending Clause, Congress may impose conditions on the Page 469 U. S. 270 receipt of federal funds, absent some independent constitutional bar. [Footnote 24] In our view, Congress was sufficiently clear in its intention to funnel § 6902 moneys directly to local governments, so that they might spend them for governmental purposes without substantial interference.IVBecause existing methods of funding did not provide local governments with the funds and flexibility needed to meet the demands created by the presence of federal lands in their jurisdictions, Congress crafted a scheme designed to ensure that the funds would reach and be placed at the disposal of the affected local governments. The attempt of the South Dakota legislation to limit the manner in which counties or other qualified local governmental units may spend federal in-lieu-of-tax payments obstructs this congressional purpose and runs afoul of the Supremacy Clause. Congress intended the affected units of local government, such as Lawrence County, to be the managers of these funds, not merely the State's cashiers.Accordingly, the judgment of the South Dakota Supreme Court isReversed

U.S. Supreme CourtLawrence County v. Lead-Deadwood S.D., 469 U.S. 256 (1985)Lawrence County v. Lead-Deadwood School District No. 40-1No. 83-240Argued October 30, 1984Decided January 9, 1985469 U.S. 256SyllabusThe Payment in Lieu of Taxes Act compensates local governments for the loss of tax revenues resulting from the tax-immune status of federal lands, such as wilderness areas and national parks, located in their jurisdictions, and for the cost of providing services associated with these lands. The Act in 31 U.S.C. § 6902(a) requires the Secretary of the Interior to make an annual payment to each unit of local government in which such lands are located, and further provides that the local unit "may use the payment for any governmental purpose." A South Dakota statute requires local governments to distribute federal payments in lieu of taxes in the same way they distribute general tax revenues. Since appellant county allocates 60% of its general tax revenues to its school districts, the state statute would require the county to give its school districts 60% of the § 6902(a) payments it receives. After the county refused to distribute the funds in accordance with the state statute, claiming that § 6902(a) gave it the discretion to spend the federal funds for any governmental purpose it chose, appellee School District filed a mandamus complaint in a State Circuit Court, seeking to compel the county to distribute the federal funds in accordance with the state statute. The Circuit Court held that the state statute conflicted with federal law, and was therefore invalid under the Supremacy Clause. The South Dakota Supreme Court reversed, holding that the only limit § 6902(a) imposed on a local government is that the federal funds must be used for a "governmental purpose," and that, since support of school districts is a valid governmental purpose, the state statute was consistent with federal requirements.Held: The state statute is invalid under the Supremacy Clause. Pp. 469 U. S. 260-270.(a) The language of § 6902(a) appears to endow local governments with the discretion to spend in-lieu payments for any governmental purpose. At the very least, the statute is ambiguous with respect to the degree of such discretion. But the Department of the Interior has consistently taken the view that local governments retain the discretion to spend the in-lieu payments for any governmental purpose they choose. And the legislative history evidences a congressional purpose to ensure that such payments would reach and be placed at the disposal of the Page 469 U. S. 257 affected local governments to spend as they see fit. The South Dakota statute runs directly counter to this purpose. Pp. 469 U. S. 260-268.(b) The South Dakota statute's intrusion on a county's discretion in spending § 6902(a) funds would not be negligible or even modest. To allocate such funds in the same proportion as local revenues would most likely result in a windfall for school districts and other entities that are already fully funded by local revenues, and the federal money would thus not serve its intended purpose of compensating local governments for extraordinary or additional expenditures associated with federal lands. As to any concerns of federalism, the Federal Government has not presumed to dictate the manner in which counties may spend state in-lieu-of-tax payments, but, rather, has merely imposed a condition that counties should not be denied the discretion to spend § 6902(a) funds for any governmental purpose. Pp. 469 U. S. 269-270.334 N.W.2d 24, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 469 U. S. 270.

2001_00-6933

Syllabusunique circumstances of this case-the sudden, unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what became the trial's last day. Third and most important, the purpose of the Rules was served by Lee's submissions both immediately before and at the short trial. As to the "written motion" requirement, Rule 24.09 does not completely rule out oral continuance motions, and the trial transcript enabled an appellate court to comprehend the situation quickly. As to Rule 24.10, two of the Rule's components were stressed by the State. Missouri asserted, first, that Lee's counsel never mentioned in his oral motion the testimony he expected from the missing witnesses, and second, that Lee's counsel gave the trial court no reason to believe that those witnesses could be located within a reasonable time. These matters, however, were either covered by the oral continuance motion or otherwise conspicuously apparent on the record. Thus, the Rule's essential requirements were substantially met in this case, and nothing would have been gained by requiring Lee's counsel to recapitulate in rank order the showings the Rule requires. See, e. g., Osborne, 495 U. S., at 124. The case is therefore remanded for adjudication of Lee's due process claim on the merits. Pp.381-388.213 F.3d 1037, vacated and remanded.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, and BREYER, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p. 388.Bonnie 1. Robin- Vergeer, by appointment of the Court, 532 U. S. 956, argued the cause for petitioner. With her on the briefs were David C. Vladeck and Alan B. Morrison.Paul C. Wilson argued the cause for respondent. With him on the brief were Jeremiah W (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, and Michael J. Spillane, Assistant Attorney General.**Briefs of amici curiae urging affirmance were filed for the State of Nebraska et al. by Don Stenberg, Attorney General of Nebraska, Martin Swanson, Assistant Attorney General, and Dan Schweitzer, joined by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Thurbert E. Baker of Georgia, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Mike365JUSTICE GINSBURG delivered the opinion of the Court. Petitioner Remon Lee asserts that a Missouri trial court deprived him of due process when the court refused to grant an overnight continuance of his trial. Lee sought the continuance to locate subpoenaed, previously present, but suddenly missing witnesses key to his defense against felony charges. On direct review, the Missouri Court of Appeals disposed of the case on a state procedural ground. That court found the continuance motion defective under the State's rules. It therefore declined to consider the merits of Lee's plea that the trial court had denied him a fair opportunity to present a defense. Whether the state ground dispositive in the Missouri Court of Appeals is adequate to preclude federal habeas corpus review is the question we here consider and decide.On the third day of his trial, Lee was convicted of firstdegree murder and armed criminal action. His sole affirmative defense was an alibi; Lee maintained he was in California, staying with his family, when the Kansas City crimes for which he was indicted occurred. Lee's mother, stepfather, and sister voluntarily came to Missouri to testify on his behalf. They were sequestered in the courthouse at the start of the trial's third day. For reasons then unknown, they were not in the courthouse later in the day when defense counsel sought to present their testimony. Discovering their absence, defense counsel moved for a continuance until the next morning so that he could endeavor to locate the three witnesses and bring them back to court.The trial judge denied the motion, stating that it looked to him as though the witnesses had "in effect abandonedMoore of Mississippi, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, and Mark L. Shurtleff of Utah; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.366the defendant" and that, for personal reasons, he would "not be able to be [in court the next day] to try the case." Furthermore, he had "another case set for trial" the next weekday. App. 22. The trial resumed without pause, no alibi witnesses testified, and the jury found Lee guilty as charged.Neither the trial judge nor the prosecutor identified any procedural flaw in the presentation or content of Lee's motion for a continuance. The Missouri Court of Appeals, however, held the denial of the motion proper because Lee's counsel had failed to comply with Missouri Supreme Court Rules not relied upon or even mentioned in the trial court:Rule 24.09, which requires that continuance motions be in written form, accompanied by an affidavit; and Rule 24.10, which sets out the showings a movant must make to gain a continuance grounded on the absence of witnesses.We hold that the Missouri Rules, as injected into this case by the state appellate court, did not constitute a state ground adequate to bar federal habeas review. Caught in the midst of a murder trial and unalerted to any procedural defect in his presentation, defense counsel could hardly be expected to divert his attention from the proceedings rapidly unfolding in the courtroom and train, instead, on preparation of a written motion and affidavit. Furthermore, the trial court, at the time Lee moved for a continuance, had in clear view the information needed to rule intelligently on the merits of the motion. Beyond doubt, Rule 24.10 serves the State's important interest in regulating motions for a continuancemotions readily susceptible to use as a delaying tactic. But under the circumstances of this case, we hold that petitioner Lee, having substantially, if imperfectly, made the basic showings Rule 24.10 prescribes, qualifies for adjudication of his federal, due process claim. His asserted right to defend should not depend on a formal "ritual ... [that] would further no perceivable state interest." Osborne v. Ohio, 495 U. S.367103, 124 (1990) (quoting James v. Kentucky, 466 U. S. 341, 349 (1984) (in turn quoting Staub v. City of Baxley, 355 U. S. 313, 320 (1958))) (internal quotation marks omitted).IOn August 27, 1992, Reginald Rhodes shot and killed Steven Shelby on a public street in Kansas City, Missouri. He then jumped into the passenger side of a waiting truck, which sped away. Rhodes pleaded guilty, and Remon Lee, the alleged getaway driver, was tried for first-degree murder and armed criminal action.Lee's trial took place within the span of three days in February 1994. His planned alibi defense-that he was in California with his family at the time of the murder-surfaced at each stage of the proceedings. During voir dire on the first day of trial, Lee's court-appointed defense attorney informed prospective jurors that "[t]here will be a defense in this case, which is a defense of alibi." App. 10; see also ibid. ("And we'll put on evidence-I can't go into it now-that he was somewhere else, he couldn't commit the crime and I believe the judge will give an instruction on alibi at the conclusion of my case."). Later in the voir dire, defense counsel identified the three alibi witnesses as Lee's mother, Gladys Edwards, Lee's sister, Laura Lee, and Lee's stepfather, James Edwards, a minister. Id., at 11-13.The planned alibi defense figured prominently in counsels' opening statements on day two of Lee's trial. The prosecutor, at the close of her statement, said she expected an alibi defense from Lee and would present testimony to disprove it. Tr. 187. Defense counsel, in his opening statement, described the alibi defense in detail, telling the jury that the evidence would show Lee was not in Kansas City, and therefore could not have engaged in crime there, in August 1992. App. 12-13. Specifically, defense counsel said three close family members would testify that Lee came to visit them in368Ventura, California, in July 1992 and stayed through the end of October. Lee's mother and stepfather would say they picked him up from the airport at the start of his visit and returned him there at the end. Lee's sister would testify that Lee resided with her and her four children during this time. All three would affirm that they saw Lee regularly throughout his unbroken sojourn. Ibid.During the prosecution case, two eyewitnesses to the shooting identified Lee as the driver. The first, Reginald Williams, admitted during cross-examination that he had told Lee's first defense counsel in a taped interview that Rhodes, not Lee, was the driver. Tr. 285. Williams said he had given that response because he misunderstood the question and did not want to be "bothered" by the interviewer. Id., at 283, 287. The second eyewitness, William Sanders, was unable to pick Lee out of a photographic array on the day of the shooting; Sanders identified Lee as the driver for the first time 18 months after the murder. Id., at 413-414.Two other witnesses, Rhonda Shelby and Lynne Bryant, were called by the prosecutor. Each testified that she knew Lee and had seen him in Kansas City the night before the murder. Both said Lee was with Rhodes, who had asked where Steven Shelby (the murder victim) was. Id., at 443487. The State offered no physical evidence connecting Lee to the murder and did not suggest a motive.The defense case began at 10:25 a.m. on the third and final day of trial. Two impeachment witnesses testified that morning. Just after noon, counsel met with the trial judge in chambers for a charge conference. At that meeting, the judge apparently agreed to give an alibi instruction submitted by Lee. Id., at 571.11 That Lee had submitted an alibi instruction during the charge conference became apparent when the trial judge, delivering the charge, began to read the proposed instruction. He was interrupted by the prosecutor369At some point in the late morning or early afternoon, the alibi witnesses left the courthouse. Just after one o'clock, Lee took the stand outside the presence of the jury and, for the record, responded to his counsel's questions concerning his knowledge of the witnesses' unanticipated absence. App. 15. Lee, under oath, stated that Gladys and James Edwards and Laura Lee had voluntarily traveled from California to testify on his behalf. Id., at 16. He affirmed his counsel's representations that the three witnesses, then staying with Lee's uncle in Kansas City, had met with Lee's counsel and received subpoenas from him; he similarly affirmed that the witnesses had met with a Kansas City police officer, who interviewed them on behalf of the prosecutor. Id., at 16-18. Lee said he had seen his sister, mother, and stepfather in the courthouse that morning at 8:30 and later during a recess.On discovering the witnesses' absence, Lee could not call them at his uncle's house because there was no phone on the premises. He asked his girlfriend to try to find the witnesses, but she was unable to do so. Id., at 17. Although Lee did not know the witnesses' whereabouts at that moment, he said he knew "in fact they didn't go back to California" because "they [had] some ministering ... to do" in Kansas City both Thursday and Friday evenings. Id., at 18. He asked for "a couple hours' continuance [to] try to locate them, because it's very valuable to my case." Ibid. Defense counsel subsequently moved for a continuance until the next morning, to gain time to enforce the subpoenas he had served on the witnesses. Id., at 20. The trial judge responded that he could not hold court the next day because "my daughter is going to be in the hospital all day ... [s]o I've got to stay with her." Ibid.and defense counsel, who reminded him that the instruction was no longer necessary. Tr. 594-595.370After a brief further exchange between court and counsel,2 the judge denied the continuance request. The judge observed:"It looks to me as though the folks were here and then in effect abandoned the defendant. And that, of course, we can't-we can't blame that on the State. The State had absolutely nothing to do with that. That's-it's too bad. The Court will not be able to be here tomorrow to try the case." Id., at 22.Counsel then asked for a postponement until Monday (the next business day after the Friday the judge was to spend with his daughter in the hospital). The judge denied that request too, noting that he had another case set for trial that day. Ibid.In a final colloquy before the jury returned to the courtroom, defense counsel told the court he would be making a motion for judgment of acquittal. The judge asked, "You're going to give that to me ... orally and you'll supplement that with a written motion?" Counsel agreed. Id., at 23.When the jurors returned, defense counsel informed them that the three witnesses from California he had planned to call "were here and have gone"; further, counsel did not "know why they've gone." Id., at 25. The defense then rested. In closing argument, Lee's counsel returned to the alibi defense he was unable to present. "I do apologize," he said, "I don't know what happened to my witnesses. They're not here. Couldn't put them on on the question of alibi." Id., at 26. The prosecutor commented on the same gap: "Where are those alibi witnesses that [defense counsel] promised you from opening[?] They're not here." Id., at 27.2 Responding to the court's questions, Lee's counsel said he had copies of the witnesses' written statements and their subpoenas. App. 20-21. Counsel next began to describe the subpoenas. When counsel listed Gladys Edwards, the court asked "[i]s she the mother?" Id., at 21.371After deliberating for three hours, the jury convicted Lee on both counts. He was subsequently sentenced to prison for life without possibility of parole. Id., at 43.The trial court later denied Lee's new trial motion, which Lee grounded, in part, on the denial of the continuance motion. Id., at 31-32, 42. Lee, at first pro se but later represented by appointed counsel, next filed a motion for state postconviction relief. Lee argued, inter alia, that the refusal to grant his request for an overnight continuance deprived him of his federal constitutional right to a defense. Id., at 56-59.3 In his postconviction motion, Lee asserted that the three witnesses had left the courthouse because "an unknown person," whom he later identified as an employee of the prosecutor's office, had told them "they were not needed to testify." Id., at 56-58. The postconviction court denied the motion, stating that under Missouri law, an allegedly improper denial of a continuance fits within the category "trial error," a matter to be raised on direct appeal, not in a collateral challenge to a conviction. Id., at 70.Lee's direct appeal and his appeal from the denial of postconviction relief were consolidated before the Missouri Court of Appeals. See Mo. Sup. Ct. Rule 29.15(l) (1994). There, Lee again urged that the trial court's refusal to continue the case overnight denied him due process and the right to put on a defense. App. 90-95. In response, the State argued for the first time that Lee's continuance request had a fatal procedural flaw. Id., at 110-115. In particular, the State contended that Lee's application failed to comply with Missouri Supreme Court Rule 24.10 (Rule 24.10), which lists the showings required in a continuance request based on3 Missouri procedure at the time required Lee to file his postconviction motion in the sentencing court shortly after he filed his notice of direct appeal. See Mo. Sup. Ct. Rule 29.15(b) (1994) (requiring motion to be made within 30 days of filing of court transcript in appellate court considering direct appeal). The direct appeal was "suspended" while the trial court considered the postconviction motion. See Rule 29.15(l).372the absence of witnesses.4 By the State's reckoning, Lee's request did not show the materiality of the California witnesses' testimony or the grounds for believing that the witnesses could be found within a reasonable time; in addition, the prosecution urged, Lee failed to "testify that the witnesse[s'J absence was not due to his own procurement." App.113.The Missouri Court of Appeals affirmed Lee's conviction and the denial of postconviction relief. State v. Lee, 935 S. W. 2d 689 (1996); App. 123-131. The appellate court first noted that Lee's continuance motion was oral and therefore did not comply with Missouri Supreme Court Rule 24.09 (Rule 24.09), which provides that such applications shall be in written form, accompanied by an affidavit. App. 126-127.54 Rule 24.10 reads:"Misdemeanors or Felonies-Application for a Continuance on Account of Absence of Witnesses Shall Show What"An application for a continuance on account of the absence of witnesses or their evidence shall show:"(a) The facts showing the materiality of the evidence sought to be obtained and due diligence upon the part of the applicant to obtain such witness or testimony;"(b) The name and residence of such witness, if known, or, if not known, the use of diligence to obtain the same, and also facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time;"(c) What particular facts the affiant believes the witness will prove, and that he knows of no other person whose evidence or attendance he could have procured at the trial, by whom he can prove or so fully prove the same facts;"(d) That such witness is not absent by the connivance, consent, or procurement of the applicant, and such application is not made for vexation or delay, but in good faith for the purpose of obtaining a fair and impartial trial."If the court shall be of the opinion that the affidavit is insufficient itshall permit it to be amended." 5 Rule 24.09 reads:"Misdemeanors or Felonies-Application for Continuance-How Made "An application for a continuance shall be made by a written motionaccompanied by the affidavit of the applicant or some other credible person373"Thus," the Court of Appeals said, "the trial court could have properly denied the motion for a failure to comply with Rule 24.09." Id., at 127. Even assuming the adequacy of Lee's oral motion, the court continued, the application "was made without the factual showing required by Rule 24.10." Ibid. The court did not say which components of Rule 24.10 were unsatisfied. "When a denial to grant a motion for continuance is based on a deficient application," the Court of Appeals next said, "it does not constitute an abuse of discretion." Ibid. Lee's subsequent motions for rehearing and transfer to the Missouri Supreme Court were denied.In January 1998, Lee, proceeding pro se, filed an application for writ of habeas corpus in the United States District Court for the Western District of Missouri. Id., at 132. Lee once again challenged the denial of his continuance motion. Id., at 147-152. He appended affidavits from the three witnesses, each of whom swore to Lee's alibi; sister, mother, and stepfather alike stated that they had left the courthouse while the trial was underway because a court officer told them their testimony would not be needed that day. Id., at 168-174.6 Lee maintained that the State had engineered the witnesses' departure; accordingly, he as-setting forth the facts upon which the application is based, unless the adverse party consents that the application for continuance may be made orally."6 The witnesses' accounts of their departure from the courthouse were as follows:Laura Lee: "[T]hose people in Missouri told us we could leave because OUR TESTIMONY would not be needed until the next day." App. 169.Gladys Edwards: "[T]he officer of the court came and told us that the prosecutor stated that the state[']s case will again take up the remainder of that day. That [o]ur testimony will not be needed until the following day, that we could leave until the following day. He ... told [u]s not to worry, the Judge knows [w]e came to testify, they have [o]ur statements, and the trial will not be over until we testify. So at those instructions we left." Id., at 172.James Edwards: "[W]hile at the [c]ourthouse, we were told by an officer of the court that [o]ur testimony would not be needed until the following day, we were excused until then." Id., at 174.374serted that prosecutorial misconduct, not anything over which he had control, prompted the need for a continuance. Id., at 148, 155-156.The District Court denied the writ. No. 98-0074-CV-W6-P (WD Mo., Apr. 19, 1999), App. 212-218. The witnesses' affidavits were not cognizable in federal habeas proceedings, the court held, because Lee could have offered them to the state courts but failed to do so. Id., at 215 (citing 28 U. s. C. § 2254(e) (1994 ed., Supp. V)). The Federal District Court went on to reject Lee's continuance claim, finding in the Missouri Court of Appeals' invocation of Rule 24.10 an adequate and independent state-law ground barring further review. App.217.The Court of Appeals for the Eighth Circuit granted a certificate of appealability, limited to the question whether Lee's "due process rights were violated by the state trial court's failure to allow him a continuance," id., at 232, and affirmed the denial of Lee's habeas petition. 213 F.3d 1037 (2000) (per curiam). Federal review of Lee's due process claim would be unavailable, the court correctly observed, if the state court's rejection of that claim "'rest[ed] ... on a state law ground that is independent of the federal question and adequate to support the judgment,' regardless of 'whether the state law ground is substantive or procedural.'" Id., at 1038 (quoting Coleman v. Thompson, 501 U. S. 722, 729 (1991)). "The Missouri Court of Appeals rejected Lee's claim because his motion for a continuance did not comply with [Rules] 24.09 and 24.10," the Eighth Circuit next stated. Thus, that court concluded, "the claim was procedurally defaulted." 213 F. 3d, at 1038.77 Lee had asked the federal appeals court to excuse the procedural lapse, suggesting that trial counsel's failure to follow Missouri's motion rules qualified as ineffective assistance of counsel. Lee had not exhausted that claim in state court, the Eighth Circuit responded, therefore he could not assert it in federal habeas proceedings. 213 F. 3d, at 1038. Furthermore, the federal appeals court ruled, Lee could not rest on a plea of375Chief District Judge Bennett, sitting by designation from the District Court for the Northern District of Iowa, dissented. In his view, Rules 24.09 and 24.10 did not supply state-law grounds "adequate" to preclude federal review in the particular circumstances of this case. Id., at 1041-1049.We granted Lee's pro se petition for a writ of certiorari, 531 U. S. 1189 (2001), and appointed counsel, 532 U. S. 956 (2001). We now vacate the Court of Appeals judgment.IIThis Court will not take up a question of federal law presented in a case "if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U. S. 722, 729 (1991) (emphases added). The rule applies with equal force whether the state-law ground is substantive or procedural. Ibid. We first developed the independent and adequate state ground doctrine in cases on direct review from state courts, and later applied it as well "in deciding whether federal district courts should address the claims of state prisoners in habeas corpus actions." Ibid. "[T]he adequacy of state procedural bars to the assertion of federal questions," we have recognized, is not within the State's prerogative finally to decide; rather, adequacy "is itself a federal question." Douglas v. Alabama, 380 U. S. 415, 422 (1965).Lee does not suggest that Rules 24.09 and 24.10, as brought to bear on this case by the Missouri Court of Appeals, depended in any way on federal law. Nor does he question the general applicability of the two codified Rules. He does maintain that both Rules-addressed initially to Missouri trial courts, but in his case invoked only at the"actual innocence" to escape the procedural bar because "the factual basis for the [alibi witness] affidavits he relies on as new evidence existed at the time of the trial and could have been presented earlier." Id., at 1039.376appellate stage-are inadequate, under the extraordinary circumstances of this case, to close out his federal, fairopportunity-to-defend claim. We now turn to that dispositive issue.8Ordinarily, violation of "firmly established and regularly followed" state rules-for example, those involved in this case-will be adequate to foreclose review of a federal claim. James v. Kentucky, 466 U. S. 341, 348 (1984); see Ford v. Georgia, 498 U. S. 411, 422-424 (1991). There are, however, exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question. See Davis v. Wechsler, 263 U. S. 22, 24 (1923) (Holmes, J.) ("Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice."). This case fits within that limited category.Our analysis and conclusion are informed and controlled by Osborne v. Ohio, 495 U. S. 103 (1990). There, the Court considered Osborne's objections that his child pornography conviction violated due process because the trial judge had not required the government to prove two elements of the alleged crime: lewd exhibition and scienter. Id., at 107,122125. The Ohio Supreme Court held the constitutional objections procedurally barred because Osborne had failed to8 Missouri argues in two footnotes to its brief that Lee's federal claim fails for a reason independent of Rules 24.09 and 24.10, namely, that he raised only state-law objections to denial of the continuance motion in state court. Brief for Respondent 16, n. 2, 32, n. 7. Lee urges, in response, that his direct appeal brief explicitly invoked due process and his right to present witnesses in his defense as guaranteed by the Fifth, Sixth, and Fourteenth Amendments. Reply Brief 11, n. 4 (citing App. 86-87, 90-95). Missouri did not advance its current contention in the State's Eighth Circuit brief or in its brief in opposition to the petition for certiorari. We therefore exercise "our discretion to deem the [alleged] defect waived." Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985).377object contemporaneously to the judge's charge, which did not instruct the jury that it could convict only for conduct that satisfied both the scienter and the lewdness elements. Id., at 107-108, 123; see Ohio Rule Crim. Proc. 30(A) (1989) ("A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection.").We agreed with the State that Osborne's failure to urge the trial court to instruct the jury on scienter qualified as an "adequate state-law ground [to] preven[t] us from reaching Osborne's due process contention on that point." 495 U. S., at 123. Ohio law, which was not in doubt, required proof of scienter unless the applicable statute specified otherwise. Id., at 112-113, n. 9, 123. The State's contemporaneous objection rule, we observed, "serves the State's important interest in ensuring that counsel do their part in preventing trial courts from providing juries with erroneous instructions." Id., at 123."With respect to the trial court's failure to instruct on lewdness, however, we reach[ed] a different conclusion." Ibid. Counsel for Osborne had made his position on that essential element clear in a motion to dismiss overruled just before trial, and the trial judge, "in no uncertain terms," id., at 124, had rejected counsel's argument. After a brief trial, the judge charged the jury in line with his ruling against Osborne on the pretrial motion to dismiss. Counsel's failure to object to the charge by reasserting the argument he had made unsuccessfully on the motion to dismiss, we held, did not deter our disposition of the constitutional question. "Given this sequence of events," we explained, it was proper to "reach Osborne's [second] due process claim," for Osborne's attorney had "pressed the issue of the State's failure of proof on lewdness before the trial court and ... nothing would be gained by requiring Osborne's lawyer to378object a second time, specifically to the jury instructions." Ibid. In other words, although we did not doubt the general applicability of the Ohio Rule of Criminal Procedure requiring contemporaneous objection to jury charges, we nevertheless concluded that, in this atypical instance, the Rule would serve "no perceivable state interest." Ibid. (internal quotation marks omitted).Our decision, we added in Osborne, followed from "the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here." Id., at 125 (quoting Douglas, 380 U. S., at 422 (internal quotation marks omitted)). This general principle, and the unusual "sequence of events" before us-rapidly unfolding events that Lee and his counsel could not have foreseen, and for which they were not at all responsible-similarly guide our judgment in this case.The dissent strives mightily to distinguish Osborne, an opinion JUSTICES KENNEDY and SCALIA joined, but cannot do so convincingly. In an intricate discussion of Osborne longer than the relevant section of Osborne itself, the dissent crafts its own rationales for the decision and sweeps away language its design cannot accommodate as "unnecessary" and "in tension" with the rest of the Court's analysis, post, at 399.As attentive reading of the relevant pages of Osborne will confirm, 495 U. S., at 123-125, we here rely not on "isolated statements" from the opinion, post, at 396, but solidly on its analysis and holding on "the adequacy of state procedural bars to the assertion of federal questions." 495 U. S., at 125 (quoting Douglas, 380 U. S., at 422 (internal quotation marks omitted)).According to the dissent in this case, Osborne's discrete section trained on the adequacy of state-law grounds to bar379federal review had two bases. First, the dissent views as central to Osborne the "unforeseeab[ility]" of the Ohio Supreme Court's limiting construction of the child pornography statute at issue there, i. e., that court's addition of the "lewdness" element on which Osborne failed to request a jury charge. Post, at 397-398; see also post, at 399. The dissent here is characteristically inventive. Osborne spoke not of the predictability vel non of the Ohio Supreme Court's construction; instead, this Court asked whether anything "would be gained by requiring Osborne's lawyer to object a second time" on the question of lewdness, 495 U. S., at 124, and answered that question with a firm "no." Tellingly, Osborne noted, without criticism, the Ohio Supreme Court's own indication that the limiting construction of the child pornography statute was not unpredictable, for it flowed from the "proper purposes" exceptions set out by the Legislature. Id., at 113, n. 10.Second, the dissent suggests that Osborne is enlightening only as to "Ohio's treatment of overbreadth objections." Post, at 398. Osborne, the dissent contends, "stands for the proposition that once a trial court rejects an overbreadth challenge, the defendant cannot be expected ... to lodge a foreclosed objection to the jury instructions." Post, at 399. In truth, Ohio had no special-to-the-First Amendment "requirement." Ibid.9 Rather, Ohio's firmly established, generally applicable practice was a standard contemporaneous objection rule for challenges to jury charges. See Ohio Rule Crim. Proc. 30(A) (1989). As Osborne paradigmatically illustrates, that Rule is unassailable in most instances, i. e., it ordinarily serves a legitimate governmental interest; in rare9 The discrete section of Osborne in point, Part III, cites no First Amendment decision; it relies solely on decisions holding asserted statelaw grounds inadequate in other contexts. See Osborne v. Ohio, 495 U. S. 103, 122-125 (1990) (citing James v. Kentucky, 466 U. S. 341, 349 (1984); Davis v. Wechsler, 263 U. S. 22, 24 (1923); Douglas v. Alabama, 380 U. S. 415, 421-422 (1965)).380circumstances, however, unyielding application of the general rule would disserve any perceivable interest.The asserted procedural oversights in Lee's case, his alleged failures fully to comply with Rules 24.09 and 24.10, were first raised more than two and a half years after Lee's trial. The two Rules, Missouri maintains, "work together to enhance the reliability of a trial court's determination of whether to delay a scheduled criminal trial due to the absence of a witness." Brief for Respondent 29 (footnote omitted) (emphasis added). Nevertheless, neither the prosecutor nor the trial judge so much as mentioned the Rules as a reason for denying Lee's continuance motion.10 If either prosecutor or judge considered supplementation of Lee's motion necessary, they likely would have alerted the defense at the appropriate time, and Lee would have had an opportunity to perfect his plea to hold the case over until the next day. Rule 24.10, we note, after listing the components of a continuance motion, contemplates subsequent perfection: "If the court shall be of the opinion that the affidavit is insufficient it shall permit it to be amended."The State, once content that the continuance motion was ripe for trial court disposition on the merits, had a second thought on appeal. It raised Rule 24.10 as a new argument in its brief to the Missouri Court of Appeals; even then, the State did not object to the motion's oral form. App.107-108, 110-115. The Missouri Court of Appeals, it seems, raised Rule 24.09's writing requirements ("a written motion accompanied by [an] affidavit") on its own motionY10 By contrast, the judge specifically directed Lee's counsel to supplement counsel's oral motion for judgment of acquittal with a written motion. See supra, at 370.11 The belated assertion of these Rules also explains why Lee did not contend in his state postconviction motion that counsel was constitutionally ineffective for failing meticulously to comply with Rules 24.09 and 24.10. That postconviction motion had been made and denied in the trial court before the Rules' entry into the case when Lee proceeded on appeal. See supra, at 371, n. 3.381Three considerations, in combination, lead us to conclude that this case falls within the small category of cases in which asserted state grounds are inadequate to block adjudication of a federal claim. First, when the trial judge denied Lee's motion, he stated a reason that could not have been countered by a perfect motion for continuance. The judge said he could not carry the trial over until the next day because he had to be with his daughter in the hospital; the judge further informed counsel that another scheduled trial prevented him from concluding Lee's case on the following business day. Although the judge hypothesized that the witnesses had "abandoned" Lee, id., at 22, he had not "a scintilla of evidence or a shred of information" on which to base this supposition, 213 F. 3d, at 1040 (Bennett, C. J., dissenting).1212 The dissent suggests that Lee's counsel decided not to put on the alibi defense promised in his opening statement because the prosecution's witnesses caused that planned defense to "collaps[e] altogether." See post, at 402. The record refutes that suggestion. Lee's counsel knew before he promised an alibi defense in his opening that the State planned to rebut it: The prosecutor's opening statement-given prior to defense counsel'soutlined the rebuttal witnesses' expected testimony. Tr.178-187. Likewise, the prosecutor's statement that she "had in reserve other witnesses prepared to rebut the alibi testimony," post, at 403, was part of her opening statement, see Tr. 187. Furthermore, the alibi witnesses would have known of Lee's sentence in an unrelated case-a fact that the dissent suggests gave them "second thoughts" about testifying, post, at 403-a month before they traveled to Missouri. Tr. 25-26.Utterly confounding are the dissent's depictions of "the realities of trial," post, at 400, capped by the statement that "[b]efore any careful trial judge granted a continuance in these circumstances, he or she would want a representation that the movant believed the missing witnesses were still prepared to offer the alibi testimony," post, at 403. Rule 24.10, the dissent insists, if meticulously observed, would have produced the very thing the court "needed to grant the motion: an assurance that the defense witnesses were still prepared to offer material testimony." Post, at 400; see post, at 403. No motion in the immediacy of the witnesses' sudden disappearance, however, could have provided assurance that they were still prepared to offer material testimony. The "careful trial judge" does not382Second, no published Missouri decision directs flawless compliance with Rules 24.09 and 24.10 in the unique circumstances this case presents-the sudden, unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what became the trial's last day.13 Lee's predicament, from all that appears, was one Missouri courts had not confronted before. "[A]lthough [the rules themselves] may not [have been] novel, ... [their] application to the facts here was." Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 245 (1969) (Harlan, J., dissenting).Third and most important, given "the realities of trial," post, at 400, Lee substantially complied with Missouri's key Rule. As to the "written motion" requirement, Missouri's brief in this Court asserted: "Nothing would have prevented counsel from drafting a brief motion and affidavit complying with Rul[e] 24.09 in longhand while seated in the courtroom."demand the impossible. The witnesses' absence was unexplained, and could not be explained on the afternoon of their disappearance. That is why an overnight continuance to locate the witnesses was so "very valuable to [Lee's] case." See supra, at 369.13 Missouri cites five cases as examples of the state courts' enforcement of Rules 24.09 and 24.10 (or their predecessors) "even in cases of exigency." Brief for Respondent 25-26. The five cases are: State v. Gadwood, 342 Mo. 466, 479,116 S. W. 2d 42, 49 (1937) (defendant's counsel knew, or should have known, of likelihood of witnesses' inability to appear two days before trial); State v. Cuckovich, 485 S. W. 2d 16, 21 (Mo. 1972) (en bane) (defendant arrived at court on first day of trial with a letter from a doctor explaining that witness was ill); State v. Scott, 487 S. W. 2d 528, 530 (Mo. 1972) (absent witness was not subpoenaed); State v. Settle, 670 S. W. 2d 7, 13-14 (Mo. App. 1984) (deficient application filed six days before trial); State v. Freeman, 702 S. W. 2d 869, 874 (Mo. App. 1985) (absent witness had told officer serving subpoena that she would not appear). All of these cases are readily distinguishable; none involved the sudden and unexplained disappearance of a subpoenaed witness in the midst of trial. The adequacy of a state ground, of course, does not depend on an appellate decision applying general rules to the precise facts of the case at bar. But here, no prior decision suggests strict application to a situation such as Lee's.383Brief for Respondent 30.14 At oral argument, however, Missouri's counsel edged away from this position. Counsel stated: "I'm not going to stand on the formality ... of a writing or even the formality of an affidavit." Tr. of Oral Arg. 48. This concession was well advised. Missouri does not rule out oral continuance motions; they are expressly authorized, upon consent of the adverse party, by Rule 24.09. And the written transcript of the brief trial court proceedings, see supra, at 367, enabled an appellate court to comprehend the situation quickly. In sum, we are drawn to the conclusion reached by the Eighth Circuit dissenter: "[A]ny seasoned trial lawyer would agree" that insistence on a written continuance application, supported by an affidavit, "in the midst of trial upon the discovery that subpoenaed witnesses are suddenly absent, would be so bizarre as to inject an Alice-in-Wonderland quality into the proceedings." 213Regarding Rule 24.10, the only Rule raised on appeal by the prosecution, see supra, at 371-372, the Missouri Court of Appeals' decision was summary. Although that court did not specify the particular components of the Rule neglected by Lee, the State here stresses two: "Lee's counsel never mentioned during his oral motion for continuance the testimony he expected the missing witnesses to give"; further, he "gave the trial court no reason to believe that the missing witnesses could be located within a reasonable time." Brief for Respondent 31.These matters, however, were either covered by the oral continuance motion or otherwise conspicuously apparent on the record. The testimony that the alibi witnesses were expected to give had been previewed during voir dire at the outset of the three-day trial, then detailed in defense counsel's opening statement delivered just one day before the continuance motion. App. 10-13; see Osborne, 495 U. S.,14 Missouri's brief did not address the requirement that the affidavit be notarized.384at 123 (defense counsel's failure to object to jury charge did not bar consideration of federal claim where counsel had pressed the basic objection in a motion to dismiss made immediately before "brief" trial). Two of the prosecution's witnesses testified in part to anticipate and rebut the alibi. Tr. 443-487. An alibi instruction was apparently taken up at the charge conference held less than an hour before the trial court denied the continuance motion. See supra, at 368-369, n. 1. When defense counsel moved for a continuance, the judge asked a question indicating his recognition that alibi witness Gladys Edwards was Lee's mother. See supra, at 370, n. 2.Given the repeated references to the anticipated alibi witness testimony each day of trial, it is inconceivable that anyone in the courtroom harbored a doubt about what the witnesses had traveled from California to Missouri to say on the stand or why their testimony was material, indeed indispensable, to the defense. It was also evident that no witness then in the Kansas City vicinity could effectively substitute for the family members with whom Lee allegedly stayed in Ventura, California. See Rule 24.10(a) and (c) (movant shall show "the materiality of the evidence sought," "[w]hat particular facts the affiant believes the witness will prove," and that "no other person" available to the movant could "so fully prove the same facts").Moreover, Lee showed "reasonable grounds for belief" that the continuance would serve its purpose. See Rule 24.10(b). He said he knew the witnesses had not left Kansas City because they were to "ministe[r]" there the next two evenings; he provided their local address; and he sought less than a day's continuance to enforce the subpoenas for their attendance. App. 16-18.Concerning his "diligence ... to obtain" the alibi testimony, see Rule 24.10(a), Lee and his counsel showed: the witnesses had voluntarily traveled from California to appear at the trial; counsel had subpoenaed the witnesses when he385interviewed them in Kansas City; the witnesses had telephoned counsel the evening before the third trial day and had agreed to come to court that next day; the witnesses in fact were in court at 8:30 in the morning waiting in a witness room; and Lee saw them during a recess. App. 16-18. Countering "procurement" of the witnesses' absence by the defense, see Rule 24.10(d), Lee affirmed that he did not know "why they left" or "where they went," and asked for just "a couple hours' continuance [to] try to locate them." App. 17-18.Rule 24.10, like other state and federal rules of its genre, serves a governmental interest of undoubted legitimacy. It is designed to arm trial judges with the information needed to rule reliably on a motion to delay a scheduled criminal trial. The Rule's essential requirements, however, were substantially met in this case. Few transcript pages need be read to reveal the information called for by Rule 24.10. "[N]othing would [have] be[en] gained by requiring" Lee's counsel to recapitulate in (a), (b), (c), (d) order the showings the Rule requires. See Osborne, 495 U. S., at 124; cf. Staub v. City of Baxley, 355 U. S. 313, 319-320 (1958) (failure to challenge "specific sections" of an ordinance not an adequate state ground barring review of federal claim when party challenged constitutionality of entire ordinance and all sections were "interdependent"). "Where it is inescapable that the defendant sought to invoke the substance of his federal right, the asserted state-law defect in form must be more evident than it is here." James v. Kentucky, 466 U. S., at 351.1515 The dissent, indulging in hyperbole, describes our narrow opinion as a "comb" and "searc[h]" order to lower courts. Post, at 395. We hold, simply and only, that Lee satisfied Rule 24.1O's essential elements. Just as in Osborne, see supra, at 377-378, we place no burden on courts to rummage through a ponderous trial transcript in search of an excuse for a defense counsel's lapse. The dissent, in this and much else, tilts at a windmill of its own invention.386The dissent critiques at great length Henry v. Mississippi, 379 U. S. 443 (1965), a case on which we do not rely in reaching our decision.16 See post, at 393-395, 406. This protracted exercise is a prime example of the dissent's vigorous attack on an imaginary opinion that bears scant, if any, resemblance to the actual decision rendered today. We chart no new course. We merely apply Osborne's sound reasoning and limited holding to the circumstances of this case. If the dissent's shrill prediction that to day's decision will disrupt our federal system were accurate, we would have seen clear signals of such disruption in the 11 years since Osborne. The absence of even dim distress signals demonstrates both the tight contours of Osborne and the groundlessness of the dissent's frantic forecast of doom. See United States v. Travers, 514 F.2d 1171, 1174 (CA2 1974) (Friendly, J.) ("Cassandra-like predictions in dissent are not a sure guide to the breadth of the majority's ruling").It may be questioned, moreover, whether the dissent, put to the test, would fully embrace the unyielding theory that it is never appropriate to evaluate the state interest in a procedural rule against the circumstances of a particular16 Henry has been called "radical," post, at 393 (quoting R. Fallon, D.Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 584 (4th ed. 1996)), not for pursuing an "as applied" approach, as the dissent states, but for suggesting that the failure to comply with an anterior procedure was cured by compliance with some subsequent procedure. See id., at 584-585. In Henry, the Court indicated that although there was no contemporaneous objection at trial to the admission of evidence alleged to have been derived from an unconstitutional search, a directed verdict motion made at the end of the prosecution's case was an adequate substitute. 379 U. S., at 448-449. Nothing of the sort is involved in this case. Lee is not endeavoring to designate some later motion, e. g., one for a new trial, as an adequate substitute for a continuance motion. The question here is whether the movant must enunciate again, when making the right motion at the right time, supporting statements plainly and repeatedly made the days before. See supra, at 367-368. On whether such repetition serves a legitimate state interest, Osborne, not Henry, controls.387case. See post, at 393-395. If that theory holds, it would matter not at all why the witnesses left. Even if the evidence would show beyond doubt that the witnesses left because a court functionary told them to go, saying their testimony would not be needed until the next day, see supra, at 373, n. 6, Lee would lose under the dissent's approach. And that result would be unaffected should it turn out that the functionary acted on the instigation of a prosecutor who knew the judge would be at the hospital with his daughter the next day. See supra, at 369. The particular application, never mind how egregious, would be ignored so long as the Rule, like the mine run of procedural rules, generally serves a legitimate state interest.To summarize, there was in this case no reference whatever in the trial court to Rules 24.09 and 24.10, the purported procedural impediments the Missouri Court of Appeals later pressed. Nor is there any indication that formally perfect compliance with the Rules would have changed the trial court's decision. Furthermore, no published Missouri decision demands unmodified application of the Rules in the urgent situation Lee's case presented. Finally, the purpose of the Rules was served by Lee's submissions both immediately before and at the short trial. Under the special circumstances so combined, we conclude that no adequate state-law ground hinders consideration of Lee's federal claimPBecause both the District Court and the Court of Appeals held Lee's due process claim procedurally barred, neither court addressed it on the merits. We remand the case for that purpose. See National Collegiate Athletic Assn. v.17 In view of this disposition, we do not reach further questions raised by Lee, i. e., whether he has shown "cause" and "prejudice" to excuse any default, Wainwright v. Sykes, 433 U. S. 72, 90-91 (1977), or has made sufficient showing of "actual innocence" under Schlup v. Delo, 513 U. S. 298, 315 (1995), to warrant a hearing of the kind ordered in that case.388Smith, 525 U. S. 459, 470 (1999) (We ordinarily "do not decide in the first instance issues not decided below.").***For the reasons stated, the judgment of the United States Court of Appeals for the Eighth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2001SyllabusLEE v. KEMNA, SUPERINTENDENT, CROSSROADS CORRECTIONAL CENTERCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 00-6933. Argued October 29, 200l-Decided January 22, 2002Petitioner Lee was tried for first-degree murder and a related crime in state court. His planned alibi defense-that he was in California with his family at the time of the murder-surfaced at each stage of the proceedings. Although Lee's mother, stepfather, and sister voluntarily came to Missouri to testify to his alibi, they left the courthouse without explanation at some point on the third day of trial, the day the defense case began. Lee's counsel moved for an overnight continuance to gain time to find the witnesses and enforce the subpoenas he had served on them. Neither the trial judge nor the prosecutor identified any procedural flaw in the motion's presentation or content. The trial judge denied the motion, stating that it looked as though the witnesses had in effect abandoned Lee, that his daughter's hospitalization would prevent the judge from being in court the next day, and that he would be unavailable on the following business day because he had another trial scheduled. The trial resumed without pause, no alibi witnesses testified, the jury found Lee guilty as charged, and he was sentenced to prison for life without possibility of parole. Lee's new trial motion, grounded in part on the denial of his continuance motion, was denied, as was his motion for state postconviction relief, in which he argued, inter alia, that the refusal to grant his continuance motion deprived him of his federal due process right to a defense. His direct appeal and his appeal from the denial of postconviction relief were consolidated before the Missouri Court of Appeals, which disposed of the case on state procedural grounds. The appeals court held that the denial of the continuance motion was proper because Lee's counsel had failed to comply with Missouri Supreme Court Rule 24.09, which requires that such motions be in writing and accompanied by an affidavit, and with Rule 24.10, which sets out the showings a movant must make to gain a continuance grounded on witnesses' absence. Declining to consider the merits of Lee's due process plea, the Missouri Court of Appeals affirmed his conviction and the denial of postconviction relief. He then filed a federal habeas application, which the District Court denied. The Eighth Circuit affirmed, ruling that federal review of Lee's due process claim was unavailable because the state court's re-363jection of that claim rested on state-law grounds-the failure of the continuance motion to comply with Rules 24.09 and 24.10-independent of the federal question and adequate to support the judgment, Coleman v. Thompson, 501 U. S. 722, 729.Held: The Missouri Rules, as injected into this case by the state appellate court, did not constitute state grounds adequate to bar federal habeas review. Pp. 375-388.(a) Although violation of firmly established and regularly followed state rules ordinarily bars federal review, there are exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question. See Davis v. Wechsler, 263 U. S. 22, 24. This case fits within that limited category. The Court is guided here by Osborne v. Ohio, 495 U. S. 103, 122-125. Osborne applied the general principle that an objection ample and timely to bring an alleged federal error to the attention of the trial court, enabling it to take appropriate corrective action, satisfies legitimate state interests, and therefore suffices to preserve the claim for federal review. The sequence of events in Lee's case also guides the Court's judgment. The asserted procedural oversights, Lee's alleged failures fully to comply with Rules 24.09 and 24.10, were first raised more than two and a half years after his trial. The two Rules, Missouri asserted, work together to enhance the reliability of a trial court's determination whether to delay a scheduled criminal trial due to the absence of a witness. Yet neither the prosecutor nor the trial judge so much as mentioned the Rules as a reason for denying Lee's continuance motion. If either had done so at the appropriate time, Lee would have had an opportunity to perfect his plea to hold the case over until the next day. Instead, the State first raised Rule 24.10 as a new argument in its brief to the Missouri Court of Appeals, and that court, it seems, raised Rule 24.09's writing requirements on its own motion. Pp. 375-380.(b) Three considerations, in combination, lead to the conclusion that the asserted state grounds are inadequate to block adjudication of Lee's federal claim. First, when the trial judge denied Lee's motion, he stated a reason that could not have been countered by a perfect motion for continuance: He said he could not carry the trial over until the next day because he had to be with his daughter in the hospital; he further informed counsel that another scheduled trial prevented him from concluding Lee's case on the following business day. Although the judge hypothesized that the witnesses had abandoned Lee, no proffered evidence supported this supposition. Second, no published Missouri decision directs flawless compliance with Rules 24.09 and 24.10 in the364Full Text of Opinion

1973_72-1168

MR. JUSTICE REHNQUIST delivered the opinion of the Court.In February, 1971, respondent Thomas E. Maze moved to Louisville, Kentucky, and there shared an apartment with Charles L. Meredith. In the spring of that year, respondent's fancy lightly turned to thoughts of the sunny Southland, and he thereupon took Meredith's BankAmericard and his 1968 automobile and headed for Southern California. By presenting the BankAmericard and signing Meredith's name, respondent obtained food and lodging at motels located in California, Florida, and Louisiana. Each of these establishments transmitted to the Citizens Fidelity Bank & Trust Co. in Louisville, which had issued the BankAmericard to Meredith, the invoices representing goods and services furnished to respondent. Meredith, meanwhile, on the day after respondent's departure from Louisville, notified the Louisville bank that his credit card had been stolen.Upon respondent's return to Louisville, he was indicted on four counts of violation of the federal mail fraud statute, 18 U.S.C. § 1341, and one count of violation of the Dyer Act, 18 U.S.C. § 2312. The mail fraud counts of the indictment charged that respondent had devised a scheme to defraud the Louisville bank, Charles L. Meredith, and several merchants in different States by unlawfully obtaining possession of the BankAmericard issued by the Louisville bank to Meredith, and using the card to obtain goods and services. The indictment charged that respondent had obtained goods and services Page 414 U. S. 397 at four specified motels by presenting Meredith's BankAmericard for payment and representing himself to be Meredith, and that respondent knew that each merchant would cause the sales slips of the purchases to be delivered by mail to the Louisville bank, which would, in turn, mail them to Meredith for payment. The indictment also charged that the delay in this mailing would enable the respondent to continue purchasing goods and services for an appreciable period of time.Respondent was tried by a jury in the United States District Court for the Western District of Kentucky. At trial, representatives of the four motels identified the sales invoices from the transactions on Meredith's BankAmericard which were forwarded to the Louisville bank by their motels. An official of the Louisville bank testified that all of the sales invoices for those transactions were received by the bank in due course through the mail, and that this was the customary method by which invoices representing BankAmericard purchases were transmitted to the Louisville bank. The jury found respondent guilty as charged on all counts, and he appealed the judgment of conviction to the Court of Appeals for the Sixth Circuit. That court reversed the judgment as to the mail fraud statute, but affirmed it as to the Dyer Act. 468 F.2d 529 (1972). [Footnote 1] Because of an apparent conflict among the courts of appeals as to the circumstances under which the Page 414 U. S. 398 fraudulent use of a credit card may violate the mail fraud statute, [Footnote 2] we granted the Government's petition for certiorari. 411 U.S. 963 (1973). For the reasons stated below, we affirm the judgment of the Court of Appeals.The applicable parts of the mail fraud statute provide as follows: [Footnote 3]"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining Page 414 U. S. 399 money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do . . . knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any [matter or thing whatever to be sent or delivered by the Postal Service] shall be fined not more than $1,000 or imprisoned not more than five years, or both."18 U.S.C. § 1341.In Pereira v. United States, 347 U. S. 1, 347 U. S. 9 (1954), the Court held that one "causes" the mails to be used where he"does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended. . . ."We assume, as did the Court of Appeals, that the evidence would support a finding by the jury that Maze "caused" the mailings of the invoices he signed from the out-of-state motels to the Louisville bank. But the more difficult question is whether these mailings were sufficiently closely related to respondent's scheme to bring his conduct within the statute. [Footnote 4] Page 414 U. S. 400Under the statute, the mailing must be "for the purpose of executing the scheme, as the statute requires," Kann v. United States, 323 U. S. 88, 323 U. S. 94 (1944), but "[i]t is not necessary that the scheme contemplate the use of the mails as an essential element," Pereira v. United States, supra, at 347 U. S. 8. The Government relies on Pereira, supra, and United States v. Sampson, 371 U. S. 75 (1962), to support its position, while respondent relies on Kann v. United States, supra, and Parr v. United States, 363 U. S. 370 (1960).In Kann, supra, corporate officers and directors were accused of having set up a dummy corporation through which to divert profits of their own corporation to their own use. As a part of the scheme, the defendants were accused of having fraudulently obtained checks payable to them which were cashed or deposited at a bank and then mailed for collection to the drawee bank. This Court held that the fraud was completed at the point at which defendants cashed the checks:"The scheme in each case had reached fruition. The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires."323 U.S. at 323 U. S. 94.In Parr, supra, the defendants were charged, inter alia, with having obtained gasoline and other products and services for their own purposes by the unauthorized use of a gasoline credit card issued to the school district which employed them. The oil company which furnished products and services to the defendants would Page 414 U. S. 401 mail invoices to the school district for payment, and the school district's payment was made by check sent in the mail. Relying on Kann, the Court again found that there was not a sufficient connection between the mailing and the execution of the defendants' scheme, because it was immaterial to the defendants how the oil company went about collecting its payment.The defendant in Pereira, supra, was charged with having defrauded a wealthy widow of her property after marrying her. The Court describes the conduct of defendant in these words:"Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los Angeles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los Angeles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier's check for $35,000 was drawn in favor of Pereira."347 U.S. at 347 U. S. 5. Thus, the mailings in Pereira played a significant part in enabling the defendant in that case to acquire dominion over the $35,000, with which he ultimately absconded. [Footnote 5] Page 414 U. S. 402 Unlike the mailings in Pereira, the mailings here were directed to the end of adjusting accounts between the motel proprietor, the Louisville bank, and Meredith, all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent's scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss. [Footnote 6] Indeed, from his point of view, he probably would have preferred to have the invoices misplaced by the various motel personnel and never mailed at all. The Government, however, relying on United States v. Sampson, supra, argues that essential to the success of any fraudulent credit-card scheme is the "delay" caused by use of the mails "which aids the perpetrator . . . in the continuation of a fraudulent credit card scheme and the postponement of its detection." In Sampson, various employees of a nationwide corporation were charged with a scheme to defraud businessmen by obtaining advance fees on the promise that the defendants would either help the businessmen to obtain loans or to sell their businesses. Even after the checks representing the fees had been deposited to the accounts of Page 414 U. S. 403 the defendants, however, the plan called for the mailing of the accepted application together with a form letter assuring the victims that the services for which they had contracted would be performed. The Court found that Kann and Parr did not preclude the application of the mail fraud statute to "a deliberate, planned use of the mails after the victims' money had been obtained." 371 U.S. at 371 U. S. 80.We do not believe that Sampson sustains the Government's position. The subsequent mailings there were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place. But the successful completion of the mailings from the motel owners here to the Louisville bank increased the probability that respondent would be detected and apprehended. There was undoubtedly delay in transmitting invoices to the Louisville bank, as there is in the physical transmission of any business correspondence between cities separated by large distances. Mail service as a means of transmitting such correspondence from one city to another is designed to overcome the effect of the distance which separates the places. But it is the distance, and not the mail service, [Footnote 7] which causes the time lag in the physical transmission of such correspondence. [Footnote 8] Page 414 U. S. 404Congress has only recently passed an amendment to the Truth in Lending Act [Footnote 9] which makes criminal the use of a fraudulently obtained credit card in a "transaction Page 414 U. S. 405 affecting interstate or foreign commerce." 84 Stat. 1 127, 15 U.S.C. § 1644. Congress could have drafted the mail fraud statute so as to require only that the mails be, in fact, used as a result of the fraudulent scheme. [Footnote 10] But it did not do this; instead, it required that the use of the mails be "for the purpose of executing such scheme or artifice. . . ." Since the mailings in this case were not for that purpose, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtUnited States v. Maze, 414 U.S. 395 (1974)United States v. MazeNo. 72-1168Argued November 13-14, 1973Decided January 8, 1974414 U.S. 395SyllabusRespondent was convicted of violating the federal mail fraud statute, 18 U.S.C. § 1341, by devising a scheme to defraud through unlawfully obtaining possession from one Meredith of a credit card issued by a Louisville bank, which respondent used to obtain goods and services from motel operators in various States knowing that the operators to whom he presented the card for payment would mail the sales slips to the Louisville bank, which would in turn mail them to Meredith. Section 1341 makes it a crime, inter alia, for a person who has devised a scheme to defraud or for obtaining money or property by means of false pretenses for the purpose of executing the scheme knowingly to cause to be delivered by mail according to the direction thereon any thing delivered by the Postal Service. The Court of Appeals reversed the judgment of conviction on the ground that § 1341 was inapplicable to respondent's conduct.Held: The mailings were not sufficiently closely related to respondent's scheme to bring his conduct within the statute. Though mailings were to be directed to adjusting the accounts between respondent's victims (the motels, the Louisville bank, and Meredith), they were not for the purpose of executing the scheme embraced by the statute, since that scheme had already reached fruition when respondent checked out of the motel, and did not depend on which of his victims ultimately bore the loss. Pereira v. United States, 347 U. S. 1; United States v. Sampson, 371 U. S. 75, distinguished. Pp. 414 U. S. 398-405.468 F.2d 529, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 414 U. S. 405. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and BRENNAN and BLACKMUN, JJ., joined, post, p. 414 U. S. 408. Page 414 U. S. 396

1969_249

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The question to be decided in this case is whether tenant farmers eligible for payments under the upland cotton program enacted as part of the Food and Agriculture Act of 1965, 79 Stat. 1194, 7 U.S.C. § 1444(d) (1964 ed., Supp. IV), have standing to challenge the validity of a certain amended regulation promulgated by the respondent Secretary of Agriculture in 1966.The upland cotton program incorporates a 1938 statute. § 8(g) of the Soil Conservation and Domestic Allotment Act, as amended, 2 Stat. 35 and 205, 16 U.S.C. § 690h(g), thereby permitting participants in the program to assign payments only "as security for cash or advances to finance making a crop." [Footnote 1] The regulation Page 397 U. S. 161 of the respondent Secretary of Agriculture in effect until 1966 defined "making a crop" to exclude assignments to secure "the payment of the whole or any part of a cash . . . rent for a farm." 20 Fed.Reg. 6512 (1955). [Footnote 2] Following passage of the 1965 Act, however, and before any payments were made under it, the Secretary deleted the exclusion and amended the regulation expressly to define "making a crop" to include assignments to secure Page 397 U. S. 162 "the payment of cash rent for land used [for planting, cultivating, or harvesting]." 31 Fed.Reg. 2815 (1966). [Footnote 3]Petitioner, cash-rent tenant farmer suing on behalf of themselves and other farmers similarly situated, filed this action in the District Court for the Middle District of Alabama. They sought a declaratory judgment that the amended regulation is invalid and unauthorized by statute, and an injunction prohibiting the respondent federal officials from permitting assignments pursuant to the amended regulation. [Footnote 4] Their complaint Page 397 U. S. 163 alleged that the petitioners are suffering irreparable injury under the amended regulation because it provides their landlord"with the opportunity to demand that [they] and all those similarly situated, assign the [upland cotton program] benefits in advance as a condition to obtaining a lease to work the land. [Footnote 5]"As a result, the complaint stated, the tenants are required to obtain financing of all their other farm needs -- groceries, clothing, tools, and the like -- from the landlord as well, since, prior to harvesting the crop, they lack cash and any source of credit other than the landlord. He, in turn, the complaint alleges, levies such high prices and rates of interest on these supplies that the tenants' crop profits are consumed each year in debt payments. Petitioners contend that they can attain a "modest measure of economic independence" if they are able to use their"advance subsidy payments . . . [to] form cooperatives to buy [supplies] at wholesale and reasonable prices in lieu of the excessive prices demanded by [the landlord] of . . . captive consumers with no funds to purchase elsewhere."Thus, petitioners allege that they suffer injury in fact, from the operation of the amended regulation.The District Court, in an unreported opinion, held that the petitioners "lack standing to maintain this action against these [respondent] governmental officials" because the latter "have not taken any action which directly invades any legally protected interest of the plaintiffs." The Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 398 F.2d 398. It held that petitioners lacked standing not only because they alleged Page 397 U. S. 164 no invasion of a legally protected interest, but also because petitioners"have not shown us, nor have we found, any provision of the Food and Agriculture Act of 1965 which either expressly or impliedly gives [petitioners] standing to challenge this administrative regulation or gives the Courts authority to review such administrative action."Id. at 402. We granted certiorari. 395 U.S. 958.Our decision in Data Processing Service v. Camp, ante, p. 397 U. S. 150, leads us to reverse here.First, there is no doubt that, in the context of this litigation, the tenant farmers, petitioners here, have the personal stake and interest that impart the concrete adverseness required by Article III.Second, the tenant farmers are clearly within the zone of interests protected by the Act.Implicit in the statutory provisions and their legislative history is a congressional intent that the Secretary protect the interests of tenant farmers. Both of the relevant statutes expressly enjoin the Secretary to do so. The Food and Agriculture Act of 1965 states that '[t]he Secretary shall provide adequate safeguards to protect the interests of tenants. . . ." 79 Stat. 1196, 7 U.S.C. § 1444(d)(10) (1964 ed., Supp. IV). [Footnote 6] Title 7 U.S.C. § 1444(d)(13) (1964 ed., Supp. IV), as noted earlier, incorporates by reference § 8(g), as amended, 52 Stat. 35 and 205, 16 U.S.C. § 590h(g). Section 8(b) of that Act, in turn, provides that "the Secretary shall, as far as practicable, protect the interests of tenants. . . ." 52 Stat. 32, 16 U.S.C. § 590h(b). The legislative history of the ' making a crop" provision, though sparse, similarly indicates a congressional intent Page 397 U. S. 165 to benefit the tenants. [Footnote 7] They are persons "aggrieved by agency action within the meaning of a relevant statute," as those words are used in 5 U.S.C. § 702 (1964 ed., Supp. IV).Third, judicial review of the Secretary's action is not precluded. The Court of Appeals rested its holding on the view that no provision of the Food and Agriculture Act of 1965 "expressly or impliedly . . . gives the Courts authority to review such administrative action." 398 F.2d at 402. Whether agency action is reviewable often poses difficult questions of congressional intent, and the Court must decide if Congress has, in express or implied terms, precluded judicial review or committed the challenged action entirely to administrative discretion.The Administrative Procedure Act, 5 U.S.C. § 701(a) (1964 ed., Supp. IV), allows judicial review of agency action except where "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." The amended regulation here under challenge was promulgated under 16 U.S.C. § 590d(3), which authorizes the Secretary to "prescribe such regulations, as he may deem proper to carry out the provisions of this chapter." Plainly, this provision does not expressly preclude judicial review, nor does any other provision in either the 1938 or 1965 Act. Nor does the authority to promulgate such regulations "as he may Page 397 U. S. 166 deem proper" in § 590d(3) constitute a commitment of the task of defining "making a crop" entirely to the discretionary judgment of the Executive Branch without the intervention of the courts. On the contrary, since the only or principal dispute relates to the meaning of the statutory term, the controversy must ultimately be resolved not on the basis of matters within the special competence of the Secretary, but by judicial application of canons of statutory construction. See Texas Gas Transmission Corp. v. Shell Oil Co., 363 U. S. 263, 363 U. S. 268-270."The role of the courts should, in particular, be viewed hospitably where . . . the question sought to be reviewed does not significantly engage the agency's expertise. '[W]here the only or principal dispute relates to the meaning of the statutory term,' . . . [t]he controversy presents issues on which courts, and not [administrators], are relatively more expert."Hardin v. Kentucky Utilities Co., 390 U. S. 1, 390 U. S. 14 (HARLAN, J., dissenting). Therefore, the permissive term "as he may deem proper," by itself, is not to be read as a congressional command which precludes a judicial determination of the correct application of the governing canons.The question then becomes whether nonreviewability can fairly be inferred. As we said in Data Processing Service, preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred. See Leedom v. Kyne, 358 U. S. 184; Harmon v. Brucker, 355 U. S. 579; Stark v. Wickard, 321 U. S. 288; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94. Indeed, judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated. In Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 140, we held that"judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Page 397 U. S. 167 Congress."A clear command of the statute will preclude review, and such a command of the statute may be inferred from its purpose. Switchmen's Union v. National Mediation Board, 320 U. S. 297. It is, however, "only upon a showing of clear and convincing evidence' of a contrary legislative intent" that the courts should restrict access to judicial review. Abbott Laboratories v. Gardner, supra, at 387 U. S. 141. The right of judicial review is ordinarily inferred where congressional intent to protect the interests of the class of which the plaintiff is a member can be found; in such cases, unless members of the protected class may have judicial review, the statutory objectives might not be realized. See the Chicago Junction Case, 264 U. S. 258; Hardin v. Kentucky Utilities, supra.We hold that the statutory scheme at issue here is to be read as evincing a congressional intent that petitioners may have judicial review of the Secretary's action.The judgments of the Court of Appeals and of the District Court are vacated, and the case is remanded to the District Court for a hearing on the merits.It is so ordered

U.S. Supreme CourtBarlow v. Collins, 397 U.S. 159 (1970)Barlow v. CollinsNo. 249Argued November 19, 1969Decided March 3, 1970397 U.S. 159SyllabusPetitioners, who are tenant farmers eligible for payments under the upland cotton program, enacted as part of the Food and Agriculture Act of 1965, challenge the validity of an amended regulation issued b the Secretary of Agriculture in 1966. The program incorporates § 8(g) of the Soil Conservation and Domestic Allotment Act, thereby permitting participating farmers to assign payments only "as security for cash or advances to finance making a crop." The 1966 amendment changed the definition of "making a crop" to permit assignments to secure "the payment of cash rent for land used." Petitioners seek a declaratory judgment holding the amended regulation invalid and an injunction prohibiting respondent federal officials from permitting assignments to petitioners' landlord, claiming that he can now demand assignments as a condition of leasing and that the tenants, who lack any other source of cash or credit, are reduced to obtaining all other necessities from the landlord at high prices and rates of interest. The District Court held that petitioners lacked standing to maintain the action, and the Court of Appeals affirmed.Held:1. Petitioners have standing to maintain this suit. Data Processing Service v. Camp, ante, p. 397 U. S. 150. Pp. 397 U. S. 164-167.(a) Petitioners have the personal stake and interest that impart the concrete adverseness required by Article III of the Constitution. P. 397 U. S. 164.(b) Petitioners are clearly within the zone of interests protected by the Food and Agriculture Act, and they are persons "aggrieved by agency action within the meaning of a relevant statute," as set forth in § 702 of the Administrative Procedure Act. Pp. 397 U. S. 164-165.2. The statutory scheme evinces a congressional intent that there may be judicial review of the Secretary's action. Pp. 397 U. S. 165-167.District Court judgment and 398 F.2d 398, vacated and remanded. Page 397 U. S. 160

1983_82-1998

JUSTICE WHITE delivered the opinion of the Court.The issue in this case is whether a National Park Service regulation prohibiting camping in certain parks violates the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in connection with a demonstration intended to call attention to the plight of the homeless. We hold that it does not, and reverse the contrary judgment of the Court of Appeals.IThe Interior Department, through the National Park Service, is charged with responsibility for the management and maintenance of the National Parks, and is authorized to promulgate rules and regulations for the use of the parks in accordance with the purposes for which they were established. Page 468 U. S. 290 16 U.S.C. §§ 1, 1a-1, 3. [Footnote 1] The network of National Parks includes the National Memorial-core parks, Lafayette Park and the Mall, which are set in the heart of Washington, D.C., and which are unique resources that the Federal Government holds in trust for the American people. Lafayette Park is a roughly 7-acre square located across Pennsylvania Avenue from the White House. Although originally part of the White House grounds, President Jefferson set it aside as a park for the use of residents and visitors. It is a "garden park with a . . . formal landscaping of flowers and trees, with fountains, walks and benches." National Park Service, U.S. Department of the Interior, White House and President's Park, Resource Management Plan 4.3 (1981). The Mall is a stretch of land running westward from the Capitol to the Lincoln Memorial some two miles away. It includes the Washington Monument, a series of reflecting pools, trees, lawns, and other greenery. It is bordered by, inter alia, the Smithsonian Institution and the National Gallery of Art. Both the Park and the Mall were included in Major Pierre L'Enfant's original plan for the Capital. Both are visited by vast numbers of visitors from around the country, as well as by large numbers of residents of the Washington metropolitan area.Under the regulations involved in this case, camping in National Parks is permitted only in campgrounds designated for that purpose. 36 CFR § 50.27(a) (1983). No such campgrounds have ever been designated in Lafayette Park or the Mall. Camping is defined as"the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose Page 468 U. S. 291 of sleeping), or storing personal belongings, or making any fire, or using any tents or . . . other structure . . . for sleeping or doing any digging or earth breaking or carrying on cooking activities."Ibid. These activities, the regulation provides,"constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging."Ibid. Demonstrations for the airing of views or grievances are permitted in the Memorial-core parks, but for the most part only by Park Service permits. 36 CFR § 50.19 (1983). Temporary structures may be erected for demonstration purposes, but may not be used for camping. 36 CFR § 50.19(e)(8) (1983). [Footnote 2]In 1982, the Park Service issued a renewable permit to respondent Community for Creative Non-Violence (CCNV) to conduct a wintertime demonstration in Lafayette Park and the Mall for the purpose of demonstrating the plight of the Page 468 U. S. 292 homeless. The permit authorized the erection of two symbolic tent cities: 20 tents in Lafayette Park that would accommodate 50 people and 40 tents in the Mall with a capacity of up to 100. The Park Service, however, relying on the above regulations, specifically denied CCNV's request that demonstrators be permitted to sleep in the symbolic tents.CCNV and several individuals then filed an action to prevent the application of the no-camping regulations to the proposed demonstration, which, it was claimed, was not covered by the regulation. It was also submitted that the regulations were unconstitutionally vague, had been discriminatorily applied, and could not be applied to prevent sleeping in the tents without violating the First Amendment. The District Court granted summary judgment in favor of the Park Service. The Court of Appeals, sitting en banc, reversed. Community for Creative Non-Violence v. Watt, 227 U.S.App.D.C.19, 703 F.2d 586 (1983). The 11 judges produced 6 opinions. Six of the judges believed that application of the regulations so as to prevent sleeping in the tents would infringe the demonstrators' First Amendment right of free expression. The other five judges disagreed, and would have sustained the regulations as applied to CCNV's proposed demonstration. [Footnote 3] We granted the Government's petition for certiorari, 464 U.S. 1016 (1983), and now reverse. [Footnote 4] Page 468 U. S. 293IIWe need not differ with the view of the Court of Appeals that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment. [Footnote 5] We assume for present purposes, but do not decide, that such is the case, cf. United States v. O'Brien, 391 U. S. 367, 391 U. S. 376 (1968), but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid, provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984); United States v. Grace, 461 U. S. 171 (1983); Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 460 U. S. 45-46 (1983); Heffron v. International Society for Krishna Consciousness, Page 468 U. S. 294 Inc., 452 U. S. 640, 452 U. S. 647-648 (1981); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771 (1976); Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530, 447 U. S. 535 (1980).It is also true that a message may be delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative. Spence v. Washington, 418 U. S. 405 (1974); Tinker v. Des Moines School District, 393 U. S. 503 (1969). Symbolic expression of this kind may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech. United States v. O'Brien, supra.Petitioners submit, as they did in the Court of Appeals, that the regulation forbidding sleeping is defensible either as a time, place, or manner restriction or as a regulation of symbolic conduct. We agree with that assessment. The permit that was issued authorized the demonstration, but required compliance with 36 CFR § 50.19 (1983), which prohibits "camping" on park lands, that is, the use of park lands for living accommodations, such as sleeping, storing personal belongings, making fires, digging, or cooking. These provisions, including the ban on sleeping, are clearly limitations on the manner in which the demonstration could be carried out. That sleeping, like the symbolic tents themselves, may be expressive and part of the message delivered by the demonstration does not make the ban any less a limitation on the manner of demonstrating, for reasonable time, place, or manner regulations normally have the purpose and direct effect of limiting expression, but are nevertheless valid. City Council of Los Angeles v. Taxpayers for Vincent, supra; Heffron v. International Society for Krishna Consciousness, Inc., supra; Kovacs v. Cooper, 336 U. S. 77 (1949). Neither does the fact that sleeping, arguendo, may be expressive Page 468 U. S. 295 conduct, rather than oral or written expression, render the sleeping prohibition any less a time, place, or manner regulation. To the contrary, the Park Service neither attempts to ban sleeping generally nor to ban it everywhere in the parks. It has established areas for camping, and forbids it elsewhere, including Lafayette Park and the Mall. Considered as such, we have very little trouble concluding that the Park Service may prohibit overnight sleeping in the parks involved here.The requirement that the regulation be content-neutral is clearly satisfied. The courts below accepted that view, and it is not disputed here that the prohibition on camping, and on sleeping specifically, is content-neutral, and is not being applied because of disagreement with the message presented. [Footnote 6] Neither was the regulation faulted, nor could it be, on the ground that, without overnight sleeping, the plight of the homeless could not be communicated in other ways. The regulation otherwise left the demonstration intact, with its symbolic city, signs, and the presence of those who were willing to take their turns in a day-and-night vigil. Respondents do not suggest that there was, or is, any barrier to delivering to the media, or to the public by other means, the intended message concerning the plight of the homeless. Page 468 U. S. 296It is also apparent to us that the regulation narrowly focuses on the Government's substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping -- using these areas as living accommodations -- would be totally inimical to these purposes, as would be readily understood by those who have frequented the National Parks across the country and observed the unfortunate consequences of the activities of those who refuse to confine their camping to designated areas.It is urged by respondents, and the Court of Appeals was of this view, that, if the symbolic city of tents was to be permitted, and if the demonstrators did not intend to cook, dig, or engage in aspects of camping other than sleeping, the incremental benefit to the parks could not justify the ban on sleeping, which was here an expressive activity said to enhance the message concerning the plight of the poor and homeless. We cannot agree. In the first place, we seriously doubt that the First Amendment requires the Park Service to permit a demonstration in Lafayette Park and the Mall involving a 24-hour vigil and the erection of tents to accommodate 150 people. Furthermore, although we have assumed for present purposes that the sleeping banned in this case would have an expressive element, it is evident that its major value to this demonstration would be facilitative. Without a permit to sleep, it would be difficult to get the poor and homeless to participate or to be present at all. This much is apparent from the permit application filed by respondents: "Without the incentive of sleeping space or a hot meal, the homeless would not come to the site." App. 14. The sleeping ban, if enforced, would thus effectively limit the nature, extent, and duration of the demonstration and to that extent ease the pressure on the parks.Beyond this, however, it is evident from our cases that the validity of this regulation need not be judged solely by reference Page 468 U. S. 297 to the demonstration at hand. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. at 452 U. S. 652-653. Absent the prohibition on sleeping, there would be other groups who would demand permission to deliver an asserted message by camping in Lafayette Park. Some of them would surely have as credible a claim in this regard as does CCNV, and the denial of permits to still others would present difficult problems for the Park Service. With the prohibition, however, as is evident in the case before us, at least some around-the-clock demonstrations lasting for days on end will not materialize, others will be limited in size and duration, and the purposes of the regulation will thus be materially served. Perhaps these purposes would be more effectively and not so clumsily achieved by preventing tents and 24-hour vigils entirely in the core areas. But the Park Service's decision to permit nonsleeping demonstrations does not, in our view, impugn the camping prohibition as a valuable, but perhaps imperfect, protection to the parks. If the Government has a legitimate interest in ensuring that the National Parks are adequately protected, which we think it has, and if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment as a reasonable regulation of the manner in which a demonstration may be carried out. As in City Council of Los Angeles v. Taxpayers for Vincent, the regulation "responds precisely to the substantive problems which legitimately concern the [Government]." 466 U.S. at 466 U. S. 810.We have difficulty, therefore, in understanding why the prohibition against camping, with its ban on sleeping overnight, is not a reasonable time, place, or manner regulation that withstands constitutional scrutiny. Surely the regulation is not unconstitutional on its face. None of its provisions appears unrelated to the ends that it was designed to serve. Nor is it any less valid when applied to prevent camping in Memorial-core parks by those who wish to demonstrate Page 468 U. S. 298 and deliver a message to the public and the central Government. Damage to the parks, as well as their partial inaccessibility to other members of the public, can as easily result from camping by demonstrators as by nondemonstrators. In neither case must the Government tolerate it. All those who would resort to the parks must abide by otherwise valid rules for their use, just as they must observe the traffic laws, sanitation regulations, and laws to preserve the public peace. [Footnote 7] This is no more than a reaffirmation that reasonable time, place, or manner restrictions on expression are constitutionally acceptable.Contrary to the conclusion of the Court of Appeals, the foregoing analysis demonstrates that the Park Service regulation is sustainable under the four-factor standard of United States v. O'Brien, 391 U. S. 367 (1968), for validating a regulation of expressive conduct, which, in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions. [Footnote 8] No one contends that, aside Page 468 U. S. 299 from its impact on speech a rule against camping or overnight sleeping in public parks is beyond the constitutional power of the Government to enforce. And for the reasons we have discussed above, there is a substantial Government interest in conserving park property, an interest that is plainly served by, and requires for its implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties. That interest is unrelated to suppression of expression.We are unmoved by the Court of Appeals' view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the Government interest in preserving park lands. There is no gainsaying that preventing overnight sleeping will avoid a measure of actual or threatened damage to Lafayette Park and the Mall. The Court of Appeals' suggestions that the Park Service minimize the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage, whether by sleeping or otherwise, and these suggestions represent no more than a disagreement with the Park Service over how much protection the core parks require or how an acceptable level of preservation is to be attained. We do not believe, however, that either United States v. O'Brien or the time, place, or manner decisions assign to the judiciary the authority to replace the Park Service as the manager of the Nation's parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained. [Footnote 9]Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtClark v. Commun. for Nonviolence, 468 U.S. 288 (1984)Clark v. Community for Creative NonviolenceNo. 82-1998Argued March 21, 1984Decided June 29, 1984468 U.S. 288SyllabusIn 1982, the National Park Service issued a permit to respondent Community for Creative Non-Violence (CCNV) to conduct a demonstration in Lafayette Park and the Mall, which are National Parks in the heart of Washington, D.C. The purpose of the demonstration was to call attention to the plight of the homeless, and the permit authorized the erection of two symbolic tent cities. However, the Park Service, relying on its regulations -- particularly one that permits "camping" (defined as including sleeping activities) only in designated campgrounds, no campgrounds having ever been designated in Lafayette Park or the Mall -- denied CCNV's request that demonstrators be permitted to sleep in the symbolic tents. CCNV and the individual respondents then filed an action in Federal District Court, alleging, inter alia, that application of the regulations to prevent sleeping in the tents violated the First Amendment. The District Court granted summary judgment for the Park Service, but the Court of Appeals reversed.Held: The challenged application of the Park Service regulations does not violate the First Amendment. Pp. 468 U. S. 293-299.(a) Assuming that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment, the regulation forbidding sleeping meets the requirements for a reasonable time, place, or manner restriction of expression, whether oral, written, or symbolized by conduct. The regulation is neutral with regard to the message presented, and leaves open ample alternative methods of communicating the intended message concerning the plight of the homeless. Moreover, the regulation narrowly focuses on the Government's substantial interest in maintaining the parks in the heart of the Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping would be totally inimical to these purposes. The validity of the regulation need not be judged solely by reference to the demonstration at hand, and none of its provisions are unrelated to the ends that it was designed to serve. Pp. 468 U. S. 293-298.(b) Similarly, the challenged regulation is also sustainable as meeting the standards for a valid regulation of expressive conduct. Aside from Page 468 U. S. 289 its impact on speech, a rule against camping or overnight sleeping in public pars is not beyond the constitutional power of the Government to enforce. And as noted above, there is a substantial Government interest, unrelated to suppression of expression, in conserving park property that is served by the proscription of sleeping. Pp. 468 U. S. 298-299.227 U.S.App.D.C.19, 703 F.2d 586, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 468 U. S. 300. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post p. 468 U. S. 301.

2000_99-1884

Robert M. Russel, Assistant Solicitor General of Colorado, argued the cause for the State of Colorado et al. as amici curiae urging reversal. With him on the brief were Ken Salazar, Attorney General of Colorado, Dan Schweitzer, and the Attorneys General for their respective States as follows:Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, M. Jane Brady of Delaware, Carla J. Stovall of Kansas, Tom Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Jan Graham of Utah, William H. Sorrell of Vermont, Mark L. Earley of Virginia, and Christine O. Gregoire of Washington.James v: Wade argued the cause for respondent. With him on the brief was Daniel 1. Siegel. *JUSTICE O'CONNOR delivered the opinion of the Court, except as to Parts III-B and III-C.tFor the second time this Term, we are faced with the question whether federal postconviction relief is available when a prisoner challenges a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody. In Daniels v. United States, ante, p. 374, we held that such relief is generally not available to a federal prisoner through a motion to vacate the sentence under 28 U. S. C. § 2255 (1994 ed., Supp. V), but left open the possibility that relief might be appropriate in rare circumstances. We now hold that relief is similarly unavailable to state prisoners through a peti-*Edward M. Chikofsky and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.tJUSTICE SCALIA joins all but Parts III-B and III-C of this opinion.JUSTICE THOMAS joins all but Part Ill-B.397tion for a writ of habeas corpus under 28 U. S. C. § 2254 (1994 ed. and Supp. V).IRespondent Edward R. Coss, Jr., has an extensive criminal record. By the age of 16, he had been adjudged a juvenile delinquent on five separate occasions for offenses including theft, disorderly conduct, assault, and burglary. See Record Doc. No. 101 (PI. Exh. 5, pp. 4-6). By the time he turned 23, Coss had been convicted in adult court of assault, institutional vandalism, criminal mischief, disorderly conduct, and possession of a controlled substance. See id., at 6-7. His record also reveals arrests for assault, making terroristic threats, delivery of controlled substances, reckless endangerment, disorderly conduct, resisting arrest, retail theft, and criminal conspiracy, although each of those charges was later dropped. See ibid. A report generated by the Lackawanna County Adult Probation Office sums up the "one consistent factor in this defendant's life: criminal behavior, much of it being aggressive." Id., at 8.This case revolves around two of the many entries on Coss' criminal record. In October 1986, Coss was convicted in Pennsylvania state court of simple assault, institutional vandalism, and criminal mischief. He was then sentenced to two consecutive prison terms of six months to one year. He did not file a direct appeal. See App. 54a; see also Tr. of Oral Arg. 28-29.In June 1987, Coss filed a petition for relief from the 1986 convictions under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541 et seq. (1998), alleging that his trial attorney had been constitutionally ineffective. See App. 50a-53a. The Lackawanna County Court of Common Pleas promptly appointed counsel for Coss, id., at 57a, and the district attorney filed an answer to the petition, id., at 59a. The court, however, took no further action on the petition for the remainder of Coss' time in custody. Indeed, it appears that Coss' state postconviction petition has now398been pending for almost 14 years, and has never been the subject of a judicial ruling. Neither petitioners nor respondent is able to explain this lapse. Tr. of Oral Arg. 4, 29.In 1990, after he had served the full sentences for his 1986 convictions, Coss was again convicted in Pennsylvania state court, this time of aggravated assault. He was sentenced to 6 to 12 years in prison, but successfully challenged this sentence on direct appeal because of a possible inaccuracy in the presentence report. App. 62a.On remand, the court's first task was to determine the range of sentences for which Coss was eligible. In calculating Coss' "prior record score"-one of two determinants of the applicable sentencing range, see 42 Pa. Cons. Stat. § 9721 (1998) (reproducing 204 Pa. Code § 303.9(a) (1998))-the new presentence report took account of Coss' most serious juvenile adjudication and Coss' 1986 misdemeanor convictions, counting the latter as separate offenses. See Record Doc. No. 101 (PI. Exh. 3, at 10). Coss objected, claiming that his 1986 convictions should be counted as one misdemeanor offense because they arose from the same transaction. See ibid. (PI. Exh. 5, at 3-4). The trial court sustained Coss' objection, finding that the convictions should be "view[ed] ... as being one transaction, one incident, one conviction." Id., at 5. Under the Pennsylvania Sentencing Guidelines, one prior misdemeanor does not affect the prior record score. See id., at 10 (displaying grid for calculating prior record score). Thus, the practical effect of the court's decision was to eliminate the 1986 convictions from Coss' prior record score entirely. See ibid.; see also 204 F.3d 453, 467-468 (CA3 2000) (en banc) (Nygaard, J., dissenting). Consequently, Coss' 1986 convictions played no part in determining the range of sentences to which Coss was exposed.The court's next task was to choose a sentence within that range. In doing so, the trial court considered a number of factors, including "the seriousness and nature of the crime involved here, the well being and protection of the people399who live in our community, your criminal disposition, your prior criminal record, the possibility of your rehabilitation, and the testimony that I've heard." Record Doc. No. 101 (PI. Exh. 3, at 26). The court concluded that "it's indicative that from your actions that you will continue to break the law unless given a period of incarceration." Ibid. The court then reimposed a 6 to 12 year sentence. Because Coss' 1986 convictions are a part of his prior criminal record, the Court of Appeals concluded that the state court took those convictions "into consideration" in sentencing Coss. See 204 F. 3d, at 459.In September 1994, Coss filed a petition for a writ of habeas corpus under 28 U. S. C. § 2254 in the United States District Court for the Middle District of Pennsylvania. That provision, a postconviction remedy in federal court for state prisoners, provides that a writ of habeas corpus is available to "a person in custody pursuant to the judgment of a State court" if that person "is in custody in violation of the Constitution or laws or treaties of the United States." § 2254(a). In his petition, Coss contended that his 1986 assault conviction was the product of ineffective assistance of counsel. App.73a-74a.In answer to Coss' § 2254 petition, the Lackawanna County District Attorney argued that the District Court could not review the constitutionality of Coss' 1986 convictions because Coss was no longer in custody on those convictions. Record Doc. No. 55, p. 2. The district attorney, however, indicated his understanding that the crux of Coss' claim was that his 1986 convictions "may have impact [sic] upon the sentences which have been imposed ... upon [Coss] for criminal convictions rendered against him" for his 1990 convictions. Ibid. See also Brief for Petitioners 4 ("[R]espondent argues that the sentence for his 1990 conviction was adversely and unconstitutionally affected by the 1986 simple assault conviction").400The District Court stated that Coss was arguing "that his current sentence [for the 1990 conviction] was adversely affected by the 1986 convictions because the sentencing judge considered these allegedly unconstitutional convictions in computing Coss's present sentence." App. to Pet. for Cert. 105a-106a. Finding that "the sentencing judge ... did make reference to the 1986 convictions in sentencing Coss," id., at 107a, the court held that it could properly exercise jurisdiction under § 2254, id., at 108a; see also Record Doc. No. 87, p. 3, n. 2. After an evidentiary hearing, the court denied the petition, holding that Coss' 1986 trial counsel had been ineffective, but that Coss had not been prejudiced by the ineffectiveness. App. to Pet. for Cert. 113a, 116a, 120a.The Court of Appeals for the Third Circuit, sitting en banc, agreed that "the sentencing court for the 1990 conviction took into consideration [Coss' 1986] conviction[s]," and therefore that the District Court had jurisdiction over Coss' § 2254 petition. 204 F. 3d, at 459. Citing Circuit precedent and our decisions in Maleng v. Cook, 490 U. S. 488 (1989) (per curiam), and United States v. Tucker, 404 U. S. 443 (1972), the court concluded that § 2254 provided a remedy for "an allegedly unconstitutional conviction, even if [the § 2254 petitioner] has served in entirety the sentence resulting from the conviction, if that conviction had an effect on a present sentence." 204 F. 3d, at 459-460.The court then found that Coss had received ineffective assistance during his 1986 trial, and that there was "a reasonable probability" that but for the ineffective assistance, Coss "would not have been found guilty of assau[lt]." Id., at 462. The court remanded the case to the District Court, ordering that the Commonwealth be allowed either to retry Coss for the 1986 assault or to resentence him for the 1990 assault without consideration of the 1986 conviction. Id., at 467.We granted certiorari to consider the threshold question that the District Court and Court of Appeals both resolved401in Coss' favor: whether § 2254 provides a remedy where a current sentence was enhanced on the basis of an allegedly unconstitutional prior conviction for which the sentence has fully expired. 531 U. S. 923 (2000).II AThe first showing a § 2254 petitioner must make is that he is "in custody pursuant to the judgment of a State court." 28 U. S. C. § 2254(a). In Maleng v. Cook, supra, we considered a situation quite similar to the one presented here. In that case, the respondent had filed a § 2254 petition listing as the "'conviction under attack'" a 1958 state conviction for which he had already served the entirety of his sentence. 490 U. S., at 489-490. He also alleged that the 1958 conviction had been "used illegally to enhance his 1978 state sentences" which he had not yet begun to serve because he was at that time in federal custody on an unrelated matter. Ibid. We determined that the respondent was "in custody" on his 1978 sentences because the State had lodged a detainer against him with the federal authorities. Id., at 493.We held that the respondent was not "in custody" on his 1958 conviction merely because that conviction had been used to enhance a subsequent sentence. Id., at 492. We acknowledged, however, that because his § 2254 petition "[could] be read as asserting a challenge to the 1978 sentences, as enhanced by the allegedly invalid prior conviction, ... respondent ... satisfied the 'in custody' requirement for federal habeas jurisdiction." Id., at 493-494.Similarly, Coss is no longer serving the sentences imposed pursuant to his 1986 convictions, and therefore cannot bring a federal habeas petition directed solely at those convictions. Coss is, however, currently serving the sentence for his 1990 conviction. Like the respondent in Maleng, Coss' § 2254 petition can be (and has been) construed as "asserting a challenge to the [1990] senten[ce], as enhanced by the alleg-402edly invalid prior [1986] conviction." Id., at 493. See also supra, at 399-400. Accordingly, Coss satisfies § 2254's "in custody" requirement. Cf. Daniels, ante, at 383, 384, n. 2 (stating that the text of § 2255, which also contains an "in custody" requirement, is broad enough to cover a claim that a current sentence enhanced by an allegedly unconstitutional prior conviction violates due process).BMore important for our purposes here is the question we explicitly left unanswered in Maleng: "the extent to which the [prior expired] conviction itself may be subject to challenge in the attack upon the [current] senten[ce] which it was used to enhance." 490 U. S., at 494. We encountered this same question in the § 2255 context in Daniels v. United States, ante, p. 374. We held there that "[i]f ... a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant ... may not collaterally attack his prior conviction through a motion under § 2255." Ante, at 382. We now extend this holding to cover § 2254 petitions directed at enhanced state sentences.We grounded our holding in Daniels on considerations relating to the need for finality of convictions and ease of administration. Those concerns are equally present in the § 2254 context. The first and most compelling interest is in the finality of convictions. Once a judgment of conviction is entered in state court, it is subject to review in multiple forums. Specifically, each State has created mechanisms for both direct appeal and state postconviction review, see L. Yackle, Postconviction Remedies §§ 1, 13 (1981 and Supp. 2000), even though there is no constitutional mandate that they do so, see Pennsylvania v. Finley, 481 U. S. 551, 557 (1987) (no constitutional right to state postconviction403review); Abney v. United States, 431 U. S. 651, 656 (1977) (no constitutional right to direct appeal). Moreover, § 2254 makes federal courts available to review state criminal proceedings for compliance with federal constitutional mandates.As we said in Daniels, "[t]hese vehicles for review ... are not available indefinitely and without limitation." Ante, at 381. A defendant may choose not to seek review of his conviction within the prescribed time. Or he may seek review and not prevail, either because he did not comply with procedural rules or because he failed to prove a constitutional violation. In each of these situations, the defendant's conviction becomes final and the State that secured the conviction obtains a strong interest in preserving the integrity of the judgment. See ante, at 379-380. Other jurisdictions acquire an interest as well, as they may then use that conviction for their own recidivist sentencing purposes, relying on "the 'presumption of regularity' that attaches to final judgments." Parke v. Raley, 506 U. S. 20, 29 (1992); see also Daniels, ante, at 380.An additional concern is ease of administration of challenges to expired state convictions. Federal courts sitting in habeas jurisdiction must consult state court records and transcripts to ensure that challenged convictions were obtained in a manner consistent with constitutional demands. As time passes, and certainly once a state sentence has been served to completion, the likelihood that trial records will be retained by the local courts and will be accessible for review diminishes substantially. See Daniels, ante, at 379.Accordingly, as in Daniels, we hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. See Daniels, ante, at 382. If that conviction is later used to enhance a criminal sentence, the defendant404generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.III AAs in Daniels, we recognize an exception to the general rule for § 2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U. S. 335 (1963). The special status of Gideon claims in this context is well established in our case law. See, e. g., Custis v. United States, 511 U. S. 485, 496-497 (1994); United States v. Tucker, 404 U. S., at 449; Burgett v. Texas, 389 U. S. 109, 115 (1967). Cf. Daniels, ante, at 382.As we recognized in Custis, the "failure to appoint counsel for an indigent [is] a unique constitutional defect ... ris[ing] to the level of a jurisdictional defect," which therefore warrants special treatment among alleged constitutional violations. See 511 U. S., at 496. Moreover, allowing an exception for Gideon challenges does not implicate our concern about administrative ease, as the "failure to appoint counsel ... will generally appear from the judgment roll itself, or from an accompanying minute order." 511 U. S., at 496.As with any § 2254 petition, the petitioner must satisfy the procedural prerequisites for relief including, for example, exhaustion of remedies. See 28 U. S. C. § 2254(b) (1994 ed., Supp. V). When an otherwise qualified § 2254 petitioner can demonstrate that his current sentence was enhanced on the basis of a prior conviction that was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, the current sentence cannot stand and habeas relief is appropriate. Cf. United States v. Tucker, supra, at405449 (affirming vacatur of sentence that was based in part on prior uncounseled state convictions).BWe stated in Daniels that another exception to the general rule precluding habeas relief might be available, although the circumstances of that case did not require us to resolve the issue. See ante, at 383-384. We note a similar situation here.The general rule we have adopted here and in Daniels reflects the notion that a defendant properly bears the consequences of either forgoing otherwise available review of a conviction or failing to successfully demonstrate constitutional error. See supra, at 403-404; Daniels, ante, at 381383. It is not always the case, however, that a defendant can be faulted for failing to obtain timely review of a constitutional claim. For example, a state court may, without justification, refuse to rule on a constitutional claim that has been properly presented to it. Cf. 28 U. S. C. § 2244(d)(1)(B) (1994 ed., Supp. V) (tolling i-year limitations period while petitioner is prevented from filing application by an "impediment ... created by State action in violation of the Constitution or laws of the United States"). Alternatively, after the time for direct or collateral review has expired, a defendant may obtain compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner. Cf. Brady v. Maryland, 373 U. S. 83 (1963); 28 u. S. C. § 2244(b)(2)(B) (1994 ed., Supp. V) (allowing a second or successive habeas corpus application if "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ... the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense").406Opinion of O'CONNOR, J.In such situations, a habeas petition directed at the enhanced sentence may effectively be the first and only forum available for review of the prior conviction. As in Daniels, this case does not require us to determine whether, or under what precise circumstances, a petitioner might be able to use a § 2254 petition in this manner.Whatever such a petitioner must show to be eligible for review, the challenged prior conviction must have adversely affected the sentence that is the subject of the habeas petition. This question was adequately raised and considered below. As the District Court stated, Coss contended "that his current sentence [for the 1990 conviction] was adversely affected by the 1986 convictions because the sentencing judge considered these allegedly unconstitutional convictions in computing Coss's present sentence." App. to Pet. for Cert. 105a-106a (emphasis added). The District Court and majority of the Court of Appeals agreed with Coss on this point. See id., at 107a; 204 F. 3d, at 459. Judge Nygaard, joined by Judge Roth, dissented to dispute the conclusion that the 1986 convictions had any effect whatsoever on Coss' sentence for the 1990 conviction. Id., at 467-469.CAfter a careful examination of the record here, we are satisfied that the findings of the lower courts on this threshold factual point are clearly erroneous. Cf. Neil v. Biggers, 409 U. S. 188, 193, n. 3 (1972). We therefore conclude that respondent Coss does not qualify to have his § 2254 petition reviewed, even assuming the existence of a limited exception to the general rule barring review of an expired prior conviction. Specifically, it is clear that any "consideration" the trial court may have given to Coss' 1986 convictions in reimposing sentence for his 1990 conviction did not actually affect that sentence.As we explain above, see supra, at 398-399, when Coss was resentenced on his 1990 conviction, he objected to the407presentence report's calculation of his prior record score. The court sustained that objection and, in effect, eliminated Coss' 1986 convictions from the prior record score entirely. Because the prior record score is one of two determinants of the applicable sentencing range, see 42 Pa. Cons. Stat. § 9721 (1998) (reproducing 204 Pa. Code § 303.9(a) (1998)), it is clear that Coss' 1986 convictions had no role in determining the range of sentences to which Coss was exposed.In choosing a sentence for Coss within that range, the trial court considered several factors, including "the seriousness and nature of the crime involved here, the well being and protection of the people who live in our community, your criminal disposition, your prior criminal record, the possibility of your rehabilitation, and the testimony that I've heard." Record Doc. No. 101 (PI. Exh. 3, at 26). Coss' 1986 convictions are, of course, a portion of his criminal record. Thus, it is technically correct to say that the court "considered" those convictions before sentencing Coss. Cf. 204 F. 3d, at 459.But it is a different thing entirely to say that the 1986 convictions actually increased the length of the sentence the court ultimately imposed. As the sentencing court told Coss, "I think that it's indicative that from your actions that you will continue to break the law unless given a period of incarceration." Record Doc. No. 101 (PI. Exh. 3, at 26). The "actions" to which the judge referred were obviously not limited to Coss' criminal conduct in 1986, but Coss' extensive and violent criminal record as a whole. We conclude, as Judge Nygaard did below, that the 1986 convictions are "such a minor component of [Coss'] record that there is no question that the sentencing court, given its concerns, would have imposed exactly the same sentence" had those convictions been omitted from Coss' record. 204 F. 3d, at 468 (dissenting opinion).We note that the record does not explain why Coss' ineffective assistance claim did not receive a timely adjudication408SOUTER, J., dissentingin the Pennsylvania courts. While the reason might have been that Coss' petition "slipped through the cracks," due to no fault of his own, Tr. of Oral Arg. 4, it might also have been that Coss was responsible for "request[ing] that the matter be brought up for a hearing," id., at 5. But even if Coss cannot be faulted for that lapse, he would not qualify to have his current § 2254 petition reviewed because the 1990 sentence he is challenging was not actually affected by the 1986 convictions.IVThe judgment of the United States Court of Appeals for the Third Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2000SyllabusLACKAWANNA COUNTY DISTRICT ATTORNEY ET AL. V. COSSCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 99-1884. Argued February 20, 200l-Decided April 25, 2001In 1986, respondent Coss was convicted in Pennsylvania state court of simple assault, institutional vandalism, and criminal mischief. Coss filed a petition for state postconviction relief with respect to these convictions, alleging ineffective assistance of counsel, but the Pennsylvania courts have never ruled on the petition. In 1990, after Coss had served the full sentences for his 1986 convictions, he was convicted in state court of aggravated assault. He successfully challenged his 6 to 12 year sentence on direct appeal. On remand, the court did not consider Coss' 1986 convictions in determining his eligible sentencing range. In choosing a sentence within the applicable range, the court considered several factors including Coss' extensive criminal record, and reimposed a 6 to 12 year sentence. Coss filed a petition for a writ of habeas corpus, claiming that his 1986 convictions were constitutionally invalid, and that he was "in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. § 2254(a). The Federal District Court held that it could properly exercise § 2254 jurisdiction because, in sentencing Coss for his 1990 conviction, the sentencing judge made reference to the 1986 convictions. The District Court denied the petition because Coss had not been prejudiced by his 1986 counsel's ineffectiveness. The Third Circuit remanded, agreeing that the District Court had jurisdiction, but finding a "reasonable probability" that but for his counsel's ineffectiveness, Coss would not have been convicted in 1986.Held: The judgment is reversed, and the case is remanded. 204 F.3d 453, reversed and remanded.JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, concluding that §2254 does not provide a remedy when a state prisoner challenges a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody. Pp. 401-405,408.(a) A § 2254 petitioner must first show that he is "in custody pursuant to the judgment of a State court." § 2254(a). Because Coss is no longer serving the sentences for his 1986 convictions, he cannot bring a federal habeas action directed solely at those convictions. However, his395§ 2254 petition can be (and has been) construed as asserting a challenge to the 1990 sentence he is currently serving, as enhanced by the allegedly invalid 1986 convictions. See Maleng v. Cook, 490 U. S. 488, 493. Thus, he satisfies §2254's "in custody" requirement. Pp.401-402.(b) The more important question here is the one left unanswered in Maleng: the extent to which a prior expired conviction may be subject to challenge in an attack upon a current sentence it was used to enhance. In Daniels v. United States, ante, p. 374, this Court held that a federal prisoner who has failed to pursue available remedies to challenge a prior conviction (or has done so unsuccessfully) may not collaterally attack that conviction through a motion under 28 U. S. C. § 2255 directed at the enhanced federal sentence. That holding is now extended to cover § 2254 petitions directed at enhanced state sentences. The considerations on which the Daniels holding was grounded-finality of convictions and ease of administration-are equally present in the § 2254 context. See Daniels, ante, at 379-380. Pp. 402-404.(c) As in Daniels, an exception exists to the general rule for §2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U. S. 335. The failure to appoint counsel is a unique constitutional defect, rising to the level of a jurisdictional defect, which therefore warrants special treatment among alleged constitutional violations. Moreover, an exception for Gideon claims does not implicate this Court's concerns about administrative ease. As with any § 2254 petition, a petitioner making a Gideon challenge must satisfy the procedural prerequisites for relief, including exhaustion of remedies. pp. 404-405.O'CONNOR, J., delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, an opinion with respect to Part III-C, in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., joined, and an opinion with respect to Part III-B, in which REHNQUIST, C. J., and KENNEDY, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined, post, p. 408. BREYER, J., filed a dissenting opinion, post, p. 410.William P. O'Malley argued the cause for petitioners.With him on the brief were Eugene M. Talerico and Andrew J. Jarbola III.396Full Text of Opinion

2002_02-469

sician; nor may courts impose on administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation. Pp. 829-834.296 F.3d 823, vacated and remanded.GINSBURG, J., delivered the opinion for a unanimous Court.Lee T. Paterson argued the cause for petitioner. With him on the briefs were John R. Ates, Amanda C. Sommerfeld, and William G. Bruner III.Lisa Schiavo Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Olson, Deputy Solicitor General Kneedler, Howard M. Radzely, Allen H. Feldman, Nathaniel I. Spiller, and Mark S. Flynn.Lawrence D. Rohlfing argued the cause for respondent.With him on the brief was Eric Schnapper. **Briefs of amici curiae urging reversal were filed for the American Benefits Council by Robert N. Eccles and Jonathan D. Hacker; for the American Council of Life Insurers et al. by William J. Kayatta, Jr., Mark E. Schmidtke, and Victoria E. Fimea; for the Bert Bell/Pete Rozelle NFL Player Retirement Plan by Douglas W Ell, John P. McAllister, and Alvaro I. Anillo; for the Central States, Southeast and Southwest Areas Health and Welfare Fund by Thomas C. Nyhan, James P. Condon, and John J. Franczyk, Jr.; for the Delta Family-Care Disability and Survivorship Plan et al. by Hunter R. Hughes; for the ERISA Industry Committee by Caroline M. Brown and John M. Vine; for the National Association of Manufacturers et al. by Frederick R. Damm, Lira A. Johnson, Jan S. Amundson, and Quentin Riegel; and for Peabody Energy Corp. et al. by Mark E. Solomons and Laura Metcoff Klaus.Briefs of amici curiae urging affirmance were filed for the AARP by Mary Ellen Signorille and Melvin R. Radowitz; for the American Medical Association by Joseph R. Guerra and Jack R. Bierig; for the National Employment Lawyers Association by Jeffrey Lewis, Jenifer Bosco, Daniel T. Driesen, and Ronald Dean; and for the National Organization of Social Security Claimants' Representatives by Nancy G. Shor, Eric Schnaufer, Robert E. Rains, and Jon Holder.825JUSTICE GINSBURG delivered the opinion of the Court. Under a rule adopted by the Commissioner of Social Security, in determining whether a claimant is entitled to Social Security disability benefits, special weight is accorded opinions of the claimant's treating physician. See 20 CFR §§ 404.1527(d)(2), 416.927(d)(2) (2002). This case presents the question whether a similar "treating physician rule" applies to disability determinations under employee benefits plans covered by the Employee Retirement Income Security Act of 1974 (ERISA or Act), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq. We hold that plan administrators are not obliged to accord special deference to the opinions of treating physicians.ERISA and the Secretary of Labor's regulations under the Act require "full and fair" assessment of claims and clear communication to the claimant of the "specific reasons" for benefit denials. See 29 U. S. C. § 1133; 29 CFR § 2560.503-1 (2002). But these measures do not command plan administrators to credit the opinions of treating physicians over other evidence relevant to the claimant's medical condition. Because the Court of Appeals for the Ninth Circuit erroneously applied a "treating physician rule" to a disability plan governed by ERISA, we vacate that court's judgment and remand for further proceedings.IPetitioner Black & Decker Disability Plan (Plan), an ERISA-governed employee welfare benefit plan, covers employees of Black & Decker Corporation (Black & Decker) and certain of its subsidiaries. The Plan provides benefits for eligible employees with a "disability." As relevant here, the Plan defines "disability" to mean "the complete inability ... of a Participant to engage in his regular occupation with826the Employer." 1 296 F.3d 823, 826, n. 2 (CA9 2002). Black & Decker both funds the Plan and acts as plan administrator, but it has delegated authority to Metropolitan Life Insurance Company (MetLife) to render initial recommendations on benefit claims. Disability determinations, the Black & Decker Plan provides, "[are to] be made by the [plan administrator] based on suitable medical evidence and a review of the Participant's employment history that the [plan administrator] deems satisfactory in its sole and absolute discretion." Id., at 826, n. 1.Respondent Kenneth L. Nord was formerly employed by a Black & Decker subsidiary as a material planner. His job, classed "sedentary," required up to six hours of sitting and two hours of standing or walking per day. Id., at 826.In 1997, Nord consulted Dr. Leo Hartman about hip and back pain. Dr. Hartman determined that Nord suffers from a mild degenerative disc disease, a diagnosis confirmed by a Magnetic Resonance Imaging scan. After a week's trial on pain medication prescribed by Dr. Hartman, Nord's condition remained unimproved. Dr. Hartman told Nord to cease work temporarily, and recommended that he consult an orthopedist while continuing to take the pain medication.Nord submitted a claim for disability benefits under the Plan, which MetLife denied in February 1998. Nord next exercised his right to seek further consideration by MetLife's "Group Claims Review." Id., at 827. At that stage, Nord submitted letters and supporting documentation from Dr. Hartman and a treating orthopedist to whom Hartman had referred Nord. Nord also submitted a questionnaire form, drafted by Nord's counsel, headed "Work Capacity Evaluation." Black & Decker human resources representa-1 The Plan sets out a different standard for determining whether an employee is entitled to benefits for a period longer than 30 months. Because respondent Nord sought benefits "for up to 30 months," 296 F.3d 823, 826 (CA9 2002), the standard for longer term disability is not in play in this case.827tive Janmarie Forward answered the questions, as the form instructed, by the single word "yes" or "no." One of the six items composing the "Work Capacity Evaluation" directed Forward to "[a]ssume that Kenneth Nord would have a moderate pain that would interfere with his ability to perform intense interpersonal communications or to act appropriately under stress occasionally (up to one-third) during the day." Lodging for Pet. for Cert. L-37. The associated question asked whether an "individual of those limitations [could] perform the work of a material planner." Ibid. Forward marked a space labeled "no."During the MetLife review process, Black & Decker referred Nord to neurologist Antoine Mitri for an independent examination. Dr. Mitri agreed with Nord's doctors that Nord suffered from a degenerative disc disease and chronic pain. But aided by pain medication, Dr. Mitri concluded, Nord could perform "sedentary work with some walking interruption in between." Id., at L-45. Met Life thereafter made a final recommendation to deny Nord's claim.Black & Decker accepted MetLife's recommendation and, on October 27, 1998, so informed Nord. The notification letter summarized the conclusions of Nord's doctors, the results of diagnostic tests, and the opinion of Dr. Mitri. See id., at L-155 to L-156. It also recounted that Black & Decker had forwarded Dr. Mitri's report to Nord's counsel with a request for comment by Nord's attending physician. Although Nord had submitted additional information, the letter continued, he had "provided ... no new or different information that would change [MetLife's] original decision." Id., at L-156. The letter further stated that the Work Capacity Evaluation form completed by Black & Decker human resources representative Forward was "not sufficient to reverse [the Plan's] decision." Ibid.Seeking to overturn Black & Decker's determination, Nord filed this action in Federal District Court "to recover benefits due to him under the terms of his plan." 29 U. S. C.828§ 1132(a)(1)(B). On cross-motions for summary judgment, the District Court granted judgment for the Plan, concluding that Black & Decker's denial of Nord's claim was not an abuse of the plan administrator's discretion.The Court of Appeals for the Ninth Circuit roundly reversed and itself "grant[ed] Nord's motion for summary judgment." 296 F. 3d, at 832. Nord's appeal, the Ninth Circuit explained, was controlled by that court's recent decision in Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130 (2001). 296 F. 3d, at 829. The Ninth Circuit had held in Regula that, when making benefit determinations, ERISA plan administrators must follow a "treating physician rule." See 266 F. 3d, at 1139-1144. As described by the appeals court, the rule required an administrator "who rejects [the] opinions [of a claimant's treating physician] to come forward with specific reasons for his decision, based on substantial evidence in the record." Id., at 1139. Declaring that Nord was entitled to judgment as a matter of law, the Ninth Circuit emphasized that Black & Decker fell short under the treating physician rule: The plan administrator had not provided adequate justification, the Court of Appeals said, for rejecting opinions held by Dr. Hartman and others treating Nord on Hartman's recommendation. 296We granted certiorari, 537 U. S. 1098 (2002), in view of the division among the Circuits on the propriety of judicial installation of a treating physician rule for disability claims within ERISA's domain. Compare Regula, 266 F. 3d, at 1139; Donaho v. FMC Corp., 74 F.3d 894, 901 (CA8 1996), with Elliott v. Sara Lee Corp., 190 F.3d 601, 607-608 (CA4 1999); Delta Family-Care Disability and Survivorship Plan v. Marshall, 258 F.3d 834, 842-843 (CA8 2001); Turner v. Delta Family-Care Disability and Survivorship Plan, 291 F. 3d 1270, 1274 (CAll 2002). See also Salley v. E. 1. DuPont de Nemours & Co., 966 F.2d 1011, 1016 (CAS 1992) (expressing "considerable doubt" on the question whether a829treating physician rule should govern ERISA cases). Concluding that courts have no warrant to order application of a treating physician rule to employee benefit claims made under ERISA, we vacate the Ninth Circuit's judgment and remand the case for further proceedings.2IIThe treating physician rule at issue here was originally developed by Courts of Appeals as a means to control disability determinations by administrative law judges under the Social Security Act, 49 Stat. 620, 42 U. S. C. § 231 et seq. See Maccaro, The Treating Physician Rule and the Adjudication of Claims for Social Security Disability Benefits, 41 Soc. Sec. Rep. Servo 833, 833-834 (1993). In 1991, the Commissioner of Social Security adopted regulations approving and formalizing use of the rule in the Social Security disability program. See 56 Fed. Reg. 36961, 36968 (codified at 20 CFR §§ 404.1527(d)(2), 416.927(d)(2) (2002)). The Social Security Administration, the regulations inform, will generally "give more weight to opinions from ... treating sources," and "will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." §§ 404.1527(d)(2), 416.927(d)(2).Concluding that a treating physician rule should similarly govern private benefit plans under ERISA, the Ninth Circuit said in Regula that its "reasons ha[d] to do with common sense as well as consistency in [judicial] review of disability determinations where benefits are protected by federal law." 266 F. 3d, at 1139. "Just as in the Social Security context," the court observed, "the disputed issue in ERISA disability determinations concerns whether the facts of the beneficiary's case entitle him to benefits." Ibid. The Ninth Circuit2 The Plan sought review only of the Court of Appeals' holding "that an ERISA disability plan administrator's determination of disability is subject to the 'treating physician rule.''' Pet. for Cert. i. We express no opinion on any other issues.830perceived "no reason why the treating physician rule should not be used under ERISA in order to test the reasonableness of the [plan] administrator's positions." Ibid. The United States urges that the Court of Appeals "erred in equating the two [statutory regimes]." Brief for United States as Amicus Curiae 23. We agree.3"ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits." Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 113 (1989) (internal quotation marks and citations omitted). The Act furthers these aims in part by regulating the manner in which plans process benefits claims. Plans must "provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant." 29 U. S. C. § 1133(1). ERISA further requires that plan procedures "afford a rea-3 The treating physician rule has not attracted universal adherence outside the Social Security context. Some courts have approved a rule similar to the Social Security Commissioner's for disability determinations under the Longshore and Harbor Workers' Compensation Act, 33 U. S. C. § 901 et seq., see, e. g., Pietrunti v. Director, Office of Workers' Compensation Programs, 119 F.3d 1035, 1042 (CA2 1997), and the Secretary of Labor has adopted a version of the rule for benefit determinations under the Black Lung Benefits Act, 30 U. S. C. § 901 et seq., see 20 CFR § 718.104(d)(5) (2002). One Court of Appeals, however, has rejected a treating physician rule for the assessment of claims of entitlement to veterans' benefits for service-connected disabilities, see White v. Principi, 243 F.3d 1378, 1381 (CA Fed. 2001), and another has rejected such a rule for disability determinations under the Railroad Retirement Act of 1974, 45 U. S. C. § 231 et seq., see Dray v. Railroad Retirement Bd., 10 F.3d 1306, 1311 (CA7 1993). Furthermore, there appears to be no uniform practice regarding application of a treating physician rule under state workers' compensation statutes. See Conradt v. Mt. Carmel School, 197 Wis. 2d 60, 69, 539 N. W. 2d 713, 717 (Ct. App. 1995) ("Conradt misrepresents the state of the law when she claims that a majority of states have adopted the 'treating physician rule.' ").831sonable opportunity ... for a full and fair review" of dispositions adverse to the claimant. § 1133(2). Nothing in the Act itself, however, suggests that plan administrators must accord special deference to the opinions of treating physicians. Nor does the Act impose a heightened burden of explanation on administrators when they reject a treating physician's opinion.ERISA empowers the Secretary of Labor to "prescribe such regulations as he finds necessary or appropriate to carry out" the statutory provisions securing employee benefit rights. § 1135; see § 1133 (plans shall process claims "[i]n accordance with regulations of the Secretary"). The Secretary's regulations do not instruct plan administrators to accord extra respect to treating physicians' opinions. See 29 CFR § 2560.503-1 (1997) (regulations in effect when Nord filed his claim); 29 CFR § 2560.503-1 (2002) (current regulations). Notably, the most recent version of the Secretary's regulations, which installs no treating physician rule, issued more than nine years after the Social Security Administration codified a treating physician rule in that agency's regulations. Compare 56 Fed. Reg. 36932, 36961 (1991), with 65 Fed. Reg. 70265 (2000).If the Secretary of Labor found it meet to adopt a treating physician rule by regulation, courts would examine that determination with appropriate deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The Secretary has not chosen that course, however, and an amicus brief reflecting the position of the Department of Labor opposes adoption of such a rule for disability determinations under plans covered by ERISA. See Brief for United States as Amicus Curiae 7-27. Although Congress "expect[ed]" courts would develop "a federal common law of rights and obligations under ERISAregulated plans," Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 56 (1987), the scope of permissible judicial innovation is narrower in areas where other federal actors are engaged,832cf. Milwaukee v. Illinois, 451 U. S. 304, 317-332 (1981) (because Congress had enacted a comprehensive regulatory program dealing with discharge of pollutants into the Nation's waters, the State could not maintain a federal common-law nuisance action against the city based on the latter's pollution of Lake Michigan).The question whether a treating physician rule would "increas[e] the accuracy of disability determinations" under ERISA plans, as the Ninth Circuit believed it would, Regula, 266 F. 3d, at 1139, moreover, seems to us one the Legislature or superintending administrative agency is best positioned to address. As compared to consultants retained by a plan, it may be true that treating physicians, as a rule, "ha[ve] a greater opportunity to know and observe the patient as an individual." Ibid. (internal quotation marks and citation omitted). Nor do we question the Court of Appeals' concern that physicians repeatedly retained by benefits plans may have an "incentive to make a finding of 'not disabled' in order to save their employers money and to preserve their own consulting arrangements." Id., at 1143. But the assumption that the opinions of a treating physician warrant greater credit than the opinions of plan consultants may make scant sense when, for example, the relationship between the claimant and the treating physician has been of short duration, or when a specialist engaged by the plan has expertise the treating physician lacks. And if a consultant engaged by a plan may have an "incentive" to make a finding of "not disabled," so a treating physician, in a close case, may favor a finding of "disabled." Intelligent resolution of the question whether routine deference to the opinion of a claimant's treating physician would yield more accurate disability determinations, it thus appears, might be aided by empirical investigation of the kind courts are ill equipped to conduct.Finally, and of prime importance, critical differences between the Social Security disability program and ERISA benefit plans caution against importing a treating physician833rule from the former area into the latter. The Social Security Act creates a nationwide benefits program funded by Federal Insurance Contributions Act payments, see 26 U. S. C. §§ 3101(a), 3111(a), and superintended by the Commissioner of Social Security. To cope with the "more than 2.5 million claims for disability benefits [filed] each year," Cleveland v. Policy Management Systems Corp., 526 U. S. 795, 803 (1999), the Commissioner has published detailed regulations governing benefits adjudications. See, e. g., id., at 803-804. Presumptions employed in the Commissioner's regulations "grow out of the need to administer a large benefits system efficiently." Id., at 804. By accepting and codifying a treating physician rule, the Commissioner sought to serve that need. Along with other regulations, the treating physician rule works to foster uniformity and regularity in Social Security benefits determinations made in the first instance by a corps of administrative law judges.In contrast to the obligatory, nationwide Social Security program, "[n]othing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan." Lockheed Corp. v. Spink, 517 U. S. 882, 887 (1996). Rather, employers have large leeway to design disability and other welfare plans as they see fit. In determining entitlement to Social Security benefits, the adjudicator measures the claimant's condition against a uniform set of federal criteria. "[T]he validity of a claim to benefits under an ERISA plan," on the other hand, "is likely to turn," in large part, "on the interpretation of terms in the plan at issue." Firestone Tire, 489 U. S., at 115. It is the Secretary of Labor's view that ERISA is best served by "preserv[ing] the greatest flexibility possible for ... operating claims processing systems consistent with the prudent administration of a plan." Department of Labor, Employee Benefits Security Administration, http://www.dol.gov/ebsa/faqs/faq_ claims_proc_reg.html, Question B-4 (as visited May 6, 2003)834(available in Clerk of Court's case file). Deference is due that view.Plan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician. But, we hold, courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation.4 The Court of Appeals therefore erred when it employed a treating physician rule lacking Department of Labor endorsement in holding that Nord was entitled to summary judgment.***For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusBLACK & DECKER DISABILITY PLAN v. NORDCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 02-469. Argued April 28, 2003-Decided May 27, 2003Petitioner Black & Decker Disability Plan (Plan), an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA), provides benefits for eligible disabled employees of Black & Decker Corporation (Black & Decker) and certain of its subsidiaries. Black & Decker is the administrator of the Plan but has delegated authority to Metropolitan Life Insurance Company (MetLife) to render initial recommendations on benefit claims. Respondent Nord, an employee of a Black & Decker subsidiary, submitted a claim for disability benefits under the Plan, which Met Life denied. At Met Life's review stage, Nord submitted letters and supporting documentation from his physician, Dr. Hartman, and a treating orthopedist to whom Hartman had referred Nord. These treating physicians stated that Nord suffered from a degenerative disc disease and chronic pain that rendered him unable to work. Black & Decker referred Nord to a neurologist for an independent examination. The neurologist concluded that, aided by pain medication, Nord could perform sedentary work. MetLife thereafter made a final recommendation to deny Nord's claim, which Black & Decker accepted. Seeking to overturn that determination, Nord filed this action under ERISA. The District Court granted summary judgment for the Plan, concluding that Black & Decker's denial of Nord's claim was not an abuse of the plan administrator's discretion. The Ninth Circuit reversed and itself granted summary judgment for Nord. The Court of Appeals explained that the case was controlled by a recent Ninth Circuit decision holding that, when making benefit determinations, ERISA plan administrators must follow a "treating physician rule." As described by the appeals court, that rule required a plan administrator who rejects the opinions of a claimant's treating physician to come forward with specific reasons for the decision, based on substantial evidence in the record. The Ninth Circuit found that, under this rule, the plan administrator had not provided adequate justification for rejecting the opinions of Nord's treating physicians.Held: ERISA does not require plan administrators to accord special deference to the opinions of treating physicians. The "treating physician rule" imposed by the Ninth Circuit was originally developed by Courts823of Appeals as a means to control disability determinations by administrative law judges under the Social Security Act. In 1991, the Commissioner of Social Security adopted regulations approving and formalizing use of the rule in the Social Security disability program. Nothing in ERISA or the Secretary of Labor's ERISA regulations, however, suggests that plan administrators must accord special deference to the opinions of treating physicians, or imposes a heightened burden of explanation on administrators when they reject a treating physician's opinion. If the Secretary found it meet to adopt a treating physician rule by regulation, courts would examine that determination with appropriate deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. But the Secretary has not chosen that course and an amicus brief reflecting the Department of Labor's position opposes adoption of such a rule for disability determinations under plans covered by ERISA. Whether a treating physician rule would increase the accuracy of ERISA disability determinations, as the Ninth Circuit believed it would, is a question that the Legislature or superintending administrative agency is best positioned to address. Finally, and of prime importance, critical differences between the Social Security disability program and ERISA benefit plans caution against importing a treating physician rule from the former area into the latter. By accepting and codifying such a rule, the Social Security Commissioner sought to serve the need for efficient administration of an obligatory nationwide benefits program. In contrast, nothing in ERISA requires employers to establish employee benefits plans or mandates what kind of benefits employers must provide if they choose to have such a plan. Lockheed Corp. v. Spink, 517 U. S. 882, 887. Rather, employers have large leeway to design disability and other welfare plans as they see fit. In determining entitlement to Social Security benefits, the adjudicator measures the claimant's condition against a uniform set of federal criteria. The validity of a claim to benefits under an ERISA plan, on the other hand, is likely to turn, in large part, on the interpretation of terms in the plan at issue. Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 115. Deference is due the Labor Secretary's stated view that ERISA is best served by preserving the greatest flexibility possible for operating claims processing systems consistent with a plan's prudent administration. Plan administrators may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician. But courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's phy-824Full Text of Opinion

1982_81-6756

JUSTICE MARSHALL delivered the opinion of the Court.This case presents the question whether a conviction upon which a youth offender was sentenced to probation under the Federal Youth Corrections Act of 1950, 18 U.S.C. § 5005 et seq., was automatically set aside after he served his full term of probation.IIn 1971, petitioner Melvin Tuten, who was 19 years old, pleaded guilty to the charge of carrying a pistol without a license in violation of D.C.Code § 22-3204 (1981). [Footnote 1] He was placed on probation for two years under the Federal Youth Corrections Act of 1950 (YCA), 18 U.S.C. § 5005 et seq. At the end of the 2-year probationary period, petitioner was unconditionally discharged from the YCA program.In 1980, petitioner was tried and convicted of carrying a pistol without a license under the same provision of the D.C.Code. The prosecutor urged that petitioner's previous conviction made him subject to the enhanced penalty provided Page 460 U. S. 662 by D.C.Code § 22-3204 (1981) for one who previously "has been convicted in the District of Columbia of a violation of this section." The trial judge agreed and, based on the earlier conviction, sentenced petitioner as a felon, rather than a misdemeanant. The judge imposed a sentence of two to six years' imprisonment.On appeal to the District of Columbia Court of Appeals, petitioner contended that the earlier conviction could not properly provide the basis for his being sentenced as a recidivist because that conviction had been expunged under the YCA, § 5021(b), following his successful completion of the 2-year probationary term. The court rejected this assertion and affirmed the sentence. 440 A.2d 1008 (1982). It relied primarily upon the "ordinary meaning" of the language of § 5021. 440 A.2d at 1013. Section 5021 provides:"(a) Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect.""(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect."The court concluded that the automatic set-aside provision of subsection (b) applies only to a youth offender who receives an unconditional discharge before the expiration of his probationary period. The court also stated that "the legislative history contains no persuasive reasons" to depart from the ordinary meaning of the statutory language, and noted that Page 460 U. S. 663 "the case law and public policy support the plain meaning of the statute." 440 A.2d at 1013. [Footnote 2] We granted certiorari, 459 U.S. 905 (1982), and we now affirm.IIThis Court has in previous decisions described and analyzed the YCA in considerable detail in the course of deciding particular issues arising under the Act. See Ralston v. Robinson, 454 U. S. 201 (1981); Durst v. United States, 434 U. S. 542 (1978); Dorszynski v. United States, 418 U. S. 424 (1974). The Act generally applies to persons under 22 years of age at the time of their conviction [Footnote 3] who are sentenced in federal courts or in courts of the District of Columbia. [Footnote 4]"[T]he principal purpose of the YCA is to rehabilitate persons who, because of their youth, are unusually vulnerable to the danger of recidivism."Ralston v. Robinson, supra, at 454 U. S. 206. To achieve this purpose, the Act gives courts a number of alternatives in sentencing youth offenders. First, a court may commit a youth offender to the custody of the Attorney General for institutional treatment and supervision under the Act. 18 U.S.C. §§ 5010(b) and (c). The Act affords the Attorney General a broad range of discretion in providing institutional treatment, which includes educational and vocational training, as well as psychiatric counseling. §§ 5006(g), Page 460 U. S. 664 5011, 5013. See Dorszynski, supra, at 418 U. S. 434. [Footnote 5] Second, if the court finds, as it did in this case, that a youth offender does not need to be committed to custody, it may place him on probation under the supervision of a probation officer or supervisory agent. § 5010(a). Finally, if the court finds that the defendant will not benefit from rehabilitative treatment, it may sentence him under any of the penalty provisions applicable to adult offenders. § 5010(d).As we noted in Durst v. United States, supra, at 434 U. S. 548,"[a] particularly valuable benefit for the offender sentenced under the YCA is the prospect of obtaining a certificate setting aside his conviction"under § 5021 of the Act. Congress' purpose in adopting § 5021 was to promote the rehabilitation of youth offenders by providing a substantial incentive for positive behavior while serving a sentence under the YCA. [Footnote 6] Congress recognized that a criminal conviction often carries with it numerous civil and social disabilities. For example, a conviction may result in the loss of the rights to vote, to hold a public office, to serve on a jury, and to practice various occupations and professions. [Footnote 7] As in this case, a conviction may also make an offender subject to increased penalties for Page 460 U. S. 665 subsequent convictions. Like various state expungement statutes, [Footnote 8] § 5021 enables an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany a criminal conviction. Dorszynski, supra, at 418 U. S. 429, n. 6. [Footnote 9]Until 1961, the YCA's set-aside provision was applicable only to a youth who was committed to the custody of the Attorney General under § 5010(b) or § 5010(c) and was unconditionally discharged prior to expiration of the maximum sentence imposed. [Footnote 10] It was not applicable to an offender who, like petitioner, was sentenced initially to probation, rather than to confinement. The YCA was amended in 1961 to add § 5021(b), Pub.L. 87-336, 75 Stat. 750, in order to correct this inconsistency in the Act. See H.R.Rep. No. 433, 87th Cong., 1st Sess., 1 (1961); S.Rep. No. 1048, 87th Cong., 1st Sess., 1 (1961). Under § 5021(b), youth offenders sentenced initially to probation under § 5010(a) are afforded an opportunity to have their convictions set aside similar to that which Page 460 U. S. 666 had previously been afforded only to youth offenders sentenced under §§ 5010(b) and (c).We are now asked to decide when § 5021 requires the setting aside of the conviction of a youth offender who has been placed on probation. Petitioner maintains that after a youth offender successfully completes the term of probation to which he was initially sentenced, his conviction must be automatically set aside under § 5021(b). As the court below noted, however, this interpretation is contrary to the language of the statute itself, which provides that a "discharge shall automatically set aside the conviction" if the court"unconditionally discharge[s] [the] youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court."(Emphasis added.) The clear import of § 5021(b) was described by this Court in Durst."[Section 5021(b)] extend[s] the benefit of a certificate [setting aside the conviction] to youths sentenced to probation under § 5010(a) when the court unconditionally discharges the youth prior to expiration of the sentence of probation imposed."434 U.S. at 434 U. S. 548 (emphasis added). See also Dorszynski, 418 U.S. at 418 U. S. 435. Statements in the legislative history of the 1961 amendment echo the language of § 5021(b) limiting the set-aside to youth offenders discharged before their original probationary terms expire. [Footnote 11] Page 460 U. S. 667Under the interpretation of § 5021(b) plainly suggested by the language of the statute, the conviction of a youth offender who has been placed on probation under § 5010(a) is not set aside where, as here, the court has not exercised its discretion to discharge him unconditionally "prior to the expiration of the maximum period of probation theretofore fixed by the court," which in this case was two years. This limitation is fully consistent with the rehabilitative purposes of the YCA, as well as with Congress' intent to employ the set-aside as an incentive for positive behavior by youths sentenced under the Act. The incentive might be significantly weaker if convictions were set aside regardless of whether the youth offender, by his conduct during the probationary period, had convinced the sentencing court to discharge him before the expiration of his probationary term. Although it would also have been reasonable for Congress to make the set-aside available to any youth offender who completes probation without incident, this result is certainly not compelled by the purposes of the Act. Moreover, the remedial purposes of the Act are not frustrated by the possibility that a court may Page 460 U. S. 668 inadvertently fail to grant an early unconditional discharge. [Footnote 12] A youth offender who believes that the sentencing court's failure to grant an early unconditional discharge from probation was an oversight may, following the completion of his probationary period, move that court to exercise its discretion to grant him an early unconditional discharge nunc pro tunc, and to set aside his conviction. See United States v. Fryer, 545 F.2d 11, 13, n. 3 (CA6 1976). [Footnote 13]In short, the language of § 5021(b), the legislative history, and the rehabilitative purposes of the YCA all point to a single conclusion: that petitioner's previous conviction was not set aside under § 5021(b) because he was unconditionally discharged from probation upon the completion, not prior to the completion, of the 2-year term of probation to which he was initially sentenced under § 5010(a). The trial court was therefore free in this case to take petitioner's previous conviction into account in imposing sentence under the recidivist provision of the District of Columbia's penal statute. Accordingly, the judgment of the District of Columbia Court of Appeals isAffirmed

U.S. Supreme CourtTuten v. United States, 460 U.S. 660 (1983)Tuten v. United StatesNo. 81-6756Argued March 1, 1983Decided March 30, 1983460 U.S. 660SyllabusIn 1971, petitioner, who was then 19 years old, pleaded guilty to the charge of carrying a pistol without a license in violation of a provision of the District of Columbia Code and was placed on probation for two years under § 5010(a) of the Federal Youth Corrections Act (YCA). At the end of the 2-year probationary period, he was unconditionally discharged from the YCA program. In 1980, petitioner was again convicted of carrying a pistol without a license under the same provision of the District of Columbia Code, and was sentenced to imprisonment as a felon, rather than a misdemeanant, under the recidivist provision of the Code. The District of Columbia Court of Appeals affirmed, rejecting petitioner's contention that his earlier conviction could not properly provide the basis for his being sentenced as a recidivist because, following his successful completion of the 2-year probationary term, that conviction had been expunged under § 5021(b) of the YCA, which provides that, where a youth offender has been placed on probation, the court may thereafter, in its discretion,"unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction."Held: Under the interpretation of § 5021(b) plainly suggested by its language, the conviction of a youth offender placed on probation under § 5010(a) is not set aside where, as here, the court has not exercised its discretion to discharge him unconditionally "prior to the expiration of the maximum period of probation theretofore fixed by the court." This limitation is fully consistent with the YCA's rehabilitation purposes, as well as with Congress' intent to employ the set-aside as an incentive for positive behavior by youths sentenced under the YCA. Accordingly, the trial court was free to take petitioner's previous conviction into account in imposing sentence under the recidivist provision of the District of Columbia Code. Pp. 460 U. S. 663-668.440 A.2d 1008, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 460 U. S. 661

2002_02-182

process. Morris itself recognized the difference between the two. See id., at 503-507. Pp. 476-477.2. The District Court failed to consider all the relevant factors when it examined whether Georgia's Senate plan resulted in a retrogression of black voters' effective exercise of the electoral franchise. Pp. 477-491.(a) Georgia's argument that a plan should be precleared under § 5 if it would satisfy § 2 of the Voting Rights Act, 42 U. S. C. § 1973, is rejected. A § 2 vote dilution violation is not an independent reason to deny § 5 preclearance, because that would inevitably make § 5 compliance contingent on § 2 compliance and thereby replace § 5 retrogression standards with those for § 2. Reno v. Bossier Parish School Bd., 520 U. S. 471,477. Instead of showing that its plan is nondilutive under § 2, Georgia must prove that it is nonretrogressive under § 5. Pp. 477-479.(b) To determine the meaning of "a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise," Beer, supra, at 141, the statewide plan must first be examined as a whole: First, the diminution of a minority group's effective exercise of the electoral franchise violates § 5 only if the State cannot show that the gains in the plan as a whole offset the loss in a particular district. Second, all of the relevant circumstances must be examined, such as minority voters' ability to elect their candidate of choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan. See, e. g., Johnson v. De Grandy, 512 U. S. 997, 1011-1012, 1020-1021. In assessing the totality of the circumstances, a minority group's comparative ability to elect a candidate of its choice is an important factor, but it cannot be dispositive or exclusive. See, e. g., Thornburg v. Gingles, 478 U. S. 30, 47-50. To maximize such a group's electoral success, a State may choose to create either a certain number of "safe" districts in which it is highly likely that minority voters will be able to elect the candidate of their choice, see, e. g., id., at 48-49, or a greater number of districts in which it is likely, although perhaps not quite as likely as under the benchmark plan, that minority voters will be able to elect their candidates, see, e. g., id., at 88-89 (O'CONNOR, J., concurring in judgment). Section 5 does not dictate that a State must pick one of these redistricting methods over the other. Id., at 89. In considering the other highly relevant factor in a retrogression inquiry-the extent to which a new plan changes the minority group's opportunity to participate in the political process-a court must examine whether the plan adds or subtracts "influence districts" where minority voters may not be able to elect a candidate of choice but can play a substantial, if not464Syllabusdecisive, role in the electoral process, cf., e. g., Johnson, supra, at 1007. In assessing these influence districts' comparative weight, it is important to consider "the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account." Thornburg, 478 U. S., at 100 (O'CONNOR, J., concurring in judgment). Various studies suggest that the most effective way to maximize minority voting strength may be to create more influence or coalitional districts. Section 5 allows States to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters. See, e. g., id., at 87-89, 99. Another method of assessing the group's opportunity to participate in the political process is to examine the comparative position of black representatives' legislative leadership, influence, and power. See Johnson, supra, at 1020. Maintaining or increasing legislative positions of power for minority voters' representatives of choice, while not dispositive by itself, can show the lack of retrogressive effect. And it is also significant, though not dispositive, whether the representatives elected from the very districts created and protected by the Voting Rights Act support the new plan. Pp. 479-485.(c) The District Court failed to consider all the relevant factors.First, although acknowledging the importance of assessing the statewide plan as a whole, the court focused too narrowly on proposed Senate Districts 2, 12, and 26, without examining the increases in the black voting age population that occurred in many of the other districts. Second, the court did not consider any factor beyond black voters' comparative ability to elect a candidate of their choice. It improperly rejected other evidence that the legislators representing the benchmark majority-minority districts support the plan; that the plan maintains those representatives' legislative influence; and that Georgia affirmatively decided that the best way to maximize black voting strength was to adopt a plan that "unpacked" the high concentration of minority voters in the majority-minority districts. In the face of Georgia's evidence of nonretrogression, the United States' only evidence was that it would be more difficult for minority voters to elect their candidate of choice in Districts 2, 12, and 26. Given the evidence submitted in this case, Georgia likely met its burden of showing nonretrogression. Section 5 gives States the flexibility to implement the type of plan that Georgia has submitted for preclearance-a plan that increases the number of districts with a majority-black voting age population, even if it means that minority voters in some of those districts will face a somewhat reduced opportunity to elect a candidate of their choice. Cf. Thornburg, supra, at 89 (O'CONNOR, J., concurring in judgment). While courts and the465Justice Department should be vigilant in ensuring that States neither reduce minority voters' effective exercise of the electoral franchise nor discriminate against them, the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters. Pp. 485-491.(d) The District Court is in a better position to reweigh all the facts in the record in the first instance in light of this Court's explication of retrogression. P. 491.195 F. Supp. 2d 25, vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., post, p. 491, and THOMAS, J., post, p. 492, filed concurring opinions. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 492.David F. Walbert argued the cause for appellant. With him on the briefs were Thurbert E. Baker, Attorney General of Georgia, Dennis R. Dunn, Deputy Attorney General, and Mark H. Cohen.Malcolm L. Stewart argued the cause for the federal appellees. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy Solicitor General Clement, and Mark L. Gross.E. Marshall Braden argued the cause for appellee intervenors. With him on the brief were Amy M. Henson, Frank B. Strickland, and Anne W Lewis.*JUSTICE O'CONNOR delivered the opinion of the Court.In this case, we decide whether Georgia's State Senate redistricting plan should have been precleared under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as renumbered and amended, 42 U. S. C. § 1973c. Section 5 requires that before a covered jurisdiction's new voting "standard, prac-* A brief of amicus curiae urging affirmance was filed for the Georgia Coalition for the Peoples' Agenda by Laughlin McDonald, Neil Bradley, Barbara R. Arnwine, Thomas J. Henderson, Anita Hodgkiss, Elaine R. Jones, Norman J. Chachkin, and Todd A. Cox.466tice, or procedure" goes into effect, it must be precleared by either the Attorney General of the United States or a federal court to ensure that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U. S. C. § 1973c. Whether a voting procedure change should be precleared depends on whether the change "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U. S. 130, 141 (1976). We therefore must decide whether Georgia's State Senate redistricting plan is retrogressive as compared to its previous, benchmark districting plan.I AOver the past decade, the propriety of Georgia's state and congressional districts has been the subject of repeated litigation. In 1991, the Georgia General Assembly began the process of redistricting after the 1990 census. Because Georgia is a covered jurisdiction under § 5 of the Voting Rights Act, see Miller v. Johnson, 515 U. S. 900, 905 (1995), Georgia submitted its revised State Senate plan to the United States Department of Justice for preclearance. The plan as enacted into law increased the number of majorityminority districts from the previous Senate plan. The Department of Justice nevertheless refused preclearance because of Georgia's failure to maximize the number of majority-minority districts. See Johnson v. Miller, 929 F. Supp. 1529, 1537, and n. 23 (SD Ga. 1996). After Georgia made changes to the Senate plan in an attempt to satisfy the United States' objections, the State again submitted it to the Department of Justice for preclearance. Again, the Department of Justice refused preclearance because the plan did not contain a sufficient number of majority-minority districts. See id., at 1537, 1539. Finally, the United States precleared467Georgia's third redistricting plan, approving it in the spring of 1992. See id., at 1537.Georgia's 1992 Senate plan was not challenged in court.See id., at 1533-1534. Its congressional districting plan, however, was challenged as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. See Shaw v. Reno, 509 U. S. 630 (1993). In 1995, we held in Miller v. Johnson that Georgia's congressional districting plan was unconstitutional because it engaged in "the very racial stereotyping the Fourteenth Amendment forbids" by making race the "predominant, overriding factor explaining" Georgia's congressional districting decisions. 515 U. S., at 928, 920. And even though it was "safe to say that the congressional plan enacted in the end was required in order to obtain preclearance," this justification did not permit Georgia to engage in racial gerrymandering. See id., at 921. Georgia's State Senate districts served as "building blocks" to create the congressional districting plan found unconstitutional in Miller v. Johnson. Johnson v. Miller, 929 F. Supp., at 1533, n. 8 (internal quotation marks omitted); see also id., at 1536.Georgia recognized that after Miller v. Johnson, its legislative districts were unconstitutional under the Equal Protection Clause. See 929 F. Supp., at 1533, 1540. Accordingly, Georgia attempted to cure the perceived constitutional problems with the 1992 State Senate districting plan by passing another plan in 1995. The Department of Justice refused to preclear the 1995 plan, maintaining that it retrogressed from the 1992 plan and that Miller v. Johnson concerned only Georgia's congressional districts, not Georgia's State Senate districts. See 929 F. Supp., at 1540-1541.Private litigants subsequently brought an action challenging the constitutionality of the 1995 Senate plan. See id., at 1533. The three-judge panel of the District Court reviewing the 1995 Senate plan found that "[i]t is clear that a black maximization policy had become an integral part of the sec-468tion 5 preclearance process ... when the Georgia redistricting plans were under review. The net effect of the DOJ's preclearance objection[s] ... was to require the State of Georgia to increase the number of majority black districts in its redistricting plans, which were already ameliorative plans, beyond any reasonable concept of non-retrogression." Id., at 1539-1540. The court noted that in Miller v. Johnson, we specifically disapproved of the Department of Justice's policy that the maximization of black districts was a part of the § 5 retrogression analysis. See 929 F. Supp., at 1539. Indeed, in Miller, we found that the Department of Justice's objections to Georgia's redistricting plans were "driven by its policy of maximizing majority-black districts." 515 U. S., at 924. And "[i]n utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld." Id., at 925.The District Court stated that the maximization of majority-minority districts in Georgia "artificially push[ed] the percentage of black voters within some majority black districts as high as possible." 929 F. Supp., at 1536. The plan that eventually received the Department of Justice's preclearance in 1992 "represented the General Assembly's surrender to the black maximization policy of the DOJ." Id., at 1540. The court then found that the 1995 plan was an unconstitutional racial gerrymander. See id., at 1543.Under court direction, Georgia and the Department of Justice reached a mediated agreement on the constitutionality of the 1995 Senate plan. Georgia passed a new plan in 1997, and the Department of Justice quickly precleared it. The redrawn map resembled to a large degree the 1992 plan that eventually received preclearance from the Department of Justice, with some changes to accommodate the decision of this Court in Miller v. Johnson, and of the District Court in Johnson v. Miller.469All parties here concede that the 1997 plan is the benchmark plan for this litigation because it was in effect at the time of the 2001 redistricting effort. The 1997 plan drew 56 districts, 11 of them with a total black population of over 50%, and 10 of them with a black voting age population of over 50%. See Record, Doc. No. 148, Pl. Exh. 1C (hereinafter Pl. Exh.). The 2000 census revealed that these numbers had increased so that 13 districts had a black population of at least 50%, with the black voting age population exceeding 50% in 12 of those districts. See 195 F. Supp. 2d 25, 39 (DC 2002).After the 2000 census, the Georgia General Assembly began the process of redistricting the Senate once again. No party contests that a substantial majority of black voters in Georgia vote Democratic, or that all elected black representatives in the General Assembly are Democrats. The goal of the Democratic leadership-black and white-was to maintain the number of majority-minority districts and also increase the number of Democratic Senate seats. See id., at 41-42. For example, the Director of Georgia's Legislative Redistricting Office, Linda Meggers, testified that the Senate Black Caucus" 'wanted to maintain'" the existing majorityminority districts and at the same time" 'not waste'" votes. Id., at 41.The Vice Chairman of the Senate Reapportionment Committee, Senator Robert Brown, also testified about the goals of the redistricting effort. Senator Brown, who is black, chaired the subcommittee that developed the Senate plan at issue here. See id., at 42. Senator Brown believed when he designed the Senate plan that as the black voting age population in a district increased beyond what was necessary, it would "pus[h] the whole thing more towards [the] Republican[s]." Pl. Exh. 20, at 24. And "correspondingly," Senator Brown stated, "the more you diminish the power of African-Americans overall." Ibid. Senator Charles Walker was the majority leader of the Senate. Senator Walker470testified that it was important to attempt to maintain a Democratic majority in the Senate because "we [AfricanAmericans] have a better chance to participate in the political process under the Democratic majority than we would have under a Republican majority." PI. Exh. 24, at 19. At least 7 of the 11 black members of the Senate could chair committees. See 195 F. Supp. 2d, at 41.The plan as designed by Senator Brown's committee kept true to the dual goals of maintaining at least as many majority-minority districts while also attempting to increase Democratic strength in the Senate. Part of the Democrats' strategy was not only to maintain the number of majorityminority districts, but to increase the number of so-called "influence" districts, where black voters would be able to exert a significant-if not decisive-force in the election process. As the majority leader testified, "in the past, you know, what we would end up doing was packing. You put all blacks in one district and all whites in one district, so what you end up with is [a] black Democratic district and [a] white Republican district. That's not a good strategy. That does not bring the people together, it divides the population. But if you put people together on voting precincts it brings people together." PI. Exh. 24, at 19.The plan as designed by the Senate "unpacked" the most heavily concentrated majority-minority districts in the benchmark plan, and created a number of new influence districts. The new plan drew 13 districts with a majority-black voting age population, 13 additional districts with a black voting age population of between 30% and 50%, and 4 other districts with a black voting age population of between 25% and 30%. See PI. Exh. 2C. According to the 2000 census, as compared to the benchmark plan, the new plan reduced by five the number of districts with a black voting age population in excess of 60%. Compare PI. Exh. 1D with PI. Exh. 2C. Yet it increased the number of majority-black voting age population districts by one, and it increased the number471of districts with a black voting age population of between 25% and 50% by four. As compared to the benchmark plan enacted in 1997, the difference is even larger. Under the old census figures, Georgia had 10 Senate districts with a majority-black voting age population, and 8 Senate districts with a black voting age population of between 30% and 50%. See PI. Exh. 1 C. The new plan thus increased the number of districts with a majority black voting age population by three, and increased the number of districts with a black voting age population of between 30% and 50% by another five. Compare PI. Exh. 1C with PI. Exh. 2C.The Senate adopted its new districting plan on August 10, 2001, by a vote of 29 to 26. Ten of the eleven black Senators voted for the plan. 195 F. Supp. 2d, at 55. The Georgia House of Representatives passed the Senate plan by a vote of 101 to 71. Thirty-three of the thirty-four black Representatives voted for the plan. Ibid. No Republican in either the House or the Senate voted for the plan, making the votes of the black legislators necessary for passage. See id., at 41. The Governor signed the Senate plan into law on August 24,2001, and Georgia subsequently sought to obtain preclearance.BPursuant to § 5 of the Voting Rights Act, a covered jurisdiction like Georgia has the option of either seeking administrative preclearance through the Attorney General of the United States or seeking judicial preclearance by instituting an action in the United States District Court for the District of Columbia for a declaratory judgment that the voting change comports with § 5. 42 U. S. C. § 1973c; Georgia v. United States, 411 U. S. 526 (1973). Georgia chose the latter method, filing suit seeking a declaratory judgment that the State Senate plan does not violate § 5.Georgia, which bears the burden of proof in this action, see Pleasant Grove v. United States, 479 U. S. 462 (1987), attempted to prove that its Senate plan was not retrogres-472sive either in intent or in effect. It submitted detailed evidence documenting in each district the total population, the total black population, the black voting age population, the percentage of black registered voters, and the overall percentage of Democratic votes (i. e., the overall likelihood that voters in a particular district will vote Democratic), among other things. See 195 F. Supp. 2d, at 36; see also PI. Exhs. 2C, 2D. The State also submitted evidence about how each of these statistics compared to the benchmark districts. See 195 F. Supp. 2d, at 36; see also PI. Exhs. lC, lD, lE (revised).Georgia also submitted testimony from numerous people who had participated in enacting the Senate plan into law, and from United States Congressman John Lewis, who represents the Atlanta area. These witnesses testified that the new Senate plan was designed to increase black voting strength throughout the State as well as to help ensure a continued Democratic majority in the Senate. The State also submitted expert testimony that African-American and non-African-American voters have equal chances of electing their preferred candidate when the black voting age population of a district is at 44.3%. Finally, in response to objections raised by the United States, Georgia submitted more detailed statistical evidence with respect to three proposed Senate districts that the United States found objectionableDistricts 2, 12, and 26-and two districts that the intervenors challenged-Districts 15 and 22.The United States, through the Attorney General, argued in District Court that Georgia's 2001 Senate redistricting plan should not be precleared. It argued that the plan's changes to the boundaries of Districts 2, 12, and 26 unlawfully reduced the ability of black voters to elect candidates of their choice. See Brief for Federal Appellees 8; 195 F. Supp. 2d, at 72. The United States noted that in District 2, the black voting age population dropped from 60.58% to 50.31 %; in District 12, the black voting age population dropped from 55.43% to 50.66%; and in District 26, the black473voting age population dropped from 62.45% to 50.80%.1 Moreover, in all three of these districts, the percentage of black registered voters dropped to just under 50%. The United States also submitted expert evidence that voting is racially polarized in Senate Districts 2, 12, and 26. See id., at 69-71. The United States acknowledged that some limited percentage of whites would vote for a black candidate, but maintained that the percentage was not sufficient for black voters to elect their candidate of choice. See id., at 70-71. The United States also offered testimony from various witnesses, including lay witnesses living in the three districts, who asserted that the new contours of Districts 2, 12, and 26 would reduce the opportunity for blacks to elect a candidate of their choice in those districts; Senator Regina Thomas of District 2, the only black Senator who voted against the plan; Senator Eric Johnson, the Republican leader of the Senate; and some black legislators who voted1 Georgia and the United States have submitted slightly different figures regarding the black voting age population of each district. The differing figures depend upon whether the total number of blacks includes those people who self-identify as both black and a member of another minority group, such as Hispanic. Georgia counts this group of people, while the United States does not do so. Like the District Court, we consider all the record information, "including total black population, black registration numbers and both [black voting age population] numbers." 195 F. Supp. 2d 25, 79 (DC 2002). We focus in particular on Georgia's black voting age population numbers in this case because all parties rely on them to some extent and because Georgia used its own black voting age population numbers when it enacted the Senate plan. Moreover, the United States does not count all persons who identify themselves as black. It counts those who say they are black and those who say that they are both black and white, but it does not count those who say they are both black and a member of another minority group. U sing the United States' numbers may have more relevance if the case involves a comparison of different minority groups. Cf. Johnson v. De Grandy, 512 U. S. 997 (1994); Bush v. Vera, 517 U. S. 952 (1996). Here, however, the case involves an examination of only one minority group's effective exercise of the electoral franchise. In such circumstances, we believe it is proper to look at all individuals who identify themselves as black.474for the plan but questioned how the plan would affect black voters. See Vols. 25-27 Record, Doc. No. 177, United States Exhs. 707-736 (Depositions). As the District Court stated, "the United States' evidence was extremely limited in scope-focusing only on three contested districts in the State Senate plan. That evidence was not designed to permit the court to assess the overall impact of [the Senate plan]." 195Pursuant to Federal Rule of Civil Procedure 24, the District Court also permitted four African-American citizens of Georgia to intervene. The intervenors identified two other districts-Districts 15 and 22-where they alleged retrogression had occurred. The intervenors "present[ed] little evidence other than proposed alternative plans and an expert report critiquing the State's expert report." 195 F. Supp. 2d, at 37.A three-judge panel of the District Court held that Georgia's State Senate apportionment violated § 5, and was therefore not entitled to preclearance. See id., at 97. Judge Sullivan, joined by Judge Edwards, concluded that Georgia had "not demonstrated by a preponderance of the evidence that the State Senate redistricting plan would not have a retrogressive effect on African American voters" effective exercise of the electoral franchise. Ibid. The court found that Senate Districts 2, 12, and 26 were retrogressive because in each district, a lesser opportunity existed for the black candidate of choice to win election under the new plan than under the benchmark plan. See id., at 93-94. The court found that the reductions in black voting age population in Districts 2, 12, and 26 would "diminish African American voting strength in these districts," and that Georgia had "failed to present any ... evidence" that the retrogression in those districts "will be offset by gains in other districts." Id., at 88.475Judge Edwards, joined by Judge Sullivan, concurred.Judge Edwards emphasized that §§ 5 and 2 are "procedurally and substantively distinct provisions." Id., at 97. He therefore rejected Georgia's argument that a plan preserving an equal opportunity for minorities to elect candidates of their choice satisfies § 5. Judge Edwards also rejected the testimony of the black Georgia politicians who supported the Senate plan. In his view, the testimony did not address whether racial polarization was occurring in Senate Districts 2, 12, and 26. See id., at 101-102.Judge Oberdorfer dissented. He would have given "greater credence to the political expertise and motivation of Georgia's African-American political leaders and reasonable inferences drawn from their testimony and the voting data and statistics." Id., at 102. He noted that this Court has not answered "whether a redistricting plan that preserves or increases the number of districts statewide in which minorities have a fair or reasonable opportunity to elect candidates of choice is entitled to preclearance, or whether every district must remain at or improve on the benchmark probability of victory, even if doing so maintains a minority supermajority far in excess of the level needed for effective exercise of [the] electoral franchise." Id., at 117.After the District Court refused to preclear the plan, Georgia enacted another plan, largely similar to the one at issue here, except that it added black voters to Districts 2, 12, and 26. The District Court precleared this plan. See 204 F. Supp. 2d 4 (2002). No party has contested the propriety of the District Court's preclearance of the Senate plan as amended. Georgia asserts that it will use the plan as originally enacted if it receives preclearance.We noted probable jurisdiction to consider whether the District Court should have precleared the plan as originally enacted by Georgia in 2001, 537 U. S. 1151 (2003), and now vacate the judgment below.476IIBefore addressing the merits of Georgia's preclearance claim, we address the State's argument that the District Court was incorrect in allowing the private litigants to intervene in this lawsuit. Georgia maintains that private parties should not be allowed to intervene in § 5 actions because States should not be subjected to the political stratagems of intervenors. While the United States disagrees with Georgia on the propriety of intervention here, the United States argues that this question is moot because the participation of the intervenors did not affect the District Court's ruling on the merits and the intervenors did not appeal the court's ruling.We do not think Georgia's argument is moot. The intervenors did not have to appeal because they were prevailing parties below. Moreover, the District Court addressed the evidence that the intervenors submitted, which is now in front of this Court. The issue whether intervenors are proper parties still has relevance in this Court because they argue here that the District Court correctly found that the Senate plan was retrogressive.The District Court properly found that Federal Rule of Civil Procedure 24 governs intervention in this case. Section 5 permits a State to bring "an action in the United States District Court for the District of Columbia for a declaratory judgment." 42 U. S. C. § 1973c. Section 5 does not limit in any way the application of the Federal Rules of Civil Procedure to this type of lawsuit, and the statute by its terms does not bar private parties from intervening. In NAACP v. New York, 413 U. S. 345, 365 (1973), we held that in an action under § 5, "[i]ntervention in a federal court suit is governed by Fed. Rule Civ. Proc. 24."To support its argument, Georgia relies on Morris v. Gressette, 432 U. S. 491 (1977). In Morris, we held that in an administrative preclearance action, the decision to object belongs only to the Attorney General and is not judicially477reviewable. See id., at 504-505. But Morris concerned the administrative preclearance process, not the judicial preclearance process. Morris itself recognized the difference between administrative preclearance and judicial preclearance. See id., at 503-507.Here, the District Court granted the motion to intervene because it found that the intervenors' "analysis of the ... Senate redistricting pla[n] identifies interests that are not adequately represented by the existing parties." App. to Juris. Statement 218a. Private parties may intervene in § 5 actions assuming they meet the requirements of Rule 24, and the District Court did not abuse its discretion in granting the motion to intervene in this case. See NAACP v. New York, supra, at 367.III ASection 5 of the Voting Rights Act "has a limited substantive goal: "'to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.''' Miller, 515 U. S., at 926 (quoting Beer v. United States, 425 U. S., [at 141])." Bush v. Vera, 517 U. S. 952, 982-983 (1996). Thus, a plan that merely preserves "current minority voting strength" is entitled to § 5 preclearance. City of Lockhart v. United States, 460 U. S. 125, 134, n. 10 (1983); Bush v. Vera, supra, at 983. Indeed, a voting change with a discriminatory but nonretrogressive purpose or effect does not violate § 5. See Reno v. Bossier Parish School Bd., 528 U. S. 320, 341 (2000). And "no matter how unconstitutional it may be," a plan that is not retrogressive should be precleared under § 5. Id., at 336. "[P]reclearance under § 5 affirms nothing but the absence of backsliding." Id., at 335.Georgia argues that a plan should be precleared under § 5 if the plan would satisfy § 2 of the Voting Rights Act of 1965,47842 U. S. C. § 1973. We have, however, "consistently understood" § 2 to "combat different evils and, accordingly, to impose very different duties upon the States." Reno v. Bossier Parish School Bd., 520 U. S. 471, 477 (1997) (Bossier Parish 1). For example, while § 5 is limited to particular covered jurisdictions, § 2 applies to all States. And the § 2 inquiry differs in significant respects from a § 5 inquiry. In contrast to § 5's retrogression standard, the "essence" of a § 2 vote dilution claim is that "a certain electoral law, practice, or structure ... cause[s] an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg v. Gingles, 478 U. S. 30, 47 (1986); see also id., at 48-50 (enunciating a three-part test to establish vote dilution); id., at 85-100 (O'CONNOR, J., concurring in judgment); 42 U. S. C. § 1973(b). Unlike an inquiry under § 2, a retrogression inquiry under § 5, "by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan." Bossier Parish I, supra, at 478. While some parts of the § 2 analysis may overlap with the § 5 inquiry, the two sections "differ in structure, purpose, and application." Holder v. Hall, 512 U. S. 874, 883 (1994) (plurality opinion).In Bossier Parish I, we specifically held that a violation of § 2 is not an independent reason to deny preclearance under § 5. See 520 U. S., at 477. The reason for this holding was straightforward: "[R]ecognizing § 2 violations as a basis for denying § 5 preclearance would inevitably make compliance with § 5 contingent upon compliance with § 2. Doing so would, for all intents and purposes, replace the standards for § 5 with those for § 2." Ibid.Georgia here makes the flip side of the argument that failed in Bossier Parish I-compliance with § 2 suffices for preclearance under § 5. Yet the argument fails here for the same reasons the argument failed in Bossier Parish 1. We refuse to equate a § 2 vote dilution inquiry with the § 5 retrogression standard. Georgia's argument, like the argument479in Bossier Parish I, would "shift the focus of § 5 from nonretrogression to vote dilution, and [would] change the § 5 benchmark from a jurisdiction's existing plan to a hypothetical, undiluted plan." Id., at 480. Instead of showing that the Senate plan is nondilutive under § 2, Georgia must prove that its plan is nonretrogressive under § 5.BGeorgia argues that even if compliance with § 2 does not automatically result in preclearance under § 5, its State Senate plan should be precleared because it does not lead to "a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, supra, at 141. See, e. g., Brief for Appellant 32, 36.While we have never determined the meaning of "effective exercise of the electoral franchise," this case requires us to do so in some detail. First, the United States and the District Court correctly acknowledge that in examining whether the new plan is retrogressive, the inquiry must encompass the entire statewide plan as a whole. See 195 F. Supp. 2d, at 73; Tr. of Oral Arg. 28-29. Thus, while the diminution of a minority group's effective exercise of the electoral franchise in one or two districts may be sufficient to show a violation of § 5, it is only sufficient if the covered jurisdiction cannot show that the gains in the plan as a whole offset the loss in a particular district.Second, any assessment of the retrogression of a minority group's effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan. See, e. g., Johnson v. De Grandy, 512 U. S. 997, 1011-1012, 1020-1021 (1994); Richmond v. United States, 422 U. S. 358, 371-372 (1975); Thornburg480v. Gingles, supra, at 97-100 (O'CONNOR, J., concurring in judgment). "No single statistic provides courts with a shortcut to determine whether" a voting change retrogresses from the benchmark. Johnson v. De Grandy, supra, at 1020-1021.In assessing the totality of the circumstances, a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice. While this factor is an important one in the § 5 retrogression inquiry, it cannot be dispositive or exclusive. The standard in § 5 is simplewhether the new plan "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U. S., at 141.The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine. In order to maximize the electoral success of a minority group, a State may choose to create a certain number of "safe" districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. See Thornburg v. Gingles, 478 U. S., at 48-49; id., at 87-89 (O'CONNOR, J., concurring in judgment). Alternatively, a State may choose to create a greater number of districts in which it is likely-although perhaps not quite as likely as under the benchmark plan-that minority voters will be able to elect candidates of their choice. See id., at 88-89 (O'CONNOR, J., concurring in judgment); cf. Pildes, Is Voting-Rights Law Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517 (2002).Section 5 does not dictate that a State must pick one of these methods of redistricting over another. Either option "will present the minority group with its own array of electoral risks and benefits," and presents "hard choices about what would truly 'maximize' minority electoral success." Thornburg v. Gingles, supra, at 89 (O'CONNOR, J., concurring in judgment). On one hand, a smaller number of safe481majority-minority districts may virtually guarantee the election of a minority group's preferred candidate in those districts. Yet even if this concentration of minority voters in a few districts does not constitute the unlawful packing of minority voters, see Voinovich v. Quilter, 507 U. S. 146, 153154 (1993), such a plan risks isolating minority voters from the rest of the State, and risks narrowing political influence to only a fraction of political districts. Cf. Shaw v. Reno, 509 U. S., at 648-650. And while such districts may result in more "descriptive representation" because the representatives of choice are more likely to mirror the race of the majority of voters in that district, the representation may be limited to fewer areas. See H. Pitkin, The Concept of Representation 60-91 (1967).On the other hand, spreading out minority voters over a greater number of districts creates more districts in which minority voters may have the opportunity to elect a candidate of their choice. Such a strategy has the potential to increase "substantive representation" in more districts, by creating coalitions of voters who together will help to achieve the electoral aspirations of the minority group. See id., at 114. It also, however, creates the risk that the minority group's preferred candidate may lose. Yet as we stated in Johnson v. De Grandy, supra, at 1020:"[T]here are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice. Those candidates may not represent perfection to every minority voter, but minority voters are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics."482Section 5 gives States the flexibility to choose one theory of effective representation over the other.In addition to the comparative ability of a minority group to elect a candidate of its choice, the other highly relevant factor in a retrogression inquiry is the extent to which a new plan changes the minority group's opportunity to participate in the political process. "'[T]he power to influence the political process is not limited to winning elections.'" Thornburg v. Gingles, supra, at 99 (O'CONNOR, J., concurring in judgment) (quoting Davis v. Bandemer, 478 U. S. 109, 132 (1986)); see also White v. Regester, 412 U. S. 755, 766-767 (1973); Whitcomb v. Chavis, 403 U. S. 124, 149-160 (1971); Johnson v. De Grandy, 512 U. S., at 1011-1012.Thus, a court must examine whether a new plan adds or subtracts "influence districts"-where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process. Cf. Shaw v. Hunt, 517 U. S. 899, 947, n. 21 (1996) (STEVENS, J., dissenting); Hays v. Louisiana, 936 F. Supp. 360, 364, n. 17 (WD La. 1996); Johnson v. De Grandy, supra, at 10111012; Thornburg v. Gingles, 478 U. S., at 98-100 (O'CONNOR, J., concurring in judgment). In assessing the comparative weight of these influence districts, it is important to consider "the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account." Id., at 100 (O'CONNOR, J., concurring in judgment). In fact, various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or coalitional districts. See, e. g., Lublin, Racial Redistricting and African-American Representation: A Critique of "Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?" 93 Am. Pol. Sci. Rev. 183, 185 (1999) (noting that racial redistricting in the early 1990's, which created more majorityminority districts, made Congress "less likely to adopt initiatives supported by blacks"); Cameron, Epstein, &483O'Halloran, Do Majority-Minority Districts Maximize Substantive Black Representation in Congress? 90 Am. Pol. Sci. Rev. 794, 808 (1996) (concluding that the "[d]istricting schemes that maximize the number of minority representatives do not necessarily maximize substantive minority representation"); C. Swain, Black Faces, Black Interests 193234 (1995); Pildes, 80 N. C. L. Rev., at 1517; Grofman, Handley, & Lublin, Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, 79 N. C. L. Rev. 1383 (2001).Section 5 leaves room for States to use these types of influence and coalitional districts. Indeed, the State's choice ultimately may rest on a political choice of whether substantive or descriptive representation is preferable. See Pitkin, supra, at 142; Swain, supra, at 5. The State may choose, consistent with § 5, that it is better to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters. See Thornburg v. Gingles, supra, at 87-89, 99 (O'CONNOR, J., concurring in judgment); cf. Johnson v. De Grandy, 512 U. S., at 1020.In addition to influence districts, one other method of assessing the minority group's opportunity to participate in the political process is to examine the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts. A legislator, no less than a voter, is "not immune from the obligation to pull, haul, and trade to find common political ground." Ibid. Indeed, in a representative democracy, the very purpose of voting is to delegate to chosen representatives the power to make and pass laws. The ability to exert more control over that process is at the core of exercising political power. A lawmaker with more legislative influence has more potential to set the agenda, to participate in closeddoor meetings, to negotiate from a stronger position, and to484shake hands on a deal. Maintaining or increasing legislative positions of power for minority voters' representatives of choice, while not dispositive by itself, can show the lack of retrogressive effect under § 5.And it is also significant, though not dispositive, whether the representatives elected from the very districts created and protected by the Voting Rights Act support the new districting plan. The District Court held that the support of legislators from benchmark majority-minority districts may show retrogressive purpose, but it is not relevant in assessing retrogressive effect. See 195 F. Supp. 2d, at 89; see also post, at 503 (SOUTER, J., dissenting). But we think this evidence is also relevant for retrogressive effect. As the dissent recognizes, the retrogression inquiry asks how "voters will probably act in the circumstances in which they live." Post, at 509. The representatives of districts created to ensure continued minority participation in the political process have some knowledge about how "voters will probably act" and whether the proposed change will decrease minority voters' effective exercise of the electoral franchise.The dissent maintains that standards for determining nonretrogression under § 5 that we announce today create a situation where "[i]t is very hard to see anything left of" § 5. Post, at 495. But the dissent ignores that the ability of a minority group to elect a candidate of choice remains an integral feature in any § 5 analysis. Cf. Thornburg v. Gingles, supra, at 98 (O'CONNOR, J., concurring in judgment). And the dissent agrees that the addition or subtraction of coalitional districts is relevant to the § 5 inquiry. See post, at 492, 504. Yet assessing whether a plan with coalitional districts is retrogressive is just as fact-intensive as whether a plan with both influence and coalitional districts is retrogressive. As JUSTICE SOUTER recognized for the Court in the § 2 context, a court or the Department of Justice should assess the totality of circumstances in determining retrogression under § 5. See Johnson v. De Grandy, supra, at4851020-1021. And it is of course true that evidence of racial polarization is one of many factors relevant in assessing whether a minority group is able to elect a candidate of choice or to exert a significant influence in a particular district. See Thornburg v. Gingles, 478 U. S., at 37; id., at 100104 (O'CONNOR, J., concurring in judgment); see also White v. Regester, 412 U. S. 755 (1973); Zimmer v. McKeithen, 485The dissent nevertheless asserts that it "cannot be right" that the § 5 inquiry goes beyond assessing whether a minority group can elect a candidate of its choice. Post, at 494. But except for the general statement of retrogression in Beer, the dissent cites no law to support its contention that retrogression should focus solely on the ability of a minority group to elect a candidate of choice. As JUSTICE SOUTER himself, writing for the Court in Johnson v. De Grandy, supra, at 1011-1012, has recognized, the "extent of the opportunities minority voters enjoy to participate in the political processes" is an important factor to consider in assessing a § 2 vote-dilution inquiry. See also Thornburg v. Gingles, supra, at 98-100 (O'CONNOR, J., concurring in judgment). In determining how the new districting plan differs from the benchmark plan, the same standard should apply to § 5.CThe District Court failed to consider all the relevant factors when it examined whether Georgia's Senate plan resulted in a retrogression of black voters' effective exercise of the electoral franchise. First, while the District Court acknowledged the importance of assessing the statewide plan as a whole, the court focused too narrowly on proposed Senate Districts 2, 12, and 26. It did not examine the increases in the black voting age population that occurred in many of the other districts. Second, the District Court did not explore in any meaningful depth any other factor beyond the comparative ability of black voters in the majority-486minority districts to elect a candidate of their choice. In doing so, it paid inadequate attention to the support of legislators representing the benchmark majority-minority districts and the maintenance of the legislative influence of those representatives.The District Court correctly recognized that the increase in districts with a substantial minority of black voters is an important factor in the retrogression inquiry. See 195 F. Supp. 2d, at 75-78. Nevertheless, it did not adequately apply this consideration to the facts of this case. The District Court ignored the evidence of numerous other districts showing an increase in black voting age population, as well as the other evidence that Georgia decided that a way to increase black voting strength was to adopt a plan that "unpacked" the high concentration of minority voters in the majority-minority districts. Its statement that Georgia did not "presen[t] evidence regarding potential gains in minority voting strength in Senate Districts other than Districts 2, 12 and 26" is therefore clearly erroneous. Id., at 94. Like the dissent, we accept the District Court's findings that the reductions in black voting age population in proposed Districts 2, 12, and 26 to just over 50% make it marginally less likely that minority voters can elect a candidate of their choice in those districts, although we note that Georgia introduced evidence showing that approximately one-third of white voters would support a black candidate in those districts, see id., at 66, and that the United States' own expert admitted that the results of statewide elections in Georgia show that "there would be a 'very good chance' that ... African American candidates would win election in the reconstituted districts." Id., at 71; see also id., at 84-85. Nevertheless, regardless of any racially polarized voting or diminished opportunity for black voters to elect a candidate of their choice in proposed Districts 2, 12, and 26, the District Court's inquiry was too narrow.487In the face of Georgia's evidence that the Senate plan as a whole is not retrogressive, the United States introduced nothing apart from the evidence that it would be more difficult for minority voters to elect their candidate of choice in Districts 2, 12, and 26. As the District Court stated, the United States did not introduce any evidence to rebut Georgia's evidence that the increase in black voting age population in the other districts offsets any decrease in black voting age population in the three contested districts: "[T]he United States' evidence was extremely limited in scope-focusing only on three contested districts in the State Senate plan." Id., at 37. Indeed, the District Court noted that the United States' evidence "was not designed to permit the court to assess the overall impact" of the Senate plan. Ibid.Given the evidence submitted in this case, we find that Georgia likely met its burden of showing nonretrogression. The increase in black voting age population in the other districts likely offsets any marginal decrease in the black voting age population in the three districts that the District Court found retrogressive. U sing the overlay of the 2000 census numbers, Georgia's strategy of "unpacking" minority voters in some districts to create more influence and coalitional districts is apparent. Under the 2000 census numbers, the number of majority black voting age population districts in the new plan increases by one, the number of districts with a black voting age population of between 30% and 50% increases by two, and the number of districts with a black voting age population of between 25% and 30% increases by another 2. See PI. Exhs. lD, 2C; see also supra, at 470-471.U sing the census numbers in effect at the time the benchmark plan was enacted to assess the benchmark plan, the difference is even more striking. Under those figures, the new plan increases from 10 to 13 the number of districts with a majority-black voting age population and increases from 8 to 13 the number of districts with a black voting age population of between 30% and 50%. See PI. Exhs. lC, 2C. Thus,488the new plan creates 8 new districts-out of 56-where black voters as a group can playa substantial or decisive role in the electoral process. Indeed, under the census figures in use at the time Georgia enacted its benchmark plan, the black voting age population in Districts 2, 12, and 26 does not decrease to the extent indicated by the District Court. District 2 drops from 59.27% black voting age population to 50.31 %. District 26 drops from 53.45% black voting age population to 50.80%. And District 12 actually increases, from 46.50% black voting age population to 50.66%. See PI. Exhs. lC, 2C.2 And regardless of any potential retrogression in some districts, § 5 permits Georgia to offset the decline in those districts with an increase in the black voting age population in other districts. The testimony from those who designed the Senate plan confirms what the statistics suggest-that Georgia's goal was to "unpack" the minority voters from a few districts to increase blacks' effective exer-2 The dissent summarily rejects any inquiry into the benchmark plan using the census numbers in effect at the time the redistricting plan was passed. See post, at 506. Yet we think it is relevant to examine how the new plan differs from the benchmark plan as originally enacted by the legislature. The § 5 inquiry, after all, revolves around the change from the previous plan. The 1990 census numbers are far from "irrelevant." Ibid. Rather, examining the benchmark plan with the census numbers in effect at the time the State enacted its plan comports with the one-person, one-vote principle of Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny. When the decennial census numbers are released, States must redistrict to account for any changes or shifts in population. But before the new census, States operate under the legal fiction that even 10 years later, the plans are constitutionally apportioned. After the new enumeration, no districting plan is likely to be legally enforceable if challenged, given the shifts and changes in a population over 10 years. And if the State has not redistricted in response to the new census figures, a federal court will ensure that the districts comply with the one-person, one-vote mandate before the next election. See, e. g., Branch v. Smith, 538 U. S. 254 (2003); Lawyer v. Department of Justice, 521 U. S. 567 (1997); Growe v. Emison, 507 U. S. 25 (1993).489cise of the electoral franchise in more districts. See supra, at 469-471.Other evidence supports the implausibility of finding retrogression here. An examination of black voters' opportunities to participate in the political process shows, if anything, an increase in the effective exercise of the electoral franchise. It certainly does not indicate retrogression. The 34 districts in the proposed plan with a black voting age population of above 20% consist almost entirely of districts that have an overall percentage of Democratic votes of above 50%. See PI. Exh. 2D. The one exception is proposed District 4, with a black voting age population of 30.51% and an overall Democratic percentage of 48.86%. See ibid. These statistics make it more likely as a matter of fact that black voters will constitute an effective voting bloc, even if they cannot always elect the candidate of their choice. See Thornburg v. Gingles, 478 U. S., at 100 (O'CONNOR, J., concurring in judgment). These statistics also buttress the testimony of the designers of the plan such as Senator Brown, who stated that the goal of the plan was to maintain or increase black voting strength and relatedly to increase the prospects of Democratic victory. See supra, at 469-470.The testimony of Congressman John Lewis is not so easily dismissed. Congressman Lewis is not a member of the State Senate and thus has less at stake personally in the outcome of this litigation. Congressman Lewis testified that "giving real power to black voters comes from the kind of redistricting efforts the State of Georgia has made," and that the Senate plan "will give real meaning to voting for African Americans" because "you have a greater chance of putting in office people that are going to be responsive." PI. Exh. 21, at 21-23. Section 5 gives States the flexibility to implement the type of plan that Georgia has submitted for preclearance-a plan that increases the number of districts with a majority-black voting age population, even if it means that in some of those districts, minority voters will face a490somewhat reduced opportunity to elect a candidate of their choice. Cf. Thornburg v. Gingles, supra, at 89 (O'CONNOR, J., concurring in judgment).The dissent's analysis presumes that we are deciding that Georgia's Senate plan is not retrogressive. See post, at 501508. To the contrary, we hold only that the District Court did not engage in the correct retrogression analysis because it focused too heavily on the ability of the minority group to elect a candidate of its choice in the majority-minority districts. While the District Court engaged in a thorough analysis of the issue, we must remand the case for the District Court to examine the facts using the standard that we announce today. We leave it for the District Court to determine whether Georgia has indeed met its burden of proof. The dissent justifies its conclusion here on the ground that the District Court did not clearly err in its factual determination. But the dissent does not appear to dispute that if the District Court's legal standard was incorrect, the decision below should be vacated.The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race. Cf. Johnson v. De Grandy, 512 U. S., at 1020; Shaw v. Reno, 509 U. S., at 657. As Congressman Lewis stated: "I think that's what the [civil rights] struggle was all about, to create what I like to call a truly interracial democracy in the South. In the movement, we would call it creating the beloved community, an all-inclusive community, where we would be able to forget about race and color and see people as people, as human beings, just as citizens." PI. Exh. 21, at 14. While courts and the Department of Justice should be vigilant in ensuring that States neither reduce the effective exercise of the electoral franchise nor discriminate against minority voters, the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters: a society where integration491and color-blindness are not just qualities to be proud of, but are simple facts of life. See Shaw v. Reno, supra, at 657.IVThe District Court is in a better position to reweigh all the facts in the record in the first instance in light of our explication of retrogression. The judgment of the District Court for the District of Columbia, accordingly, is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusGEORGIA v. ASHCROFT, ATTORNEY GENERAL, ET AL.APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIANo. 02-182. Argued April 29, 2003-Decided June 26, 2003Georgia's 1997 State Senate districting plan is the benchmark plan for this litigation. That plan drew 56 districts, 11 of them with a total black population of over 50%, and 10 of them with a black voting age population of over 50%. The 2000 census revealed that these numbers had increased so that 13 districts had a black population of at least 50%, with the black voting age population exceeding 50% in 12 of those districts. After the 2000 census, the Georgia General Assembly began redistricting the Senate once again. It is uncontested that a substantial majority of Georgia's black voters vote Democratic, and that all elected black representatives in the General Assembly are Democrats. The Senator who chaired the subcommittee that developed the new plan testified he believed that as a district's black voting age population increased beyond what was necessary to elect a candidate, it would push the Senate more toward the Republicans, and correspondingly diminish the power of African-Americans overall. Thus, part of the Democrats' strategy was not only to maintain the number of majority-minority districts and increase the number of Democratic Senate seats, but also to increase the number of so-called "influence" districts, where black voters would be able to exert a significant-if not decisive-force in the election process. The new plan therefore "unpacked" the most heavily concentrated majority-minority districts in the benchmark plan, and created a number of new influence districts, drawing 13 districts with a majority-black voting age population, 13 additional districts with a black voting age population of between 30%-50%, and 4 other districts with a black voting age population of between 25%-30%. When the Senate adopted the new plan, 10 of the 11 black Senators voted for it. The Georgia House of Representatives passed the plan with 33 of the 34 black Representatives voting for it. No Republican in either body voted for the plan, making the votes of the black legislators necessary for passage. The Governor signed the Senate plan into law in 2001.Because Georgia is a covered jurisdiction under § 5 of the Voting Rights Act of 1965, it must submit any new voting "standard, practice, or procedure" for preclearance by either the United States Attorney General or the District Court for the District of Columbia in order to ensure that the change "does not have the purpose [or] effect of denying462Syllabusor abridging the right to vote on account of race or color," 42 U. S. C. § 1973c. No change should be precleared if it "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U. S. 130, 141. In order to preclear its 2001 plan, Georgia filed suit in the District Court seeking a declaratory judgment that the plan does not violate § 5. To satisfy its burden of proving nonretrogression, Georgia submitted detailed evidence documenting, among other things, the total population, total black population, black voting age population, percentage of black registered voters, and the overall percentage of Democratic votes in each district; evidence about how each of these statistics compared to the benchmark districts; testimony from numerous participants in the plan's enactment that it was designed to increase black voting strength throughout the State as well as to help ensure a continued Democratic majority in the Senate; expert testimony that black and nonblack voters have equal chances of electing their preferred candidate when the black voting age population of a district is at 44.3%; and, in response to the United States' objections, more detailed statistical evidence with respect to three proposed Senate districts that the United States found objectionable-Districts 2, 12, and 26-and two districts challenged by the intervenors-Districts 15 and 22. The United States argued that the plan should not be precleared because the changes to the boundaries of Districts 2, 12, and 26 unlawfully reduced black voters' ability to elect candidates of their choice. The United States' evidence focused only on those three districts and was not designed to permit the court to assess the plan's overall impact. The intervenors, four African-Americans, argued that retrogression had occurred in Districts 15 and 22, and presented proposed alternative plans and an expert report critiquing the State's expert report. A three-judge District Court panel held that the plan violated § 5, and was therefore not entitled to preclearance.Held:1. The District Court did not err in allowing the private litigants to intervene. That court found that the intervenors' analysis of the plan identifies interests not adequately represented by the existing parties. Private parties may intervene in § 5 actions assuming they meet the requirements of Federal Rule of Civil Procedure 24, NAACP v. New York, 413 U. S. 345, 365, and the District Court did not abuse its discretion in allowing intervention in this case, see id., at 367. Morris v. Gressette, 432 U. S. 491, 504-505, in which the Court held that the decision to object belongs only to the Attorney General, is distinguished because it concerned the administrative, not the judicial, preclearance463Full Text of Opinion

1957_106

MR. JUSTICE DOUGLAS delivered the opinion of the Court.This litigation started with a complaint filed by respondent, a market agency at the Denver Union stockyard, with the Secretary of Agriculture, alleging that certain Regulations issued by Denver Union Stock Yard Company are invalid under the Packers and Stockyards Act, 42 Stat. 159, as amended, 7 U.S.C. § 181 et seq. The Regulations complained of provide:"No market agency or dealer engaging in business at this Stockyard shall, upon Stock Yard Company Page 356 U. S. 284 property, or elsewhere, nor shall any other person upon Stock Yard Company property --""(1) Solicit any business for other markets, for sale at outside feed yards or at country points, or endeavor to secure customers to sell or purchase livestock elsewhere; or""(2) In any manner divert or attempt to divert livestock from this market which would otherwise normally come to this Stock Yard; or""(3) Engage in any practice or device which would impair or interfere with the normal flow of livestock to the public market at this Stockyard. [Footnote 1]"The complaint was entertained, and the Stock Yard Company admitted that it issued the Regulations and alleged that they were necessary to enable it"to furnish, upon reasonable request, without discrimination, reasonable stockyard services . . . and to enable the patrons of the Denver Union Stockyards to secure, upon reasonable request, without discrimination, reasonable stockyard services. . . ."The prayer in the answer was that the Page 356 U. S. 285 Stock Yard Company be granted an oral hearing and that the complaint be dismissed. Thereafter, the Stock Yard Company filed a motion to require respondent to produce for examination certain books and records. Respondent opposed the motion, electing to stand upon the illegality of the Regulations as a matter of law. The Examiner certified the question to the Judicial Officer for decision, recommending that the proceeding be dismissed. The Judicial Officer [Footnote 2] dismissed the complaint, holding that he could not find the Regulations invalid on their face. 15 Agr.Dec. 638. The Court of Appeals reversed, [Footnote 3] holding that the Regulations are an unlawful restriction on the statutory rights and duties of stockyards and market agencies under the Act. 241 F.2d 192. It remanded the case to the Secretary of Agriculture with directions to issue a cease and desist order against the issuance or enforcement of the Regulations. The case is here by certiorari which we granted in view of the public importance of the issue raised. 353 U.S. 982.The Act defines "market agency" as"any person engaged in the business of (1) buying or selling in commerce live stock at a stockyard on a commission basis or (2) furnishing stockyard services."§ 301(c). The Act also provides that "no person shall carry on the business of a market agency . . . at such stockyard unless he has registered with the Secretary. . . ." § 303. Respondent is registered not only with the Denver Union Stock Yard Co., but with other stockyards as well. One impact of the Regulations on respondent is therefore clear: having registered with this Stock Yard Company, it may Page 356 U. S. 286 not, in the "normal marketing area" of the Denver yard (which is defined in the Regulations to embrace a vast area in Colorado [Footnote 4]), solicit business for, or divert it to, other markets. The market agency registered with the Denver Stock Yard Co. must, while working in the, "normal marketing area" of that yard, solicit or do business exclusively for it, and for none of the other stockyards with which it is registered.Yet § 304 of the Act makes it "the duty" of every market agency "to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard." Section 301(b) defines stockyard services to mean"services or facilities furnished at a stockyard in connection with the receiving, buying, or selling on a commission basis or otherwise, marketing, feeding, watering, holding, delivery, shipment, weighing, or handling in commerce, of livestock."And § 307 prohibits and declares unlawful "every unjust, unreasonable, or discriminatory regulation or practice."The words "at such stockyard," as used in § 304, obviously mean, as applied to a "market agency," every stockyard where that "market agency" is registered. From the Act it seems plain, therefore, that the duty of respondent would be to furnish a producer in the Denver area stockyard service at Kansas City, if the producer so desired. Stockyards and market agencies are made public utilities by the Act. Stafford v. Wallace, 258 U. S. 495, 258 U. S. 516; Swift & Co. v. United States, 316 U. S. 216, 316 U. S. 232. Their duty is to serve all, impartially and without discrimination. The Regulations bar both the market agency and the stockyard from performing their statutory duty. A market agency registered with Denver could not, by force of the challenged Regulations, furnish producers in the Page 356 U. S. 287 Denver area stockyard services at Kansas City or at any other stockyard where the agency is also registered. The conflict seems clear and obvious; and no evidence could make it clearer. [Footnote 5] The case is as simple to us as that of a utility that refuses to sell any power to a customer if the customer buys any power from a competitor; as clear as an attempt by a carrier by rail to deny service to one who ships by truck. Cf. Northern Pacific R. Co. v. United States, 356 U. S. 1; International Salt Co. v. United States, 332 U. S. 392.When an Act condemns a practice that is "unfair" or "unreasonable," evidence is normally necessary to determine whether a practice, rule, or regulation transcends the bounds. See Associated Press v. Labor Board, 301 U. S. 103; Chicago Board of Trade v. United States, 246 U. S. 231; Sugar Institute v. United States, 297 U. S. 553. But where an Act defines a duty in explicit terms, a hearing on the question of statutory construction is often all that is needed. See Securities and Exchange Commission v. Ralston Purina Co., 346 U. S. 119 (public offering); Addison v. Holly Hill Fruit Products, 322 U. S. 607 (area of production). It is, of course, true that § 310 of the Act provides for a "full hearing" on a complaint against a "regulation" of a stockyard. That was also true of the Act involved in United States v. Storer Broadcasting Co., 351 U. S. 192. But we observed in that case that we never presume that Congress intended an agency "to waste time on applications that do not state a valid basis for a hearing." Id. at 351 U. S. 205.The critical statutory words in the present case are from § 304 providing,"It shall be the duty of every stockyard owner and market agency to furnish upon reasonable request, without discrimination, reasonable stockyard Page 356 U. S. 288 services at such stockyard."The Secretary's emphasis in the argument was on the words "reasonable stockyard services." By analogy to the antitrust cases, a case is built for factfindings essential to a determination of what is "reasonable." See Standard Oil Co. v. United States, 221 U. S. 1; Chicago Board of Trade v. United States, supra. Certainly an evidentiary hearing would be necessary if, for example, a method of handling livestock at a particular stockyard was challenged as unreasonable. See Morgan v. United States, 298 U. S. 468; Morgan v. United States, 304 U. S. 1; United States v. Morgan, 307 U. S. 183. But that argument is misapplied here. It misconceives the thrust of the present Regulations, which are aimed at keeping market agencies registered at Denver from doing business for producers, who are in the "normal marketing area" of the Denver yard at any other market. These Regulations bar them from rendering not some stockyard services at the other yards, but any and all other stockyard services for those producers, except at Denver. "No" stockyard services cannot possibly be equated with "reasonable" stockyard services under this Act.The argument contra is premised on the theory that stockyard owners, like feudal barons of old, can divide up the country, set the bounds of their domain, establish "no trespassing" signs, and make market agencies registering with them their exclusive agents. The institution of the exclusive agency is, of course, well known in the law, and the legal problem here would be quite different if the Act envisaged stockyards as strictly private enterprise. But, as noted, Congress planned differently. The Senate Report proclaimed that these "great public markets" are "public utilities." S.Rep. No. 39, 67th Cong., 1st Sess. 7. The House Report, in the same vein, placed this regulation of the stockyards on a par with the regulation of the railroads. H.R.Rep. No. 77, 67th Cong., 1st Sess. 10. Page 356 U. S. 289 It was against this background that Chief Justice Taft wrote in Stafford v. Wallace, supra, at 258 U. S. 514:"The object to be secured by the act is the free and unburdened flow of five stock from the ranges and farms of the West and the Southwest through the great stockyards and slaughtering centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the Middle West and East, or, still, as live stock, to the feeding places and fattening farms in the Middle West or East for further preparation for the market."He went on to say that the Act treats the stockyards "as great national public utilities," id. at 258 U. S. 516. His opinion echoes and re-echoes with the fear of monopoly in this field.We are told, however, that the economics of the business has changed, that while, at the passage of the Act, most livestock purchases were at these stockyards, now a substantial portion -- about 40 percent, it is said -- takes place at private livestock markets such as feed yards and country points. From this it is argued that the present Regulation is needed to keep the business in the public markets, where there is regulation and competition, and out of the private markets, where there is no competitive bidding and regulation. If the Act does not fit the present economics of the business, a problem is presented for the Congress. Though our preference were for monopoly and against competition, we should "guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy." Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 313 U. S. 194.We take the Act as written. As written, it is aimed at all monopoly practices, of which discrimination is one. When Chief Justice Taft wrote of the aim of the Act in Page 356 U. S. 290 terms of the ends of a monopoly, he wrote faithfully to the legislative history. The Senate Report, supra at 7, stated,"It has been demonstrated beyond question that the history of the development of this industry has been the history of one effort after another to set up monopoly."The present Regulations, it seems, have had a long ancestry.Affirmed

U.S. Supreme CourtDenver Stock Yard v. Livestock Assn., 356 U.S. 282 (1958)Denver Union Stock Yard Co. v.Producers Livestock Marketing AssociationNo. 106Argued March 10, 1958Decided April 28, 1958*356 U.S. 282SyllabusUnder the Packers and Stockyards Act, a market agency registered and doing business at several different stockyards instituted an administrative proceeding challenging the validity of regulations issued by a stockyard company which provided that a market agency engaged in business at its stockyard shall not, in the "normal marketing area" thereof, solicit business for, or divert business to, any other market. The market agency introduced no evidence to show that the regulations were unreasonable, but claimed that they were invalid on their face as a matter of law. The stockyard company moved to dismiss the complaint, and it was dismissed on the ground that the regulations could not be found invalid on their face. The Court of Appeals reversed and remanded the case to the Secretary of Agriculture with directions to issue an order requiring the stockyard company to cease and desist from issuing or enforcing the regulations.Held: the judgment is affirmed. Pp. 356 U. S. 283-290.(a) The regulations conflict with § 304 of the Act, which makes it "the duty" of every market agency "to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard" (meaning every stockyard where the market agency is registered), and they are forbidden by § 307, which makes unlawful "every unjust, unreasonable, or discriminatory regulation or practice." Pp. 356 U. S. 286-287.(b) In these circumstances, the taking of evidence as to whether the regulations were "reasonable" was not essential to the "full hearing" provided for in § 310 of the Act. Pp. 356 U. S. 287-288. Page 356 U. S. 283(c) Stockyards subject to the Act are public utilities and, as such, may not engage in discrimination or other monopolistic practices. Pp. 356 U. S. 288-290.241 F.2d 192 affirmed.

1968_24

MR. JUSTICE BLACK delivered the opinion of the Court.The question presented by this case is whether the FTC was warranted in finding that it was an unfair method of competition in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45, for respondent Texaco to undertake to induce its service station dealers to purchase Goodrich tires, batteries, and accessories (hereafter referred to as TBA) in return for a commission paid by Goodrich to Texaco. In three related proceedings instituted in 1961, the Commission challenged the sales-commission method of distributing TBA and in each case named as a respondent a major oil company and a major tire manufacturer. After extensive hearings, the Commission concluded that each of the arrangements constituted an unfair method of competition and ordered each tire company and each oil company to refrain from entering into any such commission arrangements. In one of these cases, Atlantic Refining Co. v. FTC, 381 U. S. 357 (1965), this Court affirmed the decision of the Court of Appeals for the Seventh Circuit sustaining the Commission's order against Atlantic Refining Company and the Goodyear Tire & Rubber Company. In a second case, Shell Oil Co. v. FTC, 360 F.2d 470, cert. denied, 385 U.S. 1002, the Court of Appeals for the Fifth Circuit, following this Court's decision in Atlantic, sustained the Commission's order against the Shell Oil Company and the Firestone Tire & Rubber Page 393 U. S. 225 Company. In contrast to the decisions of these two Courts of Appeals, the Court of Appeals for the District of Columbia Circuit set aside the Commission's order in this, the third of the three cases, involving respondents Goodrich and Texaco. 118 U.S.App.D.C. 366, 336 F.2d 754 (1964). [Footnote 1] The Commission petitioned this Court for review and, one week following our Atlantic decision, we granted certiorari and remanded for further consideration in light of that opinion. 381 U. S. 739 (1965). The Commission, on remand, reaffirmed its conclusion that the Texaco-Goodrich arrangement, like that involved in the other two cases, violated § 5 of the Federal Trade Commission Act. The Court of Appeals for the District of Columbia Circuit again reversed, this time holding that the Commission had failed to establish that Texaco had exercised its dominant economic power over its dealers or that the Texaco-Goodrich arrangement had an adverse effect on competition. 127 U.S.App.D.C. 349, 383 F.2d 942. We granted certiorari to determine whether the court below had correctly applied the principles of our Atlantic decision. 390 U.S. 979.Congress enacted § 5 of the Federal Trade Commission Act to combat in their incipiency trade practices that exhibit a strong potential for stifling competition. In large measure the task of defining "unfair methods of competition" was left to the Commission. The legislative history shows that Congress concluded that the best check on unfair competition would be"an administrative Page 393 U. S. 226 body of practical men . . . who will be able to apply the rule enacted by Congress to particular business situations, so as to eradicate evils with the least risk of interfering with legitimate business operations."H.R.Conf.Rep. No. 1142, 63d Cong., 2d Sess., 19. Atlantic Refining Co. v. FTC, 381 U. S. 357, 381 U. S. 367. While the ultimate responsibility for the construction of this statute rests with the courts, we have held on many occasions that the determinations of the Commission, an expert body charged with the practical application of the statute, are entitled to great weight. FTC v. Motion Picture Advertising Serv. Co., 344 U. S. 392, 344 U. S. 396 (1953); FTC v. Cement Institute, 333 U. S. 683, 333 U. S. 720 (1948). This is especially true here, where the Commission has had occasion in three related proceedings to study and assess the effects on competition of the sales commission arrangement for marketing TBA. With this in mind, we turn to the facts of this case.The Commission and the respondents agree that the Texaco-Goodrich arrangement for marketing TBA will fall under the rationale of our Atlantic decision if the Commission was correct in its three ultimate conclusions (1) that Texaco has dominant economic power over its dealers; (2) that Texaco exercises that power over its dealers in fulfilling its agreement to promote and sponsor Goodrich products, and (3) that anticompetitive effects result from the exercise of that power.That Texaco holds dominant economic power over its dealers is clearly shown by the record in this case. In fact, respondents do not contest the conclusion of the Court of Appeals below and the Court of Appeals for the Fifth Circuit in Shell that such power is "inherent in the structure and economics of the petroleum distribution system." 127 U.S.App.D.C. 349, 353, 383 F.2d 942, 946; 360 F.2d 470, 481 (C.A. 5th Cir.). Nearly 40% of the Texaco dealers lease their stations from Texaco. Page 393 U. S. 227 These dealers typically hold a one-year lease on their stations, and these leases are subject to termination at the end of any year on 10 days' notice. At any time during the year, a man's lease on his service station may be immediately terminated by Texaco without advance notice if, in Texaco's judgment, any of the "housekeeping" provisions of the lease, relating to the use and appearance of the station, are not fulfilled. The contract under which Texaco dealers receive their vital supply of gasoline and other petroleum products also runs from year to year and is terminable on 30 days' notice under Texaco's standard form contract. The average dealer is a man of limited means who has what is, for him, a sizable investment in his station. He stands to lose much if he incurs the ill-will of Texaco. As Judge Wisdom wrote in Shell, "A man operating a gas station is bound to be overawed by the great corporation that is his supplier, his banker, and his landlord." 360 F.2d 470, 487.It is against the background of this dominant economic power over the dealers that the sales-commission arrangement must be viewed. The Texaco-Goodrich agreement provides that Goodrich will pay Texaco a commission of 10% on all purchases by Texaco retail service station dealers of Goodrich TBA. In return, Texaco agrees to "promote the sale of Goodrich products" to Texaco dealers. During the five-year period studied by the Commission (1952-1956) $245,000,000 of the Goodrich and Firestone TBA sponsored by Texaco was purchased by Texaco dealers, for which Texaco received almost $22,000,000 in retail and wholesale commissions. Evidence before the Commission showed that Texaco carried out its agreement to promote Goodrich products through constantly reminding its dealers of Texaco's desire that they stock and sell the sponsored Goodrich TBA. Texaco emphasizes the importance of TBA and the recommended brands as early as its initial interview Page 393 U. S. 228 with a prospective dealer, and repeats its recommendation through a steady flow of campaign materials utilizing Goodrich products. Texaco salesmen, the primary link between Texaco and the dealers, promote Goodrich products in their day-to-day contact with the Texaco dealers. The evaluation of a dealer's station by the Texaco salesman is often an important factor in determining whether a dealer's contract or lease with Texaco will be renewed. Thus, the Texaco salesmen, whose favorable opinion is so important to every dealer, are the key men in the promotion of Goodrich products, and, on occasion, accompany the Goodrich salesmen in their calls on the dealers. Finally, Texaco receives regular reports on the amount of sponsored TBA purchased by each dealer. Respondents contend, however, that these reports are used only for maintaining Texaco's accounts with Goodrich, and not for policing dealer purchases.Respondents urge that the facts of this case are fundamentally different from those involved in Atlantic, because of the presence there, and the absence here, of "overt coercive practices" designed to force the dealers to purchase the sponsored brand of TBA. We agree, as the Government concedes, that the evidence in this case regarding coercive practices is considerably less substantial than the evidence presented in Atlantic. The Atlantic record contained direct evidence of dealers threatened with cancellation of their leases, the setting of dealer quotas for purchase of certain amounts of sponsored TBA, the requirement that dealers purchase TBA from single assigned supply points, refusals by Atlantic to honor credit card charges for nonsponsored TBA, and policing of Atlantic dealers by "phantom inspectors." While the evidence in the present case fails to establish the kind of overt coercive acts shown in Atlantic, we think it clear nonetheless that Texaco's dominant economic Page 393 U. S. 229 power was used in a manner which tended to foreclose competition in the marketing of TBA. The sales-commission system for marketing TBA is inherently coercive. A service station dealer whose very livelihood depends upon the continuing good favor of a major oil company is constantly aware of the oil company's desire that he stock and sell the recommended brand of TBA. Through the constant reminder of the Texaco salesman, through demonstration projects and promotional materials, through all of the dealer's contacts with Texaco, he learns the lesson that Texaco wants him to purchase for his station the brand of TBA which pays Texaco 10% on every retail item the dealer buys. With the dealer's supply of gasoline, his lease on his station, and his Texaco identification subject to continuing review, we think it flies in the face of common sense to say, as Texaco asserts, that the dealer is "perfectly free" to reject Texaco's chosen brand of TBA. Equally applicable here is this Court's judgment in Atlantic that"[i]t is difficult to escape the conclusion that there would have been little point in paying substantial commissions to oil companies were it not for their ability to exert power over their wholesalers and dealers."381 U.S. at 381 U. S. 376.We are similarly convinced that the Commission was correct in determining that this arrangement has an adverse effect on competition in the marketing of TBA. Service stations play an increasingly important role in the marketing of tires, batteries, and other automotive accessories. With five major companies supplying virtually all of the tires that come with new cars, only in the replacement market can the smaller companies hope to compete. Ideally, each service station dealer would stock the brands of TBA that, in his judgment, were most favored by customers for price and quality. To the extent that dealers are induced to select the sponsored brand in order to maintain the good favor of the oil Page 393 U. S. 230 company upon which they are dependent, the operation of the competitive market is adversely affected. As we noted in Atlantic, the essential anticompetitive vice of such an arrangement is "the utilization of economic power in one market to curtail competition in another." 381 U. S. 357, 381 U. S. 369. Here, the TBA manufacturer has purchased the oil company's economic power and used it as a partial substitute for competitive merit in gaining a major share of the TBA market. [Footnote 2] The nonsponsored brands do not compete on the even terms of price and quality competition; they must overcome, in addition, the influence of the dominant oil company that has been paid to induce its dealers to buy the recommended brand. While the success of this arrangement in foreclosing competitors from the TBA market has not matched that of the direct coercion employed by Atlantic, we feel that the anticompetitive tendencies of such a system are clear, and that the Commission was properly fulfilling the task that Congress assigned it in halting this practice in its incipiency. The Commission is not required to show that a practice it condemns has totally eliminated competition in the relevant market. It is enough that the Commission found that the practice in question unfairly burdened competition for a not insignificant volume of commerce. International Salt Co. v. United States, 332 U. S. 392 (1947); United States v. Loew's, Inc., 371 U. S. 38, 371 U. S. 45, n. 4 (1962); Atlantic Refining Co. v. FTC, 381 U. S. 357, 381 U. S. 371 (1965).The Commission was justified in concluding that more than an insubstantial amount of commerce was involved. Page 393 U. S. 231 Texaco is one of the Nation's largest petroleum companies. It sells its products to approximately 30,000 service stations, or about 16.5% of all service stations in the United States. The volume of sponsored TBA purchased by Texaco dealers in the five-year period 1952-1956 was $245,000,000. almost five times the amount involved in the Atlantic case.For the reasons stated above, we reverse the judgment below and remand to the Court of Appeals for enforcement of the Commission's order with the exception of paragraphs five and six of the order against Texaco, the setting aside of which by the Court of Appeals the Government does not contest.Reversed

U.S. Supreme CourtFTC v. Texaco, Inc., 393 U.S. 223 (1968)Federal Trade Commission v. Texaco, Inc.No. 24Argued November 13, 1968Decided December 16, 1968393 U.S. 223SyllabusRespondent Texaco Inc., one of the country's largest petroleum companies, made an agreement with respondent Goodrich to promote the sale of Goodrich tires, batteries, and accessories (TBA) to Texaco's service station dealers. The Federal Trade Commission (FTC) in this proceeding and two related proceedings, each of which involved a major oil company and a major tire manufacturer, challenged the sales-commission arrangements as an unfair method of competition in violation of § 5 of the Federal Trade Commission Act. Relying on this Court's decision upholding invalidation of such an arrangement in one of these cases, Atlantic Refining Co. v. FTC, 381 U. S. 357 (1965), the FTC, on remand, reaffirmed its conclusion that the Texaco-Goodrich arrangement violated § 5 of the Act. The Court of Appeals reversed on the ground that the evidence did not support the FTC's conclusions. Respondents contend, inter alia, that the absence here of "overt economic practices" distinguishes this case from Atlantic.Held:1. The FTC's determinations of "unfair methods of competition" under § 5 of the Act are entitled to great weight. Pp. 393 U. S. 225-226.2. Texaco, as the record clearly shows and respondents do not dispute, holds dominant economic power over its dealers. Pp. 393 U. S. 226-227.3. The sales-commission system for marketing TBA is inherently coercive, and, despite the absence here of the kind of overtly coercive acts shown in Atlantic, Texaco exerted its dominant economic power over its dealers. Pp. 393 U. S. 228-229.4. The FTC correctly determined that the Texaco-Goodrich arrangement adversely affected competition in marketing TBA, the TBA manufacturer having purchased the oil company's economic power and used it as a partial substitute for competitive merit in gaining a major share of the substantial TBA market. Pp. 393 U. S. 229-231.127 U.S.App.D.C. 349, 383 F.2d 942, reversed and remanded. Page 393 U. S. 224

1987_87-336

JUSTICE MARSHALL delivered the opinion of the Court.This case requires us to determine whether two types of orders by a district court are immediately appealable under Page 486 U. S. 519 28 U.S.C. § 1291: first, an order denying a motion to dismiss based on an extradited person's claim that he is immune from civil service of process; and second, an order denying a motion to dismiss on the ground offorum non conveniens.IThis case arises from a dispute over a loan. Petitioner, a real estate broker in Brussels, encouraged respondent, also a Brussels resident, to meet with one Alan Blair in the United States to discuss a real estate investment. Blair is a resident of Los Angeles. Following a business trip to Atlanta, respondent traveled to Los Angeles, where he met petitioner, Blair, and others, to talk about the investment. Blair described a real estate partnership called Three B Investment Associates, which was renovating a townhouse complex outside Kansas City known as Concorde Bridge Townhouses. At petitioner's urging, respondent agreed to lend the partnership $1 million for three years at 20% per annum interest, secured by a mortgage on the Concorde Bridge complex. At the time, the partnership did not have title to the Concorde Bridge complex, but it held a contract to purchase the complex and had made a substantial deposit.The partnership, after making some scheduled payments, eventually defaulted on its promissory note to respondent. The mortgage proved worthless because the partnership had not acquired title to the Concorde Bridge complex. Respondent retained American counsel, claiming that he had been misled into believing that the partnership held title to the Concorde Bridge Townhouses at the time of the loan. Soon thereafter, United States prosecutors became involved in the controversy. In October 1984, petitioner, Blair, and another American were indicted in the Central District of California on charges of wire fraud and causing the interstate transportation of a victim of fraud. The indictment charged that the three defendants had fraudulently induced respondent to lend them $1 million by falsely representing that they Page 486 U. S. 520 owned the Concorde Bridge complex through the real estate partnership.While on a trip to Geneva, petitioner was arrested pursuant to a request from the United States Department of Justice under the applicable extradition treaty with Switzerland. See Treaty between the United States and Switzerland for the Extradition of Criminals, May 14, 1900, 31 Stat.1928, T.S. No. 354 (1900). Petitioner was extradited and delivered to Los Angeles by United States Marshals after legal proceedings in Swiss courts. Following a jury trial, petitioner was found guilty on one count of wire fraud and one count of causing the interstate transportation of a victim of fraud. On January 22, 1986, petitioner was sentenced to a prison term of one year and one day, which was satisfied by the time he already had spent in pretrial confinement. The trial court also ordered petitioner to pay respondent restitution of $34,501.26 and placed him on probation. Petitioner was ordered not to leave the United States until the restitution order was satisfied. [Footnote 1] The conviction was affirmed by the Court of Appeals. United States v. Van Cauwenberghe, 827 F.2d 424 (CA9 1987), cert. denied, 484 U.S. 1042 (1988).On November 12, 1985, one week before petitioner's criminal trial commenced, respondent filed a civil suit against petitioner, Blair, and others in the District Court for the Central District of California. The complaint asserted a civil Racketeer Influenced and Corrupt Organizations (RICO) claim, a common law claim of fraud, and other pendent state law claims arising out of the defaulted loan. On February 5, 1986, about two weeks after his sentencing, petitioner was served with the summons and complaint as he was arriving at the office of his probation officer to keep a scheduled appointment. Petitioner moved to dismiss the suit on two separate grounds. First, he argued that, because his presence in the Page 486 U. S. 521 United States was a result of extradition, he was immune from civil process. Second, petitioner argued that the complaint should be dismissed on the ground of forum non conveniens. The District Court summarily denied both motions. App. 221, Biard v. Blair, No. CV 85-7378 JSL (Nov. 17, 1986). The Court of Appeals dismissed petitioner's appeal for lack of jurisdiction in a one-line order, citing this Court's decisions in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), and Mitchell v. Forsyth, 472 U. S. 511 (1985). App. 234, No. 86-6735 (CA9, July 7, 1987). [Footnote 2] We granted certiorari, 484 U.S. 942 (1987), and we now affirm.IIThe courts of appeals have jurisdiction under 28 U.S.C. § 1291 of appeals "from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court." A party generally may not take an appeal under § 1291 until there has been a decision by the District Court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." [Footnote 3] Catlin Page 486 U. S. 522 v. United States, 324 U. S. 229, 324 U. S. 233 (1945). In Cohen v. Beneficial Industrial Loan Corp., supra, however, we recognized a "small class" of decisions that are immediately appealable under § 1291 even though the decision has not terminated the proceedings in the district court. 337 U.S. at 337 U. S. 546. The Court stated that a decision is final and appealable for purposes of § 1291 if it"finally determine[s] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."Ibid. The Court refined the "collateral order" doctrine of Cohen in Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978). In Coopers & Lybrand, the Court held that to come within the collateral order doctrine of Cohen, the order must satisfy each of three conditions: it must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment."437 U.S. at 437 U. S. 468 (footnote omitted).As petitioner acknowledges, the order of the District Court denying petitioner's motion to dismiss on grounds of immunity from civil process orforum non conveniens did not end the litigation on the merits. Therefore, the order is appealable as to either ground only if the three requirements set out in Coopers & Lybrand are met.AIn asserting the appealability of his claim of immunity from civil process, petitioner principally relies on this Court's decision in Mitchell v. Forsyth, supra. The Court held in Mitchell that the denial of a claim of qualified immunity by the Attorney General was immediately appealable under the Page 486 U. S. 523 collateral order doctrine. The crucial issue in Mitchell was whether the order was effectively unreviewable on appeal from final judgment. See id. at 472 U. S. 525. In holding that such an order was effectively unreviewable, the Court reasoned that an "essential attribute" of qualified immunity is "an entitlement not to stand trial under certain circumstances," and thus is "an immunity from suit, rather than a mere defense to liability." Id. at 472 U. S. 525, 526. As with absolute immunity, the Court concluded, "[the entitlement] is effectively lost if a case is erroneously permitted to go to trial." Id. at 472 U. S. 526.Petitioner argues that, under United States v. Rauscher, 119 U. S. 407 (1886), as well as under federal extradition statutes and the extradition treaty between the United States and Switzerland, he is immune from civil service of process while his presence in the United States is compelled by extradition for criminal charges. Petitioner further contends that his immunity under Rauscher, like the immunity in Mitchell, entails the right not to stand trial, which cannot be effectively vindicated on appeal from final judgment. In Rauscher, the Court stated the general "principle of specialty" in federal extradition law:"[A] person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."119 U.S. at 119 U. S. 430. Petitioner argues that the principle of specialty requires not merely that an extradited person be immune from criminal prosecutions other than the offenses for which he was extradited, but that he be generally "free from any judicial interference," including civil suit. Brief for Petitioner 18. Page 486 U. S. 524The issue on which we granted certiorari, however, and on which the Court of Appeals based its decision, is not whether petitioner's underlying claim of immunity is meritorious, but whether the denial of petitioner's motion to dismiss on grounds of immunity from service of process is immediately appealable. For purposes of determining appealability, therefore, we will assume, but do not decide, that petitioner has presented a substantial claim of immunity from civil service of process that warrants appellate consideration. Making this assumption, we conclude that petitioner's claim of immunity from service is effectively reviewable on appeal from final judgment, and thus is not an immediately appealable collateral order under Cohen and Coopers & Lybrand.The critical question, following Mitchell, is whether "the essence" of the claimed right is a right not to stand trial. Mitchell, 472 U.S. at 472 U. S. 525. This question is difficult because, in some sense, all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial. But the final judgment rule requires that, except in certain narrow circumstances in which the right would be "irretrievably lost" absent an immediate appeal, Richardson-Merrell Inc. v. Koller, 472 U. S. 424, 472 U. S. 431 (1985), litigants must abide by the district court's judgments, and suffer the concomitant burden of a trial, until the end of proceedings before gaining appellate review. As the Court stated in United States v. MacDonald, 435 U. S. 850, 435 U. S. 860, n. 7 (1978):"Admittedly, there is value -- to all but the most unusual litigant -- in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial."Because of the important interests furthered by the final judgment rule, see n 3, supra, and the ease with which certain Page 486 U. S. 525 pretrial claims for dismissal may be alleged to entail the right not to stand trial, we should examine the nature of the right asserted with special care to determine whether an essential aspect of the claim is the right to be free of the burdens of a trial.We believe that, even if the principle of specialty shields petitioner from service of process in a civil suit while he is detained in the United States following his extradition and conviction -- an issue on which we express no opinion -- the right not to be burdened with a civil trial itself is not an essential aspect of this protection. First, the principle of specialty fundamentally bears on treaty obligations between states; the principle operates to ensure that the receiving state does not abuse the extradition processes of the extraditing state. See Rauscher, supra, at 119 U. S. 419-420; 1 M. Bassiouni, International Extradition: United States Law and Practice, ch. 7, § 7, pp. 360-361 (2d ed.1987). The conduct of a civil trial, prior to any attempt to subject the defendant to a binding judgment of the court, does not significantly implicate the receiving state's obligation under the doctrine. Unlike a criminal prosecution, in which the coercive power of the state is immediately brought to bear, the state's involvement in the conduct of a private civil suit is minimal. The state's role is simply to provide a forum for the resolution of a private dispute. In the absence of an explicit agreement obligating the United States to protect the extradited person from the burdens of a civil suit, we believe that there is little potential that the extraditing state, in this case Switzerland, will view the mere conduct of a private civil trial as a breach of an obligation by the United States not to abuse the extradition process. [Footnote 4] Page 486 U. S. 526In addition, to the extent that the principle of specialty protects an extradited person from the exercise of coercive power by the receiving state on matters not anticipated by the extradition, the defense of a civil suit does not significantly restrict a defendant's liberty. Service of process merely requires that a defendant appear through an attorney and file an answer to the complaint to avoid default. There is no possibility that the defendant will be subject to pretrial detention or be required to post bail. The defendant is not even compelled to be present at trial. We therefore conclude that a right not to stand trial in a civil suit is not an essential aspect of a claim of immunity under the principle of specialty.Given that the principle of specialty provides no independent support for petitioner's claim that he has a right not to stand trial, the question becomes whether such a right is entailed in the mere assertion that the district court lacks personal jurisdiction because of immunity from service of process. Cf. Rauscher, 119 U.S. at 119 U. S. 433 ("[Court] did not have jurisdiction of the person at that time"). [Footnote 5] In the context of due process restrictions on the exercise of personal jurisdiction, this Court has recognized that the individual interest protected is in"not being subject to the binding judgments of a forum with which [the defendant] has established no meaningful 'contacts, ties, or relations.'"Burger King Corp. v. Rudzewicz, 471 U. S. 462, 471 U. S. 471-472 (1985), quoting International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 319 (1945). Similarly, we believe petitioner's challenge to the District Court's exercise of personal jurisdiction because he is immune Page 486 U. S. 527 from civil process should be characterized as the right not to be subject to a binding judgment of the court. Because the right not to be subject to a binding judgment may be effectively vindicated following final judgment, we have held that the denial of a claim of lack of jurisdiction is not an immediately appealable collateral order. See Catlin v. United States, 324 U.S. at 324 U. S. 236. The Court of Appeals was therefore correct to conclude that the District Court's denial of petitioner's motion to dismiss on the ground of immunity from civil process is not immediately appealable.BPetitioner also argues that the District Court's order denying the motion to dismiss on the ground of forum non conveniens falls within the collateral order doctrine of Cohen, and thus is immediately appealable under § 1291. We conclude, however, as have the majority of the Courts of Appeals that have considered the issue, [Footnote 6] that the question of the convenience of the forum is not "completely separate from the merits of the action," Coopers & Lybrand, 437 U.S. at 437 U. S. 468, and thus is not immediately appealable as of right.The requirement that the order be completely separate from the merits is"a distillation of the principle that there should not be piecemeal review of 'steps towards final judgment in which they will merge.'"Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 460 U. S. 12, n. 13 (1983), quoting Cohen, 337 U.S. at 337 U. S. 546. Allowing appeals Page 486 U. S. 528 from interlocutory orders that involve considerations enmeshed in the merits of the dispute would waste judicial resources by requiring repetitive appellate review of substantive questions in the case. In Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 330 U. S. 508 (1947), the Court described various "[i]mportant considerations" for district courts to balance in deciding whether a particular forum is so inconvenient for the defendant as to warrant dismissal. We believe these considerations make clear that, in assessing a forum non conveniens motion, the district court generally becomes entangled in the merits of the underlying dispute.The Court in Gulf Oil stated that district courts must look into"the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling . . . witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive."Ibid. To examine "the relative ease of access to sources of proof," and the availability of witnesses, the district court must scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff's cause of action and to any potential defenses to the action. Public interest factors relevant to a forum non conveniens determination -- such as the "local interest in having localized controversies decided at home" and the interest in having "the trial of a diversity case in a forum that is at home with the state law that must govern the case," id. at 330 U. S. 509 -- also thrust the court into the merits of the underlying dispute. To evaluate these factors, the court must consider the locus of the alleged culpable conduct, often a disputed issue, and the connection of that conduct to the plaintiff's chosen forum. Cf. Piper Aircraft Co. v. Reyno, 454 U. S. 235, 454 U. S. 259-260 (1981).This list of considerations to be balanced is by no means exhaustive, and some factors may not be relevant in the context Page 486 U. S. 529 of a particular case. Moreover, the district court's inquiry does not necessarily require extensive investigation, and may be resolved on affidavits presented by the parties. See id. at 454 U. S. 258-259. As we previously have recognized, the district court is accorded substantial flexibility in evaluating a forum non conveniens motion, id. at 454 U. S. 249, and "[e]ach case turns on its facts." Williams v. Green Bay & Western R. Co., 326 U. S. 549, 326 U. S. 557 (1946). It is thus undoubtedly true that, in certain cases, the forum non conveniens determination will not require significant inquiry into the facts and legal issues presented by a case, and an immediate appeal might result in substantial savings of time and expense for both the litigants and the courts. In fashioning a rule of appealability under § 1291, however, we look to categories of cases, not to particular injustices. See Carroll v. United States, 354 U. S. 394, 354 U. S. 405 (1957) ("Appeal rights cannot depend on the facts of a particular case"); United States v. MacDonald, 435 U.S. at 435 U. S. 857-858, n. 6. [Footnote 7] We believe that, in the main, the issues that arise in forum non conveniens determinations will substantially overlap factual and legal issues of the underlying dispute, making such determinations unsuited for immediate appeal as of right under § 1291.Our conclusion that the denial of a motion to dismiss on the ground offorum non conveniens is not appealable under § 1291 is fortified by the availability of interlocutory review pursuant to 28 U.S.C § 1292(b). Under § 1292(b), a district Page 486 U. S. 530 court may certify a nonfinal order for interlocutory review when the order"involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation."A court of appeals may then, in its discretion, determine whether the order warrants prompt review. See Coopers & Lybrand, supra, at 437 U. S. 474-475. Section 1292(b) therefore provides an avenue for review of forum non conveniens determinations in appropriate cases.IIIWe hold that neither an order denying a motion to dismiss on grounds that an extradited person is immune from civil process, nor an order denying a motion to dismiss on the ground offorum non conveniens is a collateral order subject to appeal as a final judgment under 28 U.S.C. § 1291. The Court of Appeals therefore lacked jurisdiction to consider petitioner's appeal. Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtVan Cauwenberghe v. Bard, 486 U.S. 517 (1988)Van Cauwenberghe v. BardNo. 87-336Argued March 21, 1988Decided June 13, 1988486 U.S. 517SyllabusThe courts of appeals have jurisdiction under 28 U.S.C. § 1291 of appeals "from all final decisions of the district courts." Under Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, and Coopers & Lybrand v. Livesay, 437 U. S. 463, a "collateral order" which does not actually end the district court litigation is nevertheless considered to be final and immediately appealable under § 1291 if, inter alia, it resolves an important issue completely separate from the merits of the action and is effectively unreviewable on appeal from a final judgment. Petitioner, a resident of Belgium, was indicted in the Central District of California for fraudulently inducing respondent to lend money to a California real estate partnership engaged in renovating a Kansas City townhouse complex. While on a trip to Switzerland, petitioner was arrested under the applicable extradition treaty and extradited to Los Angeles. One week before his criminal trial commenced, respondent filed a civil suit against petitioner in the same District, asserting various claims arising out of the defaulted loan. About two weeks after his sentencing following his conviction on the criminal charges, petitioner was served with the civil summons and complaint. The District Court summarily denied petitioner's motions to dismiss, which were based upon the argument that petitioner was immune from civil process because his presence in the United States resulted from extradition, and upon forum non conveniens grounds. The Court of Appeals dismissed petitioner's appeal for lack of jurisdiction, citing Cohen, supra, and Mitchell v. Forsyth, 472 U. S. 511.Held: Neither an order denying a motion to dismiss on the ground that an extradited person is immune from civil process, nor an order denying such a motion on forum non conveniens grounds, is a collateral order subject to immediate appeal as a final judgment under § 1291. Pp. 486 U. S. 521-530.(a) Assuming, without deciding, that the "principle of specialty," see United States v. Rauscher, 119 U. S. 407, immunizes petitioner from civil service of process while his presence in this country is compelled by extradition, petitioner's claim is nevertheless effectively reviewable on appeal from final judgment, and thus is not immediately appealable under the collateral order doctrine. Unlike the qualified immunity claim Page 486 U. S. 518 considered in Mitchell, supra, the "essence" of petitioner's claim of immunity under the principle of specialty is not a right not to stand trial, which would be irretrievably lost absent an immediate appeal. The principle of specialty operates to ensure that the receiving state does not abuse the extraditing state's extradition processes, and the conduct of a civil trial does not significantly implicate the reviewing state's obligation in that regard, since the state does not bring its coercive power to bear in such circumstances, but simply provides a forum for the resolution of a private dispute. Moreover, the defense of a civil suit does not significantly restrict a defendant's liberty, since he cannot be subjected to pretrial detention or required to post bail, and is not even compelled to be present at trial. Furthermore, a right not to stand trial is not entailed in the mere assertion that the district court lacks personal jurisdiction because of immunity from service of process. The right involved in this challenge must be characterized as the right not to be subject to a binding judgment, which may be effectively vindicated following final judgment. Pp. 486 U.S. 522-527.(b) The order denying the motion to dismiss on forum non conveniens grounds does not fall within the collateral order doctrine, since the convenience-of-the-forum question is not completely separate from the merits of the action. Although the determination of that question may not require significant inquiry into the facts and legal issues in some cases, in the main, a district court ruling on such a motion will generally become entangled in the merits of the case in assessing such questions as the relative ease of access to the sources of proof, the availability of witnesses, and the actual locus of the alleged culpable conduct. Thus, such determinations are unsuited for immediate appeal as of right under § 1291. This conclusion is fortified by the availability of interlocutory review under 28 U.S.C. § 1292(b) offorum non conveniens determinations in appropriate cases. Pp. 486 U. S. 527-530.Affirmed.MARSHALL, J., delivered the opinion for a unanimous Court.

1965_147

MR. JUSTICE STEWART delivered the opinion of the Court.This case presents questions concerning the scope of a century-old federal law that permits a defendant in state court proceedings to transfer his case to a federal trial court under certain conditions. That law, now 28 U.S.C. § 1443 (1964 ed.) provides:"§ 1443. Civil rights cases.""Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:""(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;""(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law."The case arises from a removal petition filed by Thomas Rachel and 19 other defendants seeking to transfer to the United States District Court for the Northern District of Georgia criminal trespass prosecutions pending against them in the Superior Court of Fulton County, Georgia. The petition stated that the Page 384 U. S. 783 defendants had been arrested on various dates in the spring of 1963 when they sought to obtain service at privately owned restaurants open to the general public in Atlanta, Georgia. The defendants alleged:"their arrests were effected for the sole purpose of aiding, abetting, and perpetuating customs, and usages which have deep historical and psychological roots in the mores and attitudes which exist within the City of Atlanta with respect to serving and seating members of the Negro race in such places of public accommodation and convenience upon a racially discriminatory basis and upon terms and conditions not imposed upon members of the so-called white or Caucasian race. Members of the so-called white or Caucasian race are similarly treated and discriminated against when accompanied by members of the Negro race."Each defendant, according to the petition, was then indicted under the Georgia statute making it a misdemeanor to refuse to leave the premises of another when requested to do so by the owner or the person in charge. [Footnote 1] On these allegations, the defendants maintained that removal was authorized under both subsections of 28 U.S.C. § 1443. The defendants maintained broadly that they were entitled to removal under the First Amendment and the Due Process Clause of the Fourteenth Page 384 U. S. 784 Amendment. Specifically invoking the language of subsection (1), the "denied or cannot enforce" clause, their petition stated:"petitioners are denied and/or cannot enforce in the Courts of the State of Georgia rights under the Constitution and Laws of the United States providing for the equal rights of citizens of the United States . . . in that, among other things, the State of Georgia by statute, custom, usage, and practice supports and maintains a policy of racial discrimination."Invoking the language of subsection (2), the "color of authority" clause, the petition stated:"petitioners are being prosecuted for acts done under color of authority derived from the constitution and laws of the United States and for refusing to do an act which was, and is, inconsistent with the Constitution and Laws of the United States."On its own motion and without a hearing, the Federal District Court remanded the cases to the Superior Court of Fulton County, Georgia, finding that the petition did not allege facts sufficient to sustain removal under the federal statute. The defendants appealed to the Court of Appeals for the Fifth Circuit. [Footnote 2] Page 384 U. S. 785While the case was pending in that court, two events of critical significance took place. The first of these was the enactment into law by the United States Congress of the Civil Rights Act of 1964, 78 Stat. 241. The second was the decision of this Court in Hamm v. City of Rock Hill, 379 U. S. 306. That case held that the Act precludes state trespass prosecutions for peaceful attempts to be served upon an equal basis in establishments covered by the Act, even though the prosecutions were instituted prior to the Act's passage. [Footnote 3] In view of these intervening developments in the law, the Court of Appeals reversed the District Court. In terms of the language of § 1443(1), the court held that, if the allegations in the petition were true, prosecution in the courts of Georgia under that State's trespass statute, substantially similar to the state statutes involved in Hamm, denied the defendants a right under a law providing for equal civil rights -- the Civil Rights Act of 1964. The case was therefore returned to the District Court with directions that the defendants be given an opportunity to prove that their prosecutions had resulted from orders to leave places of public accommodation "for racial reasons." Upon such proof, the court held that Hamm would then require the District Court to order dismissal of the prosecutions. 342 F.2d 336, 343.We granted certiorari to consider the applicability of the removal statute to the circumstances of this case. 382 U.S. 808. No issues touching the constitutional Page 384 U. S. 786 power of Congress are involved. We deal only with questions of statutory construction. [Footnote 4]The present statute is a direct descendant of a provision enacted as part of the Civil Rights Act of 1866. 14 Stat. 27. The subsection that is now § 1443(1) was before this Court in a series of decisions beginning with Strauder v. West Virginia, 100 U. S. 303, and Virginia v. Rives, 100 U. S. 313, in 1880 and ending with Kentucky v. Powers, 201 U. S. 1, in 1906. [Footnote 5] The Court has not considered the removal statute since then, one reason being that an order remanding a case sought to be removed under § 1443 was not appealable after the year 1887. [Footnote 6] In § 901 of the Civil Rights Act of 1964, however, Congress specifically provided for appeals from remand orders in § 1443 cases, so as to give the federal reviewing courts Page 384 U. S. 787 a new opportunity to consider the meaning and scope of the removal statute. [Footnote 7] 78 Stat. 266, 28 U.S.C. § 1447(d) (1964 ed.). The courts of appeals in four circuits have Page 384 U. S. 788 now had occasion to give extensive consideration to various aspects of the removal statute. [Footnote 8] In the case before us, the Court of Appeals for the Fifth Circuit dealt only with issues arising under the first subsection of § 1443, and we confine our review to those issues.Section 1443(1) entitles the defendants to remove these prosecutions to the federal court only if they meet both requirements of that subsection. They must show both that the right upon which they rely is a "right under any law providing for . . . equal civil rights," and that they are "denied or cannot enforce" that right in the courts of Georgia.The statutory phrase "any law providing for . . . equal civil rights" did not appear in the original removal provision in the Civil Rights Act of 1866. That provision allowed removal only in cases involving the express statutory rights of racial equality guaranteed in the Act itself. The first section of the 1866 Act secured for all citizens the "same" rights as were "enjoyed by white citizens" in a variety of fundamental areas. [Footnote 9] Section 3, Page 384 U. S. 789 the removal section of the 1866 Act, provided for removal by "persons who are denied or cannot enforce . . . the rights secured to them by the first section of this act. . . ." [Footnote 10]The present language "any law providing for . . . equal civil rights" first appeared in § 641 of the Revised Statutes of 1874. [Footnote 11] When the Revised Statutes were compiled, the substantive and removal provisions of the Civil Rights Act of 1866 were carried forward in separate sections. [Footnote 12] Hence, Congress could no longer identify the rights for which removal was available by using the language of the original Civil Rights Act -- "rights secured to them by the first section of this act." The new language it chose, however, does not suggest that it intended to limit the scope of removal to rights recognized in statutes existing in 1874. On the contrary, Congress' choice of the open-ended phrase "any law providing for . . . equal civil rights" was clearly appropriate to permit removal in cases involving "a right under" both existing and future statutes that provided for equal civil rights.There is no substantial indication, however, that the general language of § 641 of the Revised Statutes was intended to expand the kinds of "law" to which the removal section referred. In spite of the potential breadth of the phrase "any law providing for . . . equal civil Page 384 U. S. 790 rights," it seems clear that, in enacting § 641, Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866. Prior to the 1874 revision, Congress had not significantly enlarged the opportunity for removal available to private persons beyond the relatively narrow category of rights specified in the 1866 Act, even though the Fourteenth and Fifteenth Amendments had been adopted and Congress had broadly implemented them in other major civil rights legislation. [Footnote 13] Moreover, § 641 contained an explicit cross-reference at the end of the section to § 1977 of the Revised Statutes, which carried forward the principal rights created in § 1 of the 1866 Act. In addition, the note in the margin of § 641 pointed specifically to the removal provision of the Civil Rights Act of 1866 and to §§ 16 and 18 of the Civil Rights Act of 1870. [Footnote 14] The latter sections Page 384 U. S. 791 were concerned solely with the reenactment, in somewhat expanded form, of the 1866 Act. Finally, the limitation of § 641 to laws comparable to the Civil Rights Act of 1866 comports with the relatively narrow mandate of the revising commissioners"to revise, simplify, arrange, and consolidate all statutes of the United States, general and permanent in their nature, which shall be in force at the time such commissioners may make the final report of their doings."Act of June 27, 1866, c. 140, 14 Stat. 74. We conclude, therefore, that the model for the phrase "any law providing for . . . equal civil rights" in § 641 was the Civil Rights Act of 1866.The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality. As originally proposed in the Senate, § 1 of the bill that became the 1866 Act did not contain the phrase "as is enjoyed by white citizens." [Footnote 15] That phrase was later added in committee in the House, apparently to emphasize the racial character of the rights being protected. More important, the Senate bill did contain a general provision forbidding "discrimination in civil rights or immunities," preceding the specific enumeration of rights to be included in § 1. [Footnote 16] Objections were raised in the legislative debates to the breadth of the rights of racial equality that might be encompassed by a prohibition so general as one against "discrimination in civil rights or immunities." There was sharp controversy in the Senate, [Footnote 17] but the bill passed. After similar controversy in the House, [Footnote 18] Page 384 U. S. 792 however, an amendment was accepted striking the phrase from the bill. [Footnote 19]On the basis of the historical material that is available, we conclude that the phrase "any law providing for . . . equal civil rights" must be construed to mean any law providing for specific civil rights stated in terms of racial equality. Thus, the defendants' broad contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under § 1443 because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands. As the Court of Appeals for the Second Circuit has concluded, § 1443"applies only to rights that are granted in terms of equality, and not to the whole gamut of constitutional rights. . . . When the removal statute speaks of 'any law providing for equal rights,' it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all."New York v. Galamison, 342 F.2d 255, 269, 271. See also Gibson v. Mississippi, 162 U. S. 565, 162 U. S. 585-586; Kentucky v. Powers, 201 U. S. 1, 201 U. S. 39-40; City of Greenwood v. Peacock, post, p. 384 U. S. 825.But the defendants in the present case did not rely solely on these broad constitutional claims in their removal petition. They also made allegations calling into play the Civil Rights Act of 1964. That Act is clearly a law conferring a specific right of racial equality, for, in Page 384 U. S. 793 § 201(a), it guarantees to all the "full and equal enjoyment" of the facilities of any place of public accommodation without discrimination on the ground of race. [Footnote 20] By that language, the Act plainly qualifies as a "law providing for . . . equal civil rights" within the meaning of 28 U.S.C. § 1443(1).Moreover, it is clear that the right relied upon as the basis for removal is a "right under" a law providing for equal civil rights. The removal petition may fairly be read to allege that the defendants will be brought to trial solely as the result of peaceful attempts to obtain service at places of public accommodation. [Footnote 21] The Civil Rights Act of 1964 endows the defendants with a right not to be prosecuted for such conduct. As noted, § 201(a) guarantees to the defendants the equal access they sought. Section 203 then provides that"No person shall . . . (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202."(Emphasis supplied.) 78 Stat. 244. In Hamm v. City of Rock Hill, 379 U. S. 306, 379 U. S. 311, the Court held that this section of the Act "prohibits prosecution of any person for seeking service in a covered establishment, because of his race Page 384 U. S. 794 or color." Hence, if the facts alleged in the petition are true, the defendants not only are immune from conviction under the Georgia trespass statute, but they have a "right under" the Civil Rights Act of 1964 not even to be brought to trial on these charges in the Georgia courts.The question remaining, then, is whether, within the meaning of § 1443(1), the defendants are "denied or cannot enforce" that right "in the courts of" Georgia. That question can be answered only after consideration of the legislative and judicial history of this requirement.When Congress adopted the first civil rights removal provisions in § 3 of the Civil Rights Act of 1866, it incorporated by reference the procedures for removal established in § 5 of the Habeas Corpus Suspension Act of 1863, 12 Stat. 756. The latter section, in turn, permitted removal either at the pretrial stage of the proceedings in the state court or after final judgment in that court. [Footnote 22] There can be no doubt that post-judgment removal was a practical remedy for civil rights defendants invoking either the "denied or cannot enforce" clause or the "color of authority" clause of the 1866 removal provision in order to vindicate rights that had actually been denied at the trial. [Footnote 23] The scope of pretrial removal, however, was unclear. [Footnote 24] Page 384 U. S. 795Congress eliminated post-judgment removal when it enacted § 641 of the Revised Statutes of 1874. [Footnote 25] The compilation of the Revised Statutes coincided with the Page 384 U. S. 796 end of the Reconstruction period. During Reconstruction itself, removal under § 3 of the Civil Rights Act of 1866 had been but one measure established by Congress for the enforcement of the numerous statutory rights created under the Civil War Amendments. In other enactments, Congress had taken relatively more drastic steps to enforce those rights. [Footnote 26] But, by the end of the Page 384 U. S. 797 Reconstruction period, many of these measures had expired, and, by eliminating post-judgment removal, Congress had substantially truncated the original civil rights removal provision. Pretrial removal was retained, but the scope of the provision had never been clarified. It was in this historic setting that the Court examined the scope of § 641. In a series of cases commencing with Strauder v. West Virginia, supra, and Virginia v. Rives, supra, decided on the same day in the 1879 Term, the Court established a relatively narrow, well defined area in which pretrial removal could be sustained under the "denied or cannot enforce" clause of that section.In Strauder, the removal petition of a Negro indicted for murder pointed to a West Virginia statute that permitted only white male persons to serve on a grand or petit jury. Since Negroes were excluded from jury service pursuant to that statute, the defendant claimed that the "probabilities" were great that he would suffer a denial of his right to the "full and equal benefit of all laws and proceedings in the State of West Virginia. . . ." 100 U.S. at 100 U. S. 304. The state court denied removal, however, and the defendant was convicted. [Footnote 27] Page 384 U. S. 798 This Court held that pretrial removal should have been granted because, in the language of § 641, it appeared even before trial that the defendant would be denied or could not enforce a right secured to him by a "law providing for . . . equal civil rights." The law specifically invoked by the Court was § 1977 of the Revised Statutes, now 42 U.S.C. § 1981. That law, the Court held, conferred upon the defendant the right to have his jurors selected without discrimination on the ground of race. Because of the direct conflict between the West Virginia statute and § 1977, the Court in Strauder held that the defendant would be the victim of "a denial by the statute law of the State." 100 U.S. at 100 U. S. 312.In Virginia v. Rives, however, the defendants could point to no such state statute as the basis for removal. Their petition alleged that strong community racial prejudice existed against them, that the grand and petit jurors summoned to try them were all white, that Negroes had never been allowed to serve on county juries in cases in which a Negro was involved in any way, and that the judge, the prosecutor, and the assistant prosecutor had all rejected their request that Negroes be included in the petit jury. Hence, the defendants maintained, they could not obtain a fair trial in the state court. But the only relevant Virginia statute to which the petition referred imposed jury duty on all males within a certain age range. Thus, the law of Virginia did not, on its face, sanction the discrimination of which the defendants complained. This Court held that the petition stated no ground for removal. Critical to its holding was the Court's observation that § 641 of the Revised Statutes authorized only pretrial removal. The Court concluded:"the denial or inability to enforce in the judicial tribunals of a State, rights secured to a defendant by any law providing for . . . equal civil rights . . . Page 384 U. S. 799 of which sect. 641 speaks is primarily, if not exclusively, a denial of such rights, or an inability to enforce them, resulting from the Constitution or laws of the State, rather than a denial first made manifest at the trial of the case. In other words, the statute has reference to a legislative denial or an inability resulting from it. Many such cases of denial might have been apprehended, and some existed. Colored men might have been, as they had been, denied a trial by jury. They might have been excluded by law from any jury summoned to try persons of their race, or the law might have denied to them the testimony of colored men in their favor, or process for summoning witnesses. . . . In all such cases, a defendant can affirm, on oath, before trial, that he is denied the equal protection of the laws or equality of civil rights. But, in the absence of constitutional or legislative impediments, he cannot swear before his case comes to trial that his enjoyment of all his civil rights is denied to him. When he has only an apprehension that such rights will be withheld from him when his case shall come to trial, he cannot affirm that they are actually denied, or that he cannot enforce them. Yet such an affirmation is essential to his right to remove his case. By the express requirement of the statute, his petition must set forth the facts upon which he bases his claim to have his case removed, and not merely his belief that he cannot enforce his rights at a subsequent stage of the proceedings. The statute was not, therefore, intended as a corrective of errors or wrongs committed by judicial tribunals in the administration of the law at the trial."100 U.S. at 100 U. S. 319-320.The Court acknowledged that, even though Virginia's statute did not authorize discrimination in jury selection, Page 384 U. S. 800 the officer in charge of the selection might nevertheless bring it about."But when a subordinate officer of the State, in violation of State law, undertakes to deprive an accused party of a right which the statute law accords to him, as in the case at bar, it can hardly be said that he is denied, or cannot enforce, 'in the judicial tribunals of the State' the rights which belong to him. In such a case, it ought to be presumed the court will redress the wrong."100 U.S. at 100 U. S. 321-322. The Court distinguished the situation in Strauder:"It is to be observed that [§ 641] gives the right of removal only to a person 'who is denied, or cannot enforce, in the judicial tribunals of the State his equal civil rights.' And this is to appear before trial. When a statute of the State denies his right, or interposes a bar to his enforcing it, in the judicial tribunals, the presumption is fair that they will be controlled by it in their decisions; and, in such a case, a defendant may affirm on oath what is necessary for a removal. Such a case is clearly within the provisions of sect. 641."100 U.S. at 100 U. S. 321. (Emphasis in original.)Strauder and Rives thus teach that removal is not warranted by an assertion that a denial of rights of equality may take place and go uncorrected at trial. Removal is warranted only if it can be predicted by reference to a law of general application that the defendant will be denied or cannot enforce the specified federal rights in the state courts. A state statute authorizing the denial affords an ample basis for such a prediction.The doctrine announced in Strauder and Rives was amplified in Neal v. Delaware, 103 U. S. 370, and Bush v. Kentucky, 107 U. S. 110. In both cases, the Court reversed convictions on the ground that jury selection Page 384 U. S. 801 had been conducted pursuant to a policy of racial discrimination. Yet, in both cases, the Court also held that a pretrial removal petition alleging such discrimination stated no ground for removal. In Neal, the petition relied upon a Delaware constitutional provision, adopted prior to the advent of the Fourteenth and Fifteenth Amendments, that purportedly sanctioned discriminatory jury selection. But the Delaware court in which the petition had been filed held that the subsequent Amendments rendered the state provision void. Hence, unlike Strauder, the Neal case involved no law of the State upon which to found a suitable prediction that rights of equality would be denied in the courts of the State. In Bush, the petition relied upon a Kentucky jury exclusion statute drawn along racial lines that had been enacted after the adoption of the Fourteenth Amendment. But prior to Bush's trial, the Kentucky Court of Appeals had held, in another case, that the statute was unconstitutional. This Court noted that the judicial declaration was binding upon all inferior Kentucky courts, and concluded that,"After that decision, so long as it was unmodified, it could not have been properly said in advance of a trial that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of Kentucky the rights secured to him by any law providing for . . . equal civil rights. . . ."107 U.S. at 107 U. S. 116. In both Neal and Bush, then, the Court held that, in the absence of a presently effective state law authorizing the predicted denial, the state court was the proper forum for the resolution of the claims that rights of equality would be denied, even though, as the Court also held, the state courts had ultimately failed to correct the denials that in fact took place at the defendants' trials in those two cases. Page 384 U. S. 802Four subsequent decisions, also involving claims of racial discrimination in jury selection, reiterated the principles announced in Strauder and Rives, and amplified in Neal and Bush. [Footnote 28] The final removal case decided by this Court was Kentucky v. Powers, 201 U. S. 1. In that case, which involved alleged discrimination on a political basis, the defendant was about to undergo his fourth trial, having been successful on appeal after three prior verdicts of guilty. He could therefore enhance his prediction that rights would be denied by pointing to instances of illegality in the three prior proceedings against him. But the petition for removal resembled those in the cases that followed Strauder in that it pointed to no state enactment that authorized the predicted denial. Accordingly, restating the Strauder-Rives doctrine, this Court held that no case for removal had been made out.In the line of cases from Strauder to Powers, the Court interpreted § 641 of the Revised Statutes of 1874. That statute has come down to us, in modified form, as § 1443. But in its first subsection, the present removal statute still requires that a petitioner be one who "is denied or cannot enforce in the courts of" a State the rights he seeks to vindicate by removing the case to federal court. There is no suggestion that the modifications in the statute since 1874 were intended to effect any change in substance. Hence, for the purposes of the present case, we are dealing with the same statute that confronted the Court in the cases interpreting § 641. [Footnote 29] Page 384 U. S. 803The Strauder-Rives doctrine, as consistently applied in all these cases, required a removal petition to allege not merely that rights of equality would be denied or could not be enforced, but that the denial would take place in the courts of the State. The doctrine also required that the denial be manifest in a formal expression of state law. This requirement served two ends. It ensured that removal would be available only in cases where the predicted denial appeared with relative clarity prior to trial. It also ensured that the task of prediction would not involve a detailed analysis by a federal judge of the likely disposition of particular federal claims by particular state courts. That task not only would have been difficult, but it also would have involved federal judges in the unseemly process of prejudging their Page 384 U. S. 804 brethren of the state courts. Thus, the Court in Strauder and Rives concluded that a state enactment, discriminatory on its face, so clearly authorized discrimination that it could be taken as a suitable indication that all courts in that State would disregard the federal right of equality with which the state enactment was precisely in conflict.In Rives itself, however, the Court noted that the denial of which the removal provision speaks "is primarily, if not exclusively, a denial . . . resulting from the Constitution or laws of the State. . . ." 100 U.S. at 100 U. S. 319. (Emphasis supplied.) This statement was reaffirmed in Gibson v. Mississippi, 162 U. S. 565, 162 U. S. 581. The Court thereby gave some indication that removal might be justified, even in the absence of a discriminatory state enactment, if an equivalent basis could be shown for an equally firm prediction that the defendant would be "denied or cannot enforce" the specified federal rights in the state court. Such a basis for prediction exists in the present case.In the narrow circumstances of this case, any proceedings in the courts of the State will constitute a denial of the rights conferred by the Civil Rights Act of 1964, as construed in Hamm v. City of Rock Hill, if the allegations of the removal petition are true. The removal petition alleges, in effect, that the defendants refused to leave facilities of public accommodation, when ordered to do so solely for racial reasons, and that they are charged under a Georgia trespass statute that makes it a criminal offense to refuse to obey such an order. The Civil Rights Act of 1964, however, as Hamm v. City of Rock Hill, 379 U. S. 306, made clear, protects those who refuse to obey such an order not only from conviction in state courts, but from prosecution in those courts. Hamm emphasized the precise terms of § 203(c) that prohibit any "attempt to punish" persons for exercising rights of equality conferred upon them by the Act. The Page 384 U. S. 805 explicit terms of that section compelled the conclusion that "nonforcible attempts to gain admittance to or remain in establishments covered by the Act, are immunized from prosecution. . . ." 379 U.S. at 379 U. S. 311. The 1964 Act therefore "substitutes a right for a crime." 379 U.S. at 379 U. S. 314. Hence, if as alleged in the present removal petition, the defendants were asked to leave solely for racial reasons, then the mere pendency of the prosecutions enables the federal court to make the clear prediction that the defendants will be "denied or cannot enforce in the courts of [the] State" the right to be free of any "attempt to punish" them for protected activity. It is no answer in these circumstances that the defendants might eventually prevail in the state court. [Footnote 30] The burden of having to defend the prosecutions is itself the denial of a right explicitly conferred by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, supra.Since the Federal District Court remanded the present case without a hearing, the defendants as yet have had no opportunity to establish that they were ordered to leave the restaurant facilities solely for racial reasons. If the Federal District Court finds that allegation true, the defendants' right to removal under § 1443(1) will be clear. [Footnote 31] The Strauder-Rives doctrine requires no more, for the denial in the courts of the State then clearly appears without any detailed analysis of the likely behavior of any particular state court. Upon such a finding, it will be apparent that the conduct of the defendants Page 384 U. S. 806 is "immunized from prosecution" in any court, and the Federal District Court must then sustain the removal and dismiss the prosecutions.For these reasons, the judgment isAffirmed

U.S. Supreme CourtGeorgia v. Rachel, 384 U.S. 780 (1966)Georgia v. RachelNo. 147Argued April 25-26, 1966Decided June 20, 1966384 U.S. 780SyllabusRespondents were arrested on various dates in 1963 when they sought service at Atlanta restaurants. They were charged under the Georgia criminal trespass statute, and petitioned for removal of the prosecutions to the Federal District Court under 28 U.S.C § 1443. The petition alleged that the arrests and prosecutions were racially motivated. Under subsection (1) of § 1443, which pertinently provides for removal where the action is "[a]gainst any person who is denied or cannot enforce" in the state courts "a right under any law providing for . . . equal civil rights," respondents alleged that they were denied and could not enforce in the Georgia courts their rights under federal law. The federal law specifically invoked was the First Amendment and the Due Process Clause of the Fourteenth Amendment. But the removal petition also alleged facts that stated a claim for removal under the Civil Rights Act of 1964, enacted while this case was on appeal. The Federal District Court refused to sustain removal, and remanded the cases to the state court, finding the facts alleged insufficient under § 1443. The Court of Appeals, however, reversed on the basis of the 1964 Act as construed in Hamm v. City of Rock Hill, 379 U. S. 306. In Hamm, this Court held that the Civil Rights Act of 1964 precluded state trespass prosecutions in peaceful "sit-in" cases even though the prosecutions were instituted before the Act's passage. In terms of the language of § 1443(1), the Court of Appeals held that, if the allegations in the removal petition were true, prosecution in the state court, under a statute similar to the state statutes in Hamm, denied respondents a right under a law (the Civil Rights Act of 1964) providing for equal civil rights. Hence, the court remanded the case to the District Court with directions that respondents be given an opportunity to prove that their prosecutions resulted from orders to leave public accommodations "for racial reasons," in which case the District Court, under Hamm, would have to dismiss the prosecutions.Held:1. Removal of the state court trespass prosecutions can be had under § 1443(1) upon the allegation in the removal petition that Page 384 U. S. 781 the trespass prosecutions stem exclusively from the respondents' refusal to leave places of public accommodation covered by the Civil Rights Act of 1964 when they were asked to leave solely for racial reasons. Pp. 384 U. S. 788-805.(a) The phrase in § 1443(1) "any law providing for . . . equal civil rights," means any law providing for specific civil rights stated in terms of racial equality. Thus, although broad First Amendment and Due Process contentions do not support a removal claim under § 1443(1), the Civil Rights Act of 1964 is a law providing for equal civil rights in that it confers specific rights of racial equality. Section 201(a) guarantees equal enjoyment of places of public accommodation without discrimination on the ground of race. Pp. 384 U. S. 788-793.(b) The unique language of § 203 of the Act bars any "attempt to punish" any person for peaceably seeking service in a place of public accommodation. As construed in Hamm, that language prohibits even a prosecution based upon a refusal to leave such premises when the request to leave was made for racial reasons. Pp. 384 U. S. 793-794.(c) If respondents were asked to leave solely for racial reasons, the mere pendency of prosecutions would enable a federal court to make a firm prediction that they would be denied their rights in the state courts, since the burden of having to defend the prosecutions would itself constitute the denial of a right conferred by the Civil Rights Act of 1964. Pp. 384 U. S. 794, 384 U. S. 804-805.(d) Such a basis for prediction is the equivalent of a state statute authorizing the predicted denial, a requirement established by the leading cases interpreting subsection (1) of § 1443. Strauder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 U. S. 313. Pp. 384 U. S. 794-804.2. Since the Federal District Court remanded the case to the state court without a hearing, respondents have had no opportunity to show that they were ordered to leave the facilities covered by the Act solely for racial reasons. If the District Court finds that allegation true, respondents have a clear right to removal under § 1443(1) and dismissal of the proceedings. Pp. 384 U. S. 805-806.342 F.2d 336, affirmed. Page 384 U. S. 782

1980_79-1068

JUSTICE STEWART delivered the opinion of the Court.Title VII of the Civil Rights Act of 1964 limits the authority of the Equal Employment Opportunity Commission to make public disclosure of information it has obtained in investigating and attempting to resolve a claim of employment discrimination. [Footnote 1] We granted certiorari in this case to consider whether the Court of Appeals for the Fourth Circuit was correct in holding that a prelitigation disclosure of information in a Commission file to the employee who filed the Title VII claim is a "public" disclosure within the meaning of the statutory restrictions. 445 U.S. 926. [Footnote 2] Page 449 U. S. 593IThis case arose when the Commission sought evidence with respect to discrimination charges filed against the Joseph Horne Co., a division of the respondent, Associated Dry Goods Corp. Horne operates retail department stores in Pennsylvania. Between 1971 and 1973, seven Horne employees filed employment discrimination charges with the Commission, six alleging sex discrimination and one alleging racial discrimination. The Commission began its investigation by requesting Horne to provide the employment records of the complainants, and statistics, documents, and other information relating to Horne's general personnel practices. Horne refused to provide the information unless the Commission agreed beforehand not to disclose any of the requested material to the charging parties. The Commission refused to give this assurance, explaining its practice of making limited disclosure to a charging party of information in his and other files when he needs that information in connection with a potential lawsuit. [Footnote 3] When Horne continued to refuse Page 449 U. S. 594 to provide the information without an assurance of absolute secrecy, the Commission subpoenaed the material. After the Commission rejected Horne's petition for revocation of the agency subpoena, the respondent filed this suit, asking the District Court to declare that the Commission's limited disclosure practices violated Title VII, and to enjoin the Com mission from enforcing the subpoena. [Footnote 4]The District Court, concluding that the Commission's disclosure of confidential information to charging parties upsets Title VII's scheme of negotiation and settlement, held that the regulations and the provisions in the Compliance Manual covering special disclosure to charging parties violate Title VII. Accordingly, the court enforced the subpoena only on the condition that the Commission treat charging parties as members of the "public" to whom it cannot disclose any information in its files. 454 F. Supp. 387 (ED Va.). The Page 449 U. S. 595 Court of Appeals affirmed the District Court's judgment. EEOC v. Joseph Horne Co., 607 F.2d 1075.IIIn enacting Title VII, Congress combined administrative and judicial means of eliminating employment discrimination. A person claiming to be the victim of discrimination must first file a charge with the Commission. The Commission must then serve notice of the charge on the employer, and begin an investigation to determine whether there is reasonable cause to believe the charge is true. 42 U.S.C. § 2000e-5(b). If it finds no such reasonable cause, the Commission must dismiss the charge. Ibid. If it does find reasonable cause, it must try to eliminate the alleged discriminatory practice "by informal methods of conference, conciliation, and persuasion." Ibid. [Footnote 5] If its attempts at conciliation fail, the Commission may bring a civil action against the employer. § 2000e-5(f)(1). But Title VII also makes private lawsuits by aggrieved employees an important part of its means of enforcement. If the Commission dismisses the charge, the employee may immediately file a private action. Ibid. And regardless of whether the Commission finds reasonable cause, the employee may bring an action 180 days after filing the charge if by that time the Commission has not filed its own lawsuit. Ibid. [Footnote 6] Page 449 U. S. 596Title VII gives the Commission two formal means of obtaining information when it investigates a charge: the Commission may examine and copy evidence in the possession of the respondent employer, § 2000e-(a), and subpoena evidence and documents, § 2000e-9. Congress imposed on the Commission a duty to maintain this information in confidence. Section 706(b) of Title VII directs that "[c]harges shall not be made public by the Commission." [Footnote 7] If the Commission attempts informally to resolve a charge for which it has found reasonable cause, it cannot make "public" anything said or done in the course of the negotiations between the Commission and the parties; any Commission employee violating this prohibition faces criminal penalties. Ibid. Section 709(e) of the statute supplements these prohibitions by making it a misdemeanor for any officer or employee of the Commission "to make public in any manner whatever any information" the Commission obtains through its investigative powers before the institution of any proceeding involving this information. [Footnote 8]Title VII nowhere defines "public." In its regulation governing disclosure, the Commission has construed the statute's prohibition of "public" release of information to permit prelitigation disclosure of charges and of investigative information to the parties where such disclosure "is deemed necessary for securing appropriate relief." 29 CFR § 1601.22 (1979). Specifically, the Commission has also created special disclosure rules permitting release of information in its files to charging parties or their attorneys, aggrieved persons in whose behalf charges have been filed and the persons or organizations who Page 449 U. S. 597 have filed the charges in their behalf, and respondents and their attorneys, so long as the request for the information is made in connection with contemplated litigation. [Footnote 9] Though normally a person can see information in the file only for the case in which he is directly involved, the Commission sometimes allows a prospective litigant to see information in files of cases brought by other employees against the same employer where that information is relevant and material to the litigant's case. EEOC Compliance Manual § 83.7(c). [Footnote 10] Before disclosing any information, however, the Commission expunges the names, identifying characteristics, and statements of any witnesses who have been promised anonymity, as well as the names of any other respondents. [Footnote 11] Moreover, any person requesting confidential information must execute a written agreement not to disclose the information to any other Page 449 U. S. 598 person, except as part of the normal course of litigation after a suit is filed. [Footnote 12]IIIFor the reasons that follow, we have concluded that Congress did not include charging parties within the "public" to whom disclosure of confidential information is illegal under the provisions of Title VII here at issue. Section 706(b) states that "[c]harges shall not be made public." 42 U.S.C. § 2000e-5(b). The charge, of course, cannot be concealed from the charging party. Nor can it be concealed from the respondent, since the statute also expressly requires the Commission to serve notice of the charge upon the respondent within 10 days of its filing. Ibid. Thus, the "public" to whom the statute forbids disclosure of charges cannot logically include the parties to the agency proceeding. [Footnote 13] And we must infer that Congress intended the same distinction when it used the word "public" in § 709(e), 42 U.S.C. § 2000e-8(e). The two statutory provisions treat essentially the same subject, and, absent any congressional indication to the contrary, we must assume that "public" means the same thing in the two sections. [Footnote 14]The very limited legislative history of the disclosure provisions supports this reading. The bill passed by the House contained no restrictions on public disclosure. See H.R.Rep. Page 449 U. S. 599 No. 914, 88th Cong., 1st Sess., 13 (1963). [Footnote 15] The disclosure provisions were made part of the substitute bill which Senators Dirksen and Humphrey introduced in the Senate, and which the House later passed without amendment. See 110 Cong.Rec. 12819 (1964). Senator Humphrey, the cosponsor of the bill, explained that the purpose of the disclosure provisions was to prevent wide or unauthorized dissemination of unproved charges, not limited disclosures necessary to carry out the Commission's functions:"[T]his is a ban on publicizing, and not on such disclosure as is necessary to the carrying out of the Commission's duties under the statute. . . . The amendment is not intended to hamper Commission investigations or proper cooperation with other State and Federal agencies, but rather is aimed at the making available to the general public of unproven charges."Id. at 12723 (emphasis added). [Footnote 16] The parties to an agency proceeding are hardly Page 449 U. S. 600 members of the "general public," especially since, as common sense and the express language of § 706(b) show, see supra at 449 U. S. 598, they always have available to them the charge -- proved or unproved -- in the case to which they are parties. [Footnote 17]This reading of the statute, moreover, is consistent with the coordinated scheme of administrative and judicial enforcement which Congress created to enforce Title VII. See supra at 449 U. S. 595. First, limited disclosure to the parties can speed the Commission's required investigation: the Commission can more readily obtain information informally -- rather Page 449 U. S. 601 than through its formal powers under 42 U.S.C. § 20OOe-9 -- if it can present the parties with specific facts for them to corroborate or rebut. Second, limited disclosure enhances the Commission's ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation: a party is far more likely to settle when he has enough information to be able to assess the strengths and weaknesses of his opponent's case, as well as his own. [Footnote 18]The respondent argues vigorously that the disclosure of investigative information to charging parties may encourage many lawsuits that would not otherwise be filed, and thus contravene the congressional policy of relying on administrative resolution and settlement. But the effect of limited disclosure may be just the opposite. The employee has little to gain from filing a futile lawsuit, and indeed faces the possibility of an adverse fee award if the suit is frivolous. Page 449 U. S. 602 Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 434 U. S. 421. Pointless litigation burdens both the parties and the federal courts, and it is in the interest of all concerned that the charging party have adequate information in assessing the feasibility of litigation. Under the respondent's view of the statute, however, the charging party would be able to obtain that information only after filing a lawsuit. See 42 U.S.C. § 2000e-8(e). Thus, a charging party would have to file suit in a hopeless case in order to discover that the case was hopeless. [Footnote 19] The Commission's disclosure practice may therefore help fulfill the statutory goal of maximum possible reliance upon voluntary conciliation and administrative resolution of claims.In any event, even if disclosure may encourage litigation in some instances, that result is not inconsistent with the ultimate purposes of Title VII. [Footnote 20] The private right of action remains an important part of Title VII's scheme of enforcement, Alexander v. Gardner-Denver Co., 415 U. S. 36, 415 U. S. 45. Congress considered the charging party a "private attorney general," whose role in enforcing the ban on discrimination is parallel to that of the Commission itself. Christiansburg Garment Co. v. EEOC, supra at 434 U. S. 421. [Footnote 21] The private litigant Page 449 U. S. 603 could hardly play that role without access to information needed to assess the feasibility of litigation.IVNevertheless, though Congress allowed disclosure of investigative information in a charging party's file to that party himself, nothing in the statute or its legislative history reveals any intent to allow the Commission to reveal to that charging party information in the files of other charging parties who have brought claims against the same employer. See EEOC Compliance Manual § 83.7(c). [Footnote 22] As noted earlier, the charging party cannot logically be a member of the "public" to whom disclosure is forbidden by § 706(b) of Title VII, and, by extension, cannot be a member of the public under § 709(e). See supra at 449 U. S. 598. The reason, however, is that the charging party is obviously aware of the charge he has filed, and so cannot belong to the public to which Congress referred when it directed that "[c]harges shall not be made public." 42 U.S.C. § 2000e-5(b).But there is no reason why the charging party should know the content of any other employee's charge, and he must be considered a member of the public with respect to charges filed by other people. With respect to all files other than his own, he is a stranger.The Commission notes that it often consolidates substantially similar charges for investigation, and in other instances draws upon information generated in an earlier investigation of the same employer. The Commission therefore argues that, because information in one party's file may be directly Page 449 U. S. 604 relevant to another party's charge, it would be burdensome for it to have to reproduce the generally relevant information for each file and unfair to a charging party to deny him access to generally relevant information that, by chance of timing, appears first and fully in another party's file.But the Commission's argument is merely one of administrative convenience, and such convenience cannot override the prohibitions in the statute. Statistics and other information about an employer's general practices may certainly be relevant to individual charges of discrimination, McDonnell Douglas Corp. v. Green, 411 U. S. 792, 411 U. S. 804-805, but by including such information, in full or summary form, in each individual charging party's file, the Commission can fully comply with the statute while giving each party the information he needs to weigh the strength of his own case.VThe Court of Appeals erred, therefore, in holding that the respondent had a categorical right to refuse to comply with the EEOC subpoena unless the Commission assured it that the information supplied would be held in absolute secrecy. The respondent was entitled only to assurance that each employee filing a charge against Horne would see information in no file other than his or her own. Accordingly, 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 CourtEEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981)Equal Employment Opportunity Commissionv. Associated Dry Goods Corp.No. 79-1068Argued November 3, 1980Decided January 26, 1981449 U.S. 590SyllabusSection 706(b) of Title VII of the Civil Rights Act of 1964 provides that employment discrimination charges "shall not be made public" by the Equal Employment Opportunity Commission (EEOC), and bars public disclosure of anything "said or done" during informal Commission settlement endeavors. Section 709(e) makes it a misdemeanor for any EEOC officer or employee "to make public" any information the EEOC obtains through its investigative powers before the institution of any proceeding involving such information. After employment discrimination charges were filed against a department store division (Horne) of respondent, the EEOC requested Horne to provide it with the complainants' employment records and other information relating to Horne's personnel practices. Horne refused to provide the information unless the EEOC agreed not to disclose it to the charging parties. The EEOC refused to give this assurance, explaining its practice, pursuant to regulations and its Compliance Manual, of making limited disclosure to a charging party of information in his and other files when he needs that information in connection with a potential lawsuit. When Horne continued to refuse to provide the requested information, the EEOC subpoenaed the material. Respondent then filed suit in Federal District Court, seeking to have the EEOC's limited disclosure practices declared in violation of Title VII and to enjoin enforcement of the subpoena. The District Court held that such practices violated Title VII, and accordingly enforced the subpoena only on the condition that the EEOC treat charging parties as members of the "public" to whom it cannot disclose any information in its files. The Court of Appeals affirmed.Held: Congress did not include charging parties within the "public" to whom disclosure of confidential information is illegal under §§ 706(b) and 709(e). Pp. 449 U. S. 598-604.(a) The "public" to whom §§ 706(b) and 709(e) forbid disclosure of charges and other information cannot logically include the parties to the agency proceeding, since the charges, of course, cannot be concealed from the charging party or from the respondent upon whom the statute requires notice to be served. A consistent reading of the statute requires that the "public" to whom § 709(e) prohibits disclosure Page 449 U. S. 591 of information obtained in Commission investigations similarly exclude the parties. P. 449 U. S. 598.(b) The legislative history of §§ 706(b) and 709(e) supports this reading of the statute. Pp. 449 U. S. 598-600.(c) Moreover, such reading of the statute is consistent with the coordinated scheme of administrative and judicial enforcement of Title VII. Limited disclosure to the parties can speed the EEOC's required investigation and enhances its ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation. Pp. 449 U. S. 600-602.(d) Even if disclosure to charging parties may encourage litigation in some instances, this result is not inconsistent with Title VII's ultimate purposes of permitting a private right of action as an important part of the enforcement scheme. Pp. 449 U. S. 602-603.(e) It was error to hold that respondent had a categorical right to refuse to comply with the EEOC subpoena unless the EEOC assured it that the information supplied would be held in absolute secrecy. Respondent was only entitled to assurance that each employee filing a charge against Horne would see information in no file other than his or her own. Pp. 449 U. S. 603-604.607 F.2d 1075, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, and MARSHALL, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 449 U. S. 604. STEVENS, J., filed a dissenting opinion, post, p. 449 U. S. 606. POWELL, J., took no part in the decision of the case. REHNQUIST, J., took no part in the consideration or decision of the case. Page 449 U. S. 592

1986_85-1708

JUSTICE WHITE delivered the opinion of the Court.The Cabazon and Morongo Bands of Mission Indians, federally recognized Indian Tribes, occupy reservations in Riverside County, California. [Footnote 1] Each Band, pursuant to an Page 480 U. S. 205 ordinance approved by the Secretary of the Interior, conducts bingo games on its reservation. [Footnote 2] The Cabazon Band has also opened a card club at which draw poker and other card games are played. The games are open to the public, and are played predominantly by non-Indians coming onto the reservations. The games are a major source of employment for tribal members, and the profits are the Tribes' sole source of income. The State of California seeks to apply to the two Tribes Cal.Penal Code Ann. § 326.5 (West Supp. 1987). That statute does not entirely prohibit the playing of bingo, but permits it when the games are operated and staffed by members of designated charitable organizations, who may not be paid for their services. Profits must be kept in special accounts and used only for charitable purposes; prizes may not exceed $250 per game. Asserting that the bingo games on the two reservations violated each of these restrictions, California insisted that the Tribes comply with state law. [Footnote 3] Riverside Page 480 U. S. 206 County also sought to apply its local Ordinance No. 558, regulating bingo, as well as its Ordinance No. 331, prohibiting the playing of draw poker and the other card games.The Tribes sued the county in Federal District Court, seeking a declaratory judgment that the county had no authority to apply its ordinances inside the reservations and an injunction against their enforcement. The State intervened, the facts were stipulated, and the District Court granted the Tribes' motion for summary judgment, holding that neither the State nor the county had any authority to enforce its gambling laws within the reservations. The Court of Appeals for the Ninth Circuit affirmed, 783 F.2d 900 (1986), the State and the county appealed, and we postponed jurisdiction to the hearing on the merits. 476 U.S. 1168. [Footnote 4] Page 480 U. S. 207IThe Court has consistently recognized that Indian tribes retain "attributes of sovereignty over both their members and their territory," United States v. Mazurie, 419 U. S. 544, 419 U. S. 557 (1975), and that "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States," Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 447 U. S. 154 (1980). It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided. Here, the State insists that Congress has twice given its express consent: first in Pub.L. 280 in 1953, 67 Stat. 588, as amended, 18 U.S.C. § 1162, 28 U.S.C. § 1360 (1982 ed. and Supp. III), and second in the Organized Crime Control Act in 1970, 84 Stat. 937, 18 U.S.C. § 1955. We disagree in both respects.In Pub.L. 280, Congress expressly granted six States, including California, jurisdiction over specified areas of Indian country [Footnote 5] within the States and provided for the assumption of jurisdiction by other States. In § 2, California was granted broad criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State. [Footnote 6] Section 4's grant of civil jurisdiction was more limited. [Footnote 7] Page 480 U. S. 208 In Bryan v. Itasca County, 426 U. S. 373 (1976), we interpreted § 4 to grant States jurisdiction over private civil litigation involving reservation Indians in state court, but not to grant general civil regulatory authority. Id. at 426 U. S. 385, 426 U. S. 388-390. We held, therefore, that Minnesota could not apply its personal property tax within the reservation. Congress' primary concern in enacting Pub.L. 280 was combating lawlessness on reservations. Id. at 426 U. S. 379-380. The Act plainly was not intended to effect total assimilation of Indian tribes into mainstream American society. Id. at 426 U. S. 387. We recognized that a grant to States of general civil regulatory power over Indian reservations would result in the destruction of tribal institutions and values. Accordingly, when a State seeks to enforce a law within an Indian reservation under the authority of Pub.L. 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation under § 2, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.The Minnesota personal property tax at issue in Bryan was unquestionably civil in nature. The California bingo statute is not so easily categorized. California law permits bingo Page 480 U. S. 209 games to be conducted only by charitable and other specified organizations, and then only by their members who may not receive any wage or profit for doing so; prizes are limited and receipts are to be segregated and used only for charitable purposes. Violation of any of these provisions is a misdemeanor. California insists that these are criminal laws which Pub.L. 280 permits it to enforce on the reservations.Following its earlier decision in Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 694 F.2d 1185 (1982), cert. denied, 461 U.S. 929 (1983), which also involved the applicability of § 326.5 of the California Penal Code to Indian reservations, the Court of Appeals rejected this submission. 783 F.2d at 901-903. In Barona, applying what it thought to be the civil/criminal dichotomy drawn in Bryan v. Itasca County, the Court of Appeals drew a distinction between state "criminal/prohibitory" laws and state "civil/regulatory" laws: if the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory, and Pub.L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State's public policy. Inquiring into the nature of § 326.5, the Court of Appeals held that it was regulatory, rather than prohibitory. [Footnote 8] This was the analysis employed, with similar results, Page 480 U. S. 210 by the Court of Appeals for the Fifth Circuit in Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (1981), cert. denied, 455 U.S. 1020 (1982), which the Ninth Circuit found persuasive. [Footnote 9]We are persuaded that the prohibitory/regulatory distinction is consistent with Bryan's construction of Pub.L. 280. It is not a bright-line rule, however; and, as the Ninth Circuit itself observed, an argument of some weight may be made that the bingo statute is prohibitory, rather than regulatory. But in the present case, the court reexamined the state law and reaffirmed its holding in Barona, and we are reluctant to disagree with that court's view of the nature and intent of the state law at issue here.There is surely a fair basis for its conclusion. California does not prohibit all forms of gambling. California itself operates a state lottery, Cal.Govt.Code Ann. § 8880 et seq. (West Supp.1987), and daily encourages its citizens to participate in this state-run gambling. California also permits parimutuel horse-race betting. Cal.Bus. & Prof.Code Ann. §§ 19400-19667 (West 1964 and Supp. 1987). Although certain enumerated gambling games are prohibited under Cal.Penal Code Ann. § 330 (West Supp.1987), games not enumerated, including the card games played in the Cabazon card club, are permissible. The Tribes assert that more than 400 card rooms similar to the Cabazon card club flourish in California, and the State does not dispute this fact. Brief for Page 480 U. S. 211 Appellees 47-48. Also, as the Court of Appeals noted, bingo is legally sponsored by many different organizations, and is widely played in California. There is no effort to forbid the playing of bingo by any member of the public over the age of 18. Indeed, the permitted bingo games must be open to the general public. Nor is there any limit on the number of games which eligible organizations may operate, the receipts which they may obtain from the games, the number of games which a participant may play, or the amount of money which a participant may spend, either per game or in total. In light of the fact that California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates, rather than prohibits, gambling in general and bingo in particular. [Footnote 10]California argues, however, that high-stakes, unregulated bingo, the conduct which attracts organized crime, is a misdemeanor in California, and may be prohibited on Indian reservations. But that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub.L. 280. Otherwise, the distinction between § 2 and § 4 of that law could easily be avoided, and total assimilation permitted. Page 480 U. S. 212 This view, adopted here and by the Fifth Circuit in the Butterworth case, we find persuasive. Accordingly, we conclude that Pub.L. 280 does not authorize California to enforce Cal.Penal Code Ann. § 326.5 (West Supp. 1987) within the Cabazon and Morongo Reservations. [Footnote 11]California and Riverside County also argue that the Organized Crime Control Act (OCCA) authorizes the application of their gambling laws to the tribal bingo enterprises. The OCCA makes certain violations of state and local gambling laws violations of federal law. [Footnote 12] The Court of Appeals rejected Page 480 U. S. 213 appellants' argument, relying on its earlier decisions in United States v. Farris, 624 F.2d 890 (CA9 1980), cert. denied, 449 U.S. 1111 (1981), and Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 694 F.2d 1185 (1982). 783 F.2d at 903. The court explained that whether a tribal activity is "a violation of the law of a state" within the meaning of OCCA depends on whether it violates the "public policy" of the State, the same test for application of state law under Pub.L. 280, and similarly concluded that bingo is not contrary to the public policy of California. [Footnote 13]The Court of Appeals for the Sixth Circuit has rejected this view. United States v. Dakota, 796 F.2d 186 (1986). [Footnote 14] Since the OCCA standard is simply whether the gambling business is being operated in "violation of the law of a State," there is no basis for the regulatory/prohibitory distinction that it agreed is suitable in construing and applying Pub.L. 280. 796 F.2d at 188. And because enforcement of OCCA is an exercise of federal, rather than state, authority, there is no danger of state encroachment on Indian tribal sovereignty. Ibid. This latter observation exposes the flaw in appellants' reliance on OCCA. That enactment is indeed a federal law that, among other things, defines certain federal crimes over which the district courts have exclusive jurisdiction. [Footnote 15] There is nothing in OCCA indicating that the States Page 480 U. S. 214 are to have any part in enforcing federal criminal laws or are authorized to make arrests on Indian reservations that, in the absence of OCCA, they could not effect. We are not informed of any federal efforts to employ OCCA to prosecute the playing of bingo on Indian reservations, although there are more than 100 such enterprises currently in operation, many of which have been in existence for several years, for the most part with the encouragement of the Federal Government. [Footnote 16] Whether or not, then, the Sixth Circuit is right and the Ninth Circuit wrong about the coverage of OCCA, a matter that we do not decide, there is no warrant for California to make arrests on reservations, and thus, through OCCA, enforce its gambling laws against Indian tribes.IIBecause the state and county laws at issue here are imposed directly on the Tribes that operate the games, and are not expressly permitted by Congress, the Tribes argue that the judgment below should be affirmed without more. They rely on the statement in McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 170-171 (1973), that"'[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply'"(quoting United States Dept. of the Interior, Federal Indian Law 845 (1958)). Our cases, however, have not established an inflexible per se rule precluding Page 480 U. S. 215 state jurisdiction over tribes and tribal members in the absence of express congressional consent. [Footnote 17]"[U]nder certain circumstances, a State may validly assert authority over the activities of nonmembers on a reservation, and . . . in exceptional circumstances, a State may assert jurisdiction over the on-reservation activities of tribal members."New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 462 U. S. 331-332 (1983) (footnotes omitted). Both Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), and Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980), are illustrative. In those decisions, we held that, in the absence of express congressional permission, a State could require tribal smokeshops on Indian reservations to collect state sales tax from their non-Indian Page 480 U. S. 216 customers. Both cases involved nonmembers entering and purchasing tobacco products on the reservations involved. The State's interest in assuring the collection of sales taxes from non-Indians enjoying the off-reservation services of the State was sufficient to warrant the minimal burden imposed on the tribal smokeshop operators. [Footnote 18]This case also involves a state burden on tribal Indians in the context of their dealings with non-Indians, since the question is whether the State may prevent the Tribes from making available high stakes bingo games to non-Indians coming from outside the reservations. Decision in this case turns on whether state authority is preempted by the operation of federal law; and"[s]tate jurisdiction is preempted . . . if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority."Mescalero, 462 U.S. at 462 U. S. 333, 462 U. S. 334. The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its "overriding goal" of encouraging tribal self-sufficiency and economic development. Id. at 462 U. S. 334-335. [Footnote 19] See also Page 480 U. S. 217 Iowa Mutual Insurance Co. v. LaPlante, ante, p. 480 U. S. 9; White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 448 U. S. 143 (1980).These are important federal interests. They were reaffirmed by the President's 1983 Statement on Indian Policy. [Footnote 20] More specifically, the Department of the Interior, which has the primary responsibility for carrying out the Federal Government's trust obligations to Indian tribes, has sought to implement these policies by promoting tribal bingo enterprises. [Footnote 21] Under the Indian Financing Act of 1974, 25 Page 480 U. S. 218 U.S.C. § 1451 et seq. (1982 ed. and Supp. III), the Secretary of the Interior has made grants and has guaranteed loans for the purpose of constructing bingo facilities. See S.Rep. No. 99-493, p. 5 (1986); Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245, 246 (Conn.1986). The Department of Housing and Urban Development and the Department of Health and Human Services have also provided financial assistance to develop tribal gaming enterprises. See S.Rep. No. 99-493, supra, at 5. Here, the Secretary of the Interior has approved tribal ordinances establishing and regulating the gaming activities involved. See H.R.Rep. No. 99-488, p. 10 (1986). The Secretary has also exercised his authority to review tribal bingo management contracts under 25 U.S.C. § 81, and has issued detailed guidelines governing that review. [Footnote 22] App. to Motion to Dismiss Appeal or Affirm Judgment 63a-70a.These policies and actions, which demonstrate the Government's approval and active promotion of tribal bingo enterprises, are of particular relevance in this case. The Cabazon and Morongo Reservations contain no natural resources which can be exploited. The tribal games at present provide the sole source of revenues for the operation of the tribal governments Page 480 U. S. 219 and the provision of tribal services. They are also the major sources of employment on the reservations. Self-determination and economic development are not within reach if the Tribes cannot raise revenues and provide employment for their members. The Tribes' interests obviously parallel the federal interests.California seeks to diminish the weight of these seemingly important tribal interests by asserting that the Tribes are merely marketing an exemption from state gambling laws. In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. at 447 U. S. 155, we held that the State could tax cigarettes sold by tribal smokeshops to non-Indians, even though it would eliminate their competitive advantage and substantially reduce revenues used to provide tribal services, because the Tribes had no right "to market an exemption from state taxation to persons who would normally do their business elsewhere." We stated that"[i]t is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest."Ibid. Here, however, the Tribes are not merely importing a product onto the reservations for immediate resale to non-Indians. They have built modern facilities which provide recreational opportunities and ancillary services to their patrons, who do not simply drive onto the reservations, make purchases and depart, but spend extended periods of time there enJoying the services the Tribes provide. The Tribes have a strong incentive to provide comfortable, clean, and attractive facilities and well run games in order to increase attendance at the games. [Footnote 23] The tribal bingo enterprises are Page 480 U. S. 220 similar to the resort complex, featuring hunting and fishing, that the Mescalero Apache Tribe operates on its reservation through the "concerted and sustained" management of reservation land and wildlife resources. New Mexico v. Mescalero Apache Tribe, 462 U.S. at 462 U. S. 341. The Mescalero project generates funds for essential tribal services and provides employment for tribal members. We there rejected the notion that the Tribe is merely marketing an exemption from state hunting and fishing regulations, and concluded that New Mexico could not regulate on-reservation fishing and hunting by non-Indians. Ibid. Similarly, the Cabazon and Morongo Bands are generating value on the reservations through activities in which they have a substantial interest.The State also relies on Rice v. Rehner, 463 U. S. 713 (1983), in which we held that California could require a tribal member and a federally licensed Indian trader operating a general store on a reservation to obtain a state license in order to sell liquor for off-premises consumption. But our decision there rested on the grounds that Congress had never recognized any sovereign tribal interest in regulating liquor traffic, and that Congress, historically, had plainly anticipated that the States would exercise concurrent authority to regulate the use and distribution of liquor on Indian reservations. There is no such traditional federal view governing the outcome of this case, since, as we have explained, the current federal policy is to promote precisely what California seeks to prevent.The sole interest asserted by the State to justify the imposition of its bingo laws on the Tribes is in preventing the infiltration of the tribal games by organized crime. To the extent that the State seeks to prevent any and all bingo Page 480 U. S. 221 games from being played on tribal lands while permitting regulated, off-reservation games, this asserted interest is irrelevant, and the state and county laws are preempted. See n 3, supra. Even to the extent that the State and county seek to regulate short of prohibition, the laws are preempted. The State insists that the high stakes offered at tribal games are attractive to organized crime, whereas the controlled games authorized under California law are not. This is surely a legitimate concern, but we are unconvinced that it is sufficient to escape the preemptive force of federal and tribal interests apparent in this case. California does not allege any present criminal involvement in the Cabazon and Morongo enterprises, and the Ninth Circuit discerned none. 783 F.2d at 904. An official of the Department of Justice has expressed some concern about tribal bingo operations, [Footnote 24] but, far from any action being taken evidencing this concern -- and surely the Federal Government has the authority to forbid Indian gambling enterprises -- the prevailing federal policy continues to support these tribal enterprises, including those of the Tribes involved in this case. [Footnote 25]We conclude that the State's interest in preventing the infiltration of the tribal bingo enterprises by organized crime does not justify state regulation of the tribal bingo enterprises Page 480 U. S. 222 in light of the compelling federal and tribal interests supporting them. State regulation would impermissibly infringe on tribal government, and this conclusion applies equally to the county's attempted regulation of the Cabazon card club. We therefore affirm 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 CourtCalifornia v. Cabazon Band of Indians, 480 U.S. 202 (1987)California v. Cabazon Band of Mission IndiansNo. 85-1708Argued December 9, 1986Decided February 25, 1987480 U.S. 202SyllabusAppellee Indian Tribes (the Cabazon and Morongo Bands of Mission Indians) occupy reservations in Riverside County, Cal. Each Band, pursuant to its federally approved ordinance, conducts on its reservation bingo games that are open to the public. The Cabazon Band also operates a card club for playing draw poker and other card games. The gambling games are open to the public, and are played predominantly by non-Indians coming onto the reservations. California sought to apply to the Tribes its statute governing the operation of bingo games. Riverside County also sought to apply its ordinance regulating bingo, as well as its ordinance prohibiting the playing of draw poker and other card games. The Tribes instituted an action for declaratory relief in Federal District Court, which entered summary judgment for the Tribes, holding that neither the State nor the county had any authority to enforce its gambling laws within the reservations. The Court of Appeals affirmed.Held:1. Although state laws may be applied to tribal Indians on their reservations if Congress has expressly consented, Congress has not done so here either by Pub. L. 280 or by the Organized Crime Control Act of 1970 (OCCA). Pp. 480 U. S. 207-214.(a) In Pub.L. 280, the primary concern of which was combating lawlessness on reservations, California was granted broad criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State but more limited, nonregulatory civil jurisdiction. When a State seeks to enforce a law within an Indian reservation under the authority of Pub.L. 280, it must be determined whether the state law is criminal in nature, and thus fully applicable to the reservation, or civil in nature and applicable only as it may be relevant to private civil litigation in state court. There is a fair basis for the Court of Appeals' conclusion that California's statutes which permits bingo games to be conducted only by certain types of organizations under certain restrictions, is not a "criminal/prohibitory" statute falling within Pub.L. 280's grant of criminal jurisdiction, but instead is a "civil/regulatory" statute not authorized by Pub.L. 280 to be enforced on Indian reservations. That an otherwise regulatory law is enforceable (as here) by Page 480 U. S. 203 criminal as well as civil means does not necessarily convert it into a criminal law within Pub.L. 280's meaning.(b) Enforcement of OCCA, which makes certain violations of state and local gambling laws violations of federal criminal law, is an exercise of federal, rather than state, authority. There is nothing in OCCA indicating that the States are to have any part in enforcing the federal laws or are authorized to make arrests on Indian reservations that, in the absence of OCCA, they could not effect. California may not make arrests on reservations and thus, through OCCA, enforce its gambling laws against Indian tribes. Pp. 480 U. S. 207-212.2. Even though not expressly authorized by Congress, state and local laws may be applied to on-reservation activities of tribes and tribal members under certain circumstances. The decision in this case turns on whether state authority is preempted by the operation of federal law. State jurisdiction is preempted if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority. The federal interests in Indian self-government, including the goal of encouraging tribal self-sufficiency and economic development, are important, and federal agencies, acting under federal laws, have sought to implement them by promoting and overseeing tribal bingo and gambling enterprises. Such policies and actions are of particular relevance in this case, since the tribal games provide the sole source of revenues for the operation of the tribal governments, and are the major sources of employment for tribal members. To the extent that the State seeks to prevent all bingo games on tribal lands while permitting regulated off-reservation games, the asserted state interest in preventing the infiltration of the tribal games by organized crime is irrelevant, and the state and county laws are preempted. Even to the extent that the State and county seek to regulate short of prohibition, the laws are preempted, since the asserted state interest is not sufficient to escape the preemptive force of the federal and tribal interests apparent in this case. Pp. 480 U. S. 214-222.783 F.2d 900, affirmed and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined, post, p. 480 U. S. 222. Page 480 U. S. 204

1961_79

MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioners, operating milk processing plants in Pennsylvania, challenge the validity of certain "compensatory payment" provisions included in milk marketing orders affecting the New York-New Jersey area, which were promulgated by the Secretary of Agriculture under the authority granted him by § 8c of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 608c. That section permits the Secretary to issue regional regulations governing, in various enumerated respects, the marketing of certain agricultural commodities, among which is milk. This provision in question requires those who buy milk elsewhere and bring it into the region for sale as fluid milk to pay to the farmers who supply the region a fixed amount as a "compensatory payment." This amount is measured by the difference between the minimum price set by the Market Administrator for fluid milk and the minimum price for surplus milk. The judgment of the Court of Appeals for the Third Circuit, 287 F.2d 726, upholding the validity of the "compensatory payment" provision here under attack, [Footnote 1] conflicted with an earlier Page 370 U. S. 78 decision rendered by the Court of Appeals for the Second Circuit, Kass v. Brannan, 196 F.2d 791. To resolve this conflict, we granted certiorari. 366 U.S. 957.IThe General Scheme of Milk RegulationThe order around which the present controversy centers, now titled Milk Marketing Order No. 2, 7 CFR §§ 1002.1 et seq., [Footnote 2] though somewhat more complex than others, is in its general outline representative of the pattern of regulation established by the Secretary for the promotion of orderly marketing conditions in the milk industry and the preservation of minimum prices for farmers. Pursuant to the authority granted by § 8c(5)(A), [Footnote 3] the Order classifies milk that is sold within Page 370 U. S. 79 the New York-New Jersey marketing area "in accordance with the form in which or the purpose for which it is used." Milk that contains 3% to 5% butterfat-the usual proportion in ordinary liquid milk -- and is sold for fluid consumption is assigned to Class I. Milk that is used for cream (sweet and sour), half and half, or milk drinks containing less than 3% or more than 5% butterfat is classified in Class II. The remainder -- milk that is to be stored for a substantial period and used for dairy products such as butter and cheese -- is grouped in Class III. 7 CFR § 1002.37.This classification reflects the relative prices usually commanded by the different forms of milk. Thus, highest prices are paid for milk used for fluid consumption, and the lowest for milk which is to be processed into butter and cheese. Since the supply of milk is always greater than the demands of the fluid-milk market, the excess must be channeled to the less desirable, lower-priced outlets. It is in order to avoid destructive competition among milk producers for the premium outlets that the statute authorizes the Secretary to devise a method whereby uniform prices are paid by milk handlers to producers for all milk received, regardless of the form in which Page 370 U. S. 80 it leaves the plant and its ultimate use. Adjustments are then made among the handlers so that each eventually pays out-of-pocket an amount equal to the actual utilization value of the milk he has bought.Under the Marketing Order here in question, it is primarily the handlers whose plants are located within the marketing area and who regularly supply that area with fluid milk who are regulated. All handlers who receive or distribute milk within the area are required to submit monthly reports to the Market Administrator, listing the quantity of milk they have handled and the use for which it was sold. But only the handlers operating "pool plants" -- i.e., plants which meet certain standards set out in 7 CFR §§ 1002.25-1002.29 [Footnote 4] -- must pay the producers from whom they buy the uniform price set by the Administrator. This price is calculated each month on the basis of the reports that are submitted. After determining the minimum prices for each use classification pursuant to formulas set out in 7 CFR § 1002.40, the Administrator computes an average price for the "pool" milk handled during that month. This figure is reached by first multiplying the "pool" milk disposed of in each class by the established minimum price for that class, and then adding the products to the "compensatory payments" made for nonpool milk. After certain minor adjustments are made, this sum is divided by the total quantity of "pool" milk sold in the market during the month. The quotient is a "blend price." With some adjustments to reflect transportation expenses, this uniform price must be paid to producers by all handlers maintaining "pool" plants. 7 CFR § 1002.66. Page 370 U. S. 81Adjustments among handlers are made by way of a "Producer Settlement Fund," into which each handler contributes the excess of his "use value" [Footnote 5] over the uniform price paid by him to his producer. Handlers whose "use value" of the milk they purchase is less than the "blend price" they are required to pay may withdraw the difference from the fund. The net effect is that each handler pays for his milk at the price he would have paid had it been earmarked at the outset for the use to which it was ultimately put. But the farmer who produces the milk is protected from the effects of competition for premium outlets since he is automatically allotted a proportional share of each of the different "use" markets.IIThe Compensatory Payment ProvisionIt will thus be seen that this system of regulation contemplates economic controls only over "pool-handler" plants, since only such handlers are required to pay the "blend price" to their producers and to account to the Producer Settlement Fund. If limited to the provisions recounted above, the regulatory scheme would not affect milk brought into the New York-New Jersey marketing area by handlers who are primarily engaged in supplying some other market and whose producers are not located within the New York-New Jersey area. Some of the regional orders now in effect do not undertake any economic regulation of "outside" or "other source" milk. [Footnote 6] But it is quite obvious that, under certain circumstances, some regulation of such milk may be necessary. Accordingly, Page 370 U. S. 82 § 8c(7)(D) of the Act, 7 U.S.C. § 608c(7)(D), authorizes the Secretary to include in his regulating orders conditions that are incidental to terms expressly authorized by the statute, and that are "necessary to effectuate the other provisions of such order."A handler who brings outside milk into a marketing area may disrupt the regulatory scheme in at least two respects:"(1) Pool handlers in the marketing area who are required to pay the minimum class prices for their milk may find their selling prices undercut by those of nonpool handlers dealing in outside milk purchased at an unregulated price.""(2) Producers in the marketing area, whose 'blend price' depends on how much of the relatively constant fluid-milk demand they supply in a given month, may find the outside milk occupying a portion of the premium market, thus displacing the 'pool' milk and forcing it into the less rewarding surplus uses, with the ultimate effect of diminishing the 'blend price' payable to producers."In an effort to cope with these disruptive economic forces, the Secretary devised his "compensatory payment" plan. In essence, the plan imposes special monetary exactions on handlers introducing "outside" milk for fluid consumption into a marketing area in months when there is a substantial surplus of milk on the market. [Footnote 7]Of the 68 regional milk orders which establish marketwide pools, [Footnote 8] 64 contain "compensatory payment" provisions Page 370 U. S. 83 of one kind or another. The Order now before us is typical of 23 of these orders. [Footnote 9] The Order provides that a handler who brings "outside" milk into the New York-New Jersey area and sells it for fluid use must pay to the pool's producers, through the Producer Settlement Fund, an amount equal to the difference between the minimum prices for the highest and for the lowest use classifications prevailing in that area. In other words, for each hundredweight of non-pool milk sold for Class I use in the New York-New Jersey area, a payment equal to the difference between Class I and Class III prices must be made by the seller to the Producer Settlement Fund.IIIThe Purpose and Effect of the Compensatory PaymentAfter the Court of Appeals for the Second Circuit had held that compensatory payment requirement in the New York-New Jersey Milk Marketing Order (then Order No. 27) to be a "penalty," Kass v. Brannan, 196 F.2d Page 370 U. S. 84 791, 795, the Secretary of Agriculture conducted extensive hearings to determine whether it should be retained. His findings, which appear at 18 Fed.Reg. 8444-8454, explain this requirement as the most satisfactory means of imposing"a suitable charge on such unpriced milk in an amount sufficient to neutralize, compensate for and eliminate the artificial economic advantage for non-pool milk which necessarily is created by the classified pricing and pooling of pool milk under the order."Id. at 8448. There seems little doubt that an assessment equal to the Class I-Class III differential would, in all but rare instances, nullify any competitive advantage that nonpool milk could have: only if the sum of the purchase price of the outside milk and the cost of its transportation to market were less than the Class III price would a handler find it profitable to bring such milk into the marketing area. But it must be obvious that this payment is wholly or partially "compensatory" -- i.e., puts pool and nonpool milk "on substantially similar competitive positions at source" (ibid.) -- only if the milk has been purchased at not more than the Class III price. If the purchase price of the nonpool milk exceeds the Class III price within the area, the effect of the fixed compensatory payment is to make it economically unfeasible for a handler to bring such milk into the marketing area.The Secretary of Agriculture's determination that the Class I-Class III differential was the most suitable compensatory figure rested upon what was, in effect, an irrebuttable presumption that the nonpool milk was purchased at a rate commensurate with the value of "surplus" (Class III) milk. See 18 Fed.Reg. at 8448. [Footnote 10] Page 370 U. S. 85 That presumption was based in turn on the supposition that the nonpool milk could not have been worth more than the Class III price where purchased, since it could not be shipped elsewhere for Class I use. But it must Page 370 U. S. 86 be apparent that it is only if the milk is denied access to other marketing areas or if a prohibitive payment is assessed on its use elsewhere that it will depreciate in value to Class III levels. For if the milk can be freely shipped elsewhere for fluid use or if it is purchased in an area where prices paid to producers are regulated, it will command a higher price.Indeed, the facts of the case now before us demonstrate the shortcomings of the Secretary's reasoning. One of the petitioners, Suncrest Farms, Inc., purchases its milk in Pennsylvania under regulations established by the Pennsylvania Milk Control Commission. In September, 1957, which was one of the months during which it sought to sell its milk in the New York-New Jersey Marketing Area, Suncrest was required to pay $6.40 per cwt. for the milk it purchased from dairy farmers in Pennsylvania. The Class I-Class III differential in the New York-New Jersey Marketing Area during that month was $2.78 per cwt. Thus, if the "compensatory payment" were assessed, Suncrest would actually be forced to pay $9.18 per cwt. for fluid milk sold in the area, while the handlers maintaining pool plants in the area would pay only the Class I price, which was $6.23 in August 1957. [Footnote 11]If competitive parity among handlers of pool and nonpool milk were the only objective of the Secretary's "compensatory" regulation, other marketing orders of the Secretary show that this result has been achieved without imposing unnecessary hardships, virtually "trade Page 370 U. S. 87 barriers" as in the instance just given, [Footnote 12] on the nonpool milk. [Footnote 13]It is in considering the effect of the present compensatory payment provision on the pool producers, however, Page 370 U. S. 88 that the principal concern of the Secretary becomes quite apparent. As has been noted (p. 370 U. S. 82 supra), the sale for fluid use of nonpool milk in the marketing area displaces pool milk that might otherwise be used for this premium outlet. Since the market area's "blend price" is computed only with reference to the pool milk, the effect of the entry of nonpool milk is to drive down the price that Page 370 U. S. 89 is paid to producers in the area. A close examination of the workings of the present compensatory payment provision reveals that its effect is to preserve for the benefit of the area's producers the blend price that they would receive if all outside milk were physically excluded and they alone would supply the fluid-milk needs of the area. For every cwt. of pool milk that is forced into "surplus" use by the entry of nonpool milk, the handler introducing the outside milk is required to pay for the benefit of the area's producers the difference between the value the pool milk would have had if the nonpool milk had never entered and the value it has once the nonpool milk is sold for fluid use. [Footnote 14] In effect, therefore, the nonpool milk is Page 370 U. S. 90 forced to subsidize the pool milk and insulate the pool milk from the competitive impact caused by the entry of outside milk. This was recognized by the Court of Appeals, which held that such a compensatory payment Page 370 U. S. 91 was "designed to compensate the pool for the loss of the Class I fluid milk utilization and . . . protect the uniform blend price in the marketing area." 287 F.2d at 730. It is only if the Secretary has been authorized by the statute to impose such economic trade barriers on the entry of milk into an area so as to protect the prices received by the pool producers that the present compensatory payment plan can be sustained as "necessary to effectuate" the expressly authorized provisions of this Order.IV.Section 8c(5)(G)Section 8c(5)(G) of the Act, however, taken in light of its legislative history, indicates that the regulation here imposed by the Secretary was of the sort that Congress intended to forbid. Section 8c(5)(G) provides:"No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States."This provision was first enacted into law as part of the Agricultural Adjustment Act of 1935, 49 Stat. 750, amending the Agricultural Adjustment Act of 1933, 48 Stat. 31. It was reenacted as part of the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, which reaffirmed the marketing order provisions of the 1935 Act after the processing tax had been struck down as unconstitutional in United States v. Butler, 297 U. S. 1.Along with enumerating the powers granted to the Secretary of Agriculture so as to avoid the "delegation" problems brought to light by the then recent decision in Schechter Poultry Corp. v. United States, 295 U. S. 495, the Congress Page 370 U. S. 92 sought in 1935 to limit the Secretary's powers so as to prevent him from establishing "trade barriers." Midwestern legislators were particularly concerned over this possibility. When the reported bill which contained no provision like the present § 8c(5)(G) came to the floor of the House of Representatives, Representative Andresen of Minnesota suggested that the Secretary might use his powers to "stop the free flow in commerce . . . of dairy products." He received an assurance from Representative Jones, the Chairman of the House Committee on Agriculture, that the Secretary was not authorized to require anything more of milk coming into a marketing area than that it "comply with the same conditions which the farmers and distributors comply with in that region." 79 Cong.Rec. 9462. [Footnote 15] An amendment to the bill clarifying this position was then offered by Representative Page 370 U. S. 93 Sauthoff of Wisconsin, 79 Cong.Rec. 9493, [Footnote 16] but no action was taken on that proposal.On the next day, Representative Andresen proposed from the floor of the House the forerunner to the present § 8c(5)(G). 79 Cong.Rec. 9572. His amendment took the following form:"(g) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit the marketing in that area of any milk or product thereof produced in any production area in the United States."There was no objection to the addition of this language, Representative Jones remarking that "[i]t is simply clarifying." Ibid. But when Representative Sauthoff sought to change the amendment by substituting the words "limit or tend to limit" for "prohibit," Representative Jones objected on the ground that necessary milk classification and minimum pricing for the protection of outside milk producers regularly supplying their own marketing area would "tend to limit" the introduction of their milk into other areas. [Footnote 17] Ibid. Page 370 U. S. 94The House bill, with the language added by Representative Andresen's amendment, went to the Senate. Accompanying the bill to the floor was S.Rep.No. 1011, 74th Cong., 1st Sess., which stated at p. 11:"To prevent assaults upon the price structure by the sporadic importation of milk from new producing areas, while permitting the orderly and natural expansion of the area supplying any market by the introduction of new producers or new producing areas, orders may provide that for the first 3 months Page 370 U. S. 95 of regular delivery, payments shall be made to producers not theretofore selling milk in the area covered by the order at the price fixed for the lowest use classification. This is the only limitation upon the entry of new producers -- wherever located -- into a market, and it can remain effective only for the specified 3-month period."(Emphasis added.) [Footnote 18]In the Senate, § 8c(5)(G) was amended, without objection, 79 Cong.Rec. 11655, to read:"(G) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, except as provided for milk only in subsection (d), the marketing in that area of any milk or product thereof produced in any production area in the United States. [Footnote 19]"Section 8c(5)(G) emerged from conference in its present form. The conference report explained how the differences between the House and Senate versions were resolved (H.R.Rep.No. 1757, 74th Cong., 1st Sess. 21):". . . The conference agreement retains the House provision with respect to prohibitions on marketing of both milk and products of milk. The conference agreement also denies the authority to limit in any manner the marketing in any area of milk products (butter, cheese, cream, etc.) produced anywhere in the United States. The language adopted by the conference agreement does not refer to milk, and so does not negative the applicability to milk, for use in fluid form or for manufacturing purposes, of the provisions Page 370 U. S. 96 of the bill relating to milk, such as the provisions on price-fixing, price adjustment, payments for milk, etc."When the conference agreement came to the floor of the House, Representative Jones again explained what § 8c(5)(G), when taken together with § 8c(5)(D), meant (79 Cong.Rec. 13022):"Mr. SNELL. . . . I do not understand exactly what this means, 'No marketing agreement or order applicable to milk and its products,' and so forth.""Mr. JONES. That simply applies to fluid milk. You cannot make any limitation at all on the amount of butter or cheese or milk products that are shipped from any one area to another, and the limitation that may be applied on milk is only such limitation as puts each area on an equality with the other areas after a certain period of about 2 1/2 months.""Mr. SNELL. How does that change the situation from the present law?""Mr. JONES. The provisions of this particular bill would enable that area to be protected from being swamped with fluid milk from the outside, bought at any old price. For instance, if you do not have the protection of this bill, they would run into the same trouble they ran into in the New York milk cases, where they went into New Hampshire and bought milk at a lower price and came in and broke down your milk agreements. Under the provisions of this bill if a price were fixed in this particular area in New York, then, if anyone bought milk from an outside area and brought it in, he would be compelled to pay the producer the same price that was being paid the producers within the area and comply with Page 370 U. S. 97 all regulations and requirements of that area. For the first 2 months he would be required to take the manufacturer's price."(Emphasis added.)This history discloses that, rather than being confined, as Judge Learned Hand suggested in Kass v. Brannan, 196 F.2d at 800, to practices aimed at the exclusion of cheese and other milk products from eastern markets, § 8c(5)(G) was compendiously intended to prevent the Secretary from setting up, under the guise of price-fixing regulation, any kind of economic trade barriers, whether relating to milk or its products. Whenever there was an attempt to broaden the language of subsection (G) to encompass "limitations," as well as "prohibitions," those opposing it pointed only to the fact that "limit" might be read as including the type of price-fixing covered by subsection (D) -- i.e., allowing new pool producers only manufacturing use prices for a limited period -- or other attempts to put outside milk on an equal footing with pool milk. Although the words of § 8c(5)(G), "in any manner limit," must be taken, in the context of their legislative history, as referring only to milk products, that history likewise makes it clear that as regards milk the word "prohibit" refers not merely to absolute or quota physical restrictions, but also encompasses economic trade barriers of the kind effected by the subsidies called for by this "compensatory payment" provision.VThe Invalidity of the Present Compensatory Payment Provision.In light of the legislative history of § 8c(5)(G), we conclude that the compensatory payment provision of the New York-New Jersey Milk Marketing Order must fall as inconsistent with the policy expressed by Congress in Page 370 U. S. 98 that section. [Footnote 20] Because it conflicts with § 8c(5)(G), the payment provision cannot be justified under the general terms of § 8c(7)(D), which prevents the inclusion of conditions that are inconsistent with express statutory provisions. Nor is the compensatory payment clause saved by the circumstance that, in some instances, it may also fortuitously operate to put the handlers of pool and nonpool milk on a competitive par. As has been pointed out ( note 13 supra), there are other means available to the Secretary for achieving this result, while affording protection to pool producers, without imposing almost insuperable trade restrictions on the entry of nonpool milk into a marketing area.The Government contends that the effect of § 8c(5)(G) may not be considered by this Court, since that provision was not cited by the petitioners in the administrative proceeding in the Department of Agriculture. But even on the Government's premise that an unauthorized regulation should be upheld by this Court merely because the provision prohibiting it was not cited in the administrative proceeding in which it was attacked, this case presents no such instance. The administrative petition filed with the Department of Agriculture alleged that the effect of the compensatory payment clause amounted "to establishing tariffs or barriers interfering with the free flow of milk across state lines," an obvious reference to the prohibition of § 8c(5)(G).In addition, the Government contends that the petitioners had the choice of joining the marketwide pool, in which case they would not have been subject to the compensatory payment provisions. Their election to stay Page 370 U. S. 99 out of the pool, it is argued, bars any attack on the consequences of their choice. However, such an "election" is surely illusory. The consequences of joining the pool would have been that petitioners would have been forced to pay the "blend price" to all their producers wherever located and account to the Producer Settlement Fund for all milk wherever sold. In these circumstances, the election was not voluntary, as in Booth Fisheries Co. v. Industrial Comm'n, 271 U. S. 208, 271 U. S. 211. It was coercive and, indeed, no election at all.Whether full regulation of the petitioners would be permissible under the Act is a question which we need not reach in this case. If the Secretary chooses to impose such regulation as a consequence of a handler's introducing any milk into a marketing area, the validity of such a provision would involve considerations different from those now before us. With respect to these petitioners, however, and with regard to the regulation here in issue, we conclude that the action of the Secretary of Agriculture exceeded the powers entrusted to him by Congress.The Secretary of course remains free to protect, in any manner consistent with the provisions of the statute, the "blend price" in this or any other marketing area against economic consequences resulting from the introduction of outside milk. We do not now decide whether or not any new regulation directed to that end could be made to apply retrospectively, or whether, if it could be validly so applied, the presently impounded funds could be resorted to pro tanto in its effectuation. Cf. United States v. Morgan, 307 U. S. 183."What further proceedings the Secretary may see fit to take in the light of our decision, or what determinations may be made by the District Court in relation to any such proceedings, are not matters which we should attempt to forecast or hypothetically to decide."Morgan v. United States, 304 U. S. 1, 304 U. S. 23, 304 U. S. 26. Page 370 U. S. 100The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtLehigh Valley Coop. v. United States, 370 U.S. 76 (1962)Lehigh Valley Cooperative Farmers, Inc. v. United StatesNo. 7Argued January 17-18, 1962Decided .June 4, 1962370 U.S. 76SyllabusUnder § 8c of the Agricultural Adjustment Act, as amended and reenacted by the Agricultural Marketing Agreement Act of 1937, the Secretary of Agriculture issued orders regulating the marketing of milk in the New York-New Jersey region. To protect the prices received by milk producers in that region, he included in the orders a provision in effect requiring those who buy milk elsewhere and bring it into the region for sale as fluid milk to pay to the producers who regularly supply the region a "compensatory payment" equal to the difference between the minimum price set by the Market Administrator for fluid milk and the minimum price for surplus milk in the region.Held: this requirement is invalid because it conflicts with § 8c(5)(G) of the Act, which, as shown by its legislative history, was intended by Congress to prevent the Secretary from setting up trade barriers to the importation of milk from other production areas in the United States. Pp. 370 U. S. 77-100.287 F.2d 726 reversed. Page 370 U. S. 77

1966_28

MR. JUSTICE BLACK delivered the opinion of the Court.Transportation-Communication Employees Union, the petitioner, is the bargaining representative of a group Page 385 U. S. 158 of railroad employees commonly known as "Telegraphers." Prior to 1952, these telegraphers were commonly assigned the duty of sending, by telegraph, railroad waybills, manifests and orders prepared by clerks, members of the brotherhood of Railway Clerks. In 1952, however, the respondent here, Union Pacific Railroad Company, installed IBM machines which resulted in a radical change in the workload of the telegraphers and clerks. When the clerical work previously done by the clerks is manually performed on the IBM machines, the machines automatically perform the communications functions previously performed by the telegraphers. As a result, the railroad's need for telegraphers was practically eliminated, and operation of the IBM machines was assigned to members of the clerks' union. This case arises out of the dispute over the railroad's assignment of these jobs to the clerks. The telegraphers' union, claiming the jobs for its members under its collective bargaining agreement, protested the railroad's assignment and, in due course, referred its claim to the Railroad Adjustment Board as authorized by § 3 First (i) of the Railway Labor Act. [Footnote 1] Notice of the referral was given to the clerks' union, which, pursuant to an understanding with the other labor unions, declined to participate in this proceeding on the ground that it had no interest in the matter, but stated its readiness to file a Page 385 U. S. 159 like proceeding before the Board to protect its members should any of their jobs be threatened. [Footnote 2] The Board then heard and decided the case without considering the railroad's liability to the clerks under its contract with them, concluded that the telegraphers were entitled to the jobs under their contract, and ordered that the railroad pay the telegraphers who had been idle because of the assignment of the jobs to the clerks. The telegraphers' union then brought this action in a United States District Court to enforce the Board's award as authorized by § 3 First (p) of the Act. That court dismissed the case on the ground that the clerks' union was an indispensable party, and that the telegraphers, though given the opportunity, refused to make it a party. 231 Page 385 U. S. 160 F.Supp. 33. Affirming the dismissal, the Court of Appeals pointed out that the Board had failed to carry out its exclusive jurisdictional responsibility to decide the entire dispute with relation to the conflicting claims of the two unions under their respective contracts to have the jobs assigned to their members. [Footnote 3] We granted certiorari in order to settle doubts about whether the Adjustment Board must exercise its exclusive jurisdiction to settle disputes like this in a single proceeding with all disputant unions present. Cf. Whitehouse v. Illinois Cent. R. Co., 349 U. S. 366, 349 U. S. 371-372. We hold that it must.IPetitioner contends that it is entirely appropriate for the Adjustment Board to resolve disputes over work assignments in a proceeding in which only one union participates and in which only that union's contract with the employer is considered. This contention rests on the premise that collective bargaining agreements are to be governed by the same common law principles which control private contracts between two private parties. On this basis, it is quite naturally assumed that a dispute over work assignments is a dispute between an employer and only one union. Thus, it is argued that each collective bargaining agreement is a thing apart from all others, and each dispute over work assignments must be decided on the language of a single such agreement considered in isolation from all others.We reject this line of reasoning. A collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common law concepts, which control such private Page 385 U. S. 161 contracts. John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 376 U. S. 550; cf. Steele v. Louisville & N. R. Co., 323 U. S. 192.". . . [I]t is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. . . . The collective agreement covers the whole employment relationship. It calls into being a new common law -- the common law of a particular industry or of a particular plant."United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U. S. 574, 363 U. S. 578-579. In order to interpret such an agreement, it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements. This is particularly true when the agreement is resorted to for the purpose of settling a jurisdictional dispute over work assignments.There are two kinds of these jurisdictional disputes. Both are essentially disputes between two competing unions, not merely disputes between an employer and a single union. The ordinary jurisdictional dispute arises when two or more unions claim the right to perform a job which existed at the time their collective bargaining contracts with the employer were made. In such a situation, it would be highly unlikely that each contract could be construed as giving each union the right to be paid for the single job. But the dispute before us now is not the ordinary jurisdictional dispute where each union claims the right to perform a job which existed at the time its collective bargaining agreement was made. Here, though two jobs existed when the collective bargaining agreements were made, and though the railroad properly could contract with one union to perform one job and the other union to perform the other, automation has now resulted in there being only one job, a job which is different from either of the former two jobs and which was not expressly contracted to either of the unions. Although only one union can be assigned this Page 385 U. S. 162 new job, it may be that the railroad's agreement with the nonassigned union obligates the railroad to pay it for idleness attributable to such job elimination due to automation. But this does not mean that both unions can, under their separate agreements, have the right to perform the new job or that the Board, once the dispute has been submitted to it, can postpone determining which union has the right to the job in the future. By first ordering the railroad to pay one union and then later, in a separate proceeding, ordering it to pay the other union, without ever determining which union has the right to perform the job, and thus without ever prejudicing the rights of the other union, the Board abdicates its duty to settle the entire dispute. Yet this is precisely the kind of merry-go-round situation which the petitioner claims is envisaged by the Act, a procedure which certainly does not "provide for the prompt and orderly settlement of all disputes . . . ," the purpose for which the Adjustment Board was established. § 2(5). (Emphasis supplied.)IIThe railroad, the employees, and the public, for all of whose benefits the Railway Labor Act was written, are entitled to have a fair, expeditious hearing to settle disputes of this nature. And we have said in no uncertain language that the Adjustment Board has jurisdiction to do so. Order of Railway Conductors v. Pitney, 326 U. S. 561, was decided 20 years ago. That case concerned a dispute over which employees should be assigned to do certain railroad jobs -- members of the conductors' union under their contract or members of the trainmen's union under their contract. In that case, a district court, in charge of a railroad in bankruptcy, had entered a judgment in favor of the conductors. We reversed, holding that the Railway Labor Act vested exclusive power in the Adjustment Board to decide that controversy over Page 385 U. S. 163 job assignments. It is true that we did not precisely decide there that the Board must bring before it all unions claiming the same jobs for their members, but we did say this:"We have seen that, in order to reach a final decision on that question, the court first had to interpret the terms of O.R.C.'s collective bargaining agreements. The record shows, however, that interpretation of these contracts involves more than the mere construction of a 'document' in terms of the ordinary meaning of words and their position. . . . For O.R.C.'s agreements with the railroad must be read in the light of others between the railroad and B.R.T. And since all parties seek to support their particular interpretation of these agreements by evidence as to usage, practice and custom, that too must be taken into account and properly understood. The factual question is intricate and technical. An agency especially competent and specifically designated to deal with it has been created by Congress."Id. at 326 U. S. 566-567. (Emphasis supplied.)Four years after Pitney, we decided Slocum v. Delaware, L. & W.R. Co., 339 U. S. 239. In that case, a state court had interpreted collective bargaining contracts between a railroad and the same two unions here and had decided in favor of the clerks. We reversed, and, relying on Pitney, said:". . . There, we held, in a case remarkably similar to the one before us now, that the Federal District Court in its equitable discretion should have refused 'to adjudicate a jurisdictional dispute involving the railroad and two employee accredited bargaining agents. . . .' Our ground for this holding was that the court 'should not have interpreted the contracts,' but should have left this question for determination Page 385 U. S. 164 by the Adjustment Board, a congressionally designated agency peculiarly competent in this field. 326 U.S. at 326 U. S. 567-568."Id. 339 U. S. 243-244. (Emphasis supplied.)We adhere to our holdings in Pitney and Slocum that the Adjustment Board does have exclusive jurisdiction to hear and determine disputes like this. See also Order of Railway Conductors of America v. Southern R. Co., 339 U. S. 255. Petitioner argues that we are barred from this holding by Whitehouse v. Illinois Cent. R. Co., 349 U. S. 366, decided after Pitney and Slocum. There is some language in Whitehouse which, given one interpretation, might justify an inference against the Adjustment Board's jurisdiction fully to decide this case in a single proceeding. But, in the final analysis, the holding in Whitehouse was only that the primary jurisdiction of the Adjustment Board could not be frustrated by a premature judicial action. Cf. Carey v. Westinghouse Elec. Corp., 375 U. S. 261, 375 U. S. 265-266. We decline to expand that case beyond its actual holding.The Adjustment Board has jurisdiction, which petitioner admits, to hear and decide the controversy over the interpretation of the telegraphers' contract with the railroad as it relates to the work assignments. And § 3 First (j) provides that"the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them."The clerks' union was given notice here as it should have been under § 3 First (j). Certainly it is "involved" in this dispute. Without its presence, unless it chooses to default and surrender its claims for its members, neither the Board nor the courts below could determine this whole dispute. As respondent contends, to decide, as the Board has here, that the telegraphers are entitled to be paid for these jobs creates another controversy for the railroad with the Page 385 U. S. 165 clerks who have the jobs now. For should the Board's order be sustained, the railroad would not only have to make back payments to the telegraphers who have done no work, but would be compelled to continue to pay two sets of workers -- one set being idle. The Adjustment Board, as we said about the National Labor Relations Board in Labor Board v. Radio & Television Broadcast Engineers, 364 U. S. 573, 364 U. S. 582-583, can, with its experience and common sense, handle this entire dispute in a satisfactory manner in a single proceeding.We affirm the judgment of the Court of Appeals in holding that the clerks' union should be a party before the Board and the courts to this labor dispute over job assignments for its members. The cause should be remanded to the District Court with directions to remand this case to the Board. [Footnote 4] The Board should be directed to give once again the clerks' union an opportunity to be heard, and, whether or not the clerks' union accepts this opportunity, to resolve this entire dispute upon consideration not only of the contract between the railroad and Page 385 U. S. 166 the telegraphers, but "in the light of . . . [contracts] between the railroad" and any other union "involved" in the overall dispute, and upon consideration of "evidence as to usage, practice and custom" pertinent to all these agreements. Order of Railway Conductors v. Pitney, supra, at 326 U. S. 567. The Board's order, based upon such thorough consideration after giving the clerks' union a chance to be heard, will then be enforceable by the courts.It is so ordered

U.S. Supreme CourtTransportation Union v. Union Pacific R. Co., 385 U.S. 157 (1966)Transportation-Communication Employees Union v.Union Pacific Railroad Co.No. 28.Argued October 19, 1966Decided December 5, 1966385 U.S. 157SyllabusClaiming that, under its collective bargaining agreement, its members were entitled to automated jobs which respondent railroad had assigned to the clerks' union, petitioner, the telegraphers' union, complained to the Railroad Adjustment Board. The clerks' union, given notice of the proceeding, declined to participate though manifesting readiness to file a like proceeding should its members' jobs be threatened. Without considering the railroad's liability under its contract with the clerks, the Board held the telegraphers entitled to the jobs and ordered the railroad to pay them. The telegraphers brought this action in District Court to enforce the award. Holding that the clerks' union was an indispensable party, that court dismissed the case, and the Court of Appeals affirmed.Held: the Railroad Adjustment Board must exercise its exclusive jurisdiction to settle the entire work assignment dispute between the competing unions in one proceeding. Order of Railway Conductors v. Pitney, 326 U. S. 561; Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, followed. Pp. 385 U. S. 160-166.349 F.2d 408 affirmed and remanded.

1982_81-1304

JUSTICE BLACKMUN delivered the opinion of the Court.These cases arise out of the most recent general postal ratemaking proceeding, the fifth under the Postal Reorganization Act. At issue is the extent to which the Act requires the responsible federal agencies to base postal rates on cost-of-service principles Page 462 U. S. 813IAWhen, in 1970, Congress enacted the Postal Reorganization Act (Act), 39 U.S.C. § 101 et seq., it divested itself of the control it theretofore had exercised over the setting of postal rates and fees. The Act abolished the Post Office Department, which since 1789 had administered the Nation's mails. See Act of Sept. 22, 1789, ch. 16, 1 Stat. 70. In its place, the Act established the United States Postal Service as an independent agency under the direction of an 11-member Board of Governors. 39 U.S.C. § § 201, 202. [Footnote 1] The Act also established a five-member Postal Rate Commission (Rate Commission) as an agency independent of the Postal Service. § 3601.Basic to the Act is the principle that, to the extent "practicable," the Postal Service's total revenue must equal its costs. § 3621. Guided by this principle, the Board of Governors, when it deems it in the public interest, may request the Rate Commission to recommend a new rate schedule. § 3622. After receiving the request, the Rate Commission holds hearings, § 3624(a), and formulates a schedule, § 3624 (d). Section 3622(b) provides that the Rate Commission shall recommend rates for the classes of mail [Footnote 2] in accordance with nine factors, the third of which is"the requirement that each class of mail or type of mail service bear the direct and indirect postal costs attributable to that class or type plus that portion of all other costs of the Postal Service reasonably Page 462 U. S. 814 assignable to such class or type. [Footnote 3]"The Governors may approve the recommended rate schedule, may allow it under protest, may reject it, or, in limited circumstances, may modify it. § 3625. The Governors' decision to order new rates into effect may be appealed to any United States court of appeals. § 3628.Questions confronting us in these cases are whether the Rate Commission must follow a two-tier or a three-tier process in setting rates, and the extent to which the Rate Commission must base rates on estimates of the costs caused by providing each class of mail service.BIn its first two ratemaking proceedings under the Act, the Rate Commission determined that 3622(b) establishes a Page 462 U. S. 815 two-tier approach to allocating the Postal Service's total revenue requirement. See Postal Rate Commission, Opinion and Recommended Decision, Docket No. R74-1, pp. 4, 91-93 (1975); [Footnote 4] PRC Op. R71-1, pp. 39-41 (1972). Under this approach, the Rate Commission first must determine the costs caused by ("attributable to") each class of mail, § 3622(b)(3), and on that basis establish a rate floor for each class. PRC Op. R74-1, pp. 92, 93, 110. The Rate Commission then must "reasonably assign," see § 3622(b)(3), the remaining costs to the various classes of mail on the basis of the other factors set forth in § 3622(b). See PRC Op. R74-1, pp. 91-94.In the first proceeding, the Rate Commission concluded that the Act does not dictate the use of any particular method of identifying the costs caused by each class. PRC Op. R71-1, pp. 42-47. Without committing itself to any theory for the future, it chose to attribute those costs shown to vary with the volume of mail in each class over the "short term" -- the period of a single year. [Footnote 5] Although it considered other methods, it found the short-term approach to be the only feasible one, given the limited data developed by the Postal Service. Id. at 47-62.In the second proceeding, the Rate Commission again viewed the choice of a costing system as within its discretion. PRC Op. R74-1, pp. 92-93, 127. Although the Postal Service contended that short-term costs should again control attribution, the Rate Commission determined that it could reliably attribute more costs through a long-term variable costing analysis. That method attributes costs by identifying cost variations associated with shifts in mail volume and with shifts in the Postal Service's capacity to handle mail Page 462 U. S. 816 over periods of time longer than one year. Id. at 111-112, 126-127. The Rate Commission did not go beyond attributing long-run variable costs, because the statute forbids attribution based on guesswork, see id. at 110-111, and because the Rate Commission was unable to find "any other reliable principle of causality on [the] record," id. at 94. The Rate Commission urged the development of improved data for future proceedings, so that it could identify more causal relationships, and thereby attribute more costs. Id. at 110-111. [Footnote 6]CReviewing the second proceeding, the United States Court of Appeals for the District of Columbia Circuit rejected the Rate Commission's approach. National Assn. of Greeting Card Publishers v. USPS, 186 U.S.App.D.C. 331, 569 F.2d 570 (1976) (NAGCP I), vacated on other grounds, 434 U.S. 884 (1977). The court held that the Act's principal goals of eliminating price discrimination among classes of mail and curtailing discretion in ratesetting, 186 U.S.App.D.C. at 348-350, 569 F.2d at 587-589, require the Rate Commission "to employ cost-of-service principles to the fullest extent possible." Id. at 354, 569 F.2d at 593; see id. at 348, 569 F.2d at 587. Therefore, the court stated, the Act mandates not only attribution of variable costs, but also "extended attribution" of costs that, "although not measurably variable," can reasonably be determined to result from handling each class of mail. Id. at 347, 569 F.2d at 586. The court required the Rate Commission to allocate some costs on the basis of "cost accounting principles." Id. at 344, 569 F.2d at 583; see id. at 347, 352, 569 F.2d at 586, 591. This involves apportioning costs on the basis of "distribution Page 462 U. S. 817 keys," such as the weight or cubic volume of mail, notwithstanding the lack of proof that such factors play a causative role. Id. at 344, 352, 569 F.2d at 583, 591. [Footnote 7]The Court of Appeals, citing the language and purposes of the statute, also required the Rate Commission to follow a three-tier, rather than a two-tier, procedure in setting rates. In the court's view, the first two tiers -- attribution and assignment -- are to proceed on a cost-of-service basis. [Footnote 8] Id. at 347, and n. 59, 353-354, 569 F.2d at 586, and n. 59, 592-593. Only those "residual costs" that cannot be attributed or assigned on the basis of reasonable inferences of causation may be distributed, in the third tier, among the classes of mail on the basis of § 3622(b)'s noncost, discretionary factors. Id. at 348, 569 F.2d at 587.Despite its doubts about NAGCP I, PRC Op. R77-1, p. 9 (1978), the Rate Commission attempted to comply in the fourth ratemaking proceeding. [Footnote 9] It adhered to its view that variability is the key to attribution, because only with "some showing of volume variability over the long run" could it have reasonable confidence that particular costs were the consequence of providing the service. Id. at 84. Because the data on long-term costs had improved, the Rate Commission Page 462 U. S. 818 found that its long-run analysis satisfied NAGCP I's requirement of "extended attribution" without resort to mere "inferences of causation." PRC Op. R77-1, at 10, 85. [Footnote 10]Turning to the intermediate assignment tier created by NAGCP I, the Rate Commission found a group of nonvariable "Service Related Costs" to be reasonably assignable to first-class and certain categories of second-class mail. Service Related Costs were defined as the fixed delivery costs incurred in maintaining the current 6-day-a-week delivery schedule for those classes, rather than a hypothetical 3-day-a-week schedule. [Footnote 11] See PRC Op. R77-1, at 87-124.DThe current controversy began on April 21, 1980, when the Postal Service requested from the Rate Commission a fifth increase in postal rates. Following extensive hearings, the Rate Commission recommended continued assignment of Service Related Costs in order to comply with the Court of Appeals' three-tier approach, see PRC Op. R80-1, pp. 145-156, despite the Postal Service's rejection of the concept, see Decision of the Governors of the United States Postal Service on Rates of Postage and Fees for Postal Services, March 10, 1981, App. to Pet. for Cert. 13b-14b (Decision of the Governors). The Rate Commission also made clear that, while it did not consider variability analysis to be the sole Page 462 U. S. 819 statutory basis for attribution, only long-run variability analysis had been shown to be accurate enough to permit attribution. PRC Op. R80-1, pp. 129-131, 140, and n. 2. [Footnote 12] The Governors, under protest, permitted these rates to go into effect. [Footnote 13]On petitions for review, the United States Court of Appeals for the Second Circuit held that Congress had not intended to require the maximum possible use of cost-of-service principles in postal ratesetting. Newsweek, Inc. v. USPS, 663 F.2d 1186 (1981). The Second Circuit stated that, although the Rate Commission is free to use the approach the District of Columbia Circuit had required, the Act permits the use of other approaches as well, including the Rate Commission's original two-tier approach to ratesetting. Under the Second Circuit's construction, § 3622(b)(3) requires that the rate floor for each class consist of attributable costs based, at a minimum, on short-term variability; reasonable assignment may proceed on the basis of the other factors set forth in § 3622(b). The court remanded to the agencies for reconsideration. Page 462 U. S. 820Because of the inconsistencies in the holdings of the Second and District of Columbia Circuits, we granted certiorari. 456 U.S. 925 (1982). [Footnote 14]IIAs a threshold matter, it is useful to set forth what is, and what is not, at issue in this litigation. Of the factors set forth in § 3622(b), only subsection (b)(3) is styled a "requirement." With the approval of both Courts of Appeals, the Rate Commission has concluded that notwithstanding its placement as the third of nine factors, this distinction dictates that "attribution" and "assignment" define the framework for ratesetting. In addition, the Rate Commission takes the view that "causation is both the statutory and the logical basis for attribution." PRC Op. R74-1, p. 110. The parties do not dispute these premises, and we see no reason to question them.At issue is the Rate Commission's consistent position that the Act establishes a two-tier structure for ratesetting, and that the Act does not dictate or exclude the use of any method of attributing costs, but requires that all costs reliably identifiable with a given class, by whatever method, be attributed to that class. [Footnote 15] An agency's interpretation of its Page 462 U. S. 821 enabling statute must be upheld unless the interpretation is contrary to the statutory mandate or frustrates Congress' policy objectives. FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27, 454 U. S. 32 (1981). Although the Postal Reorganization Act divides ratemaking responsibility between two agencies, the legislative history demonstrates "that ratemaking . . . authority [was] vested primarily in [the] Postal Rate Commission." S.Rep. No. 91-912, p. 4 (1970) (Senate Report); see Time, Inc. v. USPS, 685 F.2d 760, 771 (CA2 1982); Newsweek, Inc. v. USPS, 663 F.2d at 1200-1201; NAGCP III, 197 U.S.App.D.C. at 87, 607 F.2d at 401. The structure of the Act supports this view. [Footnote 16] While the Postal Service has final responsibility for guaranteeing that total revenues equal total costs, the Rate Commission determines the proportion of the revenue that should be raised by each class of mail. In so doing, the Rate Commission applies the factors listed in 3622(b). Its interpretation of that statute is due deference. See Time, Inc. v. USPS, 685 F.2d at 771; United Parcel Service, Inc. v. USPS, 604 F.2d 1370, 1381 (CA3 1979), cert. denied, 446 U.S. 957 (1980).IIIIn NAGCP I, the Court of Appeals for the District of Columbia Circuit discerned in the Act an overriding purpose to minimize the Rate Commission's discretion by maximizing the use of cost-of-service principles. According to the Court of Appeals, the Rate Commission's failure to use "cost accounting Page 462 U. S. 822 principles" to attribute costs, and its failure to "assign" costs on the basis of extended inferences of causation as a middle ratesetting tier, frustrated these congressional goals. Animating the court's view was the fact that Congress, in passing the Act, was disturbed about the influence of lobbyists on Congress' discretionary ratemaking and the resulting discrimination in rates among classes of postal service; in the Act, Congress sought to "get politics out of the Post Office.'" 186 U.S.App.D.C. at 349, 569 F.2d at 588 (quoting H.R.Rep. No. 91-1104, p. 6 (1970) (House Report)).Without doubt, Congress did have these problems in mind, but we agree with the Second Circuit that the District of Columbia Circuit misunderstood Congress' solution. See 663 F.2d at 1198. Congress did not eliminate the ratesetter's discretion; it simply removed the ratesetting function from the political arena by removing postal funding from the budgetarv process, see § 3621 (Postal Service is to be self-supporting), and by removing the Postal Service's principal officers from the President's direct control. House Report at 6, 12, 13, 18-19; Senate Report at 8. In addition, Congress recognized that the increasing economic, accounting, and engineering complexity of ratemaking issues had caused Members of Congress, "lacking the time, training, and staff support for thorough analysis," to place too much reliance on lobbyists. House Report at 18. Consequently, it attempted to remove undue price discrimination and political influence by placing ratesetting in the hands of a Rate Commission, composed of "professional economists, trained rate analysts, and the like," id. at 5, independent of Postal Service management, id. at 13, and subject only to Congress' "broad policy guidelines," id. at 12. Congress sought to ensure that the Postal Service would be managed "in a businesslike way." Id. at 5; see id. at 11-12. There is no suggestion in the legislative history that Congress viewed the exercise of discretion as an evil in itself. Congress simply Page 462 U. S. 823 wished to substitute the educated and politically insulated discretion of experts for its own.IVWe turn now to the narrower contentions about the meaning of 3622(b)(3). In determining whether the Rate Commission's two-tier approach to ratesetting is contrary to the mandate of the Act or frustrates its policies, we begin with the statute's language. See North Dakota v. United States, 460 U. S. 300, 460 U. S. 312 (1983); Dickerson v. New Banner Institute, Inc., 460 U. S. 103, 460 U. S. 110 (1983). Once the Rate Commission has allocated all attributable costs, § 3622(b)(3) directs that each class must bear, in addition, "that portion of all other costs . . . reasonably assignable" to it. While the verb "attribute" primarily connotes causation, the verb "assign" connotes distribution on any basis. On its face, therefore, the section suggests one ratemaking tier based on causation, and a second based on other factors. We see no justification for the interposition of an intermediate causation-based assignment tier. [Footnote 17] The Rate Commission's two-tier approach is consistent with the statutory language.Moreover, the legislative history supports the Rate Commission's approach. The report of the President's Commission on Postal Organization (Kappel Commission) found that Page 462 U. S. 824 it would be unfair to require the users of one class of service to pay for expenditures demonstrably related to another class. See Kappel Commission, Towards Postal Excellence: The Report of the President's Commission on Postal Organization 130 (1968) (Kappel Commission Report). But, on the basis of detailed studies of the Post Office, the report concluded that"[a] large segment of postal costs . . . does not result from handling a particular class of mail, but is the cost of maintaining the postal system itself."Id. at 30. The Kappel Commission proposed a two-tier ratemaking process, very similar to the Rate Commission's approach, [Footnote 18] to allocate among the classes of mail these two groups of costs.The House version of § 3622(b)(3) closely followed the Kappel Commission's proposal, see House Report at 6, directing the establishment of rates"so that at least those costs demonstrably related to the class of service in question will be borne by each such class, and not by other classes of users of postal services or by the mails generally."H.R. 17070, 91st Cong., 2d Sess., § 1201(c) (1970). Although the House bill did not address the criteria that would govern distribution of the remaining costs among the various classes of mail, there was no suggestion of a second, more attenuated, causation-based tier as required by the District of Columbia Circuit.The Senate bill, although not expressly calling for a rate floor for each class, required the Rate Commission to consider, among other factors, "operating costs, the amount of overhead, and other institutional costs of the Postal Service properly assignable to each class of mail." S. 3842, 91st Cong., 2d Sess., § 3704(g)(3) (1970). The Senate bill's use of the word "assignable," which the District of Columbia Circuit believed mandated a causation-based "assignment" tier, see NAGCP I, 186 U.S.App.D.C. at 347, n. 59, 569 F.2d at Page 462 U. S. 825 586, n. 59, does not undercut the reasonableness of the Rate Commission's construction. There is no suggestion either in this language or elsewhere in the legislative history that the Senate envisioned a three-tier approach. In fact, the Senate Report accompanying the bill suggested a two-tier approach, allocating some costs on cost-of-service principles, and allocating other costs through consideration of the overall value of the service provided and other factors. See Senate Report at 11.As discussed above, the language of the compromise bill enacted into law is fully consistent with a two-tier structure, and there is no legislative history to the contrary. We conclude that the Rate Commission's two-tier approach is a reasonable construction of 3622(b)(3). [Footnote 19]VWe now turn to the nature of the first tier, the statutory requirement of attribution.AThe Court has observed: "Allocation of costs is not a matter for the slide-rule. It involves judgment on a myriad of facts. It has no claim to an exact science." Colorado Interstate Co. v. FPC, 324 U. S. 581, 324 U. S. 589 (1945). Generally, Page 462 U. S. 826 the legislature leaves to the ratesetting agency the choice of methods by which to perform this allocation, see, e.g., American Commercial Lines, Inc. v. Louisville & N. R. Co., 392 U. S. 571, 392 U. S. 590-593 (1968); Colorado Interstate Co., 324 U.S. at 324 U. S. 589, although if the statute provides a formula, the agency is bound to follow it. Ibid.We agree with the Rate Commission's consistent position that Congress did not dictate a specific method for identifying causal relationships between costs and classes of mail, but that the Act "envisions consideration of all appropriate costing approaches." PRC Op. R71-1, p. 46; see PRC Op. R74-1, pp. 92, 127; PRC Op. R80-1, pp. 129-133. The Rate Commission has held that, regardless of method, the Act requires the establishment of a sufficient causal nexus before costs may be attributed. The Rate Commission has variously described that requirement as demanding a "reliable principle of causality," PRC Op. R74-1, p. 94, or "reasonable confidence" that costs are the consequence of providing a particular service, PRC Op. 77-1, p. 84, or a "reasoned analysis of cost causation." PRC Op. R80-1, p. 131. Accordingly, despite the District of Columbia Circuit's interpretation, the Rate Commission has refused to use general "accounting principles" based on distribution keys without an established causal basis. But the Rate Commission has gone beyond short-term costs in each rate proceeding since the first. [Footnote 20]BSection 3622(b)(3) requires that all "attributable costs" be borne by the responsible class. In determining what costs are "attributable," the Rate Commission is directed to look Page 462 U. S. 827 to all costs of the Postal Service, both "direct" and "indirect." [Footnote 21] In selecting the phrase "attributable costs," Congress avoided the use of any term of art in law or accounting. In the normal sense of the word, an "attributable" cost is a cost that may be considered to result from providing a particular class of service. On its face, there is no reason to suppose that 3622(b)(3) denies to the expert ratesetting agency, exercising its reasonable judgment, the authority to decide which methods sufficiently identify the requisite causal connection between particular services and particular costs.The legislative history supports the Rate Commission's view that, when causal analysis is limited by insufficient data, the statute envisions that the Rate Commission will "press for . . . better data," rather than "construct an attribution'" based on unsupported inferences of causation. PRC Op. R74-1, pp. 110-111. Before passage of the Act, Congress had set rates based on the Post Office's ungainly "Cost Ascertainment System," which allocated on the basis of "distribution keys" like those advocated by the District of Columbia Circuit -- all postal expenses to one or another class of mail. [Footnote 22] The Kappel Commission determined that this approach was "arbitrary [and] uninformative." Kappel Commission Report, at 30; see id. at 131. Many costs are institutional, and the inferences of causation supporting the Post Page 462 U. S. 828 Office's allocation of costs to the different classes were simply unsupported by the data. Id. at 29-31, 132-135. In proposing the two-tier approach, therefore, the Kappel Commission stated that each class of service would recover all costs "demonstrably related" to it in order to avoid the inequity of users of one class subsidizing users of another class; however, the "[r]emaining institutional costs would not be apportioned to the several classes of mail by rigid accounting formulas." Id. at 61-62.The House bill tracked these recommendations, see generally House Report, at 6, and adopted a rate floor consisting of "demonstrably related" costs, H.R. 17070, 91st Cong., 2d Sess., § 1201(c) (1970), which it described as "identifiable costs." House Report at 10. [Footnote 23] The Senate bill did not explicitly include a causally based rate floor. See 116 Cong.Rec. 22053 (1970) (remarks of Sen. Fannin). But the Senate plainly rejected the notion of binding ratesetters to "accounting principles" akin to those used in the Cost Ascertainment System. The Senate Report stated that"no particular cost accounting system is recommended, and no particular classification of mail is required to recover a designated portion of its cost beyond its incremental cost."Senate Report at 17.The conference bill enacted into law incorporated the rate floor contained in the House version, but replaced the phrase "demonstrably related" costs with "attributable" costs. Debate on the ratemaking aspects of the conference bill was Page 462 U. S. 829 sparse. On the floor of the House, one conferee defined "attributable" costs as "capable of objective determination and proof either by empirical observation or deductive analysis." 116 Cong.Rec. 27606 (1970) (remarks of Rep. Udall). On the Senate floor, the Act's sponsor explained that attributable costs were "actual postal costs." Id. at 26954 (remarks of Sen. McGee). Neither explanation suggests that the conference bill resurrected accounting principles like those used in the discredited Cost Ascertainment System. The Rate Commission, therefore, acted consistently with the statutory mandate and Congress' policy objectives in refusing to use distribution keys or other accounting principles lacking an established causal basis. [Footnote 24]CThe Postal Service contends that Congress intended long-term and short-term variable costs to be attributed, but that Page 462 U. S. 830 Congress did not direct attribution of costs, apart from fixed costs incurred by a particular class, that do not vary directly or indirectly with volume. We agree that, because the Rate Commission has decided that these methods reliably indicate causal connections between classes of mail and postal rates, the Act requires that they be employed. But the Act's language and legislative history support the Rate Commission's position that Congress did not intend to bar the use of any reliable method of attributing costs. See PRC Op. R71-1, pp. 42-46.The record before Congress in 1970 indicated that identifying which classes cause specific costs was a "most difficult" task, Foster Associates Study, at 1-5, and that a long-run variable cost approach was "the best available measure" of cost causation. Id. at 1-6. The Kappel Commission consequently recommended that each class bear, "as a minimum," all "demonstrably related" capital and operating costs -- "[i]n economic terms . . . the long-run variable costs ascribable to it." Kappel Commission Report, at 131. [Footnote 25] Although the House bill adopted the Kappel Commission's requirement that each class bear its "demonstrably related costs," we do not believe that, in so doing, it intended to limit attribution to the long-run variable approach. The Kappel Commission did not emphasize technical matters, focusing instead on the need for nonarbitrary demonstrations of causation. [Footnote 26] Postmaster Page 462 U. S. 831 General Blount informed the House that the phrase "demonstrably related costs" was employed to avoid the confusion generated by the use of terms of art such as "marginal" or "incremental" costs. "Demonstrably related costs," he explained,"are those costs which can be traced directly to the class of service in question. . . . [W]e believe that the legislative history has made amply clear what the term means, without shackling future generations to any particular economic theory."Hearings on Post Office Reorganization before the House Committee on Post Office and Civil Service, 91st Cong., 1st Sess., 1273 (1969) (Post Office Response to Memoranda Submitted by J. Edward Day).The House Report did not mention any particular costing technique. In defining the rate floor established by the House bill, it explained only that each class would be required to bear "at least its own identifiable costs." House Report at 10. Given the House Report's repeated statements that Members of Congress are ill-equipped to deal with the highly technical economic, accounting, and engineering questions lying at the heart of the ratemaking process, it is implausible to suppose that the House intended to prescribe for the experts appointed to resolve this problem a formula for identifying causal relationships. It is also unlikely that the House intended to limit the Postal Service forever to accounting methods current at the time the bill was enacted. [Footnote 27] Page 462 U. S. 832The Conference Committee abandoned the phrase "demonstrably related costs" in favor of "attributable" costs, a phrase that connotes the use of judgment and has no technical meaning or significant antecedent legislative history. It also retained the House bill's explicit requirement of a rate floor. In so doing, the conferees ensured that identification of causal relationships would not be limited to those methods discussed in the Kappel Commission Report, but would encompass all postal costs, whether "direct or indirect," that the experts, on whatever reasoned basis, found to be attributable to a particular class of mail.DThe Second Circuit found controlling the definition of "attributable" costs contained in the Statement of the Managers on the Part of the House, appended to the Conference Report on the Act, H.R.Conf.Rep. No. 91-1363, pp. 79-90 (1970). Newsweek, Inc. v. USPS, 663 F.2d at 1199-1200. [Footnote 28] The House Managers stated that the conference substitute established a rate floor for each class of mail"equal to costs . . . that vary over the short term in response to changes in Page 462 U. S. 833 volume of a particular class or, even though fixed rather than variable, are the consequence of providing the specific service involved."H.R.Conf.Rep. No. 91-1363, at 87 (emphasis supplied). T he Rate Commission specifically addressed and rejected this argument when it was advanced by the Postal Service in the first two ratemaking proceedings, see PRC Op. R74-1, pp. 101-102, 126-127; PRC Op. R71-1, pp. 42-46, and even the Postal Service since has abandoned it. The statute's plain language and prior legislative history, discussed above, indicate that Congress' broad policy was to mandate a rate floor consisting of all costs that could be identified, in the view of the expert Rate Commission, as causally linked to a class of postal service. We cannot say that the House Managers' Statement alone demonstrates that the Rate Commission's view is "inconsistent with the statutory mandate or . . . frustrate[s] the policy that Congress sought to implement." FEC v. Democratic Senatorial Campaign Committee, 454 U.S. at 454 U. S. 32.VIWe hold that the Rate Commission has reasonably construed the Act as establishing a two-tier ratesetting structure. First, all costs that in the judgment of the Rate Commission are the consequence of providing a particular class of service must be borne by that class. The statute requires attribution of any cost for which the source can be identified, but leaves it to the Commissioners, in the first instance, to decide which methods provide reasonable assurance that costs are the result of providing one class of service.For this function to be performed, the Postal Service must seek to improve the data on which causal relationships may be identified [Footnote 29] as the Rate Commission remains open to the Page 462 U. S. 834 use of any method that reliably identifies causal relationships. In our view, the Rate Commission conscientiously has attempted to find causal connections between classes of service and all postal costs -- both operating costs and "overhead" or "capacity" costs -- where the data are sufficient. PRC Op. R74-1, pp. 126-127; see PRC Op. R80-1, pp. 129-131. The Rate Commission is to assign remaining costs reasonably on the basis of the other eight factors set forth by § 3622(b).Inasmuch as the rates at issue were established according to the District of Columbia Circuit's erroneous view of the Act, we agree with the Second Circuit that this matter must be remanded to the agencies. While we do not agree with all that the Second Circuit said in its opinion, we affirm its judgment in remanding the cases. The remand will be for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtGreeting Card Publishers v. USPS, 462 U.S. 810 (1983)National Association of Greeting Card Publishers v.United States Postal ServiceNo. 81-1304Argued December 1, 1982Decided June 22, 1983*462 U.S. 810SyllabusSection 3622(b) of the Postal Reorganization Act (Act) provides that the Postal Rate Commission shall recommend rates for the classes of mail in accordance with nine factors, the third of which (§ 3622(b)(3)) is"the requirement that each class of mail or type of mail service bear the direct and indirect postal costs attributable to that class or type plus that portion of all other costs of the Postal Service reasonably assignable to such class or type."In reviewing the ratemaking proceedings involved here, the Court of Appeals for the Second Circuit -- contrary to earlier decisions of the Court of Appeals for the District of Columbia Circuit in reviewing prior ratemaking proceedings -- held that the Act does not require the maximum possible use of cost-of-service principles, including allocation of costs on unverified inferences of causation, but permits use of other approaches, including the Rate Commission's original two-tier approach under which the rate floor for each class of mail was established by first determining the portion of the Postal Service's total costs verifiably caused by ("attributable to") that class of mail, and then "reasonably assigning" remaining costs to the various classes of mail on the basis of the other noncost, discretionary factors set forth in § 3622(b).Held:1. Although the Act divides ratemaking responsibility between the Rate Commission and the Postal Service, the legislative history and the Act's structure demonstrate that ratemaking authority was vested primarily in the Rate Commission. Thus, its interpretation of § 3622(b) is due deference. Pp. 462 U. S. 820-821.2. In enacting the Act to divest itself of its previous control over setting postal rates, Congress was concerned about the influence of lobbyists and resulting discrimination in rates among classes of postal service, but it did not intend to require maximum use of cost-of-service principles or to eliminate the ratesetter's discretion as to the methods for assigning Page 462 U. S. 811 costs; it simply removed the ratesetting function from the political arena. The legislative history does not suggest that Congress viewed the exercise of discretion as an evil in itself. Pp. 462 U. S. 821-823.3. The Rate Commission's two-tier approach is a reasonable construction of 3622(b)(3). The two-tier approach -- one tier based on causation and the second tier based on other factors -- is consistent with the statutory language, and is supported by the legislative history. Pp. 462 U. S. 823-825.4. The statute requires attribution of any costs for which the source can be identified, but leaves it to the Rate Commission, in the first instance, to decide which methods provide reasonable assurance that costs are the result of providing one class of service. Pp. 462 U. S. 825-833.(a) The Act does not dictate a specific method for identifying causal relationships between costs and classes of mail, but envisions consideration of all appropriate costing approaches. Pp. 462 U. S. 825-826.(b) The Rate Commission acted consistently with the statutory mandate and Congress' policy objectives in refusing to use accounting principles lacking an established causal basis. On its face, § 3622(b)(3) does not deny to the expert ratesetting agency the authority to decide which methods sufficiently identify the requisite causal connection between particular services and particular costs. The legislative history supports the Rate Commission's view that, when causal analysis is limited by insufficient data, the statute envisions that the Rate Commission will press for better data, rather than construct an "attribution" based on unsupported inferences of causation. Pp. 462 U. S. 826-829.(c) Because the Rate Commission has decided that methods involving attribution of long-term and short-term variable costs reliably indicate causal connections between classes and postal rates, the Act requires that they be employed. But the Act's language and legislative history support the Rate Commission's position that Congress did not intend to bar the use of any reliable method of attributing costs. Pp. 462 U. S. 829-832.(d) A statement in the legislative history indicating that the rate floor for each class of mail should consist of short-term variable costs does not demonstrate that the Rate Commission's inclusion of long-term variable costs, and consideration of other methods of identifying causation, are inconsistent with the statutory mandate or frustrate Congress' policy. The statute's plain language and prior legislative history indicate that Congress' broad policy was to mandate a rate floor consisting of all costs that could be identified, in the Rate Commission's view, as causally linked to a class of postal service. Pp. 462 U. S. 832-833.663 F.2d 1186, affirmed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 462 U. S. 812

1975_74-940

MR. JUSTICE BRENNAN delivered the opinion of the Court.The McCarran Amendment, 66 Stat. 560, 43 U.S.C. § 666, provides that"consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such Page 424 U. S. 803 rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit."The questions presented by this case concern the effect of the McCarran Amendment upon the jurisdiction of the federal district courts under 28 U.S.C. § 1345 over suits for determination of water rights brought by the United States as trustee for certain Indian tribes and as owner of various non-Indian Government claims. [Footnote 1] Page 424 U. S. 804IIt is probable that no problem of the Southwest section of the Nation is more critical than that of scarcity of water. As southwestern populations have grown, conflicting claims to this scarce resource have increased. To meet these claims, several Southwestern States have established elaborate procedures for allocation of water and adjudication of conflicting claims to that resource. [Footnote 2] In 1969, Colorado enacted its Water Rights Determination and Administration Act [Footnote 3] in an effort to revamp its legal procedures for determining claims to water within the State.Under the Colorado Act, the State is divided into seven Water Divisions, each Division encompassing one or more entire drainage basins for the larger rivers in Colorado. [Footnote 4] Adjudication of water claims within each Division occurs on a continuous basis. [Footnote 5] Each month, Water Referees in each Division rule on applications for water rights filed within the preceding five months or refer those applications to the Water Judge of their Division. [Footnote 6] Every six months, the Water Judge passes on referred applications and contested decisions by Referees. [Footnote 7] A State Engineer and engineers for each Division are responsible for the administration and distribution Page 424 U. S. 805 of the waters of the State according to the determinations in each Division. [Footnote 8]Colorado applies the doctrine of prior appropriation in establishing rights to the use of water. [Footnote 9] Under that doctrine, one acquires a right to water by diverting it from its natural source and applying it to some beneficial use. Continued beneficial use of the water is required in order to maintain the right. In periods of shortage, priority among confirmed rights is determined according to the date of initial diversion. [Footnote 10]The reserved rights of the United States extend to Indian reservations, Winters v. United States, 207 U. S. 564 (1908), and other federal lands, such as national parks and forests, Arizona v. California, 373 U. S. 546 (1963). The reserved rights claimed by the United States in this case affect waters within Colorado Water Division No. 7. On November 14, 1972, the Government instituted this suit in the United States District Court for the District of Colorado, invoking the court's jurisdiction under 28 U.S.C. § 1345. The District Court is located in Denver, some 300 miles from Division 7. The suit, against some 1,000 water users, sought declaration of the Government's rights to waters in certain rivers and their tributaries located in Division 7. In the suit, the Government asserted reserved rights on its own behalf and on behalf of certain Indian tribes, as well as rights based on state law. It sought appointment of a water master to administer any waters decreed to the United States. Page 424 U. S. 806 Prior to institution of this suit, the Government had pursued adjudication of non-Indian reserved rights and other water claims based on state law in Water Divisions 4, 5, and 6, and the Government continues to participate fully in those Divisions.Shortly after the federal suit was commenced, one of the defendants in that suit filed an application in the state court for Division 7, seeking an order directing service of process on the United States in order to make it a party to proceedings in Division 7 for the purpose of adjudicating all of the Government's claims, both state and federal. On January 3, 1973, the United States was served pursuant to authority of the McCarran Amendment. Several defendants and intervenors in the federal proceeding then filed a motion in the District Court to dismiss on the ground that, under the Amendment, the court was without jurisdiction to determine federal water rights. Without deciding the jurisdictional question, the District Court, on June 21, 1973, granted the motion in an unreported oral opinion stating that the doctrine of abstention required deference to the proceedings in Division 7. On appeal, the Court of Appeals for the Tenth Circuit reversed, United States v. Akin, 504 F.2d 115 (1974), holding that the suit of the United States was within district court jurisdiction under 28 U.S.C. § 1345, and that abstention was inappropriate. We granted certiorari to consider the important questions of whether the McCarran Amendment terminated jurisdiction of federal courts to adjudicate federal water rights and whether, if that jurisdiction was not terminated, the District Court's dismissal in this case was nevertheless appropriate. 421 U.S. 946 (1975). We reverse.IIWe first consider the question of district court jurisdiction under 28 U.S.C. § 1345. That section provides Page 424 U. S. 807 that the district courts shall have original jurisdiction over all civil actions brought by the Federal Government "[e]xcept as otherwise provided by Act of Congress." It is thus necessary to examine whether the McCarran Amendment is such an Act of Congress excepting jurisdiction under § 1345.The McCarran Amendment does not, by its terms, at least, indicate any repeal of jurisdiction under § 1345. Indeed, subsection (d) of the Amendment, which is uncodified, provides:"(d) None of the funds appropriated by this title may be used in the preparation or prosecution of the suit in the United States District Court for the Southern District of California, Southern Division, by the United States of America against Fallbrook Public Utility District, a public service corporation of the State of California, and others."Act of July 10, 1952, Pub.L. 495, § 208(d), 66 Stat. 560. In prohibiting the use of funds for the maintenance by the United States of a specific suit then pending in a District Court, subsection (d) plainly implies that the Amendment did not repeal the jurisdiction of district courts under § 1345 to adjudicate suits brought by the United States for adjudication of claimed federal water rights. [Footnote 11]Beyond its terms, the legislative history of the Amendment evidences no clear purpose to terminate any portion of § 1345 jurisdiction. Indeed, three bills, proposed at approximately the same time as the Amendment, which expressly would have had the effect of precluding suits by the United States in district court for the determination Page 424 U. S. 808 of water rights, failed of passage. [Footnote 12] Further, the Senate report on the Amendment states:"The purpose of the proposed legislation, as amended, is to permit the joinder of the United States as a party defendant in any suit for the adjudication of rights to the use of water. . . . [Footnote 13]"Nothing in this statement of purpose indicates an intent correlatively to diminish federal district court jurisdiction. Similarly, Senator McCarran, who introduced the legislation in the Senate, stated in a letter made a part of the Senate report that the legislation was"not intended to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. [Footnote 14]"In view of the McCarran Amendment's language and legislative history, controlling principles of statutory construction require the conclusion that the Amendment did not constitute an exception "provided by Act of Congress" that repealed the jurisdiction of district courts under § 1345 to entertain federal water suits."When there are statutes clearly defining the jurisdiction of the courts, the force and effect of such provisions should not be disturbed by a mere implication flowing from subsequent legislation."Rosencrans v. United States, 165 U. S. 257, 165 U. S. 262 (1897). See Morton v. Mancari, 417 U. S. 535, 417 U. S. 549-551 (1974); United States v. Jackson, 302 U. S. 628, 302 U. S. 632 (1938)."In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable."Morton v. Mancari, supra at 417 U. S. 550. Not only do the terms and legislative Page 424 U. S. 809 history of the McCarran Amendment not indicate an intent to repeal § 1345, but also there is no irreconcilability in the operation of both statutes. The immediate effect of the Amendment is to give consent to jurisdiction in the state courts concurrent with jurisdiction in the federal courts over controversies involving federal rights to the use of water. There is no irreconcilability in the existence of concurrent state and federal jurisdiction. Such concurrency has, for example, long existed under federal diversity jurisdiction. Accordingly, we hold that the McCarran Amendment in no way diminished federal district court jurisdiction under § 1345, and that the District Court had jurisdiction to hear this case. [Footnote 15]IIIWe turn next to the question whether this suit nevertheless was properly dismissed in view of the concurrent state proceedings in Division 7.AFirst, we consider whether the McCarran Amendment provided consent to determine federal reserved rights held on behalf of Indians in state court. This is a question not previously squarely addressed by this Court, and, given the claims for Indian water rights in this case, dismissal clearly would have been inappropriate if the state court had no jurisdiction to decide those claims. We conclude that the state court had jurisdiction over Indian water rights under the Amendment.United States v. District Court for Eagle County, 401 U. S. 520 (1971), and United States v. District Court for Page 424 U. S. 810 Water Div., 401 U. S. 527 (1971), held that the provisions of the McCarran Amendment, whereby"consent is . . . given to join the United States as a defendant in any suit (1) for the adjudication . . . or (2) for the administration of [water] rights, where it appears that the United States is the owner . . . by appropriation under state law, by purchase, by exchange, or otherwise . . . ,"subject federal reserved rights to general adjudication in state proceedings for the determination of water rights. More specifically, the Court held that reserved rights were included in those rights where the United States was "otherwise" the owner. United States v. District Court for Eagle County, supra at 401 U. S. 524. Though Eagle County and Water Div. 5 did not involve reserved rights on Indian reservations, viewing the Government's trusteeship of Indian rights as ownership, the logic of those cases clearly extends to such rights. Indeed, Eagle County spoke of non-Indian rights and Indian rights without any suggestion that there was a distinction between them for purposes of the Amendment. 401 U.S. at 401 U. S. 523.Not only the Amendment's language, but also its underlying policy, dictates a construction including Indian rights in its provisions. Eagle County rejected the conclusion that federal reserved rights in general were not reached by the Amendment for the reason that the Amendment "[deals] with an all-inclusive statute concerning the adjudication of rights to the use of water of a river system.'" Id. at 401 U. S. 524. This consideration applies as well to federal water rights reserved for Indian reservations. And, cogently, the Senate report on the Amendment observed:"In the administration of and the adjudication of water rights under State laws, the State courts are vested with the jurisdiction necessary for the proper Page 424 U. S. 811 and efficient disposition thereof, and by reason of the interlocking of adjudicated rights on any stream system, any order or action affecting one right affects all such rights. Accordingly all water users on a stream, in practically every case, are interested and necessary parties to any court proceedings. It is apparent that, if any water user claiming to hold such right by reason of the ownership thereof by the United States or any of its departments is permitted to claim immunity from suit in, or orders of, a State court, such claims could materially interfere with the lawful and equitable use of water for beneficial use by the other water users who are amenable to and bound by the decrees and orders of the State courts. [Footnote 16]"Thus, bearing in mind the ubiquitous nature of Indian water rights in the Southwest, it is clear that a construction of the Amendment excluding those rights from its coverage would enervate the Amendment's objective. [Footnote 17]Finally, legislative history demonstrates that the McCarran Amendment is to be construed as reaching federal water rights reserved on behalf of Indians. It was unmistakably the understanding of proponents and opponents of the legislation that it comprehended water rights reserved for Indians. In the Senate hearings on the Amendment, participants for the Department of Justice and the Department of the Interior made clear that the proposal would include water rights reserved on behalf of Page 424 U. S. 812 Indians. [Footnote 18] In addition, the Senate report on the Amendment took note of a recommendation in a Department of the Interior report that no consent to suit be given as to Indian rights and rejected the recommendation. [Footnote 19] The Government argues that, because of its fiduciary responsibility to protect Indian rights, any state court jurisdiction over Indian property should not be recognized unless expressly conferred by Congress. It has been recognized, however, that an action for the destruction of personal property may be brought against an Indian tribe where "[a]uthority to sue . . . is implied." Turner v. United States, 248 U. S. 354, 248 U. S. 358 (1919). Moreover, the Government's argument rests on the incorrect assumption that consent to state jurisdiction for the purpose of determining water rights imperils those rights or in some way breaches the special obligation of the Federal Government to protect Indians. Mere subjection of Indian rights to legal challenge in state court, however, would no more imperil those rights than would a suit brought by the Government in district court for their declaration, a suit which, absent the consent of the Amendment, would eventually be necessitated to resolve conflicting claims to a scarce resource. The Government has not abdicated any responsibility fully to defend Indian rights in state court, and Indian interests may be satisfactorily protected under regimes of state law. See 25 U.S.C. §§ 1321, 1322; 28 U.S.C. § 1360. [Footnote 20] Cf. Page 424 U. S. 813 California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 295 U. S. 164 n. 2 (1935). The Amendment in no way abridges any substantive claim on behalf of Indians under the doctrine of reserved rights. Moreover, as Eagle County said,"questions [arising from the collision of private rights and reserved rights of the United States], including the volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed [by the Supreme Court] after final judgment by the Colorado court."401 U.S. at 401 U. S. 526.BNext, we consider whether the District Court's dismissal was appropriate under the doctrine of abstention. We hold that the dismissal cannot be supported under that doctrine in any of its forms.Abstention from the exercise of federal jurisdiction is the exception, not the rule."The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest."County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 360 U. S. 188-189 (1959)."[I]t was Page 424 U. S. 814 never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a State court could entertain it."Alabama Pub. Serv. Comm'n v. Southern R. Co., 341 U. S. 341, 341 U. S. 361 (1951) (Frankfurter, J., concurring in result). Our decisions have confined the circumstances appropriate for abstention to three general categories.(a) Abstention is appropriate"in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law."County of Allegheny v. Frank Mashuda Co., supra at 360 U. S. 189. See, e.g., Lake Carriers Assn. v. MacMullan, 406 U. S. 498 (1972); United Gas Pipeline Co. v. Ideal Cement Co., 369 U. S. 134 (1962); Railroad Comm'n of Texas v. Pullman Co., 312 U. S. 496 (1941). This case, however, presents no federal constitutional issue for decision.(b) Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25 (1959), for example, involved such a question. In particular, the concern there was with the scope of the eminent domain power of municipalities under state law. See also Kaiser Steel Corp. v. W. S. Ranch Co., 391 U. S. 593 (1968); Hawks v. Hamill, 288 U. S. 52 (1933). In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. In Burford v. Sun Oil Co., 319 U. S. 315 (1943), for example, the Court held that a suit seeking review of the reasonableness under Texas state law of a state commission's permit to drill oil Page 424 U. S. 815 wells should have been dismissed by the District Court. The reasonableness of the permit in that case was not of transcendent importance, but review of reasonableness by the federal courts in that and future cases, where the State had established its own elaborate review system for dealing with the geological complexities of oil and gas fields, would have had an impermissibly disruptive effect on state policy for the management of those fields. See also Alabama Pub. Serv. Comm'n v. Southern R. Co., supra. [Footnote 21]The present case clearly does not fall within this second category of abstention. While state claims are involved in the case, the state law to be applied appears to be settled. No questions bearing on state policy are presented for decision. Nor will decision of the state claims impair efforts to implement state policy as in Burford. To be sure, the federal claims that are involved Page 424 U. S. 816 in the case go to the establishment of water rights which may conflict with similar rights based on state law. But the mere potential for conflict in the results of adjudications does not, without more, warrant staying exercise of federal jurisdiction. See Meredith v. Winter Haven, 320 U. S. 228 (1943); Kline v. Burke Constr. Co., 260 U. S. 226 (1922); McClellan v. Carland, 217 U. S. 268 (1910). The potential conflict here, involving state claims and federal claims, would not be such as to impair impermissibly the State's effort to effect its policy respecting the allocation of state waters. Nor would exercise of federal jurisdiction here interrupt any such efforts by restraining the exercise of authority vested in state officers. See Pennsylvania v. Williams, 294 U. S. 176 (1935); Hawks v. Hamill, supra.(c) Finally, abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, Younger v. Harris, 401 U. S. 37 (1971); Douglas v. City of Jeannette, 319 U. S. 157 (1943); [Footnote 22] state nuisance proceedings antecedent to a criminal prosecution, which are directed at obtaining the closure of places exhibiting obscene films, Huffman v. Pursue, Ltd., 420 U. S. 592 (1975); or collection of state taxes, Great lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 (1943). Like the previous two categories, this category also does not include this case. We deal here neither with a criminal proceeding, nor such a nuisance proceeding, nor a tax collection. We also do not deal with an attempt to restrain such actions, [Footnote 23] or to seek a Page 424 U. S. 817 declaratory Judgment as to the validity of a state criminal law under which criminal proceedings are pending in a state court.CAlthough this case falls within none of the abstention categories, there are principles unrelated to considerations of proper constitutional adjudication and regard for federal-state relations which govern in situations involving the contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and federal courts. These principles rest on considerations of "[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180, 342 U. S. 183 (1952). See Columbia Plaza Corp. v. Security National Bank, 173 U.S.App.D.C. 403, 525 F.2d 620 (1975). Generally, as between state and federal courts, the rule is that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction. . . ." McClellan v. Carland, supra at 217 U. S. 282. See Donovan v. City of Dallas, 377 U. S. 408 (1964). As between federal district courts, however, though no precise rule has evolved, the general principle is to avoid duplicative litigation. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., supra; Steelman v. All Continent Corp., 301 U. S. 278 (1937); Landis v. North American Co., 299 U. S. 248, 299 U. S. 254 (1936). This difference in general approach between state-federal concurrent jurisdiction and wholly federal concurrent jurisdiction stems from the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. England v. Medical Examiners, 375 U. S. 411, Page 424 U. S. 818 375 U. S. 415 (1964); McClellan v. Carland, supra at 217 U. S. 281; Cohens v. Virginia, 6 Wheat. 264, 19 U. S. 404 (1821) (dictum). Given this obligation, and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist.It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts. Donovan v. City of Dallas, supra at 377 U. S. 412; Princess Lida v. Thompson, 305 U. S. 456, 305 U. S. 466 (1939); United States v. Bank of New York Co., 296 U. S. 463, 296 U. S. 477 (1936). But cf. Markham v. Allen, 326 U. S. 490 (1946); United States v. Klein, 303 U. S. 276 (1938). This has been true even where the Government was a claimant in existing state proceedings and then sought to invoke district court jurisdiction under the jurisdictional provision antecedent to 28 U.S.C. § 1345. United States v. Bank of New York Co., supra at 296 U. S. 479. But cf. Leiter Minerals, Inc. v. United States, 352 U. S. 220, 352 U. S. 227-228 (1957). In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum, cf. Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947); the desirability of avoiding piecemeal litigation, cf. Brillhart v. Excess Ins. Co., 316 U. S. 491, 316 U. S. 495 (1942); and the order in which jurisdiction was obtained by the concurrent forums, Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 241 U. S. 447 (1916). No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counseling against that exercise Page 424 U. S. 819 is required. See Landis v. North American Co., supra at 299 U. S. 254-255. Only the clearest of justifications will warrant dismissal.Turning to the present case, a number of factors clearly counsel against concurrent federal proceedings. The most important of these is the McCarran Amendment itself. The clear federal policy evinced by that legislation is the avoidance of piecemeal adjudication of water rights in a river system. This policy is akin to that underlying the rule requiring that jurisdiction be yielded to the court first acquiring control of property, for the concern in such instances is with avoiding the generation of additional litigation through permitting inconsistent dispositions of property. This concern is heightened with respect to water rights, the relationships among which are highly interdependent. Indeed, we have recognized that actions seeking the allocation of water essentially involve the disposition of property, and are best conducted in unified proceedings. See Pacific Live Stock Co. v. Oregon Water Bd., supra at 241 U. S. 449. The consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals.As has already been observed, the Colorado Water Rights Determination and Administration Act established such a system for the adjudication and management of rights to the use of the State's waters. As the Government concedes [Footnote 24] and as this Court recognized in Eagle County and Water Div. 5, the Act established a single continuous proceeding for water rights adjudication which antedated the suit in District Court. United States v. District Court for Eagle County, 401 U.S. at 401 U. S. 525; United States v. District Court for Water Div. 5, Page 424 U. S. 820 401 U.S. at 401 U. S. 529. That proceeding "reaches all claims, perhaps month by month, but inclusively in the totality." Ibid. Additionally, the responsibility of managing the State's waters, to the end that they be allocated in accordance with adjudicated water rights, is given to the State Engineer.Beyond the congressional policy expressed by the McCarran Amendment and consistent with furtherance of that policy, we also find significant (a) the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss, [Footnote 25] (b) the extensive involvement of state water rights occasioned by this suit naming 1,000 defendants, (c) the 300-mile distance between the District Court in Denver and the court in Division 7, and (d) the existing participation by the Government in Division 4, 5, and 6 proceedings. We emphasize, however, that we do not overlook the heavy obligation to exercise jurisdiction. We need not decide, for example, whether, despite the McCarran Amendment, dismissal would be warranted if more extensive proceedings had occurred in the District Court prior to dismissal, if the involvement of state water rights were less extensive than it is here, or if the state proceeding were in some respect inadequate to resolve the federal claims. But the opposing factors here, particularly the policy underlying the McCarran Amendment, justify the District Court's dismissal in this particular case. [Footnote 26] Page 424 U. S. 821The judgment of the Court of Appeals is reversed, and the judgment of the District Court dismissing the complaint is affirmed for the reasons here stated.It is so ordered

U.S. Supreme CourtColorado River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976)Colorado River Water Conservation District v. United StatesNo. 74-940Argued January 14, 1976Decided March 24, 1976*424 U.S. 800SyllabusIn order to manage the allocation of water and to resolve conflicting claims thereto, Colorado enacted legislation under which the State is divided into seven Water Divisions, in each of which a procedure is established for the settlement of water claims on a continuous basis. A State Engineer is charged with responsibility for administering the distribution of state waters. Seeking adjudication of reserved rights claimed on behalf of itself and certain Indian tribes, as well as rights based on state law, in waters in certain rivers in Division 7, the United States, which had previously asserted non-Indian reserved water rights in three other State Water Divisions, brought this suit against some l,000 water users in the District Court. The Government invoked District Court jurisdiction under 28 U.S.C. § 1345. Shortly thereafter, one of the federal suit defendants sought in the state court for Division 7 to make the Government a party to proceedings in that Division for the purpose of there adjudicating all the Government's claims, both state and federal, pursuant to the McCarran Amendment, 43 U.S.C. § 666. That law provides for consent to join the United States in any suit (1) for the adjudication of water rights, or (2) the administration of such rights, where it appears that the United States owns or is acquiring such rights by appropriation under state law or otherwise. The District Court, on abstention grounds, granted a motion to dismiss the Government's suit. The Court of Appeals reversed, holding that jurisdiction for that suit existed under 28 U.S.C. § 1345, and that abstention was inappropriate.Held:l. The McCarran Amendment, as is clear from its language and legislative history, did not divest the District Court of jurisdiction over this litigation under § 1345. The effect of the Amendment is to give consent to state jurisdiction concurrent with federal jurisdiction over controversies involving federal water rights. Pp. 424 U. S. 806-809. Page 424 U. S. 8012. That Amendment includes consent to determine in state court reserved water rights held on behalf of Indians, see United States v. District Court for Eagle County, 401 U. S. 520, and United States v. District Court for Water Div. 5, 401 U. S. 527, and the exercise of state jurisdiction does not imperil those rights or breach the Government's special obligation to protect the Indians. Pp. 424 U. S. 809-813.3. The abstention doctrine is confined to three categories of cases, none of which applies to the litigation at bar; hence the District Court's dismissal on the basis of abstention was inappropriate. Pp. 424 U. S. 813-817.4. Several factors, however, are present in this litigation that counsel against exercise of concurrent federal jurisdiction, clearly supporting dismissal of the Government's action and resolution of its water right claims in the state court proceedings. Pp. 424 U. S. 817-820.(a) Most significantly, such dismissal furthers the policy of the McCarran Amendment recognizing the desirability of unified adjudication of water rights and the availability of state systems like the one in Colorado for such adjudication and management of rights to use the State's waters. The Colorado legislation established a continuous proceeding for adjudicating water rights that antedated the Government's suit and reached "all claims, perhaps month by month, but inclusively in the totality," United States v. District Court for Water Div. 5, supra, at 401 U. S. 529. Pp. 424 U. S. 819-820.(b) Other significant factors include (1) the apparent absence before dismissal of any District Court proceedings other than the filing of the complaint; (2) the extensive involvement of state water rights occasioned by this suit against 1,000 defendants; (3) the distance between the federal court and Division 7; and (4) the Government's existing participation in proceedings in three other Divisions. P. 424 U. S. 820.504 F.2d 115, reversed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 424 U. S. 821. STEVENS, J., filed a dissenting opinion, post, p. 424 U. S. 826. Page 424 U. S. 802

1975_74-6212

MR. JUSTICE BLACKMUN delivered the opinion of the Court.On the merits, this case raises the same question as to the constitutionality of §§ 202(d)(3) and 216(h)(3)(C)(ii) of the Social Security Act, 64 Stat. 484, as amended, and 79 Stat. 410, 42 U.S.C. § § 402(d)(3) and 416(h)(3)(C)(ii), as was presented in Mathews v. Lucas, ante p. 427 U. S. 495. The present litigation, however, also raises certain jurisdictional issues. It now has become apparent that the simultaneous submission of Lucas to the Court, and our decision in that case today, make it unnecessary for us specifically to decide the jurisdictional questions.IAppellant Gregory Norton, Jr., was born out of wedlock in February, 1964. Both his father and his mother then were high school students, aged, respectively, 16 and 14, who lived separately at home with their parents. Page 427 U. S. 526 The two never married and, indeed, never lived together. Appellant always has resided with his maternal grandmother and has been cared for by her. When Gregory was born, his father contributed six dollars and some clothing and other habiliments for the baby, but, being so young and unemployed, he never assumed appellant's actual support.In February, 1965, the father entered military service. He was killed in Vietnam on May 19, 1966, at age 19. Before his death, the father apparently took some initial steps (the procurement of a birth certificate and other items) necessary for the processing of a dependent child's military allotment. The father failed, however, to complete the required procedures before he was killed.In September, 1969, appellant's maternal grandmother filed on his behalf an application for a surviving child's benefits under § 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1), based on the father's earnings record. An administrative hearing followed. The Hearing Examiner concluded that appellant was not entitled to benefits as a dependent child because his father, at the time of his death, was neither living with appellant nor contributing to appellant's support. [Footnote 1] App. 119. The subsequent Page 427 U. S. 527 administrative appeal was no more successful. Id. at 20-21.The present action was then instituted on behalf of appellant against the Secretary of Health, Education, and Welfare. By the complaint, relief was sought alternatively on statutory and constitutional grounds. First, it was asserted that, by his attempt to secure a military allotment for appellant, the father, at the time of his death, in fact was contributing to appellant's support, within the meaning of § 216(h)(3)(C)(ii) of the Act, and that appellant therefore was a dependent of the father, under §§ 202(d)(1) and (3) (1970 ed. and Supp. IV), and entitled to benefits. Second, it was asserted that, by creating a presumption of dependency, and consequent qualification for benefits, for legitimate children generally, and for illegitimate children under certain circumstances, see n 1, but denying the presumption to appellant and others similarly situated, the Act discriminated against appellant's class, in violation of the guarantee of equal protection implicit in the Due Process Clause of the Fifth Amendment.Appellant's statutory claim was initially considered and rejected by a single District Judge. Norton v. Richardson, 352 F. Supp. 596 (Md.1972). In view of the complaint's request for certification of a class pursuant to Fed.Rule Civ.Proc. 23(c)(1), and for classwide injunctive relief against the alleged unconstitutional operation of the Act's presumptions of dependency, a three-judge court was convened under 28 U.S.C. §§ 2282 and 2284 (1970 ed. and Supp. IV) to pass upon the constitutional Page 427 U. S. 528 claim. The three-judge court first agreed with, and reaffirmed, the single judge's rejection of appellant's statutory claim. Norton v. Weinberger, 364 F. Supp. 1117, 1120 (1973). The court went on to identify the plaintiff class, id. at 1120-1121, [Footnote 2] but, on the merits of the constitutional, claim it ruled in favor of the Secretary and granted summary judgment in his favor. Id. at 1121-1131.Appellant, taking the position that the three-judge court had denied his request for an order enjoining enforcement of provisions of the Act, lodged a direct appeal here pursuant to 28 U.S.C. § 1253. While his jurisdictional statement was pending, Jimenez v. Weinberger, 417 U. S. 628 (1974), was decided. This Court thereafter vacated the three-judge court's judgment and remanded the case for further consideration in the light of Jimenez. Norton v. Weinberger, 418 U.S. 902 (1974).On the remand, the same three-judge court, with one judge now dissenting, adhered to its earlier conclusion in favor of constitutionality. Norton v. Weinberger, 390 F. Supp. 1084 (1975). Appellant has again appealed. We postponed the question of jurisdiction to the hearing of the case on the merits, 422 U.S. 1054 (1975), and, in doing so, cited Weinberger v. Salfi, 422 U. S. 749, 422 U. S. 763 n. 8 (1975), which just then had been decided. Subsequently, we set the case for oral argument with Mathews v. Lucas, ante, p. 427 U. S. 495. 423 U.S. 819 (1975).IIThe question whether the three-judge court was properly convened upon appellant's demand for injunctive relief Page 427 U. S. 529 is relevant, of course to our appellate jurisdiction. If the court was not empowered to enjoin the operation of a federal statute, then three judges were not required to hear the case under 28 U.S.C. § 2282, and this Court has no jurisdiction under 28 U.S.C. § 1253. [Footnote 3] Accordingly, appellant and the Secretary have debated whether the District Court possessed injunctive power under § 205(g) of the Act, [Footnote 4] 42 U.S.C. § 405(g), and whether, in the light of § 205(h), [Footnote 5] 42 U.S.C. § 405(h), relief was available under the mandamus statute, 28 U.S.C. Page 427 U. S. 530 § 1361, [Footnote 6] or under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. [Footnote 7]We think it unnecessary, however, to resolve the details of these difficult and perhaps close jurisdictional arguments. The substantive questions raised on this appeal now have been determined in Mathews v. Lucas, ante, p. 427 U. S. 495. [Footnote 8] This disposition renders the merits in the Page 427 U. S. 531 present case a decided issue and thus one no longer substantial in the jurisdictional sense.Assuming that the three-judge court was correctly convened, and that we have jurisdiction over the appeal, the appropriate disposition, in the light of Mathews v. Lucas, plainly would be to affirm the judgment entered in this case in favor of the Secretary. Assuming, on the other hand, that we lack jurisdiction because the three-judge court was needlessly convened, the appropriate disposition would be to dismiss the appeal. When an appeal to this Court is sought from an erroneously convened three-judge district court, we retain the power "to make such corrective order as may be appropriate to the enforcement of the limitations'" which 28 U.S.C. § 1253 imposes. Bailey v. Patterson, 369 U. S. 31, 369 U. S. 34 (1962), quoting Gully v. Interstate Natural Gas Co., 292 U. S. 16, 292 U. S. 18 (1934). What we have done recently, and in most such cases where the jurisdictional issue was previously unsettled -- and we do not imply that our doing so is statutorily or otherwise compelled -- has been to vacate the district court judgment and remand the case for the entry of a fresh decree from which an appeal may be taken to the appropriate court of appeals. Gonzalez v. Employees Credit Union, 419 U. S. 90, 419 U. S. 101 (1974), is an example. In the present case, however, the decision in Lucas has rendered the constitutional issues insubstantial, and so much so as not even to support the jurisdiction of a three-judge district court to consider their merits on remand. See, e.g., Hicks v. Miranda, 422 U. S. 332, 422 U. S. 343-345 (1975); Hagans v. Lavine, 415 U. S. 528, 415 U. S. 536-538 (1974). Thus, there is no point in remanding to enable the merits to be considered by a court of Page 427 U. S. 532 appeals. See McLucas v. DeChamplain, 421 U. S. 21 (1975). [Footnote 9]It thus is evident that, whichever disposition we undertake, the effect is the same. It follows that there is no need to decide the theoretical question of jurisdiction in this case. In the past, we similarly have reserved difficult questions of our jurisdiction when the case alternatively could be resolved on the merits in favor of the same party. See Secretary of the Navy v. Avrech, 418 U. S. 676 (1974). The Court has done this even when the original reason for granting certiorari was to resolve the jurisdictional issue. See United States v. Augenblick, 393 U. S. 348, 393 U. S. 349-352 (1969). Although such a disposition would not be desirable under all circumstances, we perceive no reason why we may not so proceed in this case where the merits have been rendered plainly insubstantial. Cf. McLucas v. DeChamplain, 421 U.S. at 421 U. S. 32. Making the assumption, then, without deciding, that our jurisdiction in this cause is established, we affirm the judgment in favor of the Secretary Page 427 U. S. 533 on the basis of our decision in Mathews v. Lucas, ante, p. 427 U. S. 495.It is so ordered

U.S. Supreme CourtNorton v. Mathews, 427 U.S. 524 (1976)Norton v. MathewsNo. 74-6212Argued January 13, 1976Decided June 29, 1976427 U.S. 524SyllabusThe Social Security Act provides child survivor benefits only to a child who was "dependent" upon the deceased insured parent at the time of the parent's death. Appellant illegitimate child, who did not come under any of the statutory presumptions of dependency to which legitimate children and illegitimate children under some circumstances are entitled under the Act, could establish his status as a dependent child only by showing that his father lived with him or was contributing to his support at the time of death. Appellant was administratively denied benefits because he could not make such a showing, his father having been killed in military service and never having assumed support. After this denial was upheld on administrative appeal, a class action was brought on appellant's behalf against appellee Secretary of Health, Education, and Welfare, seeking relief against denial of the benefits and claiming, inter alia, that, by creating a presumption of dependency, and consequent qualification for benefits, for legitimate children generally, and for illegitimate children under certain circumstances, but denying the presumption to appellant and others similarly situated, the Act discriminated against appellant's class in violation of the equal protection guarantee implicit in the Due Process Clause of the Fifth Amendment. Ultimately, a three-judge District Court, convened when classwide injunctive relief was requested against the allegedly unconstitutional operation of the Act's presumptions of dependency, ruled in appellee's favor on the merits of the constitutional claim and granted summary judgment in his favor.Held: Since the decision in Mathews v. Lucas, ante p. 427 U. S. 495, renders the merits of the present case a decided issue in favor of appellee and thus one no longer substantial in the jurisdictional sense, it is unnecessary to decide the jurisdictional question presented as to whether a three-judge court was properly convened upon appellant's demand for injunctive relief, and hence Page 427 U. S. 525 whether this Court had jurisdiction over the direct appeal under 28 U.S.C. § 1253. Pp. 427 U. S. 528-533.390 F. Supp. 1084, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 427 U. S. 533.

1990_89-1895

JUSTICE SOUTER delivered the opinion of the Court.The question presented is whether claimants under the Age Discrimination in Employment Act of 1967 (Age Act or Act), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq., are collaterally estopped to relitigate in federal court the judicially unreviewed findings of a state administrative agency made with respect to an age discrimination claim. We hold that such findings have no preclusive effect on federal proceedings.Respondent Angelo Solimino had worked for petitioner Astoria Federal Savings and Loan Association for almost 40 years when, at age 63, he was dismissed from his position as a vice-president in the mortgage department. Less than two weeks later, on March 18, 1982, he filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC). Under a worksharing agreement between it and the state agency, see 29 CFR § 1626.10 (1990), the EEOC referred the matter to the New York State Division of Human Rights, which is responsible for preliminary investigation and disposition of age discrimination cases under New York's Human Rights Law. On January 25, 1983, after a hearing at which both parties were represented by counsel, the state agency found no probable cause to believe that petitioner had terminated respondent because of his age. The ruling was affirmed on review for abuse of discretion by the State Human Rights Appeal Board on May 30, 1984. Although both the Division and the Appeal Board entertained respondent's complaint only on state law grounds, neither party suggests that the elements of an age discrimination claim differ as between the state and federal statutes.Respondent did not seek review of the board's decision in state court, but instead filed an Age Act suit in the United States District Court for the Eastern District of New Page 501 U. S. 107 York grounded on the same factual allegations considered in the state administrative proceedings. The District Court granted petitioner's motion for summary judgment, 715 F. Supp. 42 (1989), and relied heavily on the decision in Stillians v. Iowa, 843 F.2d 276 (CA8 1988), in holding the common law presumption of administrative estoppel to prevail by virtue of Congress' failure in either the language or legislative history of the Age Act "actually [to] addres[s] the issue." 715 F. Supp. at 47. It ruled accordingly that the determination of the State's Human Rights Division that petitioner had not engaged in age discrimination precluded federal litigation of the claim. The Court of Appeals for the Second Circuit reversed, 901 F.2d 1148 (1990), inferring from the Act's structure a legislative intent to deny preclusive effect to such state administrative proceedings. We granted certiorari, 498 U.S. 1023 (1991), to resolve the conflict between the ruling here under review, see also Duggan v. Board of Education of East Chicago Heights, Dist. No. 169, Cook County, Ill., 818 F.2d 1291 (CA7 1987), and those of the Eighth Circuit in Stillians, supra, and of the Ninth Circuit in Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (1986).We have long favored application of the common law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality."When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."United States v. Utah Constr. & Mining Co., 384 U. S. 394, 384 U. S. 422 (1966). Such repose is justified on the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise. To hold otherwise would, as a general matter, impose unjustifiably upon those who have already shouldered their Page 501 U. S. 108 burdens, and drain the resources of an adjudicatory system with disputes resisting resolution. See Parklane Hosiery Co. v. Shore, 439 U. S. 322, 439 U. S. 326 (1979). The principle holds true when a court has resolved an issue, and should do so equally when the issue has been decided by an administrative agency, be it state or federal, see University of Tennessee v. Elliott, 478 U. S. 788, 478 U. S. 798 (1986), which acts in a judicial capacity.Courts do not, of course, have free rein to impose rules of preclusion, as a matter of policy, when the interpretation of a statute is at hand. In this context, the question is not whether administrative estoppel is wise, but whether it is intended by the legislature. The presumption holds nonetheless, for Congress is understood to legislate against a background of common law adjudicatory principles. See Briscoe v. LaHue, 460 U. S. 325 (1983); United States v. Turley, 352 U. S. 407, 352 U. S. 411 (1957). Thus, where a common law principle is well established, as are the rules of preclusion, see, e.g., Parklane Hosiery, supra; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 (1971); Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940), the courts may take it as given that Congress has legislated with an expectation that the principle will apply except "when a statutory purpose to the contrary is evident." Isbrandtsen Co. v. Johnson, 343 U. S. 779, 343 U. S. 783 (1952).This interpretative presumption is not, however, one that entails a requirement of clear statement, to the effect that Congress must state precisely any intention to overcome the presumption's application to a given statutory scheme. Rules of plain statement and strict construction prevail only to the protection of weighty and constant values, be they constitutional, see, e.g., Atascadero State Hosp. v. Scanlon, 473 U. S. 234, 473 U. S. 243 (1985) (requiring plain statement of intention to abrogate immunity of States under the Eleventh Amendment), or otherwise, see, e.g., 499 U. S. Arabian American Page 501 U. S. 109 Oil Co., 499 U. S. 244, 499 U. S. 248 (1991) (requiring plain statement of extraterritorial statutory effect, "to protect against unintended clashes between our laws and those of other nations which could result in international discord"). See generally Eskridge, Public Values in Statutory Interpretation, 137 U.Pa.L.Rev. 1007 (1989)."In traditionally sensitive areas, . . . the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision."United States v. Bass, 404 U. S. 336, 404 U. S. 349 (1971). Similar superior values, of harmonizing different statutes and constraining judicial discretion in the interpretation of the laws, prompt the kindred rule that legislative repeals by implication will not be recognized, insofar as two statutes are capable of coexistence, "absent a clearly expressed congressional intention to the contrary." Morton v. Mancari, 417 U. S. 535, 417 U. S. 551 (1974).But the possibility of such an implied repeal does not cast its shadow here. We do not have before us the judgment of a state court, which would by law otherwise be accorded "the same full faith and credit in every court within the United States . . . as [it has] by law or usage in the courts of such State." 28 U.S.C. § 1738. In the face of § 1738, we have found state court judgments in the closely parallel context of Title VII of the Civil Rights Acts of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., see Lorillard v. Pons, 434 U. S. 575, 434 U. S. 584 (1978), to enjoy preclusive effect in the federal courts. See Kremer v. Chemical Constr. Corp., 456 U. S. 461 (1982); see also Allen v. McCurry, 449 U. S. 90 (1980). This case, by contrast, implicates no such implied repeal, as § 1738 is inapplicable to the judicially unreviewed findings of state administrative bodies. See Elliott, supra, 478 U.S. at 478 U. S. 794. Nor does administrative preclusion represent independent values of such magnitude and constancy as to justify the protection of a clear statement rule. Although administrative estoppel is favored as a matter of general policy, its Page 501 U. S. 110 suitability may vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures. Cf. Alexander v. Gardner-Denver Co., 415 U. S. 36, 415 U. S. 57-58 (1974); Pearson v. Williams, 202 U. S. 281, 202 U. S. 285 (1906). The presumption here is thus properly accorded sway only upon legislative default, applying where Congress has failed expressly or impliedly to evince any intention on the issue.In Elliott, which also dealt with Title VII, the test for the presumption's application was thus framed as the question "whether a common law rule of preclusion would be consistent with Congress' intent in enacting [the statute]." 478 U.S. at 478 U. S. 796. See also Brown v. Felsen, 442 U. S. 127, 442 U. S. 136 (1979); Restatement (Second) of Judgments § 83(4)(a) (1982). In contrast to 42 U.S.C. § 1983, in which the Court discerned "[n]othing . . . remotely express[ing] any congressional intent to contravene the common law rules of preclusion,'" 478 U.S. at 478 U. S. 797 (quoting Allen v. McCurry, 449 U. S. 90, 449 U. S. 97-98 (1980)), Title VII was found by implication to comprehend just such a purpose in its direction that the EEOC accord"'substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local [employment discrimination] law.'"Elliott, supra, 478 U.S. at 478 U. S. 795 (quoting 42 U.S.C. § 2000e-5(b)). What does not preclude a federal agency cannot preclude a federal court, see Kremer, supra, 456 U.S. at 456 U. S. 470, and n. 7; Duggan, 818 F.2d at 1294; we accordingly held that in the district courts the "substantial weight" standard allowed clearly for something less than preclusion. Elliott, supra, 478 U.S. at 478 U. S. 795.We reach the same result here, for the Age Act, too, carries an implication that the federal courts should recognize no preclusion by state administrative findings with respect to age discrimination claims. While the statute contains no express delimitation of the respect owed to state agency findings, its filing requirements make clear that collateral estoppel Page 501 U. S. 111 is not to apply. Section 14(b) requires that, where a State has its own age discrimination law, a federal Age Act complainant must first pursue his claim with the responsible state authorities before filing in federal court. 29 U.S.C. § 633(b); Oscar Mayer & Co. v. Evans, 441 U. S. 750 (1979). It further provides that"no suit may be brought under [the Age Act] before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated."The deadline for filing with the EEOC likewise refers to the termination of prior state administrative action, § 7(d)(2) providing that, where § 14(b) applies,"[s]uch a charge shall be filed . . . within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier."29 U.S.C. § 626(d)(2). Both provisions plainly assume the possibility of federal consideration after state agencies have finished theirs.And yet such federal proceedings would be strictly pro forma if state administrative findings were given preclusive effect. It goes without saying that complainants who succeed in state proceedings will not pursue suit in federal court (except perhaps when the state remedy, or its enforcement, is thought to be inadequate); § 14(b)'s requirement that claimants file with state authorities before doing so in federal court was, in fact,"intended to screen from the federal courts those discrimination complaints that might be settled to the satisfaction of the grievant in state proceedings."Oscar Mayer, supra, at 441 U. S. 756. A complainant who looks to a federal court after termination of state proceedings will therefore ordinarily do so only when the state agency has held against him. In such a case, however, the employer would likely enjoy an airtight defense of collateral estoppel if a state agency determination on the merits were given preclusive effect. Cf. Kremer, 456 U.S. at 456 U. S. 479-480. Insofar as applying preclusion would thus reduce to insignificance those cases in Page 501 U. S. 112 which federal consideration might be pursued in the wake of the completed proceedings of state agencies, § 14(b)'s provision for just such consideration would be left essentially without effect. But of course we construe statutes, where possible, so as to avoid rendering superfluous any parts thereof. See, e.g., United States v. Menasche, 348 U. S. 528, 348 U. S. 538-539 (1955).That the Age Act lacks the "substantial weight" provision of Title VII's § 2000e-5(b) stressed in Elliott is immaterial. There was nothing talismanic about that language; it was "simply the most obvious piece of evidence that administrative res judicata does not operate in a Title VII suit." Duggan, supra, at 1297. It would indeed be ironic if that section were to make the difference between that statute and the Age Act insofar as preclusion in federal courts is concerned, for the language was added to Title VII not because the EEOC was applying administrative preclusion, or "giving state administrative decisions too much weight, but because it was affording them too little." Kremer, supra, 456 U.S. at 456 U. S. 471, n. 8. Similar provision has been unnecessary in the Age Act, for as to age discrimination claims the EEOC of its own accord came to extend some level of deference to the determinations of state authorities. See Brief for United States et al. as Amici Curiae 24. It is, in any event, fair to say that, even without Title VII's "substantial weight" requirement, the Court would have found no administrative preclusion in that context. Title VII's § 706(c), 42 U.S.C. § 2000e-5(c), which also provides for federal court action in the aftermath of terminated state proceedings and is nearly identical to the Age Act's § 14(b), see Oscar Mayer, supra, 441 U.S. at 441 U. S. 755, would have provided yet further support for the Court's result there.Thus, § 14(b) suffices to outweigh the lenient presumption in favor of administrative estoppel, a holding that also comports with the broader scheme of the Age Act and the provisions for its enforcement. Administrative findings Page 501 U. S. 113 with respect to the age discrimination claims of federal employees enjoy no preclusive effect in subsequent judicial litigation, see Rosenfeld v. Department of Army, 769 F.2d 237 (CA4 1985); Nabors v. United States, 568 F.2d 657 (CA9 1978); cf. Chandler v. Roudebush, 425 U. S. 840 (1976) (same, with respect to Title VII claims), and since there is no reason to believe federal enforcement agencies any less competent than their state counterparts, it would be anomalous to afford more deference to one than the other. It would, indeed, invite further capricious anomalies as well, for whether age discrimination claims are investigated first by the EEOC or by state authorities is a matter over which the complainant has no control, see 29 CFR §§ 1626.9, 1626.10 (1990); whether or not he might receive his day in court (complete with jury, see 29 U.S.C. § 626(c)(2)), would then depend, under petitioner's theory, on bureaucratic chance. Petitioner's reading would also lead to disparities from State to State, depending on whether a given jurisdiction had an age discrimination statute of its own. See § 633(b). Moreover, on the assumption that claimants fare better in federal court than before state agencies, and in light of § 14(a)'s provision that state proceedings are superseded upon commencement of federal action, see § 633(a), a recognition of administrative estoppel here would induce all claimants to initiate federal suit at the earliest opportunity after filing the state complaint, thereby defeating the purpose of deferral to resolve complaints outside the federal system. See Oscar Mayer, supra, 441 U.S. at 441 U. S. 755-756.Finally, although the wisdom of Congress' decision against according preclusive effect to state agency rulings has no bearing upon the disposition of the case, that choice has plausible policy support. Although it is true that there will be some duplication of effort, the duplication need not be great. We speak, after all, only of agency determinations not otherwise subjected to judicial review;our reading of the statute will provide no more than a second chance to prove the claim, �501 U.S. 114 � and even then state administrative findings may be entered into evidence at trial. See Chandler, supra, 425 U.S. at 425 U. S. 863, n. 39 (1976). It also may well be that Congress thought state agency consideration generally inadequate to insure full protection against age discrimination in employment. In this very case, the New York Division of Human Rights, which ruled against respondent on the merits, has itself appeared as amicus on his behalf, highlighting the shortfalls of its procedures and resources. See Brief for Attorney General of State of New York as Amicus Curiae 18-22. Alternatively, by denying preclusive effect to any such agency determination, Congress has eliminated litigation that would otherwise result, from State to State and case to case, over whether the agency has in fact "act[ed] in a judicial capacity," and afforded the parties "an adequate opportunity to litigate," Utah Constr. Co., 384 U.S. at 384 U. S. 422, so as to justify application of a normal rule in favor of estoppel.For these reasons, the District Court's grant of petitioner's motion for summary judgment was erroneous on the grounds stated. The judgment of the Court of Appeals is affirmed, and the case is remanded to the District Court for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtAstoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)Astoria Federal Savings & Loan Association v. SoliminoNo. 89-1895Argued April 17, 1991Decided June 10, 1991501 U.S. 104SyllabusRespondent Solimino filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that petitioner Astoria Federal Savings and Loan Association had dismissed him because of his age, in violation of the Age Discrimination in Employment Act of 1967 (Age Act). Under a worksharing agreement, the EEOC referred his claim to the state agency responsible for claims under New York's Human Rights Law. That agency found no probable cause under state law to believe that he was terminated on account of age, and its decision was upheld on administrative review. Rather than appealing that decision to state court, Solimino filed in the Federal District Court an Age Act suit grounded on the same factual allegations considered in the state proceedings. The court granted Astoria's motion for summary judgment, holding that the State's age discrimination findings precluded federal litigation of the claim. The Court of Appeals reversed, inferring from the Age Act's structure a legislative intent to deny preclusive effect to such state administrative proceedings.Held: Judicially unreviewed state administrative findings have no preclusive effect on age discrimination proceedings in federal court. While well-established common law principles, such as preclusion rules, are presumed to apply in the absence of a legislative intent to the contrary, Congress need not state expressly its intention to overcome a presumption of administrative estoppel. Clear statement requirements are appropriate only where weighty and constant values are at stake, or where an implied legislative repeal is implicated. Atascadero State Hosp. v. Scanlon, 473 U. S. 234, 473 U. S. 243; EEOC v. Arabian American Oil Co., 499 U. S. 244, 499 U. S. 248; Morton v. Mancari, 417 U. S. 535, 417 U. S. 551. Such values are not represented by the lenient presumption in favor of administrative estoppel, the suitability of which varies according to context; nor does a finding against estoppel in this case give rise to an implied legislative repeal. Thus, the test for the presumption's application is whether administrative preclusion would be inconsistent with Congress' intent in enacting the particular statute. University of Tennessee v. Elliott, 478 U. S. 788, 478 U. S. 796. The Age Act implies, in its filing requirements, that federal courts should recognize no preclusion by state administrative findings. Both § 14(b) and § 7(d)(2) assume the possibility of federal consideration after state review. However, such proceedings would be strictly pro forma, with the employer likely enjoying an airtight defense, if state administrative findings were given preclusive effect. The provision, in § 14(b), for a claim's consideration in federal court after state proceedings are concluded would, as a result, be left essentially without effect, notwithstanding the rule that statutes should be read to avoid rendering superfluous any parts thereof. Administrative preclusion was likewise found not to apply with respect to claims arising under Title VII of the Civil Rights Act of 1964 in Elliott, supra, which held that Title VII's provision directing the EEOC to accord substantial weight to state administrative findings allowed for something less than preclusion. Id. at 478 U. S. 795. It is immaterial that the Age Act lacks a similar delimitation, since the Title VII provision was only the most obvious piece of evidence that administrative estoppel does not operate in a Title VII suit. This holding also comports with the Age Act's broader scheme and enforcement provisions, and, although Congress' wisdom in deciding against administrative preclusion is not relevant to this determination, its choice has plausible policy support. Pp. 501 U. S. 107-114.901 F.2d 1148 (CA 2 1990), affirmed and remanded.SOUTER, J., delivered the opinion for a unanimous Court. Page 501 U. S. 106

1976_76-316

MR JUSTICE BLACKMUN delivered the opinion of the Court.As part of its regulation of the Arizona Bar, the Supreme Court of that State has imposed and enforces a disciplinary rule that restricts advertising by attorneys. This case presents two issues: whether §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, forbid such state regulation, and whether the operation of the rule violates the First Amendment, made applicable to the States through the Fourteenth. [Footnote 1]IAppellants John R. Bates and Van O'Steen are attorneys licensed to practice law in the State of Arizona. [Footnote 2] As such, they are members of the appellee, the State Bar of Arizona. [Footnote 3] Page 433 U. S. 354 After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. App. 221.In March, 1974, appellants left the Society and opened a law office, which they call a "legal clinic," in Phoenix. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid. Id. at 75. In order to achieve this end, they would accept only routine matters, such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name, for which costs could be kept down by extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. More complicated cases, such as contested divorces, would not be accepted. Id. at 97. Because appellants set their prices so as to have a relatively low return on each case they handled, they depended on substantial volume. Id. at 122-123.After conducting their practice in this manner for two years, appellants concluded that their practice and clinical concept could not survive unless the availability of legal services at low cost was advertised and, in particular, fees were advertised. Id. at 120-123. Consequently, in order to generate the necessary flow of business, that is, "to attract clients," id. at 121; Tr. of Oral Arg. 4, appellants, on February 22, 1976, place an advertisement (reproduced in the Appendix to this opinion [omitted]) in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. As may be seen, the advertisement stated that appellants were offering "legal services at very reasonable fees," and listed their fees for certain services. [Footnote 4] Page 433 U. S. 355Appellants concede that the advertisement constituted a clear violation of Disciplinary Rule 2-101(b), incorporated in Rule 29(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat., p. 26 (Supp. 1976). The disciplinary rule provides in part:"(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf. [Footnote 5] "Page 433 U. S. 356Upon the filing of a complaint initiated by the president of the State Bar, App. 350, a hearing was held before a three-member Special Local Administrative Committee, as prescribed by Arizona Supreme Court Rule 33. App. 16. Although the committee took the position that it could not consider an attack on the validity of the rule, it allowed the parties to develop a record on which such a challenge could be based. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Id. at 482. Upon further review by the Board of Governors of the State Bar, pursuant to the Supreme Court's Rule 36, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively. App. 486-487.Appellants, as permitted by the Supreme Court's Rule 37, then sought review in the Supreme Court of Arizona, arguing, among other things, that the disciplinary rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that the rule infringed their First Amendment rights. The court rejected both claims. In re Bates, 113 Ariz. 394, 555 P.2d 640 (1976).The plurality [Footnote 6] may have viewed with some scepticism the claim that a restraint on advertising might have an adverse effect on competition. [Footnote 7] But, even if the rule might otherwise violate the Page 433 U. S. 357 Act, the plurality concluded that the regulation was exempt from Sherman Act attack because the rule "is an activity of the State of Arizona acting as sovereign." Id. at 39, 555 P.2d at 643. The regulation thus was held to be shielded from the Sherman Act by the state action exemption of Parker v. Brown, 317 U. S. 341 (1943).Turning to the First Amendment issue, the plurality noted that restrictions on professional advertising have survived constitutional challenge in the past, citing, along with other cases, Williamson v. Lee Optical Co., 348 U. S. 483 (1955), and Semler v. Dental Examiners, 294 U. S. 608 (1935). [Footnote 8] Although recognizing that Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S. 748 (1976), and Bigelow v. Virginia, 421 U. S. 809 (1975), held that commercial speech was entitled to certain protection under the First Amendment, the plurality focused on passages in those opinions acknowledging that special considerations might bear on the advertising of professional services by lawyers. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 773 n. 25; id. at 425 U. S. 773-775 (concurring opinion); Bigelow v. Virginia, 421 U.S. at 421 U. S. 825 n. 10. The plurality apparently was of the view that the older decisions dealing with professional advertising survived these recent cases unscathed, and held that Disciplinary Rule 2-101(b) passed First Amendment Page 433 U. S. 358 muster. [Footnote 9] Because the court, in agreement with the Board of Governors, felt that appellants' advertising "was done in good faith to test the constitutionality of DR 2-101(b)," it reduced the sanction to censure only. [Footnote 10] 113 Ariz. at 400, 555 P.2d at 646.Of particular interest here is the opinion of Mr. Justice Holohan in dissent. In his view, the case should have been framed in terms of "the right of the public, as consumers and citizens, to know about the activities of the legal profession," id. at 402, 555 P.2d at 648, rather than as one involving merely the regulation of a profession. Observed in this light, he felt that the rule performed a substantial disservice to the public:"Obviously the information of what lawyers charge is important for private economic decisions by those in need of legal services. Such information is also helpful, perhaps indispensable, to the formation of an intelligent opinion by the public on how well the legal system is working and whether it should be regulated or even altered. . . . The rule at issue prevents access to such information by the public."Id. at 402 403, 555 P.2d at 648-649. Although the dissenter acknowledged that some types of advertising might cause confusion and deception, he felt that the remedy was to ban that form, rather than all advertising. Thus, despite his "personal dislike of the concept of advertising by attorneys," id. at 402, 555 P.2d at 648, he found the ban unconstitutional.We noted probable jurisdiction. 429 U.S. 813 (1976). Page 433 U. S. 359IIThe Sherman ActIn Parker v. Brown, 317 U. S. 341 (1943), this Court held that the Sherman Act was not intended to apply against certain state action. See also Olsen v. Smith, 195 U. S. 332, 195 U. S. 311 345 (1904). In Parker, a raisin producer-packer brought suit against California officials challenging a state program designed to restrict competition among growers, and thereby to maintain prices in the raisin market. The Court held that the State, "as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." 317 U.S. at 317 U. S. 352. Appellee argues, and the Arizona Supreme Court held, that the Parker exemption also bars the instant Sherman Act claim. We agree.Of course, Parker v. Brown has not been the final word on the matter. In two recent cases, the Court has considered the state action exemption to the Sherman Act and found it inapplicable for one reason or another. Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975); Cantor v. Detroit Edison Co., 428 U. S. 579 (1976). Goldfarb and Cantor, however, are distinguishable, and their reasoning supports our conclusion here.In Goldfarb, we held that § 1 of the Sherman Act was violated by the publication of a minimum fee schedule by a county bar association and by its enforcement by the State Bar. The schedule and its enforcement mechanism operated to create a rigid price floor for services, and thus constituted a classic example of price-fixing. Both bar associations argued that their activity was shielded by the state action exemption. This Court concluded that the action was not protected, emphasizing that"we need not inquire further into the state action question, because it cannot fairly be said that the State of Virginia, through its Supreme Court Rules, required the anticompetitive activities of either respondent."421 U.S. at 421 U. S. 790. In the instant case, by contrast, the challenged Page 433 U. S. 360 restraint is the affirmative command of the Arizona Supreme Court under its Rules 27(a) and 29(a) and its Disciplinary Rule 101(b). That court is the ultimate body wielding the State's power over the practice of law, see Ariz.Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is "compelled by direction of the State acting as a sovereign." 421 U.S. at 421 U. S. 791. [Footnote 11]Appellants seek to draw solace from Cantor. The defendant in that case, an electric utility, distributed light bulbs to its residential customers without additional charge, including the cost in its state-regulated utility rates. The plaintiff, a retailer who sold light bulbs, brought suit, claiming that the utility was using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs. The Court held that the utility could not immunize itself from Sherman Act attack by embodying its challenged practices in a tariff approved by a state commission. Since the disciplinary rule at issue here is derived from the Code of Professional Responsibility of the American Bar Association, [Footnote 12] appellants argue by analogy to Cantor that no immunity should result from the bar's success in having the Code adopted by the State. They also assert that the interest embodied in the Sherman Act must prevail over the state Page 433 U. S. 361 interest in regulating the bar. See 428 U.S. at 428 U. S. 595. Particularly is this the case, they claim, because the advertising ban is not tailored so as to intrude upon the federal interest to the minimum extent necessary. See id. at 428 U. S. 596 n. 34, and 428 U. S. 597.We believe, however, that the context in which Cantor arose is critical. First, and most obviously, Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party. [Footnote 13] Here, the appellants' claims are against the State. The Arizona Supreme Court is the real party in interest; it adopted the rules, and it is the ultimate trier of fact and law in the enforcement process. In re Wilson, 106 Ariz. 34, 470 P.2d 441 (1970). Although the State Bar plays a part in the enforcement of the rules, its role is completely defined by the court; the appellee acts as the agent of the court under its continuous supervision.Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. 428 U.S. at 428 U. S. 584-585; id. at 428 U. S. 604-605, 428 U. S. 612-614 (concurring opinions). There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State's regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State's power to protect the public. Indeed, this Court in Goldfarb acknowledged that"[t]he interest of the States in regulating lawyers is especially great, since lawyers are essential to the Page 433 U. S. 362 primary governmental function of administering justice, and have historically been 'officers of the courts.'"421 U.S. at 421 U. S. 792. See Cohen v. Hurley, 366 U. S. 117, 366 U. S. 123-124 (1961). [Footnote 14] More specifically, controls over solicitation and advertising by attorneys have long been subject to the State's oversight. [Footnote 15] Federal interference with a State's traditional regulation of a profession is entirely unlike the intrusion the Court sanctioned in Cantor. [Footnote 16]Finally, the light bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State's incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. See 428 U.S. at 428 U. S. 594, and n. 31. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State's policy with regard to professional behavior. Moreover, as the instant case shows, the rules are subject to pointed reexamination by the policymaker -- the Arizona Supreme Court -- in enforcement proceedings. Our concern that federal policy is being unnecessarily and inappropriately subordinated to state policy is reduced in such a situation; we deem it significant that the state policy is so clearly and affirmatively expressed and that the State's supervision is so active. Page 433 U. S. 363We conclude that the Arizona Supreme Court's determination that appellants' Sherman Act claim is barred by the Parker v. Brown exemption must be affirmed.III The First AmendmentALast Term, in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S. 748 (1976), the Court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of "unprofessional conduct" if he advertised prescription drug prices. The pharmacist would then be subject to a monetary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish to report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: "I will sell you the X prescription drug at the Y price.'" Id. at 425 U. S. 761. Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment.Our analysis began, ibid., with the observation that our cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U. S. 1 (1976); New York Times Co. v. Sullivan, 376 U. S. 254 (1964); in a form that is sold for profit, Smith v. California, 361 U. S. 147 (1959); Murdock v. Pennsylvania, 319 U. S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U. S. 296 (1940). If commercial speech is to be distinguished, it "must be distinguished by its content." 425 U.S. at 425 U. S. 761. But a consideration of competing interests reinforced our view that such speech should not be withdrawn Page 433 U. S. 364 from protection merely because it proposed a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. See, e.g., NLRB v. Gissel Packing Co., 395 U. S. 575 (1969); Thornhill v. Alabama, 310 U. S. 88 (1940). The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, 421 U. S. 809 (1975). And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co., 386 U. S. 568, 386 U. S. 603-604 (1967) (Harlan, J., concurring). In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking. 425 U.S. at 425 U. S. 761-765. Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that advertising would create price competition that might cause the pharmacist to economize at the customer's expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician's advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist's effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was Page 433 U. S. 365 consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman -- an image that was said to attract talent to the profession and to reinforce the good habits of those in it -- to that of a mere shopkeeper. Id. at 425 U. S. 766-768.Although acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, this Court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. Id. at 425 U. S. 768. And we observed that,"on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance."Id. at 425 U. S. 769. But we noted the presence of a potent alternative to this "highly paternalistic" approach:"That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them."Id. at 425 U. S. 770. The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice "that the First Amendment makes for us." Ibid. See also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 431 U. S. 97 (1977).We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions. [Footnote 17] Page 433 U. S. 366In the instant case, we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys.BThe issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants' advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients at the hospital room or the accident site, or in any other situation that breeds undue influence -- by attorneys or their agents or "runners." Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee's criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney's name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more, Page 433 U. S. 367 in the classified section of the telephone directory. DR 2-102(A)(6) (1976). [Footnote 18] We recognize, however, that an advertising diet limited to such spartan fare would provide scant nourishment.The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which Page 433 U. S. 368 certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising. We consider each in turn:1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve. Advertising is also said to erode the client's trust in his attorney: once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.We recognize, of course, and commend the spirit of public service with which the profession of law is practiced and to which it is dedicated. The present Members of this Court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. [Footnote 19] And rare is the client, moreover, Page 433 U. S. 369 even one of modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach "a clear agreement with his client as to the basis of the fee charges to be made," and that this is to be done "[a]s soon as feasible after a lawyer has been employed." Code of Professional Responsibility EC 19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office.Moreover, the assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise, [Footnote 20] and yet these professions Page 433 U. S. 370 are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. [Footnote 21] The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community: studies reveal that many persons do not obtain counsel, even when they perceive a need, because of the feared price of services [Footnote 22] or because of an inability to locate a competent attorney. [Footnote 23] Indeed, cynicism Page 433 U. S. 371 with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients.It appears that the ban on advertising originated as a rule of etiquette, and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on "trade" as unseemly. See H. Drinker, Legal Ethics 5, 210-211 (1953). [Footnote 24] Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id. at 211. But habit and tradition are not, in themselves, an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow "above" Page 433 U. S. 372 trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.2. The Inherently Misleading Nature of Attorney Advertising. It is argued that advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill.We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type. [Footnote 25] The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like -- the very services advertised by appellants. [Footnote 26] Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising Page 433 U. S. 373 misleading so long as the attorney does the necessary work at the advertised price. [Footnote 27] The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: the appellee State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates. App. 459-478. Indeed, until the decision of this Court in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. App. 355. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services. [Footnote 28]The second component of the argument -- that advertising Page 433 U. S. 374 ignores the diagnostic role -- fares little better. [Footnote 29] It is unlikely that many people go to an attorney merely to ascertain if they have a clean bill of legal health. Rather, attorneys are likely to be employed to perform specific tasks. Although the client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself.The third component is not without merit: advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. The alternative -- the prohibition of advertising -- serves only to restrict the information that flows to consumers. [Footnote 30] Moreover, the argument assumes that the public Page 433 U. S. 375 is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 769-770. Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less. If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.3. The Adverse Effect on the Administration of Justice. Advertising is said to have the undesirable effect of stirring up litigation. [Footnote 31] The Judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling Page 433 U. S. 376 societal repose. There is even a suggestion of barratry. See, e.g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674, 675-676 (1958).But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. [Footnote 32] As the bar acknowledges, "the middle 70% of our population is not being reached or served adequately by the legal profession." ABA, Revised Handbook on Prepaid Legal Services 2 (1972). [Footnote 33] Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. See nn. 22 and | 22 and S. 350fn23|>23, supra. Advertising can help to solve this acknowledged problem: advertising is the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly � 22 and S. 377� for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar's obligation to "facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available."ABA Code of Professional Responsibility EC 2-1 (1976).4 The Undesirable Economic Effects of Advertising. It is claimed that advertising will increase the overhead costs of the profession, and that these costs then will be passed along to consumers in the form of increased fees. Moreover, it is claimed that the additional cost of practice will create a substantial entry barrier, deterring or preventing young attorneys from penetrating the market and entrenching the position of the bar's established members.These two arguments seem dubious, at best. Neither distinguishes lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 768, and neither appears relevant to the First Amendment. The ban on advertising serves to increase the difficulty of discovering the lowest cost seller of acceptable ability. As a result, to this extent attorneys are isolated from competition, and the incentive to price competitively is reduced. Although it is true that the effect of advertising on the price of services has not been demonstrated, there is revealing evidence with regard to products; where consumers have the benefit of price advertising, retail prices often are dramatically lower than they would be without advertising. [Footnote 34] It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer. [Footnote 35] Page 433 U. S. 378The entry barrier argument is equally unpersuasive. In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry barrier problems would urge that advertising be allowed so as to aid the new competitor in penetrating the market5. The Adverse Effect of Advertising on the Quality of Service. It is argued that the attorney may advertise a given "package" of service at a set price, and will be inclined to provide, by indiscriminate use, the standard package regardless of whether it fits the client's needs.Restraints on advertising, however, are an ineffective way of deterring shoddy work. An attorney who is inclined to cut quality will do so regardless of the rule on advertising. And the advertisement of a standardized fee does not necessarily mean that the services offered are undesirably standardized. Indeed, the assertion that an attorney who advertises a standard fee will cut quality is substantially undermined by the fixed fee schedule of appellee's own prepaid Legal Services Program. Even if advertising leads to the Page 433 U. S. 379 creation of "legal clinics" like that of appellants' -- clinics that emphasize standardized procedures for routine problems -- it is possible that such clinics will improve service by reducing the likelihood of error.6. The Difficulties of Enforcement. Finally, it is argued that the wholesale restriction is justified by the problems of enforcement if any other course is taken. Because the public lacks sophistication in legal matters, it may be particularly susceptible to misleading or deceptive advertising by lawyers. After-the-fact action by the consumer lured by such advertising may not provide a realistic restraint because of the inability of the layman to assess whether the service he has received meets professional standards. Thus, the vigilance of a regulatory agency will be required. But because of the numerous purveyors of services, the overseeing of advertising will be burdensome.It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point and, at another, to assert that its members will seize the opportunity to mislead and distort. We suspect that, with advertising, most lawyers will behave as they always have: they will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward. And, of course, it will be in the latter's interest, as in other cases of misconduct at the bar, to assist in weeding out those few who abuse their trust.In sum, we are not persuaded that any of the proffered justifications rise to the level of an acceptable reason for the suppression of all advertising by attorneys.CIn the usual case involving a restraint on speech, a showing that the challenged rule served unconstitutionally to suppress Page 433 U. S. 380 speech would end our analysis. In the First Amendment context, the Court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. See, e.g., Bigelow v. Virginia, 421 U.S. at 421 U. S. 815-816; Gooding v. Wilson, 405 U. S. 518, 405 U. S. 521-522 (1972); Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 486 (1965). Having shown that the disciplinary rule interferes with protected speech, appellants ordinarily could expect to benefit regardless of the nature of their acts.The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. See, e.g., Broadrick v. Oklahoma, 413 U. S. 601, 413 U. S. 610 (1973); United States v. Raines, 362 U. S. 17, 362 U. S. 21 (1960); Ashwander v. TVA, 297 U. S. 288, 297 U. S. 347 (1936) (Brandeis, J., concurring). The reason for the special rule in First Amendment cases is apparent: an overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. See NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963). Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.But the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 771 n. 24, there Page 433 U. S. 381 are "common sense differences" between commercial speech and other varieties. See also id. at 425 U. S. 775-781 (concurring opinion). Since advertising is linked to commercial wellbeing, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. See id. at 425 U. S. 771-772, n. 24. Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and protected. Ibid. Since overbreadth has been described by this Court as "strong medicine," which "has been employed . . . sparingly and only as a last resort," Broadrick v. Oklahoma, 413 U.S. at 413 U. S. 613, we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective. Cf. Bigelow v. Virginia, 421 U.S. at 421 U. S. 817-818.Is, then, appellants' advertisement outside the scope of basic First Amendment protection? Aside from general claims as to the undesirability of any advertising by attorneys, a matter considered above, appellee argues that appellants' advertisement is misleading, and hence unprotected, in three particulars: (a) the advertisement makes reference to a "legal clinic," an allegedly undefined term; (b) the advertisement claims that appellants offer services at "very reasonable" prices, and, at least with regard to an uncontested divorce, the advertised price is not a bargain; and (c) the advertisement does not inform the consumer that he may obtain a name change without the services of an attorney. Tr. of Oral Arg. 56-57. On this record, these assertions are unpersuasive. We suspect that the public would readily understand the term "legal clinic" -- if, indeed, it focused on the term at all -- to refer to an operation like that of appellants' that is geared to provide standardized and multiple services. In fact, in his deposition, the president of the State Bar of Arizona observed Page 433 U. S. 382 that there was a committee of the bar "exploring the ways in which the legal clinic concept can be properly developed." App. 375; see id. at 401. See also id. at 84-85 (testimony of appellants). And the clinical concept in the sister profession of medicine surely by now is publicly acknowledged and understood.As to the cost of an uncontested divorce, appellee's counsel stated at oral argument that this runs from $150 to $300 in the area. Tr. of Oral Arg. 58. Appellants advertised a fee of $175 plus a $20 court filing fee, a rate that seems "very reasonable" in light of the customary charge. Appellee's own Legal Services Program sets the rate for an uncontested divorce at $250. App. 473. Of course, advertising will permit the comparison of rates among competitors, thus revealing if the rates are reasonable.As to the final argument -- the failure to disclose that a name change might be accomplished by the client without the aid of an attorney -- we need only note that most legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U. S. 806 (1975); ABA Code of Professional Responsibility EC 7 (1976). The record does not unambiguously reveal some of the relevant facts in determining whether the nondisclosure is misleading, such as how complicated the procedure is and whether the State provides assistance for laymen. The deposition of one appellant, however, reflects that, when he ascertained that a name change required only the correction of a record or the like, he frequently would send the client to effect the change himself. [Footnote 36] App. 112.We conclude that it has not been demonstrated that the advertisement at issue could be suppressed. Page 433 U. S. 383IVIn holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way. We mention some of the clearly permissible limitations on advertising not foreclosed by our holding.Advertising that is false, deceptive, or misleading, of course, is subject to restraint. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 771-772, and n. 24. Since the advertiser knows his product and has a commercial interest in its dissemination, we have little worry that regulation to assure truthfulness will discourage protected speech. Id. at 425 U. S. 771-772, n. 24. And any concern that strict requirements for truthfulness will undesirably inhibit spontaneity seems inapplicable, because commercial speech generally is calculated. Indeed, the public and private benefits from commercial speech derive from confidence in its accuracy and reliability. Thus, the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the commercial arena. Compare Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 339-341 (1974), and Cantwell v. Connecticut, 310 U.S. at 310 U. S. 310, with NLRB v. Gissel Packing Co., 395 U.S. at 395 U. S. 618. In fact, because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. [Footnote 37] For example, advertising claims as to the quality of services -- a matter we do not address today -- are not susceptible of measurement or verification; accordingly, such claims may be so likely to be Page 433 U. S. 384 misleading as to warrant restriction. Similar objections might justify restraints on in-person solicitation. We do not foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled. In sum, we recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly.As with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place, and manner of advertising. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 771. Advertising concerning transactions that are themselves illegal obviously may be suppressed. See Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 413 U. S. 388 (1973). And the special problems of advertising on the electronic broadcast media will warrant special consideration. Cf. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971), summarily aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972).The constitutional issue in this case is only whether the State may prevent the publication in a newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained, and we therefore hold the present application of the disciplinary rule against appellants to be violative of the First Amendment.The judgment of the Supreme Court of Arizona is therefore affirmed in part and reversed in part.It is so ordered

U.S. Supreme CourtBates v. State Bar of Arizona, 433 U.S. 350 (1977)Bates v. State Bar of ArizonaNo. 76-316Argued January 18, 1977Decided June 27, 1977433 U.S. 350SyllabusAppellants, who are licensed attorneys and members of the Arizona State Bar, were charged in a complaint filed by the State Bar's president with violating the State Supreme Court's disciplinary rule, which prohibits attorneys from advertising in newspapers or other media. The complaint was based upon a newspaper advertisement placed by appellants for their "legal clinic," stating that they were offering "legal services at very reasonable fees," and listing their fees for certain services, namely, uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. The Arizona Supreme Court upheld the conclusion of a bar committee that appellants had violated the rule, having rejected appellants' claims that the rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that it infringed appellants' First Amendment rights.Held:1. The restraint upon attorney advertising imposed by the Supreme Court of Arizona wielding the power of the State over the practice of law is not subject to attack under the Sherman Act. Parker v. Brown, 317 U. S. 341, followed; Goldfarb v. Virginia State Bar, 421 U. S. 773; Cantor v. Detroit Edison Co., 428 U. S. 579, distinguished. Pp. 433 U. S. 359-363.2. Commercial speech, which serves individual and societal interests in assuring informed and reliable decisionmaking, is entitled to some First Amendment protection, Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S. 748, and the justifications advanced by appellee are inadequate to support the suppression of all advertising by attorneys. Pp. 433 U. S. 363-384.(a) This case does not involve any question concerning in-person solicitation or advertising as to the quality of legal services, but only the question whether lawyers may constitutionally advertise the prices at which certain routine services will be performed. Pp. 433 U. S. 366-367.(b) The belief that lawyers are somehow above "trade" is an anachronism, and for a lawyer to advertise his fees will not undermine true professionalism. Pp. 433 U. S. 368-372.(c) Advertising legal services is not inherently misleading. Only routine services lend themselves to advertising, and, for such services, fixed rates can be meaningfully established, as the Arizona State Bar's own Legal Services Program demonstrates. Although a client may not Page 433 U. S. 351 know the detail involved in a given task, he can identify the service at the level of generality to which advertising lends itself. Though advertising does not provide a complete foundation on which to select an attorney, it would be peculiar to deny the consumer at least some of the relevant information needed for an informed decision on the ground that the information was not complete. Pp. 433 U. S. 372-375.(d) Advertising, the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, may well benefit the administration of justice. Pp. 433 U. S. 375-377.(e) It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer, and may well aid new attorneys in entering the market. Pp. 433 U.S. 377-378.(f) An attorney who is inclined to cut quality will do so regardless of the rule on advertising, the restraints on which are an ineffective deterrent to shoddy work. Pp. 433 U. S. 378-379.(g) Undue enforcement problems need not be anticipated, and it is at least incongruous for the opponents of advertising to extol the virtues of the legal profession while also asserting that, through advertising, lawyers will mislead their clients. P. 433 U. S. 379.3. The First Amendment overbreadth doctrine, which represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court, is inapplicable to professional advertising, a context where it is not necessary to further its intended objective, cf. Bigelow v. Virginia, 421 U. S. 809, 421 U. S. 817-818, and appellants must therefore demonstrate that their specific conduct was constitutionally protected. Pp. 433 U. S. 379-381.4. On this record, appellants' advertisement (contrary to appellee's contention) is not misleading, and falls within the scope of First Amendment protection. Pp. 433 U. S. 381-382.(a) The term "legal clinic" would be understood to refer to an operation like appellants' that is geared to provide standardized and multiple services. Pp. 433 U. S. 381-382.(b) The advertisement's claim that appellants offer services at "very reasonable" prices is not misleading. Appellants' advertised fee for an uncontested divorce, which was specifically cited by appellee, is in line with customary charges in the area. P. 433 U. S. 382.(c) Appellants' failure to disclose that a name change might be accomplished by the client without an attorney's aid was not misleading, since the difficulty of performing the task is not revealed, and since most Page 433 U. S. 352 legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U. S. 806. P. 433 U. S. 382.113 Ariz. 394, 555 P.2d 640, affirmed in part and reversed in part.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I and II of which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed an opinion concurring in part and dissenting in part, post, p. 433 U. S. 386. POWELL, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined, post, p. 433 U. S. 389. REHNQUIST, J., filed an opinion dissenting in part, post, p. 433 U. S. 404. Page 433 U. S. 353

1982_81-523

JUSTICE BRENNAN delivered the opinion of the Court.This is another appeal claiming that the application of a state taxing scheme violates the Due Process and Commerce Clauses of the Federal Constitution. California imposes a corporate franchise tax geared to income. In common with a large number of other States, it employs the "unitary business" Page 463 U. S. 163 principle and formula apportionment in applying that tax to corporations doing business both inside and outside the State. Appellant is a Delaware corporation headquartered in Illinois and doing business in California and elsewhere. It also has a number of overseas subsidiaries incorporated in the countries in which they operate. Appellee is the California authority charged with administering the State's franchise tax. This appeal presents three questions for review: (1) Was it improper for appellee and the state courts to find that appellant and its overseas subsidiaries constituted a "unitary business" for purposes of the state tax? (2) Even if the unitary business finding was proper, do certain salient differences among national economies render the standard three-factor apportionment formula used by California so inaccurate as applied to the multinational enterprise consisting of appellant and its subsidiaries as to violate the constitutional requirement of "fair apportionment"? (3) In any event, did California have an obligation under the Foreign Commerce Clause, U.S.Const., Art. I, § 8, cl. 3, to employ the "arm's length" analysis used by the Federal Government and most foreign nations in evaluating the tax consequences of intercorporate relationships?IAVarious aspects of state tax systems based on the "unitary business" principle and formula apportionment have provoked Page 463 U. S. 164 repeated constitutional litigation in this Court. See, e.g., ASARCO Inc. v. Idaho State Tax Comm'n, 458 U. S. 307 (1982); F. W. Woolworth Co. v. Taxation & Revenue Dept., 458 U. S. 354 (1982); Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S. 207 (1980); Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425 (1980); Moorman Mfg. Co. v. Bair, 437 U. S. 267 (1978); General Motors Corp. v. Washington, 377 U. S. 436 (1964); Butler Bros. v. McColgan, 315 U. S. 501 (1942); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U. S. 271 (1924); Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920).Under both the Due Process and the Commerce Clauses of the Constitution, a State may not, when imposing an income-based tax, "tax value earned outside its borders." ASARCO, supra, at 458 U. S. 315. In the case of a more-or-less integrated business enterprise operating in more than one State, however, arriving at precise territorial allocations of "value" is often an elusive goal, both in theory and in practice. See Mobil Oil Corp. v. Commissioner of Taxes, supra, at 445 U. S. 438; Butler Bros. v. McColgan, supra, at 315 U. S. 507-509; Underwood Typewriter Co. v. Chamberlain, supra, at 254 U. S. 121. For this reason and others, we have long held that the Constitution imposes no single formula on the States, Wisconsin v. J. C. Penney Co., 311 U. S. 435, 311 U. S. 445 (1940), and that the taxpayer has the "distinct burden of showing by "clear and cogent evidence" that [the state tax] results in extraterritorial values being taxed. . . .'" Exxon Corp., supra, at 447 U. S. 221, quoting Butler Bros. v. McColgan, supra, at 315 U. S. 507, in turn quoting Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, 297 U. S. 682, 297 U. S. 688 (1936).One way of deriving locally taxable income is on the basis of formal geographical or transactional accounting. The problem with this method is that formal accounting is subject to manipulation and imprecision, and often ignores or captures inadequately the many subtle and largely unquantifiable Page 463 U. S. 165 transfers of value that take place among the components of a single enterprise. See generally Mobil Oil Corp., supra, at 445 U. S. 438-439, and sources cited. The unitary business/formula apportionment method is a very different approach to the problem of taxing businesses operating in more than one jurisdiction. It rejects geographical or transactional accounting, and instead calculates the local tax base by first defining the scope of the "unitary business" of which the taxed enterprise's activities in the taxing jurisdiction form one part, and then apportioning the total income of that "unitary business" between the taxing jurisdiction and the rest of the world on the basis of a formula taking into account objective measures of the corporation's activities within and without the jurisdiction. This Court long ago upheld the constitutionality of the unitary business/formula apportionment method, although subject to certain constraints. See, e.g., Hans Rees' Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U. S. 123 (1931); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, supra; Underwood Typewriter Co. v. Chamberlain, supra. The method has now gained wide acceptance, and is, in one of its forms, the basis for the the Uniform Division of Income for Tax Purposes Act (Uniform Act), which has, at last count, been substantially adopted by 23 States, including California.BTwo aspects of the unitary business/formula apportionment method have traditionally attracted judicial attention. These are, as one might easily guess, the notions of "unitary business" and "formula apportionment," respectively.(1)The Due Process and Commerce Clauses of the Constitution do not allow a State to tax income arising out of interstate activities -- even on a proportional basis -- unless there is a"'minimal connection' or 'nexus' between the interstate activities Page 463 U. S. 166 and the taxing State, and 'a rational relationship between the income attributed to the State and the intrastate values of the enterprise.'"Exxon Corp. v. Wisconsin Dept. of Revenue, supra, at 447 U. S. 219-220, quoting Mobil Oil Corp. v. Commissioner of Taxes, supra, at 445 U. S. 436, 445 U. S. 437. At the very least, this set of principles imposes the obvious and largely self-executing limitation that a State not tax a purported "unitary business" unless at least some part of it is conducted in the State. See Exxon Corp., supra, at 447 U. S. 220; Wisconsin v. J. C. Penney Co., supra, at 311 U. S. 444. It also requires that there be some bond of ownership or control uniting the purported "unitary business." See ASARCO, supra, at 458 U. S. 316-317.In addition, the principles we have quoted require that the out-of-state activities of the purported "unitary business" be related in some concrete way to the in-state activities. The functional meaning of this requirement is that there be some sharing or exchange of value not capable of precise identification or measurement -- beyond the mere flow of funds arising out of a passive investment or a distinct business operation -- which renders formula apportionment a reasonable method of taxation. See generally ASARCO, supra, at 458 U. S. 317; Mobil Oil Corp., supra, at 445 U. S. 438-442. In Underwood Typewriter Co. v. Chamberlain, supra, we held that a State could tax on an apportioned basis the combined income of a vertically integrated business whose various components (manufacturing, sales, etc.) operated in different States. In Bass, Ratcliff & Gretton, supra, we applied the same principle to a vertically integrated business operating across national boundaries. In Butler Bros. v. McColgan, supra, we recognized that the unitary business principle could apply, not only to vertically integrated enterprises, but also to a series of similar enterprises operating separately in various jurisdictions but linked by common managerial or operational resources that produced economies of scale and transfers of value. More recently, we have further refined the "unitary business" concept in Exxon Corp. v. Wisconsin Dept. of Revenue, Page 463 U. S. 167 447 U. S. 207 (1980), and Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425 (1980), where we upheld the States' unitary business findings, and in ASARCO Inc. v. Idaho State Tax Comm'n, 458 U. S. 307 (1982), and F. W. Woolworth Co. v. Taxation & Revenue Dept., 458 U. S. 354 (1982), in which we found such findings to have been improper.The California statute at issue in this case, and the Uniform Act from which most of its relevant provisions are derived, track in large part the principles we have just discussed. In particular, the statute distinguishes between the "business income" of a multijurisdictional enterprise, which is apportioned by formula, Cal.Rev. & Tax.Code Ann. §§ 25128-25136 (West 1979), and its "nonbusiness" income, which is not. [Footnote 1] Although the statute does not explicitly require that income from distinct business enterprises be apportioned separately, this requirement antedated adoption of the Uniform Act, [Footnote 2] and has not been abandoned. [Footnote 3]A final point that needs to be made about the unitary business concept is that it is not, so to speak, unitary: there are variations on the theme, and any number of them are logically consistent with the underlying principles motivating the approach. For example, a State might decide to respect formal Page 463 U. S. 168 corporate lines and treat the ownership of a corporate subsidiary as per se a passive investment. [Footnote 4] In Mobil Oil Corp., 445 U.S. at 445 U. S. 440-441, however, we made clear that, as a general matter, such a per se rule is not constitutionally required:"Superficially, intercorporate division might appear to be a[n] . . . attractive basis for limiting apportionability. But the form of business organization may have nothing to do with the underlying unity or diversity of business enterprise."Id. at 445 U. S. 440. Thus, for example, California law provides:"In the case of a corporation . . . owning or controlling, either directly or indirectly, another corporation, or other corporations, and in the case of a corporation . . . owned or controlled, either directly or indirectly, by another corporation, the Franchise Tax Board may require a consolidated report showing the combined net income or such other facts as it deems necessary."Cal.Rev. & Tax.Code Ann. § 25104 (West 1979). [Footnote 5] Page 463 U. S. 169 Even among States that take this approach, however, only some apply it in taxing American corporations with subsidiaries located in foreign countries. [Footnote 6] The difficult question we address in 463 U. S. for reasons not implicated in Mobil, [Footnote 7] that particular variation on the theme is constitutionally barred.(2)Having determined that a certain set of activities constitute a "unitary business," a State must then apply a formula apportioning the income of that business within and without the State. Such an apportionment formula must, under both the Due Process and Commerce Clauses, be fair. See Exxon Corp., supra, at 447 U. S. 219, 447 U. S. 227-228; Moorman Mfg. Co., 437 U.S. at 437 U. S. 272-273; Hans Rees' Sons, Inc., 283 U.S. at 283 U. S. 134. The first, and again obvious, component of fairness in an apportionment formula is what might be called internal consistency -- that is, the formula must be such that, if applied by every jurisdiction, it would result in no more than all of the unitary business' income's being taxed. The second and more difficult requirement is what might be called external consistency -- the factor or factors used in the apportionment formula must actually reflect a reasonable sense of how income is generated. The Constitution does not"invalidat[e] an apportionment formula whenever it may result in taxation Page 463 U. S. 170 of some income that did not have its source in the taxing State. . . ."Moorman Mfg. Co., supra, at 437 U. S. 272 (emphasis added). See Underwood Typewriter Co., 254 U.S. at 254 U. S. 120-121. Nevertheless, we will strike down the application of an apportionment formula if the taxpayer can prove"by 'clear and cogent evidence' that the income attributed to the State is, in fact, 'out of all appropriate proportions to the business transacted . . . in that State,' [Hans Rees' Sons, Inc.,] 283 U.S. at 283 U. S. 135, or has 'led to a grossly distorted result,' [Norfolk & Western R. Co. v. State Tax Comm'n, 390 U. S. 317, 390 U. S. 326 (1968)]."Moorman Mfg. Co., supra, at 437 U. S. 274.California and the other States that have adopted the Uniform Act use a formula -- commonly called the "three-factor" formula -- which is based, in equal parts, on the proportion of a unitary business' total payroll, property, and sales which are located in the taxing State. See Cal.Tax & Rev.Code Ann. §§ 25128-25136 (West 1979). We approved the three-factor formula in Butler Bros. v. McColgan, 315 U. S. 501 (1942). Indeed, not only has the three-factor formula met our approval, but it has become, for reasons we discuss in more detail infra, at 463 U. S. 183, something of a benchmark against which other apportionment formulas are judged. See Moorman Mfg. Co., supra, at 437 U. S. 282 (BLACKMUN, J., dissenting); cf. General Motors Corp. v. District of Columbia, 380 U. S. 553, 380 U. S. 561 (1965).Besides being fair, an apportionment formula must, under the Commerce Clause, also not result in discrimination against interstate or foreign commerce. See Mobil Oil Corp., supra, at 445 U. S. 444; cf. Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 441 U. S. 444-448 (1979) (property tax). Aside from forbidding the obvious types of discrimination against interstate or foreign commerce, this principle might have been construed to require that a state apportionment formula not differ so substantially from methods of allocation used by other jurisdictions in which the taxpayer is subject to taxation as to produce double taxation of the same income Page 463 U. S. 171 and a resultant tax burden higher than the taxpayer would incur if its business were limited to any one jurisdiction. At least in the interstate commerce context, however, the antidiscrimination principle has not in practice required much in addition to the requirement of fair apportionment. In Moorman Mfg. Co. v. Bair, supra, in particular, we explained that eliminating all overlapping taxation would require this Court to establish not only a single constitutionally mandated method of taxation, but also rules regarding the application of that method in particular cases. 437 U.S. at 437 U. S. 278-280. Because that task was thought to be essentially legislative, we declined to undertake it, and held that a fairly apportioned tax would not be found invalid simply because it differed from the prevailing approach adopted by the States. As we discuss infra at 463 U. S. 185-187, however, a more searching inquiry is necessary when we are confronted with the possibility of international double taxation.Appellant is in the business of manufacturing custom-ordered paperboard packaging. Its operation is vertically integrated, and includes the production of paperboard from raw timber and wastepaper as well as its composition into the finished products ordered by customers. The operation is also largely domestic. During the years at issue, in this case -- 1963, 1964, and 1965 -- appellant controlled 20 foreign subsidiaries located in four Latin American and four European countries. Its percentage ownership of the subsidiaries (either directly or through other subsidiaries) ranged between 66.7% and 100%. In those instances (about half) in which appellant did not own a 100% interest in the subsidiary, the remainder was owned by local nationals. One of the subsidiaries was a holding company that had no payroll, sales, or property, but did have book income. Another was Page 463 U. S. 172 inactive. The rest were all engaged -- in their respective local markets -- in essentially the same business as appellant.Most of appellant's subsidiaries were, like appellant itself, fully integrated, although a few bought paperboard and other intermediate products elsewhere. Sales of materials from appellant to its subsidiaries accounted for only about 1% of the subsidiaries' total purchases. The subsidiaries were also relatively autonomous with respect to matters of personnel and day-to-day management. For example, transfers of personnel from appellant to its subsidiaries were rare, and occurred only when a subsidiary could not fill a position locally. T here was no formal United States training program for the subsidiaries' employees, although groups of foreign employees occasionally visited the United States for 2-6 week periods to familiarize themselves with appellant's methods of operation. Appellant charged one senior vice-president and four other officers with the task of overseeing the operations of the subsidiaries. These officers established general standards of professionalism, profitability, and ethical practices, and dealt with major problems and long-term decisions; day-to-day management of the subsidiaries, however, was left in the hands of local executives, who were always citizens of the host country. Although local decisions regarding capital expenditures were subject to review by appellant, problems were generally worked out by consensus, rather than outright domination. Appellant also had a number of its directors and officers on the boards of directors of the subsidiaries, but they did not generally play an active role in management decisions. [Footnote 8] Page 463 U. S. 173Nevertheless, in certain respects, the relationship between appellant and its subsidiaries was decidedly close. For example, approximately half of the subsidiaries' long-term debt was either held directly or guaranteed by appellant. Appellant also provided advice and consultation regarding manufacturing techniques, engineering, design, architecture, insurance, and cost accounting to a number of its subsidiaries, either by entering into technical service agreements with them or by informal arrangement. Finally, appellant occasionally assisted its subsidiaries in their procurement of equipment, either by selling them used equipment of its own or by employing its own purchasing department to act as an agent for the subsidiaries. [Footnote 9]BDuring the tax years at issue in this case, appellant filed California franchise tax returns. In 1969, after conducting an audit of appellant's returns for the years in question, appellee issued notices of additional assessments for each of those years. The respective approaches and results reflected in appellant's initial returns and in appellee's notices of additional assessments capture the legal differences at issue in this case. [Footnote 10] Page 463 U. S. 174In calculating the total unapportioned taxable income of its unitary business, appellant included its own corporate net earnings as derived from its federal tax form (subject to certain adjustments not relevant here), but did not include any income of its subsidiaries. It also deducted -- as it was authorized to do under state law, see supra at 463 U. S. 167, and n. 1 -- all dividend income, nonbusiness interest income, and gains on sales of assets not related to the unitary business. In calculating the share of its net income which was apportionable to California under the three-factor formula, appellant omitted all of its subsidiaries' payroll, property, and sales. The results of these calculations are summarized in the margin. [Footnote 11]The gravamen of the notices issued by appellee in 1969 was that appellant should have treated its overseas subsidiaries as part of its unitary business, rather than as passive investments. Including the overseas subsidiaries in appellant's unitary business had two primary effects: it increased the income subject to apportionment by an amount equal to the total income of those subsidiaries (less intersubsidiary dividends, see n 5, supra), and it decreased the percentage of that income which was apportionable to California. The net Page 463 U. S. 175 effect, however, was to increase appellant's tax liability in each of the three years. [Footnote 12]Appellant paid the additional amounts under protest, and then sued in California Superior Court for a refund, raising the issues now before this Court. The case was tried on stipulated facts, and the Superior Court upheld appellee's assessments. On appeal, the California Court of Appeal affirmed, 117 Cal. App. 3d 988, 173 Cal. Rptr. 121 (1981), and the California Supreme Court refused to exercise discretionary review. We noted probable jurisdiction. 456 U.S. 960 (1982).IIIAWe address the unitary business issue first. As previously noted, the taxpayer always has the "distinct burden of showing by clear and cogent evidence' that [the state tax] results in extraterritorial values being taxed." Supra at 463 U. S. 164. One necessary corollary of that principle is that this Court will, if reasonably possible, defer to the judgment of state courts in deciding whether a particular set of activities constitutes a "unitary business." As we said in a closely related context in Norton Co. v. Department of Revenue, 340 U. S. 534 (1951):"The general rule, applicable here, is that a taxpayer claiming immunity from a tax has the burden of establishing his exemption. "Page 463 U. S. 176"This burden is never met merely by showing a fair difference of opinion which, as an original matter, might be decided differently. . . . Of course, in constitutional cases, we have power to examine the whole record to arrive at an independent judgment as to whether constitutional rights have been invaded, but that does not mean that we will reexamine, as a court of first instance, findings of fact supported by substantial evidence."Id. at 340 U. S. 537-538 (footnotes omitted; emphasis added). [Footnote 13] See id. at 340 U. S. 538 (concluding that, "in light of all the evidence, the [state] judgment [on a question of whether income should be attributed to the State] was within the realm of permissible judgment"). The legal principles defining the constitutional limits on the unitary business principle are now well established. The factual records in such cases, even when the parties enter into a stipulation, tend to be long and complex, and the line between "historical fact" and "constitutional fact" is often fuzzy, at best. Cf. ASARCO, 458 U.S. at 458 U. S. 326-328, nn. 22, 23. It will do the cause of legal certainty little good if this Court turns every colorable claim that a state court erred in a particular application of those principles into a de novo adjudication, whose unintended nuances would then spawn further litigation and an avalanche of critical comment. [Footnote 14] Rather, our task must be to determine whether the state court applied the correct standards to the case; and if it did, whether its judgment "was within the realm of permissible judgment." [Footnote 15] Page 463 U. S. 177BIn this case, we are singularly unconvinced by appellant's argument that the State Court of Appeal "in important part analyzed this case under a different legal standard," F. W. Woolworth, 458 U.S. at 458 U. S. 363, from the one articulated by this Court. Appellant argues that the state court here, like the state court in F. W. Woolworth, improperly relied on appellant's mere potential to control the operations of its subsidiaries as a dispositive factor in reaching its unitary business finding. In fact, although the state court mentioned that "major policy decisions of the subsidiaries were subject to review by appellant," 117 Cal. App. 3d at 998, 173 Cal. Rptr. at 127, it relied principally, in discussing the management relationship between appellant and its subsidiaries, on the more concrete observation that"[h]igh officials of appellant gave directions to subsidiaries for compliance with the parent's standard of professionalism, profitability, and ethical practices."Id. at 998, 173 Cal. Rptr. at 127-128. [Footnote 16] Page 463 U. S. 178Appellant also argues that the state court erred in endorsing an administrative presumption that corporations engaged in the same line of business are unitary. This presumption affected the state court's reasoning, but only as one element among many. Moreover, considering the limited use to which it was put, we find the "presumption" criticized by appellant to be reasonable. Investment in a business enterprise truly "distinct" from a corporation's main line of business often serves the primary function of diversifying the corporate portfolio and reducing the risks inherent in being tied to one industry's business cycle. When a corporation invests in a subsidiary that engages in the same line of work as itself, it becomes much more likely that one function of the investment is to make better use -- either through economies of scale or through operational integration or sharing of expertise -- of the parent's existing business-related resources. Finally, appellant urges us to adopt a bright-line rule requiring as a prerequisite to a finding that a mercantile or manufacturing enterprise is unitary that it be characterized by "a substantial flow of goods." Brief for Appellant 47. We decline this invitation. The prerequisite to a constitutionally acceptable finding of unitary business is a flow of value, not a flow of goods. [Footnote 17] As we reiterated in F. W. Woolworth, Page 463 U. S. 179 a relevant question in the unitary business inquiry is whether "contributions to income [of the subsidiaries] result[ed] from functional integration, centralization of management, and economies of scale.'" 458 U.S. at 458 U. S. 364, quoting Mobil, 445 U.S. at 445 U. S. 438. "[S]ubstantial mutual interdependence," F. W. Woolworth, supra, at 458 U. S. 371, can arise in any number of ways; a substantial flow of goods is clearly one but just as clearly not the only one.CThe State Court of Appeal relied on a large number of factors in reaching its judgment that appellant and its foreign subsidiaries constituted a unitary business. These included appellant's assistance to its subsidiaries in obtaining used and new equipment and in filling personnel needs that could not be met locally, the substantial role played by appellant in loaning funds to the subsidiaries and guaranteeing loans provided by others, the "considerable interplay between appellant and its foreign subsidiaries in the area of corporate expansion," 117 Cal. App. 3d at 997, 173 Cal. Rptr. at 127, the "substantial" technical assistance provided by appellant to the subsidiaries, id. at 998-999, 173 Cal. Rptr. at 128, and the supervisory role played by appellant's officers in providing general guidance to the subsidiaries. In each of these respects, this case differs from ASARCO and F. W. Woolworth, [Footnote 18] and clearly comes closer than those cases did to presenting a "functionally integrated enterprise," Mobil, supra, at 445 U. S. 440, which the State is entitled to tax as a single entity. We need not decide whether any one of these factors Page 463 U. S. 180 would be sufficient as a constitutional matter to prove the existence of a unitary business. Taken in combination, at least, they clearly demonstrate that the state court reached a conclusion "within the realm of permissible judgment." [Footnote 19]IVWe turn now to the question of fair apportionment. Once again, appellant has the burden of proof; it must demonstrate that there is "no rational relationship between the income attributed to the State and the intrastate values of the enterprise,'" Exxon Corp., 447 U.S. at 447 U. S. 220, quoting Mobil, supra, at 445 U. S. 437, by proving that the income apportioned to Page 463 U. S. 181 California under the statute is "out of all appropriate proportion to the business transacted by the appellant in that State," Hans Rees' Sons, Inc., 283 U.S. at 283 U. S. 135.Appellant challenges the application of California's three-factor formula to its business on two related grounds, both arising as a practical (although not a theoretical) matter out of the international character of the enterprise. First, appellant argues that its foreign subsidiaries are significantly more profitable than it is, and that the three-factor formula, by ignoring that fact and relying instead on indirect measures of income such as payroll, property, and sales, systematically distorts the true allocation of income between appellant and the subsidiaries. The problem with this argument is obvious: the profit figures relied on by appellant are based on precisely the sort of formal geographical accounting whose basic theoretical weaknesses justify resort to formula apportionment in the first place. Indeed, we considered and rejected a very similar argument in Mobil, pointing out that, whenever a unitary business exists,"separate [geographical] accounting, while it purports to isolate portions of income received in various States, may fail to account for contributions to income resulting from functional integration, centralization of management, and economies of scale. Because these factors of profitability arise from the operation of the business as a whole, it becomes misleading to characterize the income of the business as having a single identifiable 'source.' Although separate geographical accounting may be useful for internal auditing, for purposes of state taxation, it is not constitutionally required."445 U.S. at 445 U. S. 438 (citation omitted).Appellant's second argument is related, and can be answered in the same way. Appellant contends:"The costs of production in foreign countries are generally significantly lower than in the United States, primarily Page 463 U. S. 182 as a result of the lower wage rates of workers in countries other than the United States. Because wages are one of the three factors used in formulary apportionment, the use of the formula unfairly inflates the amount of income apportioned to United States operations, where wages are higher."Brief for Appellant 12. Appellant supports this argument with various statistics that appear to demonstrate not only that wage rates are generally lower in the foreign countries in which its subsidiaries operate, but also that those lower wages are not offset by lower levels of productivity. Indeed, it is able to show that at least one foreign plant had labor costs per thousand square feet of corrugated container that were approximately 40% of the same costs in appellant's California plants.The problem with all this evidence, however, is that it does not by itself come close to impeaching the basic rationale behind the three-factor formula. Appellant and its foreign subsidiaries have been determined to be a unitary business. It therefore may well be that, in addition to the foreign payroll going into the production of any given corrugated container by a foreign subsidiary, there is also California payroll, as well as other California factors, contributing -- albeit more indirectly -- to the same production. The mere fact that this possibility is not reflected in appellant's accounting does not disturb the underlying premises of the formula apportionment method.Both geographical accounting and formula apportionment are imperfect proxies for an ideal which is not only difficult to achieve in practice but also difficult to describe in theory. Some methods of formula apportionment are particularly problematic because they focus on only a small part of the spectrum of activities by which value is generated. Although we have generally upheld the use of such formulas, see, e.g., Moorman Mfg. Co. v. Bair, 437 U. S. 267 (1978); Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920), we have on occasion found the distortive effect of focusing Page 463 U. S. 183 on only one factor so outrageous in a particular case as to require reversal. In Hans Rees' Sons, Inc. v. North Carolina ex rel. Maxwell, supra, for example, an apportionment method based entirely on ownership of tangible property resulted in an attribution to North Carolina of between 66% and 85% of the taxpayer's income over the course of a number of years, while a separate accounting analysis purposely skewed to resolve all doubts in favor of the State resulted in an attribution of no more than 21.7%. We struck down the application of the one-factor formula to that particular business, holding that the method, "albeit fair on its face, operates so as to reach profits which are in no just sense attributable to transactions within its jurisdiction." Id.at 283 U. S. 134.The three-factor formula used by California has gained wide approval precisely because payroll, property, and sales appear in combination to reflect a very large share of the activities by which value is generated. It is therefore able to avoid the sorts of distortions that were present in Hans Rees' Sons, Inc.Of course, even the three-factor formula is necessarily imperfect. [Footnote 20] But we have seen no evidence demonstrating that Page 463 U. S. 184 the margin of error (systematic or not) inherent in the three-factor formula is greater than the margin of error (systematic or not) inherent in the sort of separate accounting urged upon us by appellant. Indeed, it would be difficult to come to such a conclusion on the basis of the figures in this case: for all of appellant's statistics showing allegedly enormous distortions caused by the three-factor formula, the tables we set out at nn. 11 12 supra, reveal that the percentage increase in taxable income attributable to California between the methodology employed by appellant and the methodology employed by appellee comes to approximately 14%, a far cry from the more than 250% difference which led us to strike down the state tax in Hans Rees' Sons, Inc., and a figure certainly within the substantial margin of error inherent in any method of attributing income among the components of a unitary business. See also Moorman Mfg. Co., supra, at 437 U. S. 272-273; Ford Motor Co. v. Beauchamp, 308 U. S. 331 (1939); Underwood Typewriter Co., supra, at 254 U. S. 120-121.VFor the reasons we have just outlined, we conclude that California's application of the unitary business principle to appellant and its foreign subsidiaries was proper, and that its use of the standard three-factor formula to apportion the income of that unitary business was fair. This proper and fair method of taxation happens, however, to be quite different from the method employed both by the Federal Government in taxing appellant's business, and by each of the relevant foreign jurisdictions in taxing the business of appellant's subsidiaries. Each of these other taxing jurisdictions has adopted a qualified separate accounting approach -- often referred to as the "arm's length" approach -- to the taxation of related corporations. [Footnote 21] Under the "arm's length" approach, Page 463 U. S. 185 every corporation, even if closely tied to other corporations, is treated for most -- but decidedly not all -- purposes as if it were an independent entity dealing at arm's length with its affiliated corporations, and subject to taxation only by the jurisdictions in which it operates and only for the income it realizes on its own books.If the unitary business consisting of appellant and its subsidiaries were entirely domestic, the fact that different jurisdictions applied different methods of taxation to it would probably make little constitutional difference, for the reasons we discuss supra at 463 U. S. 170-171. Given that it is international, however, we must subject this case to the additional scrutiny required by the Foreign Commerce Clause. See Mobil Oil Corp., 445 U.S. at 445 U. S. 446; Japan Line, Ltd., 441 U.S. at 441 U. S. 446; Bowman v. Chicago & N.W. R. Co., 125 U. S. 465, 125 U. S. 482 (1888). The case most relevant to our inquiry is Japan Line.AJapan Line involved an attempt by California to impose an apparently fairly apportioned, nondiscriminatory, ad valorem property tax on cargo containers which were instrumentalities of foreign commerce and which were temporarily located in various California ports. The same cargo containers, however, were subject to an unapportioned property tax in their home port of Japan. Moreover, a convention signed by the United States and Japan made clear, at least, that neither National Government could impose a tax on temporarily imported cargo containers whose home port was in the other nation. We held that,"[w]hen a State seeks to tax the instrumentalities of foreign commerce, two additional considerations, beyond those articulated in [the doctrine governing the Interstate Commerce Clause], come into play."441 U.S. at 441 U. S. 446. The first is the enhanced risk of multiple taxation. Although consistent application of the fair apportionment standard can generally mitigate, if not eliminate, double taxation in the domestic context, Page 463 U. S. 186"neither this Court nor this Nation can ensure full apportionment when one of the taxing entities is a foreign sovereign. If an instrumentality of commerce is domiciled abroad, the country of domicile may have the right, consistently with the custom of nations, to impose a tax on its full value. If a State should seek to tax the same instrumentality on an apportioned basis, multiple taxation inevitably results. . . . Due to the absence of an authoritative tribunal capable of ensuring that the aggregation of taxes is computed on no more than one full value, a state tax, even though "fairly apportioned" to reflect an instrumentality's presence within the State, may subject foreign commerce "to the risk of a double tax burden to which [domestic] commerce is not exposed, and which the commerce clause forbids.'"" Id. at 441 U. S. 447-448, quoting Evco v. Jones, 409 U. S. 91, 409 U. S. 94 (1972), in turn quoting J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307, 304 U. S. 311 (1938) (footnote omitted).The second additional consideration that arises in the foreign commerce context is the possibility that a state tax will "impair federal uniformity in an area where federal uniformity is essential." 441 U.S. at 441 U. S. 448."A state tax on instrumentalities of foreign commerce may frustrate the achievement of federal uniformity in several ways. If the State imposes an apportioned tax, international disputes over reconciling apportionment formulae may arise. If a novel state tax creates an asymmetry in the international tax structure, foreign nations disadvantaged by the levy may retaliate against American-owned instrumentalities present in their jurisdictions. . . . If other States followed the taxing State's example, various instrumentalities of commerce could be subjected to varying degrees of multiple taxation, a result that would plainly prevent this Nation from 'speaking with one voice' in regulating foreign commerce."Id. at 441 U. S. 450-451 (footnote omitted). Page 463 U. S. 187 On the basis of the facts in Japan Line, we concluded that the California tax at issue was constitutionally improper because it failed to meet either of the additional tests mandated by the Foreign Commerce Clause. Id. at 441 U. S. 451-454.This case is similar to Japan Line in a number of important respects. First, the tax imposed here, like the tax imposed in Japan Line, has resulted in actual double taxation, in the sense that some of the income taxed without apportionment by foreign nations as attributable to appellant's foreign subsidiaries was also taxed by California as attributable to the State's share of the total income of the unitary business of which those subsidiaries are a part. [Footnote 22] Second, that double taxation stems from a serious divergence in the taxing schemes adopted by California and the foreign taxing authorities. Third, the taxing method adopted by those foreign taxing authorities is consistent with accepted international practice. Finally, our own Federal Government, to the degree it has spoken, seems to prefer the taxing method adopted by the international community to the taxing method adopted by California. [Footnote 23]Nevertheless, there are also a number of ways in which this case is clearly distinguishable from Japan Line. [Footnote 24] First, Page 463 U. S. 188 it involves a tax on income, rather than a tax on property. We distinguished property from income taxation in Mobil Oil Corp., 445 U.S. at 445 U. S. 444-446, and Exxon Corp., 447 U.S. at 447 U. S. 228-229, suggesting that "[t]he reasons for allocation to a single situs that often apply in the case of property taxation carry little force" in the case of income taxation. 445 U.S. at 445 U. S. 445. Second, the double taxation in this case, although real, is not the "inevitabl[e]" result of the California taxing scheme. Cf. Japan Line, 441 U.S. at 441 U. S. 447. In Japan Line, we relied strongly on the fact that one taxing jurisdiction claimed the right to tax a given value in full, and another taxing jurisdiction claimed the right to tax the same entity in part -- a combination resulting necessarily in double taxation. Id. at 441 U. S. 447, 441 U. S. 452, 441 U. S. 455. Here, by contrast, we are faced with two distinct methods of allocating the income of a multinational enterprise. The "arm's length" approach divides the pie on the basis of formal accounting principles. The formula apportionment method divides the same pie on the basis of a mathematical generalization. Whether the combination of the two methods results in the same income's being taxed twice or in some portion of income not being taxed at all is dependent solely on the facts of the individual case. [Footnote 25] The third difference between this case and Japan Line is that the tax here falls not on the foreign owners of an instrumentality of foreign commerce, but on a corporation domiciled and headquartered in the United States. We specifically left open in Japan Line the application of that case to "domestically Page 463 U. S. 189 owned instrumentalities engaged in foreign commerce," id. at 441 U. S. 444, n. 7, and -- to the extent that corporations can be analogized to cargo containers in the first place -- this case falls clearly within that reservation. [Footnote 26]In light of these considerations, our task in this case must be to determine whether the distinctions between the present tax and the tax at issue in Japan Line add up to a constitutionally significant difference. For the reasons we are about to explain, we conclude that they do.BIn Japan Line, we said that"[e]ven a slight overlapping of tax -- a problem that might be deemed de minimis in a domestic context -- assumes importance when sensitive matters of foreign relations and national sovereignty are concerned."Id. at 441 U. S. 456 (footnote omitted). If we were to take that statement as an absolute prohibition on state-induced double taxation in the international context, then our analysis here would be at an end. But, in fact, such an absolute rule is no more appropriate here than it was in Japan Line itself, where we relied on much more than the mere fact of double taxation to strike down the state tax at issue. Although double taxation in the foreign commerce context deserves to receive close scrutiny, that scrutiny must take into account the context in which the double taxation takes place and the alternatives reasonably available to the taxing State.In Japan Line, the taxing State could entirely eliminate one important source of double taxation simply by adhering to one bright-line rule: do not tax, to any extent whatsoever, cargo containers "that are owned, based, and registered abroad and that are used exclusively in international commerce. . . ." Page 463 U. S. 190 Id. at 441 U. S. 444. To require that the State adhere to this rule was by no means unfair, because the rule did no more than reflect consistent international practice and express federal policy. In this case, California could try to avoid double taxation simply by not taxing appellant's income at all, even though a good deal of it is plainly domestic. But no party has suggested such a rule, and its obvious unfairness requires no elaboration. Or California could try to avoid double taxation by adopting some version of the "arm's length" approach. That course, however, would not by any means guarantee an end to double taxation.As we have already noted, the "arm's length" approach is generally based, in the first instance, on a multicorporate enterprise's own formal accounting. But, despite that initial reliance, the "arm's length" approach recognizes, as much as the formula apportionment approach, that closely related corporations can engage in a transfer of values that is not fully reflected in their formal ledgers. Thus, for example, 26 U.S.C. § 482 provides:"In any case of two or more . . . businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Secretary [of the Treasury] may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such . . . businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such . . . businesses. [Footnote 27] "Page 463 U. S. 191And, as one might expect, the United States Internal Revenue Service has developed elaborate regulations in order to give content to this general provision. Many other countries have similar provisions. [Footnote 28] A serious problem, however, is that, even though most nations have adopted the "arm's length" approach in its general outlines, the precise rules under which they reallocate income among affiliated corporations often differ substantially, and whenever that difference exists, the possibility of double taxation also exists. [Footnote 29] Thus, even if California were to adopt some version of the "arm's length" approach, it could not eliminate the risk of double taxation of corporations subject to its franchise tax, and might in some cases end up subjecting those corporations to more serious double taxation than would occur under formula apportionment. [Footnote 30] Page 463 U. S. 192That California would have trouble avoiding double taxation even if it adopted the "arm's length" approach is, we think, a product of the difference between a tax on income and a tax on tangible property. See supra at 463 U. S. 187-188. Allocating income among various taxing jurisdictions bears some resemblance, as we have emphasized throughout this opinion, to slicing a shadow. In the absence of a central coordinating authority, absolute consistency, even among taxing authorities whose basic approach to the task is quite similar, may just be too much to ask. [Footnote 31] If California's Page 463 U. S. 193 method of formula apportionment "inevitably" led to double taxation, see supra at 463 U. S. 188, that might be reason enough to render it suspect. But since it does not, it would be perverse, simply for the sake of avoiding double taxation, to require California to give up one allocation method that sometimes results in double taxation in favor of another allocation method that also sometimes results in double taxation. Cf. Moorman Mfg. Co., 437 U.S. at 437 U. S. 278-280.It could be argued that even if the Foreign Commerce Clause does not require California to adopt the "arm's length" approach to foreign subsidiaries of domestic corporations, it does require that whatever system of taxation California adopts must not result in double taxation in any particular case. The implication of such a rule, however, would be that even if California adopted the "arm's length" method, it would be required to defer, not merely to a single internationally accepted bright-line standard, as was the case in Japan Line, but to a variety of § 482-type reallocation decisions made by individual foreign countries in individual cases. Although double taxation is a constitutionally disfavored state of affairs, particularly in the international context, Japan Line does not require forbearance so extreme or so one-sided.CWe come finally to the second inquiry suggested by Japan Line -- whether California's decision to adopt formula apportionment in the international context was impermissible because it "may impair federal uniformity in an area where federal uniformity is essential," 441 U.S. at 441 U. S. 448, and "prevents the Federal Government from speaking with one voice' in international trade," id. at 441 U. S. 453, quoting Michelin Tire Corp. Page 463 U. S. 194 v. Wages, 423 U. S. 276, 423 U. S. 285 (1976). In conducting this inquiry, however, we must keep in mind that, if a state tax merely has foreign resonances, but does not implicate foreign affairs, we cannot infer,"[a]bsent some explicit directive from Congress, . . . that treatment of foreign income at the federal level mandates identical treatment by the States."Mobil, 445 U.S. at 445 U. S. 448. See also Japan Line, 441 U.S. at 441 U. S. 456, n. 20; Michelin Tire Corp., supra, at 423 U. S. 286. Thus, a state tax at variance with federal policy will violate the "one voice" standard if it either implicates foreign policy issues which must be left to the Federal Government or violates a clear federal directive. The second of these considerations is, of course, essentially a species of preemption analysis.(1)The most obvious foreign policy implication of a state tax is the threat it might pose of offending our foreign trading partners and leading them to retaliate against the Nation as a whole. 441 U.S. at 441 U. S. 450. In considering this issue, however, we are faced with a distinct problem. This Court has little competence in determining precisely when foreign nations will be offended by particular acts, and even less competence in deciding how to balance a particular risk of retaliation against the sovereign right of the United States as a whole to let the States tax as they please. The best that we can do, in the absence of explicit action by Congress, is to attempt to develop objective standards that reflect very general observations about the imperatives of international trade and international relations.This case is not like Mobil, in which the real issue came down to a question of interstate, rather than foreign, commerce. 445 U.S. at 445 U. S. 446-449. Nevertheless, three distinct factors, which we have already discussed in one way or another, seem to us to weigh strongly against the conclusion that the tax imposed by California might justifiably lead to significant foreign retaliation. First, the tax here does not Page 463 U. S. 195 create an automatic "asymmetry," Japan Line, supra, at 441 U. S. 453, in international taxation. See supra at 463 U. S. 188, 463 U. S. 192-193. Second, the tax here was imposed, not on a foreign entity as was the case in Japan Line, but on a domestic corporation. Although, California "counts" income arguably attributable to foreign corporations in calculating the taxable income of that domestic corporation, the legal incidence of the tax falls on the domestic corporation. [Footnote 32] Third, even if foreign nations have a legitimate interest in reducing the tax burden of domestic corporations, the fact remains that appellant is, without a doubt, amenable to be taxed in California in one way or another, and that the amount of tax it pays is much more the function of California's tax rate than of its allocation method. Although a foreign nation might be more offended by what it considers unorthodox treatment of appellant than it would be if California simply raised its general tax rate to achieve the same economic result, we can only assume that the offense involved in either event would be attenuated at best.A state tax may, of course, have foreign policy implications other than the threat of retaliation. We note, however, that, in this case, unlike Japan Line, the Executive Branch has decided not to file an amicus curiae brief in opposition to the state tax. [Footnote 33] The lack of such a submission is by no means Page 463 U. S. 196 dispositive. Nevertheless, when combined with all the other considerations we have discussed, it does suggest that the foreign policy of the United States -- whose nuances, we must emphasize again, are much more the province of the Executive Branch and Congress than of this Court -- is not seriously threatened by California's decision to apply the unitary business concept and formula apportionment in calculating appellant's taxable income.(2)When we turn to specific indications of congressional intent, appellant's position fares no better. First, there is no claim here that the federal tax statutes themselves provide the necessary preemptive force. Second, although the United States is a party to a great number of tax treaties that require the Federal Government to adopt some form of "arm's length" analysis in taxing the domestic income of multinational enterprises, [Footnote 34] that requirement is generally waived with respect to the taxes imposed by each of the contracting nations on its own domestic corporations. [Footnote 35] This fact, if nothing else, confirms our view that such taxation is in reality of local, rather than international, concern. Third, the tax treaties into which the United States has entered do not generally cover the taxing activities of subnational governmental units such as States, [Footnote 36] and in none of the treaties does the restriction on "non-arm's length" methods of taxation apply to the States. Moreover, the Senate has on at least one occasion, in considering a proposed treaty, attached a reservation declining to give its consent to a provision in the treaty that would have extended that restriction to the States. [Footnote 37] Finally, it remains true, as we said in Mobil, that "Congress Page 463 U. S. 197 has long debated, but has not enacted, legislation designed to regulate state taxation of income." 445 U.S. at 445 U. S. 448. [Footnote 38] Thus, whether we apply the "explicit directive" standard articulated in Mobil or some more relaxed standard which takes into account our residual concern about the foreign policy implications of California's tax, we cannot conclude that the California tax at issue here is preempted by federal law or fatally inconsistent with federal policy.VIThe judgment of the California Court of Appeal isAffirmed

U.S. Supreme CourtContainer Corp. v. Franchise Tax Bd., 463 U.S. 159 (1983)Container Corporation of America v. Franchise Tax BoardNo. 81-523Argued January 10, 1983Decided June 27, 1983463 U.S. 159SyllabusCalifornia imposes a corporate franchise tax geared to income. It employs the "unitary business" principle and formula apportionment in applying that tax to corporations doing business both inside and outside the State. The formula used -- commonly called the "three-factor" formula -- is based, in equal parts, on the proportion of a unitary business' total payroll, property, and sales that are located in the State. Appellant paperboard packaging manufacturer is a Delaware corporation headquartered in Illinois and doing business in California and elsewhere. It also has a number of overseas subsidiaries incorporated in the countries in which they operate. In calculating for the tax years in question in this case the share of its net income that was apportionable to California under the three-factor formula, appellant omitted all of its subsidiaries' payroll, property, and sales. Appellee Franchise Tax Board issued notices of additional assessments, the gravamen of which was that appellant should have treated its overseas subsidiaries as part of its unitary business, rather than as a passive investment. After paying the additional assessments under protest, appellant brought an action for a refund in California Superior Court, which upheld the additional assessments. The California Court of Appeal affirmed.Held:1. California's application of the unitary business principle to appellant and its foreign subsidiaries was proper. Pp. 463 U. S. 175-180.(a) The taxpayer has the burden of showing by "clear and convincing evidence" that the state tax results in extraterritorial values being taxed. This Court will, if reasonably possible, defer to the judgment of state courts in deciding whether a particular set of activities constitutes a "unitary business." The Court's task is to determine whether the state court applied the correct standards to the case, and, if it did, whether its judgment was within the realm of a permissible judgment. Pp. 463 U. S. 175-176.(b) Here, there is no merit to appellant's argument that the Court of Appeal, in important part, analyzed the case under the incorrect legal standard. Rather, the factors relied upon by the court in holding that appellant and its foreign subsidiaries constituted a unitary business -- Page 463 U. S. 160 which factors included appellant's assistance to its subsidiaries in obtaining equipment and in filling personnel needs that could not be met locally, the substantial role played by appellant in loaning funds to the subsidiaries and guaranteeing loans provided by others, the considerable interplay between appellant and its subsidiaries in the area of corporate expansion, the substantial technical assistance provided by appellant to the subsidiaries, and the supervisory role played by appellant's officers in providing general guidance to the subsidiaries -- taken in combination, clearly demonstrate that the court reached a conclusion "within the realm of permissible judgment." Pp. 463 U. S. 177-180.2. California's use of the three-factor formula to apportion the income of the unitary business consisting of appellant and its foreign subsidiaries was fair. Appellant had the burden of proving that the income apportioned to California was out of all appropriate proportions to the business transacted in the State. This burden was not met by offering various statistics that appeared to demonstrate not only that wage rates are generally lower in the foreign countries in which appellant's subsidiaries operate, but also that those lower wage rates are not offset by lower levels of productivity. It may well be that, in addition to the foreign payroll going into the production of any given corrugated container by a foreign subsidiary, there is a California payroll, as well as other California factors, contributing to the same production. The mere fact that this possibility is not reflected in appellant's accounting does not disturb the underlying premises of the formula apportionment method. Pp. 463 U. S. 180-184.3. California had no obligation under the Foreign Commerce Clause to employ the "arm's length" analysis used by the Federal Government and most foreign nations in evaluating the tax consequences of intercorporate relationships. Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, distinguished. Pp. 463 U. S. 184-197.(a) The double taxation occasioned by the California scheme is not impermissible. Due in part to the difference between a tax on income and a tax on tangible property, California would have trouble avoiding double taxation of corporations subject to its franchise tax even if it adopted the "arm's length" approach. Moreover, the California tax does not result in "inevitable" double taxation. It would be perverse, simply for the sake of avoiding double taxation, to require California to give up one allocation method that sometimes results in double taxation in favor of another allocation method that sometimes has the same result. Pp. 463 U. S. 189-193.(b) The California tax does not violate the "one voice" standard established in Japan Line, supra, under which a state tax at variance with federal policy will be struck down if it either implicates foreign policy issues which must be left to the Federal Government or violates a clear Page 463 U. S. 161 federal directive. Three factors weigh strongly against the conclusion that the tax might lead to significant foreign retaliation. The tax does not create an automatic "asymmetry" in international taxation, it is imposed on a domestic corporation and not on a foreign entity, and even if foreign nations had a legitimate interest in reducing the tax burden of domestic corporations, appellant is amenable to be taxed in California one way or another, and the tax it pays is more the function of California's tax rate than of its allocation method. Moreover, the California tax is not preempted by federal law or fatally inconsistent with federal policy. There is no claim that the federal tax statutes themselves provide the necessary preemptive force. The requirement of some tax treaties that the Federal Government adopt some form of arm's length analysis in taxing the domestic income of multinational enterprises is generally waived as to taxes imposed by each of the contracting nations on its own domestic corporations. Tax treaties do not cover the taxing activities of States. And Congress has never enacted legislation designed to regulate state taxation of income. Pp. 463 U. S. 193-197.117 Cal. App. 3d 988, 173 Cal. Rptr. 121, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and O'CONNOR, J., joined, post, p. 463 U. S. 197. STEVENS, J., took no part in the consideration or decision of the case. Page 463 U. S. 162

1959_34

MR. JUSTICE BRENNAN delivered the opinion of the Court.The question in this case is whether peaceful picketing by a union, which does not represent a majority of the employees, to compel immediate recognition as the employees' exclusive bargaining agent, is conduct of the union "to restrain or coerce" the employees in the exercise of rights guaranteed in § 7, [Footnote 1] and thus an unfair labor practice under § 8(b)(1)(A) of the National Labor Relations Act, as amended by the Taft-Hartley Act. [Footnote 2]Curtis Bros., Inc., has a retail store and a warehouse in Washington, D.C., in which it carries on a moving, warehousing and retail furniture business. In 1953, respondent Teamsters Local 639 was certified by the Labor Board, following a Board-conducted election, to be the exclusive representative of the Company's drivers, helpers, warehousemen and furniture finishers. However, when the Local called a strike over Page 362 U. S. 276 contract terms in February, 1954, only nine of 21 employees in the unit left their jobs and Curtis Bros. replaced the nine with new employees. The strike continued, but the Local gradually lost membership, and when, after a year, Curtis Bros. petitioned the Board to conduct another election, the Local wrote the Board that it did not claim to represent a majority of the employees. The Board nevertheless ordered another election, 114 N.L.R.B. 116, which was held in October, 1955, and the then employees of the unit voted 28 to one in favor of "no union." [Footnote 3]A month after the election, in November, 1955, the Local withdrew a picket line which had been maintained before the employees' entrance to the warehouse during the period from February, 1954. However, picketing at the customers' entrance to the retail store was continued, but limited to not more than two pickets at any time. The pickets were orderly at all times, and made no attempt to prevent anyone from entering the store. They simply patrolled before the entrance carrying signs reading on one side, "Curtis Bros. employs nonunion drivers, helpers, warehousemen and etc. Unfair to Teamsters Union No. 639 AFL," and, on the other side, "Teamsters Union No. 639 AFL wants employes of Curtis Bros. to join them to gain union wages, hours, and working conditions."After this picketing continued for about six months, Curtis Bros. made it the subject of an unfair labor practice charge against the Local for alleged violation of § 8(b)(1)(A). A complaint issued which alleged, in substance, that the picketing was activity to "restrain or coerce" the employees in the exercise of § 7 rights, and Page 362 U. S. 277 thus an unfair labor practice under § 8(b)(1)(A), because it was "recognitional" picketing, that is, picketing designed to induce Curtis Bros. to recognize the Local as the exclusive bargaining agent for the employees, although the union did not represent a majority of the employees.The Trial Examiner recommended that the complaint be dismissed on the ground that the Local's peaceful picketing, even if "recognitional," was not conduct to "restrain or coerce." The Board, one member dissenting, disagreed, and entered a cease and desist order, 119 N.L.R.B. 232. On review at the instance of the Local, the United States Court of Appeals for the District of Columbia Circuit, by a divided court, set aside the Board's order, holding that § 8(b)(1)(A) "is inapplicable to peaceful picketing, whether organizational' or `recognitional' in nature. . . ." 107 U.S.App.D.C. 42, 43, 274 F.2d 551, 552. [Footnote 4] Because of the importance of the question in the administration of the Act, we granted certiorari. 359 U.S. 965.After we granted certiorari, the Congress enacted the Labor-Management Reporting and Disclosure Act of 1959, which, among other things, adds a new § 8(b)(7) to the National Labor Relations Act. [Footnote 5] It was stated Page 362 U. S. 278 by the Board on oral argument that, if this case arose under the 1959 Act, the Board might have proceeded against the Local under § 8(b)(7). This does not, however, relegate this litigation to the status of an unimportant controversy over the meaning of a statute which has been significantly changed. For the Board contends that new § 8(b)(7) does not displace § 8(b)(1)(A), but merely "supplements the power already conferred by Section 8(b)(1)(A)." [Footnote 6] It argues that the Board may Page 362 U. S. 279 proceed against peaceful "recognitional" picketing conducted by a minority union in more situations than are specified in § 8(b)(7) and without regard to the limitations of § 8(b)(7)(C). [Footnote 7]Basic to the right guaranteed to employees in § 7 to form, join or assist labor organizations is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection. Indeed, even before the Norris-LaGuardia Act, 47 Stat. 70, and the Wagner Act, 49 Stat. 449, this Court recognized a right in unions to "use all lawful propaganda to enlarge their membership." American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 257 U. S. 209. However, the Taft-Hartley Act added another right of employees also guaranteed protection, namely, the right to refrain from joining a Page 362 U. S. 280 union, except as that right might be affected by an agreement authorized in § 8(a)(3). Thus, tension exists between the two rights of employees protected by § 7 -- their right to form, join or assist labor organizations and their right to refrain from doing so. This tension is necessarily quite real when a union employs economic weapons to organize employees who do not want to join the union. The Board held here that peaceful picketing is not lawfully employed as an economic weapon to further self-organization if its objective is "recognitional." The Board stated:"Because the object of the Union's picketing in this case was to force the Company to commit an act prohibited by the statute itself [that is, to recognize and contract with the Local although it was not the chosen representative of a majority of the Curtis Bros. employees] and directly to deprive the employees of a right expressly guaranteed to them by the same Act, there is no occasion here to balance conflicting interests or rights."119 N.L.R.B. 232, 238. [Footnote 8] It therefore found Page 362 U. S. 281 no justification for the threat to the employees' job security which was thought to be inherent in the economic pressure directed against the employer by the picketing. It was this threat which was said to taint peaceful picketing as unlawful conduct to "restrain or coerce" which the Board might forbid.We first consider § 8(b)(1)(A) in the light of § 13, as amended, which provides, in substance, that the Taft-Hartley Act shall not be taken as restricting or expanding either the right to strike or the limitations or qualifications on that right, as these were understood prior to 1947, unless "specifically provided for" in the Act itself. [Footnote 9] The Wagner Act conferred upon the Board wide authority to protect strikers from employer retaliation. However, the Court and the Board fashioned the doctrine that the Board should deny reinstatement to strikers who engaged in strikes which were conducted in an unlawful manner or for an unlawful objective. See, for example, Southern S.S. Co. v. Labor Board, 316 U. S. 31; Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240; Labor Board v. Sands Mfg. Co., 306 U. S. 332; and American News Co., 55 N.L.R.B. 1302. These are the "limitations or qualifications" on the right to strike referred to in § 13. Page 362 U. S. 282 See S.Rep. No. 105, 80th Cong., 1st Sess. 28. The Board makes no claim that prior to 1947 it was authorized, because of any "limitation" or "qualification," to issue a cease and desist order against peaceful "recognitional" picketing; indeed the full protections of the Norris-LaGuardia Act extended to peaceful picketing by minority unions for recognition. See Fur Workers Union No. 21238 v. Fur Workers Union, Local No. 72, 308 U.S. 522, per curiam affirming, 70 App.D.C. 122, 105 F.2d 1; Lauf v. Shinner & Co., 303 U. S. 323. Therefore, since the Board's order in this case against peaceful picketing would obviously "impede" the right to strike, it can only be sustained if such power is "specifically provided for" in § 8(b)(1)(A), as added by the Taft-Hartley Act. To be sure, § 13 does not require that the authority for the Board action be spelled out in so many words. Rather, since the Board does not contend that § 8(b)(1)(A) embodies one of the "limitations or qualifications" on the right to strike, § 13 declares a rule of construction which cautions against an expansive reading of that section which would adversely affect the right to strike, unless the congressional purpose to give it that meaning persuasively appears either from the structure or history of the statute. Therefore, § 13 is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation of § 8(b)(1)(A) which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act.The Board asserts that the very general standard in § 8(b)(1)(A) vests power in the Board to sit in judgment upon, and to condemn, a minority union's resort to a specific economic weapon, here peaceful picketing. The structure of § 8(b), which defines unfair labor practices, hardly supports the Board's claims. Earlier this Term we pointed out that "Congress has been rather specific when it has come to outlaw particular economic weapons Page 362 U. S. 283 on the part of unions." Labor Board v. Insurance Agents' International Union, 361 U. S. 477, 361 U. S. 498. We referred to § 8(b)(4) as illustrative of the congressional practice. [Footnote 10] In the context of a union's striking to promote enlarged membership, Congress there explicitly prohibited a union's resort to the secondary boycott, to the strike to force employers Page 362 U. S. 284 or self-employed persons to join unions, and, very pertinent here, to the "recognitional" strike where another union is certified. Plainly, if the Board's interpretation is sustained, § 8(b)(1)(A) largely overlaps at least this last-mentioned prohibition, namely § 8(b)(4)(C), to the extent of making it almost redundant. [Footnote 11] But the Court has rejected an argument that a provision of § 8(b)(4) is a repetition of the prohibitions of § 8(b)(1)(A). In International Brotherhood of Electrical Workers v. Labor Board, 341 U. S. 694, the Court, in holding that a peaceful strike to promote self-organization was proscribed by § 8(b)(4)(A) if its objective was to "induce or encourage" a secondary boycott, contrasted the language of the two subsections and labeled the words "restrain or coerce" in § 8(b)(1)(A) a "restricted phrase" to be equated with "threat of reprisal or force or promise of benefit." Id. at 341 U. S. 701-703.In the sensitive area of peaceful picketing Congress has dealt explicitly with isolated evils which experience has established flow from such picketing. Therefore, unless there is the clearest indication in the legislative history of § 8(b)(1)(A) supporting the Board's claim of power under that section, we cannot sustain the Board's order here. We now turn to an examination of the legislative history. Page 362 U. S. 285In the comprehensive review of union practices, leading up to the enactment of the Taft-Hartley Act, picketing practices were subjected to intensive inquiry by both House and Senate Labor Committees. The Senate bill, as brought to the floor by the Senate Labor Committee, regulated organizational activity in specified situations. Proposed § 8(b)(4)(3), now § 8(b)(4)(C) of the law, made "recognitional" picketing of a primary employer unlawful only where "another labor organization has been certified as the representative" of his employees. Section 8(b)(4)(2), now § 8(b)(4)(B), prohibited attempts to force recognition through secondary pressure.However, five members of the Senate Labor Committee, including Senators Taft and Ball, believed that the Senate bill did not go far enough in the regulation of practices employed by unions for organizational purposes. These Senators introduced on the floor a proposed amendment to the Committee bill. The amendment as originally phrased was the counterpart of § 8(a)(1) applicable to employers; it would have made it an unfair labor practice for a labor organization "to interfere with" as well as "to restrain or coerce . . . employees in the exercise of the rights guaranteed in section 7. . . ." The words "interfere with" were dropped during the debate, but, except for this change, the amendment became § 8(b)(1)(A).The report of supplemental views which announced the five Senators' intention to propose the amendment identifies the abuses which the section was designed to reach. That report states:"The committee heard many instances of union coercion of employees such as that brought about by threats of reprisal against employees and their families in the course of organizing campaigns; also direct interference by mass picketing and other violence. Some of these acts are illegal under State law, but we see no reason why they should not also constitute Page 362 U. S. 286 unfair labor practices to be investigated by the Labor Board, and at least deprive the violators of any protection furnished by the Wagner Act."S.Rep. No. 105, 80th Cong., 1st Sess. 50. Similar expressions pervaded the Senate debates on the amendment. The note repeatedly sounded is as to the necessity for protecting individual workers from union organizational tactics tinged with violence, duress, or reprisal. Senator Ball cited numerous examples of organizing drives characterized by threats against unorganized workers of violence, job reprisals and such repressive assertions as that double initiation fees would be charged those who delayed joining the union. 93 Cong.Rec. 4016-4017. When Senator Ives objected to the words "interfere with" as too broad, Senator Taft insisted that even those words would have a limited application and would reach "reprehensible" practices, but not methods of peaceful persuasion. He continued:"Why should a union be able to go to an employee and threaten violence if he does not join the union? Why should a union be able to say to an employee, 'If you do not join this union, we will see that you cannot work in the plant'? . . . We know that such things have actually occurred. We know that men have been threatened. There have been many cases in which unions have threatened men or their wives. They have called on them on the telephone and insisted that they sign bargaining cards. They have said to them, 'Sooner or later, we are going to organize this plant with a closed shop, and you will be out.'. . . ."93 Cong.Rec. 4021.It is true that, here and there in the record of the debates, there are isolated references to instances of conduct which might suggest a broader reach of the amendment. See, Page 362 U. S. 287 for example, 93 Cong.Rec. 4023-4024. [Footnote 12] But they appear more as asides in a debate, the central theme of which was not the curtailment of the right peacefully to strike, except as provided in § 8(b)(4), but the elimination of the use of repressive tactics bordering on violence or involving particularized threats of economic reprisal. The plainest indication negating an intention to restrict the use by unions of methods of peaceful persuasion, including peaceful picketing, is seen in the comments of Senator Taft near the close of the debate. He said:"It seems to me very clear that, so long as a union organizing drive is conducted by persuasion, by propaganda, so long as it has every legitimate purpose, the Board cannot in any way interfere with it. . . ."93 Cong.Rec. 4434."* * * *" "The effect of the pending amendment is that the Board may call the union before them, exactly as it Page 362 U. S. 288 has called the employer, and say,""Here are the rules of the game. You must cease and desist from coercing and restraining the employees who want to work from going to work and earning the money which they are entitled to earn.""The Board may say:""You can persuade them; you can put up signs; you can conduct any form of propaganda you want to in order to persuade them, but you cannot, by threat of force or threat of economic reprisal, prevent them from exercising their right to work.""As I see it, that is the effect of the amendment."93 Cong.Rec. 4436."* * * *" "The Senator says it will slow up organizational drives. It will slow up organizational drives only if they are accompanied by threats and coercion. The cease and desist order will be directed against the use of threats and coercion. It will not be directed against the use of propaganda or the use of persuasion, or against the use of any of the other peaceful methods of organizing employees.""Mr. President, I can see nothing in the pending measure which, as suggested by the Senator from Oregon, would in some way outlaw strikes. It would outlaw threats against employees. It would not outlaw anybody striking who wanted to strike. It would not prevent anyone using the strike in a legitimate way, conducting peaceful picketing, or employing persuasion. All it would do would be to outlaw such restraint and coercion as would prevent people from going to work if they wished to go to work."Ibid.This approach in the Senate is in sharp contrast to the House view, which was that picketing should be strictly circumscribed. The House passed a bill imposing drastic Page 362 U. S. 289 limitations upon the right to picket. Section 12(a)(1) of that bill dealt specifically with the use of force and threats of force, but especially pertinent here are §§ 12(a)(2) and 12(a)(3)(C), which went far beyond this. The former would have outlawed all picketing of"an employer's premises for the purpose of leading persons to believe that there exists a labor dispute involving such employer, in any case in which the employees are not involved in a labor dispute with their employer."And the latter would have banned picketing"an object of which [was] (i) to compel an employer to recognize for collective bargaining a representative not certified under section 9 . . . or (iii) to compel an employer to violate any law. . . ."H.R. 3020, 80th Cong., 1st Sess. 47-49. Plainly, the Local's conduct in the instant case would have been prohibited if the House bill had become law.But the House conferees abandoned the House bill in conference and accepted the Senate proposal. H.R.Conf.Rep. No. 510 on H.R. 3020, 80th Cong., 1st Sess. 42. [Footnote 13] They joined in a Conference Report which stated that "the primary strike for recognition (without a Board certification) was not prohibited." Id. at 43.This history makes pertinent what the Court said in Local 1976, United Brotherhood of Carpenters v. Labor Board, 357 U. S. 93, 357 U. S. 99-100:"It is relevant to recall that the Taft-Hartley Act was, to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the National and the appropriate Page 362 U. S. 290 balance to be struck between the uncontrolled power of management and labor to further their respective interests. This is relevant in that it counsels wariness in finding by construction a broad policy . . . as such when, from the words of the statute itself, it is clear that those interested in just such a condemnation were unable to secure its embodiment in enacted law."Certainly due regard for this admonition quite apart from the caveat in § 13 requires caution against finding in the nonspecific, indeed vague, words, "restrain or coerce" that Congress intended the broad sweep for which the Board contends.We conclude that the Board's interpretation of § 8(b)(1)(A) finds support neither in the way Congress structured § 8(b) nor in the legislative history of § 8(b)(1)(A). Rather, it seems clear, and we hold, that Congress, in the Taft-Hartley Act, authorized the Board to regulate peaceful "recognitional" picketing only when it is employed to accomplish objectives specified in § 8(b) (4); and that § 8(b)(1)(A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof -- conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes.The Board's own interpretation for nearly a decade after the passage of the Taft-Hartley Act gave § 8(b)(1)(A) this limited application. See, e.g., National Maritime Union, 78 N.L.R.B. 971, enforcement granted, 175 F.2d 686; Local 74, United Brotherhood of Carpenters (Watson's Specialty Store), 80 N.L.R.B. 533, enforcement granted, 181 F.2d 126, aff'd, 341 U. S. 707; Perry Norvell Co., 80 N.L.R.B. 225; Miami Copper Co., 92 N.L.R.B. 322; Medford Building & Construction Trades Council (Kogap Lumber Industries), 96 Page 362 U. S. 291 N.L.R.B. 165; District 50, United Mine Workers (Tungsten Mining Corp.), 106 N.L.R.B. 903. In Perry Norvell, supra, at 239, the Board declared:"By Section 8(b)(1)(A), Congress sought to fix the rules of game, to insure that strikes and other organizational activities of the employees were conducted peaceably by persuasion and propaganda, and not by physical force, or threats of force, or of economic reprisal. In that Section, Congress was aiming at means, not at ends."The Board dismisses these cases as "dubious precedent." 119 N.L.R.B. at 246. We think they gave a sounder construction to § 8(b)(1)(A) than the Board's construction in the present case.We are confirmed in our view by the action of Congress in passing the Labor-Management Reporting and Disclosure Act of 1959. That Act goes beyond the Taft-Hartley Act to legislate a comprehensive code governing organizational strikes and picketing, and draws no distinction between "organizational" and "recognitional" picketing. While proscribing peaceful organizational strikes in many situations, it also establishes safeguards against the Board's interference with legitimate picketing activity. See § 8(b)(7)(C). [Footnote 14] Were § 8(b)(1)(A) to have the sweep contended for by the Board, the Board might proceed against peaceful picketing in disregard of these safeguards. To be sure, what Congress did in 1959 does not establish what it meant in 1947. However, as another major step in an evolving pattern of regulation of union conduct, the 1959 Act is a relevant consideration. Courts may properly take into account the later Act when asked to extend the reach of the earlier Act's vague language to the limits which, read literally, the words might Page 362 U. S. 292 permit. We avoid the incongruous result implicit in the Board's construction by reading § 8(b)(1)(A), which is only one of many interwoven sections in complex Act, mindful of the manifest purpose of the Congress to fashion a coherent national labor policy.Affirmed

U.S. Supreme CourtLabor Board v. Drivers Local Union, 362 U.S. 274 (1960)Labor Board v. Drivers, Chauffeurs,Helpers, Local Union No. 639, International Brotherhoodof Teamsters, Chauffeurs, Warehousemenand Helpers of AmericaNo. 34Argued January 14, 1960Decided March 28, 1960362 U.S. 274SyllabusPeaceful picketing by a labor union, which does not represent a majority of the employees, to compel the employer to recognize the union as the exclusive bargaining agent of its employees, is not conduct of the union "to restrain or coerce" the employees in the exercise of rights guaranteed in § 7 of the National Labor Relations Act, as amended, and therefore such picketing is not an unfair labor practice under § 8(b)(1)(A) of the Act, as added by the Taft-Hartley Act. Pp. 362 U. S. 275-292.(a) Section 13 of the Act, as amended by the Taft-Hartley Act, is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation of § 8(b)(1)(A) which safeguards the right to strike as understood prior to passage of the Taft-Hartley Act. Pp. 362 U. S. 281-282.(b) Section 8(b)(l)(A) does not vest broad power in the Labor Board to sit in judgment upon, and to condemn, a minority union's resort to a specific economic weapon such as peaceful picketing. It is a limited grant of power to proceed against union tactics involving violence, intimidation and reprisal, or threats thereof -- conduct involving more than the general pressures implicit in economic strikes. Pp. 362 U. S. 282-290.(c) In the Taft-Hartley Act, Congress authorized the Board to regulate peaceful "recognitional" picketing only when it is employed to accomplish objectives specified in § 8(b)(4). P. 362 U. S. 290.107 U.S. App.D.C. 42, 274 F.2d 551, affirmed. Page 362 U. S. 275

1978_78-17

MR. JUSTICE MARSHALL delivered the opinion of the Court.Under § 7(c) of the Natural Gas Act, producers who sell natural gas to pipelines for resale in interstate commerce must obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission. [Footnote 1] Section 7(b) of the Act obligates these producers to continue supplying gas in the interstate market until the Commission authorizes an "abandonment." [Footnote 2] The principal issue presented by this case is whether a producer may, consistent with § 7(b), ever terminate this service obligation without obtaining the agency's express approval.IThe natural gas involved in this case is produced from a 163-acre tract of land located in Karnes County, Tex., and Page 442 U. S. 532 known as the Butler B tract. In 1948, the owner of this land, B. C. Butler, Sr., executed an oil and gas lease with W. R. Quin as the lessee. Quin's widow contracted in 1953 to sell petitioner United Gas Pipe Line Co. (United), for a 10-year period, all "merchantable natural gas . . . now or hereafter" produced from the Butler B tract. App. 7A. Because United was an interstate pipeline company, Ms. Quin applied to the Commission for a certificate of public convenience and necessity authorizing this sale. The certificate issued by the Commission contained neither a time limitation nor any designation of the depths from which the gas would be produced.After United installed gathering facilities on the property and began receiving gas from a well 2,960 feet deep, the Butler B lease was assigned several times. H. A. Pagenkopf eventually obtained the leasehold, and, in 1961, he agreed to extend the term of United's gas purchase contract through February 7, 1981. Upon Pagenkopf's application, the Commission issued a new certificate in 1963, authorizing continued service to United under the same terms as the earlier certificate. In March, 1966, Pagenkopf assigned the Butler B lease to a group headed by L. H. Haring, [Footnote 3] and, shortly thereafter, the only successful well on the property stopped producing. Haring's operator, Bay Rock Corp., notified United some months later that the existing wells were depleted and no other gas would be available at that time. United replied that it would remove its metering equipment for use elsewhere, but would reinstall the equipment"if, at some future date, you have further gas to deliver to us at the above delivery point, which will be subject to the terms of the above-captioned contract."App. 8A-9A. Despite the Commission's subsequent warning that § 7(b) required the filing Page 442 U. S. 533 of an abandonment application if no further sales were contemplated, Haring never sought the Commission's authorization for abandoning service to United. [Footnote 4]During 1971 and 1972, Haring divided the Butler B leasehold horizontally and vertically, and he assigned to a group headed by respondent McCombs a working interest in the eastern 113 acres of the tract between the depths of 6,500 and 8,653 feet. A few months later, the group acquired a similar interest in the entire Butler B tract from depths of 8,700 to 9,700 feet. Drilling to these deeper horizons, the McCombs group discovered new gas reserves. [Footnote 5] In 1972, they contracted to sell this gas to respondent E. I. du Pont de Nemours & Co. for industrial uses in intrastate commerce. Upon learning of the renewed production, however, United asserted its rights under the 1953 contract, as extended in 1961, to purchase all gas produced from the property. When the McCombs group rejected this claim, United filed a complaint with the Commission.The Commission upheld the Administrative Law Judge's determination that the McCombs group could not sell the Page 442 U. S. 534 Butler B gas in intrastate commerce, at least through February 7, 1981. Opinion No. 740, App. to Pet. for Cert. in No. 7817, pp. A-32 to A-33. In particular, the Commission found that the certificates issued to the group's predecessors covered all gas produced from the property, including the reserves discovered in 1971 and 1972. [Footnote 6] Because these predecessors had commenced deliveries pursuant to the certificates, the Commission ruled that all reserves embraced by the certificates were "dedicated" to interstate commerce, and could not be diverted from that market without obtaining the agency's approval under § 7(b). Noting that it had not authorized abandonment during the 5-year interruption in service, the Commission refused to grant its approval retroactively where, as here, the supply of natural gas was not, in fact, depleted. Accordingly, the Commission declared the sales in intrastate commerce violative of the Act, and ordered delivery to United of all gas derived from the Butler B leasehold. [Footnote 7] Page 442 U. S. 535A divided panel of the Court of Appeals for the Tenth Circuit set aside the Commission's order. 570 F.2d 1376 (1978). [Footnote 8] The court did not dispute the Commission's determination that all gas underlying the Butler B tract had been dedicated to interstate commerce. However, while acknowledging that § 7(b) expressly requires Commission approval before a producer may withdraw dedicated natural gas from the interstate market, the majority held that "strict compliance" with this requirement was unnecessary here. 570 F.2d at 1381. In the court's view, "there was no need for the formality of a Section 7(b) hearing," ibid., because"the abandonment of the service in the instant case was accomplished, as a matter of law, when all of the parties recognized that the then known natural gas reserves were depleted in 1966, followed by failure to provide any service under the certificates for a period of five years, during which time there was no evidence of other estimated gas reserves recoverable from the subject leaseholds."Id. at 1382 In sum, the Court of Appeals considered the facts so clear that the abandonment issue was no longer "within the expertise of the Commission." Id. at 1381. The dissenting judge found this conclusion "directly contrary to the plain terms of § 7(b)," which mandate approval by the Commission as the sole means of effectuating a valid abandonment. Id. at 1382.We granted certiorari, 439 U.S. 892 (1978), and now reverse.IICongress could not have been more explicit in establishing Commission approval as a prerequisite for lawful abandonment Page 442 U. S. 536 of service within its jurisdiction. Section 7(b) provides:"No natural gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment."52 Stat. 824, 15 U.S.C. § 717f(b). Not only does the statute require companies to obtain the "approval of the Commission . . . after due hearing," but it also prohibits abandonment absent specific findings by the Commission. The language of § 7(b) simply does not admit of any exception to the statutory procedure. [Footnote 9]This plain meaning has been acknowledged in several of our previous decisions. Emphasizing that the Natural Gas Act's fundamental purpose was to assure the public a reliable supply of gas at reasonable prices, the Court noted in Atlantic Refining Co. v. Public Service Comm'n, 360 U. S. 378 (1959), that, once gas has been dedicated to interstate commerce, "there can be no withdrawal of that supply from continued interstate movement without Commission approval." Id. at 360 U. S. 388, 360 U. S. 389, 360 U. S. 392 (emphasis added). The Court again addressed the necessity Page 442 U. S. 537 of obtaining the agency's permission in Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137 (1960). There, the Court upheld the Commission's authority to insist upon issuing permanent certificates of convenience and necessity, reasoning that this power was essential to prevent companies from circumventing the regulatory scheme. For if producers could demand certificates of limited duration, and thereby escape federal regulation when the certificates expire, the abandonment procedures of § 7(b) would be rendered meaningless. 364 U.S. at 364 U. S. 142-144, 364 U. S. 148. Of particular importance here, the Court specifically considered the impact that depletion of gas supplies would have on a company's obligation to seek abandonment permission. Approving the Commission's practice of issuing certificates that extend beyond the expected life of a given reserve, the Court stressed:"[I]f the companies, failing to find new sources of gas supply, desired to abandon service because of a depletion of supply, they would have to make proof thereof before the Commission, under § 7(b). The Commission thus, even though there may be physical problems beyond its control, [keeps] legal control over the continuation of service by the applicants."Id. at 364 U. S. 158 n. 25. In short, Sunray makes clear that producers must secure Commission approval to abandon service even when there is little or no doubt that gas supplies are exhausted.This Court expressed a similar understanding of the abandonment provision in United Gas Pipe Line Co. v. FPC, 385 U. S. 83 (1966), which upheld the Commission's determination that a company had violated § 7(b) of the Act by unilaterally abandoning jurisdictional facilities to avoid paying increased gas prices. In so holding, the Court reiterated that the "statutory necessity of prior Commission approval, with its underlying findings, cannot be escaped." 385 U.S. at 385 U. S. 89 (emphasis added). We reaffirmed this interpretation of § 7(b) just last Term in California v. Southland Royalty Page 442 U. S. 538 Co., 436 U. S. 519 (1978). The lessees in Southland had dedicated to interstate commerce gas produced from a particular tract, but, when the lease expired, the lessors to whom the oil and gas rights had reverted arranged to sell the remaining gas in the intrastate market. This Court held that even expiration of the lease did not terminate the obligation to continue selling the gas in interstate commerce. To conclude otherwise, we reasoned, would enable private parties to circumvent the Commission's authority over abandonments. And evasion of federal jurisdiction by this means could not be reconciled with the principle that,"[o]nce the gas commenced to flow into interstate commerce from the facilities used by the lessees, § 7(b) require[s] that the Commission's permission be obtained prior to the discontinuance of 'any service rendered by means of such facilities.'"Id. at 436 U. S. 527 (emphasis added).Thus, we have consistently recognized that the Commission's "legal control over the continuation of service," Sunray, supra at 364 U. S. 158 n. 25, is a fundamental component of the regulatory scheme. To deprive the Commission of this authority, even in limited circumstances, would conflict with basic policies underlying the Act.Requiring Commission approval, "after due hearing," permits all interested parties to be heard, and therefore facilitates full presentation of the facts necessary to determine whether § 7(b)'s criteria have been met. Contrary to respondents' assumption, see Brief for Respondents 221, the Commission does not automatically approve abandonments whenever production has ceased. Indeed, the agency recently refused to grant an application where the producer had not adequately tested for new gas reserves. [Footnote 10] Had the lessees in the instant case filed an application for abandonment between 1966 and 1971, United might well have demonstrated that exploration Page 442 U. S. 539 of the leasehold had been insufficient to justify finding "the available supply of natural gas . . . depleted to the extent that the continuance of service [was] unwarranted. . . ." § 7(b). And the Commission might have concluded that production from deeper reserves or other measures to restore service were feasible. Permitting natural gas companies to bypass abandonment proceedings simply because known reserves appear depleted would obviously foreclose these factual inquiries. Consequently, the abandonment determination would rest, as a practical matter, in the producer's control, a result clearly at odds with Congress' purpose to regulate the supply and price of natural gas. See California v. Southland Royalty Co., supra at 436 U. S. 526-527, 436 U. S. 529-530; Sunray Mid-Continent Oil Co. v. FPC, supra, at 364 U. S. 142-147.Moreover, the obligation to obtain Commission approval promotes certainty and reliability in the regulatory scheme. Knowledge that termination of service is lawful only if authorized by the Commission enables producers, prospective assignees, and other interested parties to determine with assurance whether a particular tract remains dedicated to interstate commerce. In contrast, the Court of Appeals' test for de facto abandonment would invite speculation regarding the extent of the Commission's jurisdiction. The confusion that would inevitably result from the lack of clear standards as to when producers must seek Commission approval fortifies our conclusion that Congress intended agency supervision of all abandonmentsIIIRespondents maintain that, even if producers must always obtain Commission approval for abandonment, the decision below should nevertheless be affirmed. In their view, the Court of Appeals actually concluded that the Commission had erred as a matter of law by refusing to authorize an abandonment retroactively. Assuming this was the true purport of the decision below, we believe the Court of Appeals lacked Page 442 U. S. 540 authority to set aside the Commission's order on this ground. Although respondents urged the agency to authorize an abandonment of service from Butler B, the Administrative Law Judge and the Commission rejected this suggestion in light of the clear evidence that the leasehold was still capable of production. Respondents, however, contend that, because Haring acted in good faith in failing to seek agency approval, the Commission was obligated to treat their answer to United's complaint as if it were an abandonment application filed in 1966. Thus, according to respondents, the Court of Appeals was entitled to conclude that the Commission should have ignored the evidence of subsequent production and authorized an abandonment based on the evidence available in 1966.We need not determine whether § 7(b) allows the Commission to approve an abandonment retroactively and disregard evidence of subsequent production. [Footnote 11] For the agency certainly did not abuse its discretion in declining to do so here. Authorizing abandonments retroactively would often deprive interested parties of the opportunity to be heard at a meaningful time and to present evidence on the likelihood of renewing gas production in the future. Thus, the Commission would be required to determine on a hypothetical set of facts what action it would have taken had an application been timely filed. Additionally, the jurisdictional status of all dedicated acreage would become uncertain, since the property would be subject to retroactive Commission pronouncements in the indefinite future. Frequent retroactive action would Page 442 U. S. 541 also undermine the statutory scheme by creating an incentive for producers to delay seeking agency approval in the hope that they could later establish good faith. Given this potential for disruption of § 7(b)'s approval procedure, we believe it is within the Commission's discretion to reject good faith alone as a sufficient justification for determining whether the evidence available in 1966 warranted granting an abandonment. [Footnote 12]IVFinally, respondents defend the judgment below on the ground that only the depleted shallow reserves underlying Butler B, as opposed to the newly discovered gas, were subject Page 442 U. S. 542 to the approval requirements of § 7(b). In their view, the deliveries actually made in interstate commerce, rather than the certificates of public convenience and necessity, define the "service" that may not be abandoned without Commission approval. Although deliveries were once made from a reservoir approximately 2,900 feet deep, the "separate and distinct" gas from the deeper reservoirs was never delivered into interstate commerce. Thus, according to respondents, the current production is not subject to the requirements of § 7(b), even though the certificates of public convenience and necessity cover all reservoirs located on Butler B. [Footnote 13]Our prior decisions compel rejection of this narrow statutory interpretation. In California v. Southland Royalty Co., we expressly agreed with the Commission that the "initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate." 436 U.S. at 436 U. S. 525 (emphasis added). And as the Court emphasized in Sunray Mid-Continent Oil Co. v. FPC, "once so dedicated, there can be no withdrawal of that supply from continued interstate movement without Commission approval.'" 364 U.S. at 364 U. S. 156, quoting Atlantic Refining Co. v. Public Service Comm'n, 360 U.S. at 360 U. S. 39. [Footnote 14] Page 442 U. S. 543Applying these principles, the Commission determined that all reserves underlying Butler B were dedicated to interstate commerce pursuant to the certificates it had issued in 1954 and 1963, see supra at 442 U. S. 534, and n. 6, and therefore were subject to the requirements of § 7(b). There being ample factual and legal justification for the Commission's conclusions, see Sun Oil Co. v. FPC, 364 U. S. 170 (1960), we hold that § 7(b) requires respondents to continue supplying in interstate commerce all gas produced from the leasehold until they properly obtain permission for abandonment.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited Gas Pipe Line Co. v. McCombs, 442 U.S. 529 (1979)United Gas Pipe Line Co. v. McCombsNo. 78-17Argued February 22, 1979Decided June 18, 1979*442 U.S. 529SyllabusIn 1954, the Federal Power Commission, now the Federal Energy Regulatory Commission, issued a certificate of public convenience and necessity authorizing the sale to petitioner United Gas Pipe Line Co. (United) of natural gas produced from a leased tract of land. After the lease had been assigned several times and a replacement certificate issued, the lessee-producer notified United in 1966 that the existing wells were depleted and that no other gas was available at that time. Despite a warning from the Commission, the lessee never sought the Commission's authorization, pursuant to § 7(b) of the Natural Gas Act (Act), for abandoning the service in interstate commerce. The lease was subsequently assigned to a group headed by respondent McCombs, which group discovered new gas reserves underlying the tract and contracted to sell the gas to respondent E. I. du Pont de Nemours & Co. for uses in intrastate commerce. Upon learning of the renewed production, United asserted its contractual right to purchase the newly discovered gas and filed a complaint with the Commission. The Commission upheld the Administrative Law Judge's determination that the McCombs group could not divert the gas from the interstate market, because the gas had been dedicated to interstate commerce and the agency had never authorized an abandonment of service. In addition, the Commission refused to grant its approval retroactively, since the supply of gas was not, in fact, depleted. Accordingly, the Commission ordered delivery to United of all gas derived from the tract. The Court of Appeals set aside the Commission's order, holding that "strict compliance" with § 7(b)'s approval requirement was unnecessary in this case, the abandonment having been accomplished"as a matter of law, when all of the parties recognized that the then known natural gas reserves were depleted in 1966 followed by failure to provide any service . . . for a period of five years."Held:1. Section 7(b) requires producers to continue supplying in interstate Page 442 U. S. 530 commerce all gas produced from a dedicated leasehold until they obtain permission for abandonment from the Commission. Pp. 442 U. S. 535-539.(a) Congress could not have been more explicit in establishing Commission approval as a prerequisite for lawful abandonment of service within its jurisdiction. The statutory language simply does not admit of any exception to the procedure set forth in § 7(b), as this Court's previous decisions have recognized. Pp. 442 U. S. 535-538.(b) The Commission's control over the continuation of service is a fundamental component of the regulatory scheme, and to deprive the Commission of this authority, even in limited circumstances, would conflict with basic policies underlying the Act. Requiring Commission approval of abandonment, "after due hearing," permits all interested parties to be heard, and therefore facilitates full presentation of the facts necessary to determine whether § 7(b)'s criteria have been met. Moreover, the obligation to obtain Commission approval promotes certainty and reliability in the regulatory scheme. Pp. 442 U. S. 538-539.2. It need not be determined whether § 7(b) allows the Commission to approve an abandonment retroactively and disregard evidence of subsequent production, since the Commission did not abuse its discretion in declining to do so here. Given the potential for retroactive approvals to disrupt the regulatory scheme, it was within the Commission's discretion to reject allegations of good faith in failing to seek Commission approval as a sufficient justification, by itself, for determining whether the evidence available in 1966 warranted granting an abandonment. Pp. 442 U. S. 539-541.3. Respondents' contention that the current production of gas is not subject to § 7(b)'s requirements is without merit. The Commission properly found that the certificates of public convenience and necessity cover all reservoirs located on the tract. And initiation of interstate service pursuant to the certificates dedicated all fields subject to the certificates. California v. Southland Royalty Co., 436 U. S. 519, 436 U. S. 525. Once so dedicated, there can be no withdrawal of that supply from the interstate market absent Commission approval. Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137, 364 U. S. 156. Pp. 442 U. S. 541-543.570 F.2d 1376, reversed.MARSHALL, J., delivered the opinion of the Court, in which all other Members joined, except STEWART, J., who took no part in the consideration or decision of the cases. Page 442 U. S. 531

1963_16

MR. JUSTICE HARLAN delivered the opinion of the Court.The question which brought this case here, and is now found to be the dispositive issue, is whether the so-called act of state doctrine serves to sustain petitioner's claims in this litigation. Such claims are ultimately founded on a decree of the Government of Cuba expropriating certain Page 376 U. S. 401 property, the right to the proceeds of which is here in controversy. The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.IIn February and July of 1960, respondent Farr, Whitlock & Co., an American commodity broker, contracted to purchase Cuban sugar, free alongside the steamer, from a wholly owned subsidiary of Compania Azucarera Vertientes-Camaguey de Cuba (C.A.V.), a corporation organized under Cuban law whose capital stock was owned principally by United States residents. Farr, Whitlock agreed to pay for the sugar in New York upon presentation of the shipping documents and a sight draft.On July 6, 1960, the Congress of the United States amended the Sugar Act of 1948 to permit a presidentially directed reduction of the sugar quota for Cuba. [Footnote 1] On the same day, President Eisenhower exercised the granted power. [Footnote 2] The day of the congressional enactment, the Cuban Council of Ministers adopted "Law No. 851," which characterized this reduction in the Cuban sugar quota as an act of "aggression, for political purposes" on the part of the United States, justifying the taking of countermeasures by Cuba. The law gave the Cuban President and Prime Minister discretionary power to nationalize by forced expropriation property or enterprises in which American nationals had an interest. [Footnote 3] Although Page 376 U. S. 402 a system of compensation was formally provided, the possibility of payment under it may well be deemed illusory. [Footnote 4] Our State Department has described the Cuban law as"manifestly in violation of those principles Page 376 U. S. 403 of international law which have long been accepted by the free countries of the West. It is in its essence discriminatory, arbitrary and confiscatory. [Footnote 5]"Between August 6 and August 9, 1960, the sugar covered by the contract between Farr, Whitlock and C.A.V. [Footnote 6] was loaded, destined for Morocco, onto the S.S. Hornfels, which was standing offshore at the Cuban port of Jucaro (Santa Maria). On the day loading commenced, the Cuban President and Prime Minister, acting pursuant to Law No. 851, issued Executive Power Resolution No. 1. It provided for the compulsory expropriation of all property and enterprises, and of rights and interests arising therefrom, of certain listed companies, including C.A.V., wholly or principally owned by American nationals. The preamble reiterated the alleged injustice of the American reduction of the Cuban sugar quota and emphasized the importance of Cuba's serving as an example for other countries to follow "in their struggle to free themselves from the brutal claws of Imperialism." [Footnote 7] In consequence Page 376 U. S. 404 of the resolution, the consent of the Cuban Government was necessary before a ship carrying sugar of a named company could leave Cuban waters. In order to obtain this consent, Farr, Whitlock, on August 11, entered into contracts, identical to those it had made with C.A.V., Page 376 U. S. 405 with the Banco Para el Comercio Exterior de Cuba, an instrumentality of the Cuban Government. The S.S. Hornfels sailed for Morocco on August 12.Banco Exterior assigned the bills of lading to petitioner, also an instrumentality of the Cuban Government, which instructed its agent in New York, Societe Generale, to deliver the bills and a sight draft in the sum of $175,250.69 to Farr, Whitlock in return for payment. Societe Generale's initial tender of the documents was refused by Farr, Whitlock, which on the same day was notified of C.A.V.'s claim that, as rightful owner of the sugar, it was entitled to the proceeds. In return for a promise not to turn the funds over to petitioner or its agent, C.A.V. agreed to indemnify Farr, Whitlock for any loss. [Footnote 8] Farr, Whitlock subsequently accepted the shipping documents, negotiated the bills of lading to its customer, and Page 376 U. S. 406 received payment for the sugar. It refused, however, to hand over the proceeds to Societe Generale. Shortly thereafter, Farr, Whitlock was served with an order of the New York Supreme Court, which had appointed Sabbatino as Temporary Receiver of C.A.V.'s New York assets, enjoining it from taking any action in regard to the money claimed by C.A.V. that might result in its removal from the State. Following this, Farr, Whitlock, pursuant to court order, transferred the funds to Sabbatino, to abide the event of a judicial determination as to their ownership.Petitioner then instituted this action in the Federal District Court for the Southern District of New York. Alleging conversion of the bills of lading it sought to recover the proceeds thereof from Farr, Whitlock and to enjoin the receiver from exercising any dominion over such proceeds. Upon motions to dismiss and for summary judgment, the District Court, 193 F. Supp. 375, sustained federal in personam jurisdiction despite state control of the funds. It found that the sugar was located within Cuban territory at the time of expropriation, and determined that, under merchant law common to civilized countries, Farr, Whitlock could not have asserted ownership of the sugar against C.A.V. before making payment. It concluded that C.A.V. had a property interest in the sugar subject to the territorial jurisdiction of Cuba. The court then dealt with the question of Cuba's title to the sugar, on which rested petitioner's claim of conversion. While acknowledging the continuing vitality of the act of state doctrine, the court believed it inapplicable when the questioned foreign act is in violation of international law. Proceeding on the basis that a taking invalid under international law does not convey good title, the District Court found the Cuban expropriation decree to violate such law in three Page 376 U. S. 407 separate respects: it was motivated by a retaliatory, and not a public, purpose; it discriminated against American nationals; and it failed to provide adequate compensation. Summary judgment against petitioner was accordingly granted.The Court of Appeals, 307 F.2d 845, affirming the decision on similar grounds, relied on two letters (not before the District Court) written by State Department officers which it took as evidence that the Executive Branch had no objection to a judicial testing of the Cuban decree's validity. The court was unwilling to declare that any one of the infirmities found by the District Court rendered the taking invalid under international law, but was satisfied that, in combination, they had that effect. We granted certiorari because the issues involved bear importantly on the conduct of the country's foreign relations and, more particularly, on the proper role of the Judicial Branch in this sensitive area. 372 U.S. 905. For reasons to follow, we decide that the judgment below must be reversed.Subsequent to the decision of the Court of Appeals, the C.A.V. receivership was terminated by the State Supreme Court; the funds in question were placed in escrow, pending the outcome of this suit. C.A.V. has moved in this Court to be substituted as a party in the place of Sabbatino. Although it is true that Sabbatino's defensive interest in this litigation has largely, if not entirely, reflected that of C.A.V., this is true also of Farr, Whitlock's position. There is no indication that Farr, Whitlock has not adequately represented C.A.V.'s interest or that it will not continue to do so. Moreover, insofar as disposition of the case here is concerned, C.A.V. has been permitted as amicus to brief and argue its position before this Court. In these circumstances, we are not persuaded that the admission of C.A.V. as a party is Page 376 U. S. 408 necessary at this stage to safeguard any claim either that it has already presented or that it may present in the future course of this litigation. Accordingly, we are constrained to deny C.A.V.'s motion to be admitted as a party, [Footnote 9] without prejudice however to the renewal of such a motion in the lower courts if it appears that C.A.V.'s interests are not adequately represented by Farr, Whitlock, and that the granting of such a motion will not disturb federal jurisdiction. Cf. 7 U. S. Curtiss, 3 Cranch 267; City of Indianapolis v. Chase Nat'l Bank, 314 U. S. 63, at 314 U. S. 69; Ex parte Edelstein, 30 F.2d 636, at 638.Before considering the holding below with respect to the act of state doctrine, we must deal with narrower grounds urged for dismissal of the action or for a judgment on the merits in favor of respondents.IIIt is first contended that this petitioner, an instrumentality of the Cuban Government, should be denied access to American courts because Cuba is an unfriendly power, and does not permit nationals of this country to obtain relief in its courts. Even though the respondents did not raise this point in the lower courts, we think it should be considered here. If the courts of this country should be closed to the government of a foreign state, the underlying reason is one of national policy transcending the interests of the parties to the action, and this Court should give effect to that policy sua sponte, even at this stage of the litigation.Under principles of comity governing this country's relations with other nations, sovereign states and allowed Page 376 U. S. 409 to sue in the courts of the United States, The Sapphire, 11 Wall. 164, 78 U. S. 167; Guaranty Trust Co. v. United States, 304 U. S. 126, 304 U. S. 134. This Court has called "comity" in the legal sense "neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other." Hilton v. Guyot, 159 U. S. 113, 159 U. S. 163-164. Although comity is often associated with the existence of friendly relations between states, e.g., 38 U. S. Earle, 13 Pet. 519, 38 U. S. 589; Russian Republic v. Cibrario, 235 N.Y. 255, 258, 139 N.E. 259, 260, prior to some recent lower court cases which have questioned the right of instrumentalities of the Cuban Government to sue in our courts, [Footnote 10] the privilege of suit has been denied only to governments at war with the United States, Ex parte Don Ascanio Colonna, 314 U. S. 510; see § 7 of the Trading with the Enemy Act, 40 Stat. 416, 417, 50 U.S.C.App. § 7; cf. 73 U. S. Abbott, 6 Wall. 532; Caperton v. Bowyer, 14 Wall. 216, 81 U. S. 236, or to those not recognized by this country, The Penza, 277 F. 91; Russian Republic v. Cibrario, supra. [Footnote 11] Page 376 U. S. 410Respondents, pointing to the severance of diplomatic relations, commercial embargo, and freezing of Cuban assets in this country, contend that relations between the United States and Cuba manifest such animosity that unfriendliness is clear, and that the courts should be closed to the Cuban Government. We do not agree. This Court would hardly be competent to undertake assessments of varying degrees of friendliness or its absence, and, lacking some definite touchstone for determination, we are constrained to consider any relationship, short of war, with a recognized sovereign power as embracing the privilege of resorting to United States courts. Although the severance of diplomatic relations is an overt act with objective significance in the dealings of sovereign states, we are unwilling to say that it should inevitably result in the withdrawal of the privilege of bringing suit. Severance may take place for any number of political reasons, its duration is unpredictable, and whatever expression of animosity it may imply does not approach that implicit in a declaration of war.It is perhaps true that nonrecognition of a government in certain circumstances may reflect no greater unfriendliness than the severance of diplomatic relations with a recognized government, but the refusal to recognize has a unique legal aspect. It signifies this country's unwillingness to acknowledge that the government in question speaks as the sovereign authority for the territory it purports to control, see Russian Republic v. Cibrario, supra, 235 N.Y. at 260-263, 139 N.E. at 261-263. Political recognition is exclusively a function of the Executive. The possible incongruity of judicial "recognition," by permitting suit, of a government not recognized by the Executive is completely Page 376 U. S. 411 absent when merely diplomatic relations are broken. [Footnote 12]The view that the existing situation between the United States and Cuba should not lead to a denial of status to sue is buttressed by the circumstance that none of the acts of our Government has been aimed at closing the courts of this country to Cuba, and more particularly by the fact that the Government has come to the support of Cuba's "act of state" claim in this very litigation.Respondents further urge that reciprocity of treatment is an essential ingredient of comity generally, and, therefore, of the privilege of foreign states to bring suit here. Although Hilton v. Guyot, 159 U. S. 113, contains some broad language about the relationship of reciprocity to comity, the case in fact imposed a requirement of reciprocity only in regard to conclusiveness of judgments, and even then only in limited circumstances. Id. at 159 U. S. 170-171. In Direction der Disconto-Gesellschaft v. United States Steel Corp., 300 F. 741, 747 (D.C.S.D.N.Y.), Judge Learned Hand pointed out that the doctrine of reciprocity has apparently been confined to foreign judgments. Page 376 U. S. 412There are good reasons for declining to extend the principle to the question of standing of sovereign states to sue. Whether a foreign sovereign will be permitted to sue involves a problem more sensitive politically than whether the judgments of its courts may be reexamined, and the possibility of embarrassment to the Executive Branch in handling foreign relations is substantially more acute. Reexamination of judgments, in principle, reduces, rather than enhances, the possibility of injustice's being done in a particular case; refusal to allow suit makes it impossible for a court to see that a particular dispute is fairly resolved. The freezing of Cuban assets exemplifies the capacity of the political branches to assure, through a variety of techniques (see infra, pp. 376 U. S. 431, 376 U. S. 435-436), that the national interest is protected against a country which is thought to be improperly denying the rights of United States citizens.Furthermore, the question whether a country gives res judicata effect to United States judgments presents a relatively simple inquiry. The precise status of the United States Government and its nationals before foreign courts is much more difficult to determine. To make such an investigation significant, a court would have to discover not only what is provided by the formal structure of the foreign judicial system, but also what the practical possibilities of fair treatment are. The courts, whose powers to further the national interest in foreign affairs are necessarily circumscribed as compared with those of the political branches, can best serve the rule of law by not excluding otherwise proper suitors because of deficiencies in their legal systems.We hold that this petitioner is not barred from access to the federal courts. [Footnote 13] Page 376 U. S. 413IIIRespondents claimed in the lower courts that Cuba had expropriated merely contractual rights the situs of which was in New York, and that the propriety of the taking was, therefore, governed by New York law. The District Court rejected this contention on the basis of the right of ownership possessed by C.A.V. against Farr, Whitlock prior to payment for the sugar. That the sugar itself was expropriated, rather than a contractual claim, is further supported by Cuba's refusal to let the S.S. Hornfels sail until a new contract had been signed. Had the Cuban decree represented only an attempt to expropriate a contractual right of C.A.V., the forced delay of shipment and Farr, Whitlock's subsequent contract with petitioner's assignor would have been meaningless. [Footnote 14] Neither the District Court's finding concerning the location of the S.S. Hornfels nor its conclusion that Cuba had territorial jurisdiction to expropriate the sugar, acquiesced in by the Court of Appeals, is seriously challenged here. Respondents' limited view of the expropriation must be rejected.Respondents further contend that, if the expropriation was of the sugar itself, this suit then becomes one to enforce the public law of a foreign state, and, as such, is not cognizable in the courts of this country. They rely on the principle enunciated in federal and state cases that a Page 376 U. S. 414 court need not give effect to the penal or revenue laws of foreign countries or sister states. See, e.g., 23 U. S. 10 Wheat. 66, 23 U. S. 123; Wisconsin v. Pelican Ins. Co., 127 U. S. 265; Huntington v. Attrill, 146 U. S. 657 (all relating to penal laws); [Footnote 15] Moore v. Mitchell, 30 F.2d 600, aff'd on other grounds, 281 U. S. 281 U.S. 18; City of Detroit v. Proctor, 44 Del. 193, 61 A.2d 412; City of Philadelphia v. Cohen, 11 N.Y.2d 401, 230 N.Y.S.2d 188, 184 N.E.2d 167 (all relating to revenue laws).The extent to which this doctrine may apply to other kinds of public laws, though perhaps still an open question, [Footnote 16] need not be decided in this case. For we have been referred to no authority which suggests that the doctrine reaches a public law which, as here, has been fully executed within the foreign state. Cuba's restraint of the S.S. Hornfels must be regarded for these purposes to have constituted an effective taking of the sugar, vesting in Cuba C.A.V.'s property right in it. Farr, Whitlock's Page 376 U. S. 415 contract with the Cuban bank, however compelled to sign Farr, Whitlock may have felt, represented indeed a recognition of Cuba's dominion over the property.In these circumstances the question whether the rights acquired by Cuba are enforceable in our courts depends not upon the doctrine here invoked, but upon the act of state doctrine discussed in the succeeding sections of this opinion. [Footnote 17] Page 376 U. S. 416IVThe classic American statement of the act of state doctrine, which appears to have taken root in England as early as 1674, Blad v. Bamfield, 3 Swans. 604, 36 Eng.Rep. 992, and began to emerge in the jurisprudence of this country in the late eighteenth and early nineteenth centuries, see e.g., 3 U. S. Hylton, 3 Dall. 199, 3 U. S. 230; Hudson v. Guestier, 4 Cranch 293, 8 U. S. 294; The Schooner Exchange v. M'Faddon, 7 Cranch 116, 11 U. S. 135-136; L'Invincible, 1 Wheat. 238, 14 U. S. 253; The Santissima Trinidad, 7 Wheat. 283, 20 U. S. 336, is found in Underhill v. Hernandez, 168 U. S. 250, where Chief Justice Fuller said for a unanimous Court (p. 168 U. S. 252):"Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves."Following this precept, the Court in that case refused to inquire into acts of Hernandez, a revolutionary Venezuelan military commander whose government had been later recognized by the United States, which were made the basis of a damage action in this country by Underhill, an American citizen, who claimed that he had had unlawfully assaulted, coerced, and detained in Venezuela by Hernandez.None of this Court's subsequent cases in which the act of state doctrine was directly or peripherally involved manifest any retreat from Underhill. See American Banana Co. v. United Fruit Co., 213 U. S. 347; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304; Shapleigh v. Mier, 299 U.S. Page 376 U. S. 417 468; United States v. Belmont, 301 U. S. 324; United States v. Pink, 315 U. S. 203. On the contrary, in two of these cases, Oetjen and Ricaud, the doctrine as announced in Underhill was reaffirmed in unequivocal terms.Oetjen involved a seizure of hides from a Mexican citizen as a military levy by General Villa, acting for the forces of General Carranza, whose government was recognized by this country subsequent to the trial but prior to decision by this Court. The hides were sold to a Texas corporation which shipped them to the United States and assigned them to defendant. As assignee of the original owner, plaintiff replevied the hides, claiming that they had been seized in violation of the Hague Conventions. In affirming a judgment for defendant, the Court suggested that the rules of the Conventions did not apply to civil war, and that, even if they did, the relevant seizure was not in violation of them. 246 U.S. at 246 U. S. 301-302. Nevertheless, it chose to rest its decision on other grounds. It described the designation of the sovereign as a political question to be determined by the Legislative and Executive Departments, rather than the Judicial Department, invoked the established rule that such recognition operates retroactively to validate past acts, and found the basic tenet of Underhill to be applicable to the case before it."The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for its rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by Page 376 U. S. 418 the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.'"Id. at 246 U. S. 303-304.In Ricaud, the facts were similar -- another general of the Carranza forces seized lead bullion as a military levy -- except that the property taken belonged to an American citizen. The Court found Underhill, American Banana, and Oetjen controlling. Commenting on the nature of the principle established by those cases, the opinion stated that the rule"does not deprive the courts of jurisdiction once acquired over a case. It requires only that when it is made to appear that the foreign government has acted in a given way on the subject matter of the litigation, the details of such action or the merit of the result cannot be questioned, but must be accepted by our courts as a rule for their decision. To accept a ruling authority and to decide accordingly is not a surrender or abandonment of jurisdiction, but is an exercise of it. It results that the title to the property in this case must be determined by the result of the action taken by the military authorities of Mexico. . . ."246 U.S. at 246 U. S. 309. To the same effect is the language of Mr. Justice Cardozo in the Shapleigh case, supra, where, in commenting on the validity of a Mexican land expropriation, he said (299 U.S. at 299 U. S. 471):"The question is not here whether the proceeding was so conducted as to be a wrong to our nationals under the doctrines of international law, though valid under the law of the situs of the land. For wrongs of that order, the remedy to be followed is along the channels of diplomacy."In deciding the present case, the Court of Appeals relied in part upon an exception to the unqualified teachings Page 376 U. S. 419 of Underhill, Oetjen, and Ricaud which that court had earlier indicated. In Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246, suit was brought to recover from an assignee property allegedly taken, in effect, by the Nazi Government because plaintiff was Jewish. Recognizing the odious nature of this act of state, the court, through Judge Learned Hand, nonetheless refused to consider it invalid on that ground. Rather, it looked to see if the Executive had acted in any manner that would indicate that United States Courts should refuse to give effect to such a foreign decree. Finding no such evidence, the court sustained dismissal of the complaint. In a later case involving similar facts, the same court again assumed examination of the German acts improper, Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71, but, quite evidently following the implications of Judge Hand's opinion in the earlier case, amended its mandate to permit evidence of alleged invalidity, 210 F.2d 375, subsequent to receipt by plaintiff's attorney of a letter from the Acting Legal Adviser to the State Department written for the purpose of relieving the court from any constraint upon the exercise of its jurisdiction to pass on that question. [Footnote 18] Page 376 U. S. 420This Court has never had occasion to pass upon the so-called Bernstein exception, nor need it do so now. For whatever ambiguity may be thought to exist in the two letters from State Department officials on which the Court of Appeals relied, [Footnote 19] 307 F.2d at 858, is now removed by the position which the Executive has taken in this Court on the act of state claim; respondents do not, indeed, contest the view that these letters were intended to reflect no more than the Department's then wish not to make any statement bearing on this litigation.The outcome of this case, therefore, turns upon whether any of the contentions urged by respondents against the application of the act of state doctrine in the premises is acceptable: (1) that the doctrine does not apply to acts of state which violate international law, as is claimed to be the case here; (2) that the doctrine is inapplicable unless the Executive specifically interposes it in a particular case; and (3) that, in any event, the doctrine may not be invoked by a foreign government plaintiff in our courts. Page 376 U. S. 421VPreliminarily, we discuss the foundations on which we deem the act of state doctrine to rest, and more particularly the question of whether state or federal law governs its application in a federal diversity case. [Footnote 20]We do not believe that this doctrine is compelled either by the inherent nature of sovereign authority, as some of the earlier decision seem to imply, see Underhill, supra; American Banana, supra; Oetjen, supra, 246 U.S. at 246 U. S. 303, or by some principle of international law. If a transaction takes place in one jurisdiction and the forum is in another, the forum does not, by dismissing an action or by applying its own law, purport to divest the first jurisdiction of its territorial sovereignty; it merely declines to adjudicate, or makes applicable its own law to parties or property before it. The refusal of one country to enforce the penal laws of another (supra, pp. 376 U. S. 413-414) is a typical example of an instance when a court will not entertain a cause of action arising in another jurisdiction. While historic notions of sovereign authority do bear upon the wisdom or employing the act of state doctrine, they do not dictate its existence.That international law does not require application of the doctrine is evidenced by the practice of nations. Most of the countries rendering decisions on the subject to follow the rule rigidly. [Footnote 21] No international arbitral Page 376 U. S. 422 or judicial decision discovered suggests that international law prescribes recognition of sovereign acts of foreign governments, see 1 Oppenheim's International Law, § 115aa (Lauterpacht, 8th ed. 1955), and apparently no claim has ever been raised before an international tribunal that failure to apply the act of state doctrine constitutes a breach of international obligation. If international law does not prescribe use of the doctrine, neither does it forbid application of the rule even if it is claimed that the act of state in question violated international law. The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar "nation to nation" character, the usual method for an individual Page 376 U. S. 423 to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. See United States v. Diekelman, 92 U. S. 520, 92 U. S. 524. Although it is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances, Ware v. Hylton, 3 Dall. 199, 3 U. S. 281; The Nereide, 9 Cranch 388, 13 U. S. 423; The Paquete Habana, 175 U. S. 677, 175 U. S. 700, the public law of nations can hardly dictate to a country which is, in theory, wronged how to treat that wrong within its domestic borders.Despite the broad statement in Oetjen that"The conduct of the foreign relations of our government is committed by the Constitution to the Executive and Legislative . . . departments,"246 U.S. at 246 U. S. 302, it cannot, of course, be thought that "every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, 369 U. S. 186, 369 U. S. 211. The text of the Constitution does not require the act of state doctrine; it does not irrevocably remove from the judiciary the capacity to review the validity of foreign acts of state.The act of state doctrine does, however, have "constitutional" underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine, as formulated in past decisions, expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder, rather than further, this country's pursuit of goals both for itself and for the community of nations as a whole in the international sphere. Many Page 376 U. S. 424 commentators disagree with this view; [Footnote 22] they have striven, by means of distinguishing and limiting past decisions and by advancing various considerations of policy, to stimulate a narrowing of the apparent scope of the rule. Whatever considerations are thought to predominate, it is plain that the problems involved are uniquely federal in nature. If federal authority, in this instance, this Court, orders the field of judicial competence in this area for the federal courts, and the state courts are left free to formulate their own rules, the purposes behind the doctrine could be as effectively undermined as if there had been no federal pronouncement on the subject.We could, perhaps, in this diversity action, avoid the question of deciding whether federal or state law is applicable to this aspect of the litigation. New York has enunciated the act of state doctrine in terms that echo those of federal decisions decided during the reign of Swift v. Tyson, 16 Pet. 1. In Hatch v. Baez, 7 Hun 596, 599 (N.Y.Sup.Ct.), Underhill was foreshadowed by the words,"the courts of one country are bound to abstain from sitting in judgment on the acts of another government done within its own territory."More recently, the Court of Appeals, in Salimoff & Co. v. Standard Oil Co., 262 N.Y. 220, 224, 186 N.E. 679, 681, has declared,"The courts of one independent government will not sit in judgment upon the validity of the acts of another done Page 376 U. S. 425 within its own territory, even when such government seizes and sells the property of an American citizen within its boundaries."Cf. Dougherty v. Equitable Life Assurance Society, 266 N.Y. 71, 193 N.E. 897; Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N.Y. 474, 14 N.E.2d 798. But cf. Frenkel & Co. v. L'Urbaine Fire Ins. Co., 251 N.Y. 243, 167 N.E. 430. Thus, our conclusions might well be the same whether we dealt with this problem as one of state law, see Erie R. Co. v. Tompkins, 304 U. S. 64; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498, or federal law.However, we are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law. [Footnote 23] It seems fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R. Co. v. Tompkins. Soon thereafter, Professor Philip C. Jessup, now a judge of the International Court of Justice, recognized the potential dangers were Erie extended to legal problems affecting international relations. [Footnote 24] He cautioned that rules of international law should not be left to divergent and perhaps parochial state interpretations. His basic rationale is equally applicable to the act of state doctrine. Page 376 U. S. 426The Court, in the pre-Erie act of state cases, although not burdened by the problem of the source of applicable law, used language sufficiently strong and broad-sweeping to suggest that state courts were not left free to develop their own doctrines (as they would have been had this Court merely been interpreting common law under Swift v. Tyson, supra). The Court of Appeals, in the first Bernstein case, supra, a diversity suit, plainly considered the decisions of this Court, despite the intervention of Erie, to be controlling in regard to the act of state question, at the same time indicating that New York law governed other aspects of the case. We are not without other precedent for a determination that federal law governs; there are enclaves of federal judge-made law which bind the States. A national body of federal-court-built law has been held to have been contemplated by § 301 of the Labor Management Relations Act, Textile Workers v. Lincoln Mills, 353 U. S. 448. Principles formulated by federal judicial law have been thought by this Court to be necessary to protect uniquely federal interests, D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447; Clearfield Trust Co. v. United States, 318 U. S. 363. Of course, the federal interest guarded in all these cases is one the ultimate statement of which is derived from a federal statute. Perhaps more directly in point are the bodies of law applied between States over boundaries and in regard to the apportionment of interstate waters.In Hinderlider v. La Plata River Co., 304 U. S. 92, 304 U. S. 110, in an opinion handed down the same day as Erie and by the same author, Mr. Justice Brandeis, the Court declared,"For whether the water of an interstate stream must be apportioned between the two States is a question of 'federal common law' upon which neither the statutes nor the decisions of either State can be conclusive."Although the suit was between two private litigants, and Page 376 U. S. 427 the relevant States could not be made parties, the Court considered itself free to determine the effect of an interstate compact regulating water apportionment. The decision implies that no State can undermine the federal interest in equitably apportioned interstate waters, even if it deals with private parties. This would not mean that, absent a compact, the apportionment scheme could not be changed judicially, or by Congress, but only that apportionment is a matter of federal law. Cf. Arizona v. California, 373 U. S. 546, 373 U. S. 597-598. The problems surrounding the act of state doctrine are, albeit for different reasons, as intrinsically federal as are those involved in water apportionment or boundary disputes. The considerations supporting exclusion of state authority here are much like those which led the Court, in United States v. California, 332 U. S. 19, to hold that the Federal Government possessed paramount rights in submerged lands though within the three-mile limit of coastal States. We conclude that the scope of the act of state doctrine must be determined according to federal law. [Footnote 25]VIIf the act of state doctrine is a principle of decision binding on federal and state courts alike, but compelled by neither international law nor the Constitution, its continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and Page 376 U. S. 428 political branches of the Government on matters bearing upon foreign affairs. It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact, rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice. It is also evident that some aspects of international law touch much more sharply on national nerves than do others; the less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches. The balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence, as in the Bernstein case, for the political interest of this country may, as a result, be measurably altered. Therefore, rather than laying down or reaffirming an inflexible and all-encompassing rule in this case, we decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state's power to expropriate the property of aliens. [Footnote 26] Page 376 U. S. 429 There is, of course, authority, in international judicial [Footnote 27] and arbitral [Footnote 28] decisions, in the expressions of national governments, [Footnote 29] and among commentators [Footnote 30] for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation. However, Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. [Footnote 31] Certain representatives of the newly independent and underdeveloped countries Page 376 U. S. 430 have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them, [Footnote 32] and it is argued that the traditionally articulated standards governing expropriation of property reflect "imperialist" interests, and are inappropriate to the circumstances of emergent states. [Footnote 33]The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations, and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations. [Footnote 34]When we consider the prospect of the courts' characterizing foreign expropriations, however justifiably, as invalid under international law and ineffective to pass title, the wisdom of the precedents is confirmed. While each of the leading cases in this Court may be argued to be distinguishable in its facts from this one -- Underhill because sovereign immunity provided an independent ground, and Oetjen, Ricaud, and Shapleigh because there Page 376 U. S. 431 was actually no violation of international law -- the plain implication of all these opinions, and the import of express statements in Oetjen, 246 U.S. at 246 U. S. 304, and Shapleigh, 299 U.S. at 299 U. S. 471, is that the act of state doctrine is applicable even if international law has been violated. In Ricaud, the one case of the three most plausibly involving an international law violation, the possibility of an exception to the act of state doctrine was not discussed. Some commentators have concluded that it was not brought to the Court's attention, [Footnote 35] but Justice Clarke delivered both the Oetjen and Ricaud opinions on the same day, so we can assume that principles stated in the former were applicable to the latter case.The possible adverse consequences of a conclusion to the contrary of that implicit in these cases in highlighted by contrasting the practices of the political branch with the limitations of the judicial process in matters of this kind. Following an expropriation of any significance, the Executive engages in diplomacy aimed to assure that United States citizens who are harmed are compensated fairly. Representing all claimants of this country, it will often be able, either by bilateral or multilateral talks, by submission to the United Nations, or by the employment of economic and political sanctions, to achieve some degree of general redress. Judicial determinations of invalidity of title can, on the other hand, have only an occasional impact, since they depend on the fortuitous circumstance of the property in question being brought into this country. [Footnote 36] Such decisions would, if the acts involved Page 376 U. S. 432 were declared invalid, often be likely to give offense to the expropriating country; since the concept of territorial sovereignty is so deep-seated, any state may resent the refusal of the courts of another sovereign to accord validity to acts within its territorial borders. Piecemeal dispositions of this sort involving the probability of affront to another state could seriously interfere with negotiations being carried on by the Executive Branch, and might prevent or render less favorable the terms of an agreement that could otherwise be reached. Relations with third countries which have engaged in similar expropriations would not be immune from effect.The dangers of such adjudication are present regardless of whether the State Department has, as it did in this case, asserted that the relevant act violated international law. If the Executive Branch has undertaken negotiations with an expropriating country, but has refrained from claims of violation of the law of nations, a determination to that effect by a court might be regarded as a serious insult, while a finding of compliance with international law would greatly strengthen the bargaining hand of the other state with consequent detriment to American interests.Even if the State Department has proclaimed the impropriety of the expropriation, the stamp of approval of its view by a judicial tribunal, however, impartial, might increase any affront, and the judicial decision might occur at a time, almost always well after the taking, when such an impact would be contrary to our national interest. Considerably more serious and far-reaching consequences would flow from a judicial finding that international law standards had been met if that determination flew in the face of a State Department proclamation to the contrary. When articulating principles of international law in its relations with other states, the Executive Branch speaks not only as an interpreter of generally accepted and traditional Page 376 U. S. 433 rules, as would the courts, but also as an advocate of standards it believes desirable for the community of nations and protective of national concerns. In short, whatever way the matter is cut, the possibility of conflict between the Judicial and Executive Branches could hardly be avoided.Respondents contend that, even if there is not agreement regarding general standards for determining the validity of expropriations, the alleged combination of retaliation, discrimination, and inadequate compensation makes it patently clear that this particular expropriation was in violation of international law. [Footnote 37] If this view is accurate, it would still be unwise for the courts so to determine. Such a decision now would require the drawing of more difficult lines in subsequent cases, and these would involve the possibility of conflict with the Executive view. Even if the courts avoided this course, either by presuming the validity of an act of state whenever the international law standard was thought unclear or by following the State Department declaration in such a situation, the very expression of judicial uncertainty might provide embarrassment to the Executive Branch.Another serious consequence of the exception pressed by respondents would be to render uncertain titles in foreign commerce, with the possible consequence of altering the flow of international trade. [Footnote 38] If the attitude of the Page 376 U. S. 434 United States courts were unclear, one buying expropriated goods would not know if he could safely import them into this country. Even were takings known to be invalid, one would have difficulty determining, after goods had changed hands several times, whether the particular articles in question were the product of an ineffective state act. [Footnote 39]Against the force of such considerations, we find respondents' countervailing arguments quite unpersuasive. Their basic contention is that United States courts could make a significant contribution to the growth of international law, a contribution whose importance, it is said, would be magnified by the relative paucity of decisional law by international bodies. But, given the fluidity of present world conditions, the effectiveness of such a patchwork approach toward the formulation of an acceptable body of law concerning state responsibility for expropriations is, to say the least, highly conjectural. Moreover, it rests upon the sanguine presupposition that the decisions of the courts of the world's major capital exporting country and principal exponent of the free Page 376 U. S. 435 enterprise system would be accepted as disinterested expressions of sound legal principle by those adhering to widely different ideologies.It is contended that, regardless of the fortuitous circumstances necessary for United States jurisdiction over a case involving a foreign act of state and the resultant isolated application to any expropriation program taken as a whole, it is the function of the courts to justly decide individual disputes before them. Perhaps the most typical act of state case involves the original owner or his assignee suing one not in association with the expropriating state who has had "title" transferred to him. But it is difficult to regard the claim of the original owner, who otherwise may be recompensed through diplomatic channels, as more demanding of judicial cognizance than the claim of title by the innocent third party purchaser, who, if the property is taken from him, is without any remedy.Respondents claim that the economic pressure resulting from the proposed exception to the act of state doctrine will materially add to the protection of United States investors. We are not convinced, even assuming the relevance of this contention. Expropriations take place for a variety of reasons, political and ideological, as well as economic. When one considers the variety of means possessed by this country to make secure foreign investment, the persuasive or coercive effect of judicial invalidation of acts of expropriation dwindles in comparison. The newly independent states are in need of continuing foreign investment; the creation of a climate unfavorable to such investment by wholesale confiscations may well work to their long-run economic disadvantage. Foreign aid given to many of these countries provides a powerful lever in the hands of the political branches to ensure fair treatment of United States nationals. Ultimately, the sanctions of economic embargo and the freezing of assets in this country may be Page 376 U. S. 436 employed. Any country willing to brave any or all of these consequences is unlikely to be deterred by sporadic judicial decisions directly affecting only property brought to our shores. If the political branches are unwilling to exercise their ample powers to effect compensation, this reflects a judgment of the national interest which the judiciary would be ill advised to undermine indirectly.It is suggested that, if the act of state doctrine is applicable to violations of international law, it should only be so when the Executive Branch expressly stipulates that it does not wish the courts to pass on the question of validity. See Association of the Bar of the City of New York, Committee on International Law, A Reconsideration of the Act of State Doctrine in United States Courts (1959). We should be slow to reject the representations of the Government that such a reversal of the Bernstein principle would work serious inroads on the maximum effectiveness of United States diplomacy. Often, the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically. Adverse domestic consequences might flow from an official stand which could be assuaged, if at all, only by revealing matters best kept secret. Of course, a relevant consideration for the State Department would be the position contemplated in the court to hear the case. It is highly questionable whether the examination of validity by the judiciary should depend on an educated guess by the Executive as to probable result, and, at any rate, should a prediction be wrong, the Executive might be embarrassed in its dealings with other countries. We do not now pass on the Bernstein exception, but, even if it were deemed valid, its suggested extension is unwarranted.However offensive to the public policy of this country and its constituent States an expropriation of this kind Page 376 U. S. 437 may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application.VIIFinally, we must determine whether Cuba's status as a plaintiff in this case dictates a result at variance with the conclusions reached above. If the Court were to distinguish between suits brought by sovereign states and those of assignees, the rule would have little effect unless a careful examination were made in each case to determine if the private party suing had taken property in good faith. Such an inquiry would be exceptionally difficult, since the relevant transaction would almost invariably have occurred outside our borders. If such an investigation were deemed irrelevant, a state could always assign its claim.It is true that the problem of security of title is not directly presented in the instance of a sovereign plaintiff, although, were such a plaintiff denied relief, it would ship its goods elsewhere, thereby creating an alteration in the flow of trade. The sensitivity in regard to foreign relations and the possibility of embarrassment of the Executive are, of course, heightened by the presence of a sovereign plaintiff. The rebuke to a recognized power would be more pointed were it a suitor in our courts. In discussing the rule against enforcement of foreign penal and revenue laws, the Eire High Court of Justice, in Peter Buchanan Ltd. v. McVey, [1955] A.C. 516, 529-530, aff'd, id. at 530, emphasized that its justification was in large degree the desire to avoid embarrassing another state by scrutinizing its penal and revenue laws. Although that rule presumes invalidity in the forum whereas the act of state principle presumes the contrary, the doctrines have a common rationale, a rationale that negates Page 376 U. S. 438 the wisdom of discarding the act of state rule when the plaintiff is a state which is not seeking enforcement of a public act.Certainly the distinction proposed would sanction self-help remedies, something hardly conducive to a peaceful international order. Had Farr, Whitlock not converted the bills of lading, or alternatively breached its contract, Cuba could have relied on the act of state doctrine in defense of a claim brought by C.A.V. for the proceeds. It would be anomalous to preclude reliance on the act of state doctrine because of Farr, Whitlock's unilateral action, however justified such action may have been under the circumstances.Respondents offer another theory for treating the case differently because of Cuba's participation. It is claimed that the forum should simply apply its own law to all the relevant transactions. An analogy is drawn to the area of sovereign immunity, National City Bank v. Republic of China, 348 U. S. 356, in which, if a foreign country seeks redress in our courts, counterclaims are permissible. But immunity relates to the prerogative right not to have sovereign property subject to suit; fairness has been thought to require that, when the sovereign seeks recovery, it be subject to legitimate counterclaims against it. The act of state doctrine, however, although it shares with the immunity doctrine a respect for sovereign states, concerns the limits for determining the validity of an otherwise applicable rule of law. It is plain that, if a recognized government sued on a contract with a United States citizen, concededly legitimate by the locus of its making, performance, and most significant contacts, the forum would not apply its own substantive law of contracts. Since the act of state doctrine reflects the desirability of presuming the relevant transaction valid, the same result follows; the forum may not apply its local law regarding foreign expropriations. Page 376 U. S. 439Since the act of state doctrine proscribes a challenge to the validity of the Cuban expropriation decree in this case, any counterclaim based on asserted invalidity must fail. Whether a theory of conversion or breach of contract is the proper cause of action under New York law, the presumed validity of the expropriation is unaffected. Although we discern no remaining litigable issues of fact in this case, the District Court may hear and decide them if they develop.The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBanco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)Banco Nacional de Cuba v. SabbatinoNo. 16Argued October 22-23, 1963Decided March 23, 1964376 U.S. 398SyllabusRespondent American commodity broker contracted with a Cuban corporation largely owned by United States residents to buy Cuban sugar. Thereafter, subsequent to the United States Government's reduction of the Cuban sugar quota, the Cuban Government expropriated the corporation's property and rights. To secure consent for shipment of the sugar, the broker, by a new contract, agreed to make payment for the sugar to a Cuban instrumentality which thereafter assigned the bills of lading to petitioner, another Cuban instrumentality, and petitioner instructed its agent in New York to deliver to the broker the bills of lading and sight draft in return for payment. The broker accepted the documents, received payment for the sugar from its customer, but refused to deliver the proceeds to petitioner's agent. Petitioner brought this action for conversion of the bills of lading to recover payment from the broker and to enjoin from exercising dominion over the proceeds a receiver who had been appointed by a state court to protect the New York assets of the corporation. The District Court concluded that the corporation's property interest in the sugar was subject to Cuba's territorial jurisdiction, and acknowledged the "act of state" doctrine, which precludes judicial inquiry in this country respecting the public acts of a recognized foreign sovereign power committed within its own territory. The court nevertheless rendered summary judgment against the petitioner, ruling that the act of state doctrine was inapplicable when the questioned act violated international law, which the District Court found had been the case here. The Court of Appeals affirmed, additionally relying upon two State Department letters which it took as evidencing willingness by the Executive Branch to a judicial testing of the validity of the expropriation.Held:1. The privilege of resorting to United States courts being available to a recognized sovereign power not at war with the United States, and not being dependent upon reciprocity of treatment, petitioner has access to the federal courts. Pp. 376 U. S. 408408-412. Page 376 U. S. 3992. The propriety of the taking was not governed by New York law, since the sugar itself was expropriated. P. 376 U. S. 413.3. This suit is not uncognizable in American courts as being one to enforce the "public" acts of a foreign state, since the expropriation law here involved had been fully executed within Cuba. Pp. 376 U. S. 413-415.4. The Government's uncontested assertion that the two State Department letters expressed only the then wish of the Department to avoid commenting on the litigation, obviates the need for this Court to pass upon the "Bernstein exception" to the act of state doctrine, under which a court may respond to a representation by the Executive Branch that, in particular circumstances, it does not oppose judicial consideration of the foreign state's act. Pp. 376 U. S. 418-420.5. The scope of the act of state doctrine must be determined according to federal law. Pp. 376 U. S. 421-427.6. The act of state doctrine applies and is desirable with regard to a foreign expropriation even though the expropriation allegedly violates customary international law. Pp. 376 U. S. 427-437.(a) Disagreement exists as to relevant standards of international law concerning a State's responsibility toward aliens. P. 376 U. S. 430.(b) The political branch can more effectively deal with expropriation than can the Judicial Branch. Pp. 376 U. S. 431-432.(c) Conflicts between the Judicial and Executive Branches could hardly be avoided were the judiciary to adjudicate with respect to the validity of expropriations. Even if the combination alleged in this case of retaliation, discrimination, and inadequate compensation made the expropriation here violative of international law, a judicial determination to that effect would still be unwise as involving potential conflict with or embarrassment to the Executive Branch in later litigation. Pp. 376 U. S. 432-433.7. A foreign country's status as a plaintiff does not make the act of state doctrine inapplicable. Pp. 376 U. S. 437-438.307 F.2d 845 reversed and remanded. Page 376 U. S. 400

1963_77

MR. JUSTICE STEWART delivered the opinion of the Court.The Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO (the Union) filed an amended petition with the National Labor Relations Board pursuant to § 9(c) of the National Labor Relations Act [Footnote 1] requesting a representation election among the porters, janitors and maids working at four Florida bus terminals operated by the respondent (Greyhound). The amended petition designated the "employer" of the employees sought to be represented Page 376 U. S. 475 as Greyhound and Floors, Inc. The latter, a corporation engaged in the business of providing cleaning, maintenance and similar services to various customers in Florida, had contracted with Greyhound to provide such services at the four terminals in question.At the Board hearing on the petition, the Union contended alternatively that the unit requested was appropriate as a residual unit of all unrepresented Greyhound employees at the four terminals -- on the ground that Greyhound was at least a joint employer with Floors of the employees -- or that the unit was appropriate because the employees comprised a homogeneous, distinct group. Greyhound and Floors claimed that the latter was the sole employer of the employees, and that the appropriate bargaining unit should therefore encompass all Floors' employees, either in all four cities in which the terminals are located or in separate groups.The Board found that, while Floors hired, paid, disciplined, transferred, promoted and discharged the employees, Greyhound took part in setting up work schedules, in determining the number of employees required to meet those schedules, and in directing the work of the employees in question. The Board also found that Floors' supervisors visited the terminals only irregularly -- on occasion not appearing for as much as two days at a time -- and that, in at least one instance, Greyhound had prompted the discharge of an employee whom it regarded as unsatisfactory. On this basis, the Board, with one member dissenting, concluded that Greyhound and Floors were joint employers because they exercised common control over the employees, and that the unit consisting of all employees under the joint employer relationship was an appropriate unit in which to hold an election. The Board thereupon directed an election to determine whether the employees desired to be represented by the Union. Page 376 U. S. 476Shortly before the election was schedule to take place, Greyhound filed this suit in the United States District Court for the Southern District of Florida, seeking to set aside the decision of the Board and to enjoin the pending election. After a hearing, the court entered an order permanently restraining the election. 205 F. Supp. 686. Concluding that it had jurisdiction on the basis of this Court's decision in Leedom v. Kyne, 358 U. S. 184, the court held on the merits that the Board's findings were insufficient as a matter of law to establish a joint employer relationship, that those findings established, as a matter of law, that Floors was the sole employer of the employees in question, and that the Board had therefore violated the National Labor Relations Act by attempting to conduct a representation election where no employment relationship existed between the employees and the purported employer. The Court of Appeals affirmed, 309 F.2d 397, and we granted certiorari to consider a seemingly important question of federal labor law. 372 U.S. 964. We reverse the judgment of the Court of Appeals.Both parties agree that, in the normal course of events, Board orders in certification proceedings under § 9(c) are not directly reviewable in the courts. This Court held as long ago as American Federation of Labor v. Labor Board, 308 U. S. 401, that the "final order[s]" made reviewable by §§ 10(e) and (f) [Footnote 2] in the Courts of Page 376 U. S. 477 Appeals do not include Board decisions in certification proceedings. Such decisions, rather, are normally reviewable only where the dispute concerning the correctness of the certification eventuates in a finding by the Board that an unfair labor practice has been committed as, for example, where an employer refuses to bargain with a certified representative on the ground that the election was held in an inappropriate bargaining unit. In such a case, § 9(d) of the Act makes full provision for judicial review of the underlying certification order by providing that "such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed" in the Court of Appeals. [Footnote 3]That this indirect method of obtaining judicial review imposes significant delays upon attempts to challenge the validity of Board orders in certification proceedings in obvious. But it is equally obvious that Congress explicitly Page 376 U. S. 478 intended to impose precisely such delays. At the time of the original passage of the National Labor Relations Act in 1935, the House Report clearly delineated the congressional policy judgment which underlay the restriction of judicial review to that provided for in § 9(d):"When an employee organization has built up its membership to a point where it is entitled to be recognized as the representative of the employees for collective bargaining, and the employer refuses to accord such recognition, the union, unless an election can promptly be held to determine the choice of representation, runs the risk of impairment of strength by attrition and delay while the case is dragging on through the courts, or else is forced to call a strike to achieve recognition by its own economic power. Such strikes have been called when election orders of the National Labor Relations Board have been held up by court review. [Footnote 4]"And both the House [Footnote 5] and the Senate Reports [Footnote 6] spelled out the thesis, repeated on the floor, that the purpose of Page 376 U. S. 479 § 9(d) was to provide"for review in the courts only after the election has been held and the Board has ordered the employer to do something predicated upon the results of the election. [Footnote 7]"Congressional determination to restrict judicial review in such situations was reaffirmed in 1947 at the time that the Taft-Hartley amendments were under consideration, when a conference committee rejected a House amendment which would have permitted any interested person to obtain review immediately after a certification [Footnote 8] because, as Senator Taft noted, "such provision would permit dilatory tactics in representation proceedings." [Footnote 9]In light of the clear import of this history, this Court has consistently refused to allow direct review of such orders in the Courts of Appeals. American Federation of Labor v. National Labor Relations Board, supra. In two cases, however, each characterized by extraordinary circumstances, our decisions have permitted district court review of orders Page 376 U. S. 480 entered in certification proceedings. In Leedom v. Kyne, 358 U. S. 184, despite the injunction of § 9(b)(1) of the Act that"the Board shall not (1) decide that any unit is appropriate . . . if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit,"the Board -- without polling the professional employees -- approved as appropriate a unit containing both types of employees. The Board conceded in the Court of Appeals that it "had acted in excess of its powers, and had thereby worked injury to the statutory rights of the professional employees." 358 U.S. at 358 U. S. 187. We pointed out there that the District Court suit was"not one to 'review,' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather, it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act."358 U.S. at 358 U. S. 188. Upon these grounds, we affirmed the District Court's judgment setting aside the Board's "attempted exercise of (a) power that had been specifically withheld." 358 U.S. at 358 U. S. 189. And in McCulloch v. Sociedad Nacional de Marineras de Honduras, 372 U. S. 10, in which District Court jurisdiction was upheld in a situation involving the question of application of the laws of the United States to foreign-flag ships and their crews, the Court was careful to note that"the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board's power. No question of remotely comparable urgency was involved in Kyne, which was a purely domestic adversary situation. The exception recognized today is therefore not to be taken as an enlargement of the exception in Kyne."372 U.S. at 372 U. S. 17. Page 376 U. S. 481The respondent makes no claim that this case is akin to Sociedad Nacional. The argument is, rather, that the present case is one which falls within the narrow limits of Kyne, as the District Court and the Court of Appeals held. The respondent points out that Congress has specifically excluded an independent contractor from the definition of "employee" in § 2(3) of the Act. [Footnote 10] It is said that the Board's finding that Greyhound is an employer of employees who are hired, paid, transferred and promoted by an independent contractor is, therefore, plainly in excess of the statutory powers delegated to it by Congress. This argument, we think, misconceives both the import of the substantive federal law and the painstakingly delineated procedural boundaries of Kyne.Whether Greyhound, as the Board held, possessed sufficient control over the work of the employees to qualify as a joint employer with Floors is a question which is unaffected by any possible determination as to Floors' status as an independent contractor, since Greyhound has never suggested that the employees themselves occupy an independent contractor status. And whether Greyhound possessed sufficient indicia of control to be an "employer" is essentially a factual issue, unlike the question in Kyne, which depended solely upon construction of the statute. The Kyne exception is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law. Judicial review in such a situation has been limited by Congress to the courts of appeals, and Page 376 U. S. 482 then only under the conditions explicitly laid down in § 9(d) of the Act.Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBoire v. Greyhound Corp., 376 U.S. 473 (1964)Boire v. Greyhound CorporationNo. 77Argued February 17, 1964Decided March 23, 1964376 U.S. 473SyllabusThe National Labor Relations Board (NLRB) concluded, after hearing, that respondent and a firm under contract to clean and maintain certain bus terminals which respondent operated were joint employers of bus terminal maintenance employees who constituted an appropriate unit in which to hold a representation election pursuant to § 9(c) of the National Labor Relations Act. The NLRB ordered an election, but respondent filed suit to set aside the Board's decision and enjoin the election. Concluding that the NLRB's findings were legally insufficient to establish a joint employer relationship, and that the NLRB had exceeded its powers, the District Court granted the injunction, and the Court of Appeals affirmed.Held: The NLRB's orders in certification proceedings under § 9(c) of the Act are not final orders made reviewable by §§ 10(e) and (f). Leedom v. Kyne, 358 U. S. 184, distinguished. They can, however, become reviewable where an employer's refusal to bargain with a certified unit results in an unfair labor act charge's being brought, in which case § 9(d) of the Act indirectly provides for full judicial review of the underlying certification order. Pp. 376 U. S. 474-482.309 F.2d 397, reversed and remanded. Page 376 U. S. 474

1989_88-42

JUSTICE O'CONNOR delivered the opinion of the Court.The citizen suit provision of the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2825, as amended, 42 U.S.C. § 6972 (1982 ed. and Supp. V), permits individuals to commence an action in district court to enforce waste disposal regulations promulgated under the Act. At least 60 days before commencing suit, plaintiffs must notify the alleged violator, the State, and the Environmental Protection Agency (EPA) of their intent to sue. 42 U.S.C. § 6972(b)(1). Page 493 U. S. 23 This 60-day notice provision was modeled upon § 304 of the Clean Air Amendments of 1970, 84 Stat. 1706, as amended, 42 U.S.C.§ 7604(1982 ed.). Since 1970, a number of other federal statutes have incorporated notice provisions patterned after § 304. [Footnote 1] In this case, we must decide whether compliance with the 60-day notice provision is a mandatory precondition to suit, or can be disregarded by the district court at its discretion.IPetitioners own a commercial dairy farm located next to respondent's sanitary landfill. In April, 1981, believing that the landfill operation violated standards established under RCRA, petitioners sent respondent written notice of their intention to file suit. A year later, petitioners commenced this action. On March 1, 1983, respondent moved for summary judgment on the ground that petitioners had failed to notify Oregon's Department of Environmental Quality (DEQ) and Page 493 U. S. 24 the EPA of their intent to sue, as required by § 6972(b)(1). Respondent claimed that this failure to comply with the notice requirement deprived the District Court of jurisdiction. On March 2, 1983, petitioners notified the agencies of the suit.The District Court denied respondent's motion. It reasoned that petitioners had cured any defect in notice by formally notifying the state and federal agencies on March 2, 1983. The agencies would then have 60 days to take appropriate steps to cure any violation at respondent's landfill. The court noted that the purpose of the notice requirement was to give administrative agencies an opportunity to enforce environmental regulations. In this case, neither the state nor the federal agency expressed any interest in taking action against respondent. Therefore, the court concluded that dismissing the action at this stage would waste judicial resources. Civ. No. 82-481 (Ore., Apr. 22, 1983).After the action proceeded to trial, the District Court held that respondent had violated RCRA. The court ordered respondent to remedy the violation, but refused to grant petitioners' motion for injunctive relief. Civ. No. 82-481JU (Sept. 30, 1985). In a later order, the District Court denied petitioners' request for attorney's fees. Petitioners appealed both rulings; respondent cross-appealed from the denial of its summary judgment motion.The Court of Appeals for the Ninth Circuit concluded that petitioners' failure to comply with the 60-day notice requirement deprived the District Court of subject matter jurisdiction. Relying on the plain language of § 6972(b)(1), the Court of Appeals determined that permitting the plaintiff to proceed without giving notice would constitute "judicial amendment'" of a clear statutory command. 844 F.2d 598, 600 (1987), quoting Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 78 (CA1 1985) (citation omitted). The Court of Appeals also determined that strict construction of the notice requirement would best further the goal of giving environmental agencies, Page 493 U. S. 25 rather than courts, the primary responsibility for enforcing RCRA. 844 F.2d at 601. Therefore, the Court of Appeals remanded the action to the District Court with instructions to dismiss. We granted certiorari to resolve the conflict among the Courts of Appeals regarding the correct interpretation of the notice provision. [Footnote 2] 489 U.S. 1077 (1989).IIAs we have repeatedly noted, "the starting point for interpreting a statute is the language of the statute itself." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980). Section 6972(a)(1) permits any person to commence a civil action against an alleged violator of regulations established under RCRA "[except] as provided in subsection (b)." Subsection (b)(1) states:"(b) Actions prohibited.""No action may be commenced under paragraph (a)(1) of this section -- ""(1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator [of the EPA]; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator of such permit, standard, Page 493 U. S. 26 regulation, condition, requirement, or order. . . ."42 U.S.C. § 6972(b)(1) (1982 ed.).The language of this provision could not be clearer. A citizen may not commence an action under RCRA until 60 days after the citizen has notified the EPA, the State in which the alleged violation occurred, and the alleged violator. Actions commenced prior to 60 days after notice are "prohibited." Because this language is expressly incorporated by reference into § 6972(a), it acts as a specific limitation on a citizen's right to bring suit. Under a literal reading of the statute, compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit.Petitioners do not contend that the language of this provision is ambiguous; rather, they assert that it should be given a flexible or pragmatic construction. Thus, petitioners argue that, if a suit commenced without proper notice is stayed until 60 days after notice had been given, the District Court should deem the notice requirement to be satisfied. See Pymatuning Water Shed Citizens for Hygienic Environment v. Eaton, 644 F.2d 995, 996-997 (CA3 1981). According to petitioners, a 60-day stay would serve the same function as delaying commencement of the suit: it would give the Government an opportunity to take action against the alleged violator and it would give the violator the opportunity to bring itself into compliance.Whether or not a stay is in fact the functional equivalent of a precommencement delay, such an interpretation of § 6972(b) flatly contradicts the language of the statute. Under Rule 3 of the Federal Rules of Civil Procedure, "[a] civil action is commenced by filing a complaint with the court." Reading § 6972(b)(1) in light of this rule, a plaintiff may not file suit before fulfilling the 60-day notice requirement. Staying judicial action once the suit has been filed does not honor this prohibition. Congress could have excepted parties from complying with the notice or delay requirement; indeed, it carved out such an exception in its 1984 amendments to Page 493 U. S. 27 RCRA. See, e.g., 42 U.S.C. § 6972(b)(1)(A) (1982 ed., Supp. V) (abrogating the 60-day delay requirement when there is a danger that hazardous waste will be discharged). RCRA, however, contains no exception applicable to petitioners' situation; we are not at liberty to create an exception where Congress has declined to do so.Petitioners further argue that under our decision in Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 455 U. S. 393 (1982), RCRA's 60-day notice provision should be subject to equitable modification and cure. In Zipes, we held that the timely filing of a charge of discrimination with the Equal Employment Opportunity Commission, as required under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e-5(e) (1982 ed.) ("[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. . ."), was not a jurisdictional prerequisite to suit, but was subject to waiver, estoppel, and equitable tolling. 455 U.S. at 455 U. S. 393. This decision does not help petitioners. First, as we noted in Zipes, both the language and legislative history of § 2000e-5(e) indicate that the filing period operated as a statute of limitations. 455 U.S. at 455 U. S. 393-394. The running of such statutes is traditionally subject to equitable tolling. See, e.g., Honda v. Clark, 386 U. S. 484, 386 U. S. 501 (1967) (holding that, where consistent with the overall congressional purpose, a "traditional equitable tolling principle" should be applied to a statutory limitations period). Unlike a statute of limitations, RCRA's 60-day notice provision is not triggered by the violation giving rise to the action. Rather, petitioners have full control over the timing of their suit: they need only give notice to the appropriate parties and refrain from commencing their action for at least 60 days. The equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners' "failure to take the minimal steps necessary" to preserve their claims. Page 493 U. S. 28 Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 421 U. S. 466 (1975).Nor can we excuse petitioners' failure on the ground that"a technical reading [of § 6972] would be 'particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.'"Zipes v. Trans World Airlines, Inc., supra, at 455 U. S. 397, quoting Love v. Pullman Co., 404 U. S. 522, 404 U. S. 527 (1972). While the initial charge in a Title VII proceeding is normally filed by an aggrieved individual, see § 2000e-5(b), citizen suits under RCRA are like any other lawsuit, generally filed by trained lawyers who are presumed to be aware of statutory requirements. (Indeed, counsel for petitioners in this case admitted at oral argument that he knew of the notice provisions, but inadvertently neglected to notify the state and federal agencies. Tr. of Oral Arg. 3-4.) Under these circumstances, it is not unfair to require strict compliance with statutory conditions precedent to suit.Petitioners next contend that a literal interpretation of the notice provision would defeat Congress' intent in enacting RCRA; to support this argument, they cite passages from the legislative history of the first citizen suit statute, § 304 of the Clean Air Amendments of 1970, indicating that citizen suits should be encouraged. See S.Rep. No. 91-1196, pp. 36-37 (1970), 1 Senate Committee on Public Works, 93d Cong., 2d Sess., A Legislative History of the Clean Air Amendments of 1970, pp. 436-437 (Comm. Print 1974). This reliance on legislative history is misplaced. We have held that, "[a]bsent a clearly expressed legislative intention to the contrary," the words of the statute are conclusive. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. at 447 U. S. 108. Nothing in the legislative history of the citizen suit provision militates against honoring the plain language of the notice requirement. Nor is this one of the "rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of Page 493 U. S. 29 its drafters.'" United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 489 U. S. 242 (1989), quoting Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 458 U. S. 571 (1982). Rather, the legislative history indicates an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits. See, e.g., 116 Cong.Rec. 32927 (1970) (comments of Sen. Muskie); see also Note, Notice by Citizen Plaintiffs in Environmental Litigation, 79 Mich.L.Rev. 299, 301-307 (1980) (reviewing the legislative history of the Clean Air Amendments of 1970). Requiring citizens to comply with the notice and delay requirements serves this congressional goal in two ways. First, notice allows Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits. See Gwaltney of Smithfield, Inc. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 484 U. S. 60 (1987) ("The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement, rather than to supplant, governmental action"). In many cases, an agency may be able to compel compliance through administrative action, thus eliminating the need for any access to the courts. See 116 Cong.Rec. 33104 (1970) (comments of Sen. Hart). Second, notice gives the alleged violator "an opportunity to bring itself into complete compliance with the Act, and thus likewise render unnecessary a citizen suit." Gwaltney, supra, at 484 U. S. 60. This policy would be frustrated if citizens could immediately bring suit without involving federal or state enforcement agencies. Giving full effect to the words of the statute preserves the compromise struck by Congress.Petitioners next assert that giving effect to the literal meaning of the notice provisions would compel "absurd or futile results." United States v. American Trucking Assns., Inc., 310 U. S. 534, 310 U. S. 543 (1940). In essence, petitioners make two arguments. First, petitioners, with amici, Page 493 U. S. 30 contend that strictly enforcing the 60-day delay provision would give violators an opportunity to cause further damage or actually accomplish the objective that the citizen was attempting to stop. See, e.g., Save Our Sound Fisheries Assn. v. Callaway, 429 F. Supp. 1136, 1142-1145 (RI 1977) (Army Corps of Engineers violated three environmental statutes in order to award dredging contract before citizen suit to enjoin dredging could commence). Similarly, they assert that courts would be precluded from giving essential temporary injunctive relief until 60 days had elapsed. Although we do not underestimate the potential damage to the environment that could ensue during the 60-day waiting period, this problem arises as a result of the balance struck by Congress in developing the citizen suit provisions. Congress has addressed the dangers of delay in certain circumstances and made exceptions to the required notice periods accordingly. See, e.g., the Clean Water Act, as added, 86 Stat. 888, 33 U.S.C. §§ 1365(b) and 1317(a) (1982 ed.) (citizen suits may be brought immediately in cases involving violations of toxic pollutant effluent limitations); the Clean Air Amendments of 1970, 84 Stat. 1706, 42 U.S.C. § 7604(b) (1982 ed.) (citizen suits may be brought immediately in cases involving stationary-source emissions standards and other specified compliance orders). Moreover, it is likely that compliance with the notice requirement will trigger appropriate federal or state enforcement actions to prevent serious damage.Second, petitioners argue that a strict construction of the notice provision would cause procedural anomalies. For example, petitioners contend that, if a citizen notified Government agencies of a violation, and the agencies explicitly declined to act, it would be pointless to require the citizen to wait 60 days to commence suit. While such a result may be frustrating to the plaintiff, it is not irrational: as the Court of Appeals for the First Circuit noted, "[p]ermitting immediate suit ignores the possibility that a violator or agency may Page 493 U. S. 31 change its mind as the threat of suit becomes more imminent." Garcia v. Cecos, 761 F.2d at 82.In sum, we conclude that none of petitioners' arguments requires us to disregard the plain language of § 6972(b)."[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law."Mohasco Corp. v. Silver, 447 U. S. 807, 447 U. S. 826 (1980). Therefore, we hold that the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision; a district court may not disregard these requirements at its discretion. The parties have framed the question presented in this case as whether the notice provision is jurisdictional or procedural. In light of our literal interpretation of the statutory requirement, we need not determine whether § 6972(b) is jurisdictional in the strict sense of the term. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 454 U. S. 137 (1981) (BRENNAN, J., concurring in judgment) ("In 1937, the requirement of exhaustion of state administrative remedies was certainly a mandatory precondition to suit, and in that sense, a jurisdictional prerequisite'").As a general rule, if an action is barred by the terms of a statute, it must be dismissed. Thus, in Baldwin County Welcome Center v. Brown, 466 U. S. 147 (1984), we approved the District Court's determination that a claimant who failed to file a complaint within the 90-day statutory time period mandated by Title VII, 42 U.S.C. § 2000e-5(f)(1) (1982 ed.), had forfeited her right to pursue her claim. Accordingly, we rejected the Court of Appeals for the Eleventh Circuit's conclusion that, under the "generous'" interpretation required by the remedial nature of Title VII, claimant's filing of a right-to-sue letter had tolled the 90-day period. 466 U.S. at 466 U. S. 149. But cf. Oscar Mayer & Co. v. Evans, 441 U. S. 750, 441 U. S. 764-765, and n. 13 (1979) (where requiring dismissal and refiling "would serve no purpose other than the creation of an additional Page 493 U. S. 32 procedural technicality," a district court may comply with § 14(b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 607, 29 U.S.C. § 633(b) (1982 ed.), by holding an action in abeyance during the pendency of a mandatory waiting period) (citation omitted). As we have noted, dismissal of an RCRA suit serves important federal goals, see supra at 493 U. S. 29. Indeed, the EPA, the federal agency charged with enforcement of RCRA, interprets the notice provision as requiring dismissal for noncompliance. Tr. of Oral Arg. 35-39. Such a remedy for actions filed in violation of § 6972(b)(1) will further judicial efficiency; courts will have no need to make case-by-case determinations of when or whether failure to fulfill the notice requirement is fatal to a party's suit.Petitioners urge us not to require dismissal of this action after years of litigation and a determination on the merits. They contend that such a dismissal would unnecessarily waste judicial resources. We are sympathetic to this argument. The complex environmental and legal issues involved in this litigation have consumed the time and energy of a District Court and the parties for nearly four years. Nevertheless, the factors which have led us to apply decisions nonretroactively are not present in this case. See Chevron Oil Co. v. Hillson, 404 U. S. 97, 404 U. S. 106-107 (1971). Our decision here does not establish a new rule of law; nor does it overrule clear past precedent on which litigants may have relied. Moreover, the statute itself put petitioners on notice of the requirements for bringing suit. Retroactive operation of our decision will further the congressional purpose of giving agencies and alleged violators a 60-day nonadversarial period to achieve compliance with RCRA regulations. Nor will the dismissal of this action have the inequitable result of depriving petitioners of their "right to a day in court." Id. at 404 U. S. 108. Petitioners remain free to give notice and file their suit in compliance with the statute to enforce pertinent environmental standards. Page 493 U. S. 33Accordingly, we hold that, where a party suing under the citizen suit provisions of RCRA fails to meet the notice and 60-day delay requirements of § 6972(b), the district court must dismiss the action as barred by the terms of the statute.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtHallstrom v. Tillamook County, 493 U.S. 20 (1989)Hallstrom v. Tillamook CountyNo. 88-42Argued October 4, 1989Decided November 7, 1989493 U.S. 20SyllabusSubsection (a)(1) of the citizen suit provision of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6972, permits any person to commence a civil action against an alleged violator of waste disposal regulations promulgated under the Act, "[except] as provided in subsection (b)." Subsection (b), entitled "[a]ctions prohibited," provides that no such suit may be commenced prior to 60 days after a plaintiff has given notice of the violation to the Environmental Protection Agency (EPA), the federal body charged with enforcing RCRA, to the State in which the alleged violation occurred, and to the alleged violator. Believing that respondent's sanitary landfill violated RCRA standards, petitioners, the owners of a farm next to the landfill, sent respondent written notice of their intent to sue and, one year later, commenced this action. Respondent moved for summary judgment on the ground that the District Court lacked jurisdiction because petitioners had failed to notify the State of Oregon and the EPA as required by § 6972(b). Petitioners then notified the state and federal agencies of the suit. The District Court denied respondent's motion on the ground that petitioners satisfied RCRA's notice requirement by notifying these agencies and, after trial, held that respondent had violated RCRA. The Court of Appeals remanded the action with instructions to dismiss, concluding that petitioners' failure to comply with the 60-day notice requirement deprived the District Court of subject matter jurisdiction.Held: Where a party suing under RCRA's citizen suit provision fails to meet the notice and 60-day delay requirements of § 6972(b), the action must be dismissed as barred by the terms of the statute. Pp. 493 U. S. 25-33.(a) The plain language of the statute establishes that compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit, and may not be disregarded at a court's discretion. Actions commenced prior to 60 days after notice are "prohibited" under § 6972(b), and, because this language is expressly incorporated by reference into § 6972(a), it acts as a specific limitation on a citizen's right to bring suit. Pp. 493 U. S. 25-26.(b) None of petitioners' arguments for giving the statute a flexible or pragmatic construction require this Court to disregard the statute's plain language. The argument that the notice requirement should be deemed Page 493 U. S. 21 satisfied if a suit commenced without proper notice is stayed until 60 days after notice has been given is rejected. Whether or not a stay is in fact the functional equivalent of precommencement delay, staying judicial action once the suit has been filed does not honor § 6972(b)'s prohibition on the filing of a complaint before the 60-day notice requirement is fulfilled. Although Congress excepted parties from complying with a delay requirement elsewhere in RCRA, it did not do so in petitioners' situation, and this Court may not create such an exception where Congress has declined to do so. The contention that the 60-day notice provision is subject to equitable modification and cure is also unavailing. The equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners' failure to take the minimal steps necessary to preserve their claims. Nor can petitioners' failure be excused on the ground that it would be unfair to hold them, as laypersons, to strict compliance with the statute, since this suit, like RCRA citizen suits generally, was filed by a trained lawyer. Zipes v. Trans World Airlines, Inc., 455 U. S. 385, distinguished. Petitioners' reliance on the legislative history of citizen suit provisions is also misplaced, since nothing in that history militates against honoring the plain language of the notice requirement. In fact, requiring citizens to comply with the notice and delay requirements furthers Congress' goal of striking a balance between encouraging citizen suits and avoiding burdening the federal courts with excessive numbers of such suits, since notice allows government agencies and alleged violators to achieve compliance without the need for suit. Petitioners' assertion that giving effect to the literal meaning of the notice provisions would allow violations to go unchecked during the 60-day waiting period is not persuasive, since this problem results from the balance knowingly struck by Congress in developing the citizen suit provisions, and since it is likely that compliance with the notice requirement will trigger appropriate federal or state enforcement actions to prevent serious damage. Moreover, it is not irrational to require a citizen to wait 60 days to commence suit after agencies and alleged violators have specifically declined to act in response to notice by the citizen, since a violator or agency may change its mind as the threat of suit becomes imminent. Pp. 493 U. S. 26-31.(c) In light of this Court's literal interpretation of the statutory requirement, the question whether § 6972(b) is jurisdictional in the strict sense of that term, or is merely procedural, need not be determined. Requiring dismissal for noncompliance with the notice provision is supported by the EPA, and will further judicial efficiency by relieving courts of the need to make case-by-case determinations of when or whether failure to comply is fatal. 493 U. S. 31-32. Page 493 U. S. 22(d) Although there is some merit to petitioners' contention that requiring dismissal of this action wastes judicial resources, the factors that have led this Court to apply decisions nonretroactively are not present here: this decision does not establish a new rule of law or overrule clear past precedent on which litigants may have relied, and the statute itself put petitioners on notice of the requirements for bringing suit. Retroactive operation of this decision will further Congress' purpose of giving agencies and alleged violators a 60-day nonadversarial period to achieve compliance with RCRA regulations. Moreover, dismissal will not deprive petitioners of their "right to a day in court," since they remain free to give the statutorily required notice and file their suit. Pp. 493 U. S. 32-33.844 F.2d 598, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 493 U. S. 33.

1997_96-1133

JUSTICE THOMAS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and II-D, and an opinion with respect to Parts II-B and II-C, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE SOUTER join.This case presents the question whether Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings, unconstitutionally abridges the right of accused members of the military to present a defense. We hold that it does not.IIn March 1992, respondent Edward Scheffer, an airman stationed at March Air Force Base in California, volunteered to work as an informant on drug investigations for the Air Force Office of Special Investigations (OSI). His OSI supervisors advised him that, from time to time during the course of his undercover work, they would ask him to submit to drug testing and polygraph examinations. In early April,of Georgia, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Richard Cullen of Virginia, Christine O. Gregoire of Washington, Robert A. Butterworth of Florida, and William U Hill of Wyoming; and for the Criminal Justice Legal Foundation by KentBriefs of amici curiae urging affirmance were filed for the American Polygraph Association by Gordon L. Vaughan; for the United States Army Defense Appellate Division by John T. Phelps II; for the Committee of Concerned Social Scientists by Charles F. Peterson; for the National Association of Criminal Defense Lawyers by Charles W Daniels and Barbara E. Bergman; and for the United States Navy-Marine Corps Appellate Defense Division by Syed N. Ahmad.306one of the OSI agents supervising respondent requested that he submit to a urine test. Shortly after providing the urine sample, but before the results of the test were known, respondent agreed to take a polygraph test administered by an OSI examiner. In the opinion of the examiner, the test "indicated no deception" when respondent denied using drugs since joining the Air Force.1On April 30, respondent unaccountably failed to appear for work and could not be found on the base. He was absent without leave until May 13, when an Iowa state patrolman arrested him following a routine traffic stop and held him for return to the base. OSI agents later learned that respondent's urinalysis revealed the presence of methamphetamine.Respondent was tried by general court-martial on charges of using methamphetamine, failing to go to his appointed place of duty, wrongfully absenting himself from the base for 13 days, and, with respect to an unrelated matter, uttering 17 insufficient funds checks. He testified at trial on his own behalf, relying upon an "innocent ingestion" theory and denying that he had knowingly used drugs while working for OSI. On cross-examination, the prosecution attempted to impeach respondent with inconsistencies between his trial testimony and earlier statements he had made to OSI.Respondent sought to introduce the polygraph evidence in support of his testimony that he did not knowingly use drugs. The military judge denied the motion, relying on Military Rule of Evidence 707, which provides, in relevant part:"(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take,1 The OSI examiner asked three relevant questions: (1) "Since you've been in the [Air Force], have you used any illegal drugs?"; (2) "Have you lied about any of the drug information you've given OSI?"; and (3) "Besides your parents, have you told anyone you're assisting OSI?" Respondent answered "no" to each question. App. 12.307failure to take, or taking of a polygraph examination, shall not be admitted into evidence."The military judge determined that Rule 707 was constitutional because "the President may, through the Rules of Evidence, determine that credibility is not an area in which a fact finder needs help, and the polygraph is not a process that has sufficient scientific acceptability to be relevant." 2 App. 28. He further reasoned that the factfinder might give undue weight to the polygraph examiner's testimony, and that collateral arguments about such evidence could consume "an inordinate amount of time and expense." Ibid.Respondent was convicted on all counts and was sentenced to a bad-conduct discharge, confinement for 30 months, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The Air Force Court of Criminal Appeals affirmed in all material respects, explaining that Rule 707 "does not arbitrarily limit the accused's ability to present reliable evidence." 41 M. J. 683, 691 (1995) (en bane).By a 3-to-2 vote, the United States Court of Appeals for the Armed Forces reversed. 44 M. J. 442 (1996). Without pointing to any particular language in the Sixth Amendment, the Court of Appeals held that "[a] per se exclusion of polygraph evidence offered by an accused to rebut an attack on his credibility ... violates his Sixth Amendment right to present a defense." Id., at 445.3 Judge Crawford, dissent-2 Article 36 of the Uniform Code of Military Justice authorizes the President, as Commander in Chief of the Armed Forces, see U. S. Const., Art. II, § 2, to promulgate rules of evidence for military courts: "Pretrial, trial, and post-trial procedures, including modes of proof, ... may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles oflaw and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." 10 U. S. C. § 836(a).3 In this Court, respondent cites the Sixth Amendment's Compulsory Process Clause as the specific constitutional provision supporting his claim. He also briefly contends that the "combined effect" of the Fifth and Sixth Amendments confers upon him the right to a "'meaningful op-308ing, stressed that a defendant's right to present relevant evidence is not absolute, that relevant evidence can be excluded for valid reasons, and that Rule 707 was supported by a number of valid justifications. Id., at 449-451. We granted certiorari, 520 U. S. 1227 (1997), and we now reverse.IIA defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.4 See Taylor v. Illinois, 484 U. S. 400, 410 (1988); Rock v. Arkansas, 483 U. S. 44, 55 (1987); Chambers v. Mississippi, 410 U. S. 284, 295 (1973). A defendant's interest in presenting such evidence may thus "'bow to accommodate other legitimate interests in the criminal trial process.'" Rock, supra, at 55 (quoting Chambers, supra, at 295); accord, Michigan v. Lucas, 500 U. S. 145, 149 (1991). As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not "arbitrary" or "disproportionate to the purposes they are designed to serve." Rock, supra, at 56; accord, Lucas, supra, at 151. Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused. See Rock, supra, at 58; Chambers, supra, at 302; Washington v. Texas, 388 U. S. 14, 22-23 (1967).portunity to present a complete defense,'" Crane v. Kentucky, 476 U. S. 683, 690 (1986) (citations omitted), and that this right in turn encompasses a constitutional right to present polygraph evidence to bolster his credibility.4 The words "defendant" and "jury" are used throughout in reference to general principles of law and in discussing nonmilitary precedents. In reference to this case or to the military specifically, the terms "court," "court members," or "court-martial" are used throughout, as is the military term "accused," rather than the civilian term "defendant."309Rule 707 serves several legitimate interests in the criminal trial process. These interests include ensuring that only reliable evidence is introduced at trial, preserving the court members' role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial.5 The Rule is neither arbitrary nor disproportionate in promoting these ends. Nor does it implicate a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents.AState and Federal Governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules. See, e. g., Fed. Rules Evid. 702, 802, 901; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993).The contentions of respondent and the dissent notwithstanding, there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques. 1 D. Faigman, D. Kaye, M. Saks, & J. Sanders, Modern Scientific Evidence 565, n. t, § 14-2.0 to § 14-7.0 (1997); see also 1 P. Giannelli & E. Imwinkelried, Scientific5 These interests, among others, were recognized by the drafters of Rule 707, who justified the Rule on the following grounds: the risk that court members would be misled by polygraph evidence; the risk that the traditional responsibility of court members to ascertain the facts and adjudge guilt or innocence would be usurped; the danger that confusion of the issues "'could result in the court-martial degenerating into a trial of the polygraph machine;'" the likely waste of time on collateral issues; and the fact that the "'reliability of polygraph evidence has not been sufficiently established.''' See 41 M. J. 683, 686 (USAF Ct. Crim. App. 1995) (citing Manual for Courts-Martial, United States, Analysis of the Military Rules of Evidence, App. 22, p. A22-46 (1994 ed.)).310Evidence § 8-2(C), pp. 225-227 (2d ed. 1993) (hereinafter Giannelli & Imwinkelried); 1 J. Strong, McCormick on Evidence § 206, p. 909 (4th ed. 1992) (hereinafter McCormick). Some studies have concluded that polygraph tests overall are accurate and reliable. See, e. g., S. Abrams, The Complete Polygraph Handbook 190-191 (1989) (reporting the overall accuracy rate from laboratory studies involving the common "control question technique" polygraph to be "in the range of 87 percent"). Others have found that polygraph tests assess truthfulness significantly less accurately-that scientific field studies suggest the accuracy rate of the "control question technique" polygraph is "little better than could be obtained by the toss of a coin," that is, 50 percent. See Iacono & Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence, supra, § 14-5.3, at 629 (hereinafter Iacono & Lykken).6This lack of scientific consensus is reflected in the disagreement among state and federal courts concerning both the6 The United States notes that in 1983 Congress' Office of Technology Assessment evaluated all available studies on the reliability of polygraphs and concluded that" '[o]verall, the cumulative research evidence suggests that when used in criminal investigations, the polygraph test detects deception better than chance, but with error rates that could be considered significant.''' Brief for United States 21 (quoting U. S. Congress, Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation-A Technical Memorandum 5 (OTATM-H-15, Nov. 1983)). Respondent, however, contends current research shows polygraph testing is reliable more than 90 percent of the time. Brief for Respondent 22, and n. 19 (citing J. Matte, Forensic Psychophysiology Using the Polygraph 121-129 (1996)). Even if the basic debate about the reliability of polygraph technology itself were resolved, however, there would still be controversy over the efficacy of countermeasures, or deliberately adopted strategies that a polygraph examinee can employ to provoke physiological responses that will obscure accurate readings and thus "fool" the polygraph machine and the examiner. See, e. g., Iacono & Lykken § 14-3.0.311admissibility and the reliability of polygraph evidence.7 Although some Federal Courts of Appeals have abandoned the per se rule excluding polygraph evidence, leaving its admission or exclusion to the discretion of district courts under Daubert, see, e. g., United States v. Posado, 57 F.3d 428, 434 (CA5 1995); United States v. Cordoba, 104 F.3d 225, 228 (CA9 1997), at least one Federal Circuit has recently reaffirmed its per se ban, see United States v. Sanchez, 118 F.3d 192, 197 (CA4 1997), and another recently noted that it has "not decided whether polygraphy has reached a sufficient state of reliability to be admissible." United States v. Messina, 131 F.3d 36, 42 (CA2 1997). Most States maintain per se rules excluding polygraph evidence. See, e. g., State v. Porter, 241 Conn. 57, 92-95, 698 A. 2d 739, 758-759 (1997); People v. Gard, 158 Ill. 2d 191, 202-204, 632 N. E. 2d 1026, 1032 (1994); In re Odell, 672 A. 2d 457, 459 (RI 1996) (per curiam); Perkins v. State, 902 S. W. 2d 88, 94-95 (Ct. App. Tex. 1995). New Mexico is unique in making polygraph evidence generally admissible without the prior stipulation of the parties and without significant restriction. See N. M.7 Until quite recently, federal and state courts were uniform in categorically ruling polygraph evidence inadmissible under the test set forth in Frye v. United States, 293 F.1d 13 (CADC 1923), which held that scientific evidence must gain the general acceptance of the relevant expert community to be admissible. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), we held that Frye had been superseded by the Federal Rules of Evidence and that expert testimony could be admitted if the district court deemed it both relevant and reliable.Prior to Daubert, neither federal nor state courts found any Sixth Amendment obstacle to the categorical rule. See, e. g., Bashor v. Risley, 730 F.2d 1228, 1238 (CA9), cert. denied, 469 U. S. 838 (1984); People v. Price, 1 Cal. 4th 324, 419-420, 821 P. 2d 610, 663 (1991), cert. denied, 506 U. S. 851 (1992). Nothing in Daubert foreclosed, as a constitutional matter, per se exclusionary rules for certain types of expert or scientific evidence. It would be an odd inversion of our hierarchy of laws if altering or interpreting a rule of evidence worked a corresponding change in the meaning of the Constitution.312Opinion of THOMAS, J.Rule Evid. § 11-707.8 Whatever their approach, state and federal courts continue to express doubt about whether such evidence is reliable. See, e. g., United States v. Messina, supra, at 42; United States v. Posado, supra, at 434; State v. Porter, supra, at 126-127, 698 A. 2d, at 774; Perkins v. State, supra, at 94; People v. Gard, supra, at 202-204, 632 N. E. 2d, at 1032; In re Odell, supra, at 459.The approach taken by the President in adopting Rule 707-excluding polygraph evidence in all military trials-is a rational and proportional means of advancing the legitimate interest in barring unreliable evidence. Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.BIt is equally clear that Rule 707 serves a second legitimate governmental interest: Preserving the court members' core8 Respondent argues that because the Government-and in particular the Department of Defense-routinely uses polygraph testing, the Government must consider polygraphs reliable. Governmental use of polygraph tests, however, is primarily in the field of personnel screening, and to a lesser extent as a tool in criminal and intelligence investigations, but not as evidence at trials. See Brief for United States 34, n. 17; Barland, The Polygraph Test in the USA and Elsewhere, in The Polygraph Test 76 (A. Gale ed. 1988). Such limited, out of court uses of polygraph techniques obviously differ in character from, and carry less severe consequences than, the use of polygraphs as evidence in a criminal trial. They do not establish the reliability of polygraphs as trial evidence, and they do not invalidate reliability as a valid concern supporting Rule 707's categorical ban.313function of making credibility determinations in criminal trials. A fundamental premise of our criminal trial system is that "the jury is the lie detector." United States v. Barnard, 490 F.2d 907, 912 (CA9 1973) (emphasis added), cert. denied, 416 U. S. 959 (1974). Determining the weight and credibility of witness testimony, therefore, has long been held to be the "part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men." Aetna Life Ins. Co. v. Ward, 140 U. S. 76, 88 (1891).By its very nature, polygraph evidence may diminish the jury's role in making credibility determinations. The common form of polygraph test measures a variety of physiological responses to a set of questions asked by the examiner, who then interprets these physiological correlates of anxiety and offers an opinion to the jury about whether the witness-often, as in this case, the accused-was deceptive in answering questions about the very matters at issue in the trial. See 1 McCormick § 206.9 Unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth. Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive9 The examiner interprets various physiological responses of the examinee, including blood pressure, perspiration, and respiration, while asking a series of questions, commonly in three categories: direct accusatory questions concerning the matter under investigation, irrelevant or neutral questions, and more general "control" questions concerning wrongdoing by the subject in general. The examiner forms an opinion of the subject's truthfulness by comparing the physiological reactions to each set of questions. See generally Giannelli & lmwinkelried 219-222; Honts & Quick, The Polygraph in 1995: Progress in Science and the Law, 71 N. D. L. Rev. 987, 990-992 (1995).314Opinion of THOMAS, J.weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent's case, a conclusion about the ultimate issue in the trial. Such jurisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt. Those jurisdictions may also take into account the fact that a judge cannot determine, when ruling on a motion to admit polygraph evidence, whether a particular polygraph expert is likely to influence the jury unduly. For these reasons, the President is within his constitutional prerogative to promulgate a per se rule that simply excludes all such evidence.cA third legitimate interest served by Rule 707 is avoiding litigation over issues other than the guilt or innocence of the accused. Such collateral litigation prolongs criminal trials and threatens to distract the jury from its central function of determining guilt or innocence. Allowing proffers of polygraph evidence would inevitably entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case.10 It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is appropriate. Because litigation over the admissibility of polygraph evidence is by its very nature col-10 Although some of this litigation could take place outside the presence of the jury, at the very least a foundation must be laid for the jury to assess the qualifications and skill of the polygrapher and the validity of the exam, and significant cross-examination could occur on these issues.315lateral, a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding itYDThe three of our precedents upon which the Court of Appeals principally relied, Rock v. Arkansas, Washington v. Texas, and Chambers v. Mississippi, do not support a right to introduce polygraph evidence, even in very narrow circumstances. The exclusions of evidence that we declared unconstitutional in those cases significantly undermined fundamental elements of the defendant's defense. Such is not the case here.In Rock, the defendant, accused of a killing to which she was the only eyewitness, was allegedly able to remember the facts of the killing only after having her memory hypnotically refreshed. See Rock v. Arkansas, 483 U. S., at 46. Because Arkansas excluded all hypnotically refreshed testimony, the defendant was unable to testify about certain relevant facts, including whether the killing had been accidental. See id., at 47-49. In holding that the exclusion of this evidence violated the defendant's "right to present a defense," we noted that the rule deprived the jury of the testimony of the only witness who was at the scene and had firsthand knowledge of the facts. See id., at 57. Moreover, the rule infringed upon the defendant's interest in testifying in her own defense-an interest that we deemed particularly significant, as it is the defendant who is the target of any crimi-11 Although the Court of Appeals stated that it had "merely remove[d] the obstacle of the per se rule against admissibility" of polygraph evidence in cases where the accused wishes to proffer an exculpatory polygraph to rebut an attack on his credibility, 44 M. J. 442, 446 (1996), and respondent thus implicitly argues that the Constitution would require collaterallitigation only in such cases, we cannot see a principled justification whereby a right derived from the Constitution could be so narrowly contained.316nal prosecution. See id., at 52. For this reason, we stated that a defendant ought to be allowed "to present his own version of events in his own words." Ibid.In Washington, the statutes involved prevented codefendants or coparticipants in a crime from testifying for one another and thus precluded the defendant from introducing his accomplice's testimony that the accomplice had in fact committed the crime. See Washington v. Texas, 388 U. S., at 16-17. In reversing Washington's conviction, we held that the Sixth Amendment was violated because "the State arbitrarily denied [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed." Id., at 23.12In Chambers, we found a due process violation in the combined application of Mississippi's common-law "voucher rule," which prevented a party from impeaching his own witness, and its hearsay rule that excluded the testimony of three persons to whom that witness had confessed. See Chambers v. Mississippi, 410 U. S., at 302. Chambers specifically confined its holding to the "facts and circumstances" presented in that case; we thus stressed that the ruling did not "signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures." Id., at 302-303. Chambers therefore does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence.Rock, Washington, and Chambers do not require that Rule 707 be invalidated, because, unlike the evidentiary rules at issue in those cases, Rule 707 does not implicate any signifi-12 In addition, we noted that the State of Texas could advance no legitimate interests in support of the evidentiary rules at issue, and those rules burdened only the defense and not the prosecution. See 388 U. S., at 2223. Rule 707 suffers from neither of these defects.317cant interest of the accused. Here, the court members heard all the relevant details of the charged offense from the perspective of the accused, and the Rule did not preclude him from introducing any factual evidence.13 Rather, respondent was barred merely from introducing expert opinion testimony to bolster his own credibility. Moreover, in contrast to the rule at issue in Rock, Rule 707 did not prohibit respondent from testifying on his own behalf; he freely exercised his choice to convey his version of the facts to the court-martial members. We therefore cannot conclude that respondent's defense was significantly impaired by the exclusion of polygraph evidence. Rule 707 is thus constitutional under our precedents.***For the foregoing reasons, Military Rule of Evidence 707 does not unconstitutionally abridge the right to present a defense. The judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 1997SyllabusUNITED STATES v. SCHEFFERCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCESNo. 96-1133. Argued November 3, 1997-Decided March 31, 1998A polygraph examination of respondent airman indicated, in the opinion of the Air Force examiner administering the test, that there was "no deception" in respondent's denial that he had used drugs since enlisting. Urinalysis, however, revealed the presence of methamphetamine, and respondent was tried by general court-martial for using that drug and for other offenses. In denying his motion to introduce the polygraph evidence to support his testimony that he did not knowingly use drugs, the military judge relied on Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings. Respondent was convicted on all counts, and the Air Force Court of Criminal Appeals affirmed. The Court of Appeals for the Armed Forces reversed, holding that a per se exclusion of polygraph evidence offered by an accused to support his credibility violates his Sixth Amendment right to present a defense.Held: The judgment is reversed. 44 M. J. 442, reversed.JUSTICE THOMAS delivered the opinion of the Court with respect to Parts I, II-A, and II-D, concluding that Military Rule of Evidence 707 does not unconstitutionally abridge the right of accused members of the military to present a defense. pp. 308-312, 315-317.(a) A defendant's right to present relevant evidence is subject to reasonable restrictions to accommodate other legitimate interests in the criminal trial process. See, e. g., Rock v. Arkansas, 483 U. S. 44, 55. State and federal rulemakers therefore have broad latitude under the Constitution to establish rules excluding evidence. Such rules do not abridge an accused's right to present a defense so long as they are not "arbitrary" or "disproportionate to the purposes they are designed to serve." E. g., id., at 56. This Court has found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused. See, e. g., id., at 58. Rule 707 serves the legitimate interest of ensuring that only reliable evidence is introduced. There is simply no consensus that polygraph evidence is reliable: The scientific community and the state and federal courts are extremely polarized on the matter. pp. 308-312.304Syllabus(b) Rule 707 does not implicate a sufficiently weighty interest of the accused to raise a constitutional concern under this Court's precedents. The three cases principally relied upon by the Court of Appeals, Rock, supra, at 57, Washington v. Texas, 388 U. S. 14, 23, and Chambers v. Mississippi, 410 U. S. 284, 302-303, do not support a right to introduce polygraph evidence, even in very narrow circumstances. The exclusions of evidence there declared unconstitutional significantly undermined fundamental elements of the accused's defense. Such is not the case here, where the court members heard all the relevant details of the charged offense from respondent's perspective, and Rule 707 did not preclude him from introducing any factual evidence, but merely barred him from introducing expert opinion testimony to bolster his own credibility. Moreover, in contrast to the rule at issue in Rock, supra, at 52, Rule 707 did not prohibit respondent from testifying on his own behalf; he freely exercised his choice to convey his version of the facts at trial. Pp. 315-317.THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and II-D, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts II-B and II-C, in which REHNQUIST, C. J., and SCALIA and SOUTER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which O'CONNOR, GINSBURG, and BREYER, JJ., joined, post, p. 318. STEVENS, J., filed a dissenting opinion, post, p. 320.Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Acting Solicitor General Waxman, Acting Assistant Attorney General Keeney, David C. Frederick, Joel M. Gershowitz, and Michael J. Breslin.Kim L. Sheffield argued the cause for respondent. With her on the brief were Carol L. Hubbard, Michael L. McIntyre, Robin S. Wink, and W Craig Mullen. **Briefs of amici curiae urging reversal were filed for the State of Connecticut et al. by John M. Bailey, Chief State's Attorney of Connecticut, and Judith Rossi, Senior Assistant State's Attorney, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, Daniel E. Lungren of California, M. Jane Brady of Delaware, Thurbert E. Baker305Full Text of Opinion

1973_72-5581

MR. JUSTICE BRENNAN delivered the opinion of the Court.When a state criminal proceeding under a disputed state criminal statute is pending against a federal plaintiff at the time his federal complaint is filed, Younger v. Harris, 401 U. S. 37 (1971), and Samuels v. Mackell, 401 U. S. 66 (1971), held, respectively, that, unless bad faith enforcement or other special circumstances are demonstrated, principles of equity, comity, and federalism preclude issuance of a federal injunction restraining enforcement of the criminal statute and, in all but unusual circumstances, a declaratory judgment upon the constitutionality of the statute. This case presents the important question reserved in Samuels v. Mackell, id. at 401 U. S. 73-74, whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of bad faith enforcement or other special circumstances has not been made.Petitioner, and others, filed a complaint in the District Court for the Northern District of Georgia, invoking the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343. The complaint requested a declaratory judgment pursuant to 28 U.S.C. § 2201-2202, that Ga.Code Ann. § 26-1603 (1972) [Footnote 1] was being applied in violation of petitioner's Page 415 U. S. 455 First and Fourteenth Amendment rights, and an injunction restraining respondents -- the solicitor of the Civil and Criminal Court of DeKalb County, the chief of the DeKalb County Police, the owner of the North DeKalb Shopping Center, and the manager of that shopping center -- from enforcing the statute so as to interfere with petitioner's constitutionally protected activities.The parties stipulated to the relevant facts: on October 8, 1970, while petitioner and other individuals were distributing handbills protesting American involvement in Vietnam on an exterior sidewalk of the North DeKalb Shopping Center, shopping center employees asked them to stop handbilling and leave. [Footnote 2] They declined to do so, and police officers were summoned. The officers told them that they would be arrested if they did not stop handbilling. The group then left to avoid arrest. Two days later, petitioner and a companion returned to the shopping center and again began handbilling. The manager of the center called the police, and petitioner and his companion were once again told that failure to stop their handbilling would result in their arrests. Petitioner left to avoid arrest. His companion stayed, however, continued Page 415 U. S. 456 handbilling, and was arrested and subsequently arraigned on a charge of criminal trespass in violation of § 26-1503. [Footnote 3] Petitioner alleged in his complaint that, although he desired to return to the shopping center to distribute handbills, he had not done so because of his concern that he, too, would be arrested for violation of § 26-1503; the parties stipulated that, if petitioner returned and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the Georgia statute. [Footnote 4]After hearing, the District Court denied all relief and dismissed the action, finding that "no meaningful contention can be made that the state has [acted] or will in the future act in bad faith," and therefore "the rudiments of an active controversy between the parties . . . [are] lacking." 334 F. Supp. 1386, 1389-1390 (1971). Petitioner appealed [Footnote 5] only from the denial of declaratory relief. [Footnote 6] The Court of Appeals for the Fifth Circuit, one judge concurring in the result, affirmed the District Court's Page 415 U. S. 457 judgment refusing declaratory relief. [Footnote 7] Becker v. Thompson, 459 F.2d 919 (1972). The court recognized that the holdings of Younger v. Harris, 401 U. S. 37(1971), and Samuels v. Mackell, 401 U. S. 66 (1971), were expressly limited to situations where state prosecutions were pending when the federal action commenced, but was of the view that Younger v. Harris "made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment and such test must be applied to a request for injunctive relief against threatened state court criminal prosecution" as well as against a pending prosecution; and, furthermore, since the opinion in Samuels v. Mackell reasoned that declaratory relief would normally disrupt the state criminal justice system in the manner of injunctive relief, it followed that "the same test of bad Page 415 U. S. 458 faith harassment is prerequisite . . . for declaratory relief in a threatened prosecution." 459 F.2d at 922. A petition for rehearing en banc was denied, three judges dissenting. 463 F.2d 1338 (1972). [Footnote 8]We granted certiorari, 410 U.S. 953 (1973), and now reverse.IAt the threshold, we must consider whether petitioner presents an "actual controversy," a requirement imposed by Art. III of the Constitution and the express terms of the Federal Declaratory Judgment Act, 28 U.S.C. § 2201. [Footnote 9] Page 415 U. S. 459Unlike three of the appellees in Younger v. Harris, 401 U.S. at 401 U. S. 41, petitioner has alleged threats of prosecution that cannot be characterized as "imaginary or speculative," id. at 401 U. S. 42. He has been twice warned to stop handbilling that he claims is constitutionally protected, and has been told by the police that, if he again handbills at the shopping center and disobeys a warning to stop, he will likely be prosecuted. The prosecution of petitioner's handbilling companion is ample demonstration that petitioner's concern with arrest has not been "chimerical," Poe v. Ullman, 367 U. S. 497, 367 U. S. 508 (1961). In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional right. See, e.g., Epperson v. Arkansas, 393 U. S. 97 (1968). Moreover, petitioner's challenge is to those specific provisions of state law which have provided the basis for threats of criminal prosecution against him. Cf. Boyle v. Landry, 401 U. S. 77, 401 U. S. 81 (1971); Watson v. Buck, 313 U. S. 387, 313 U. S. 399-400 (1941).Nonetheless, there remains a question as to the continuing existence of a live and acute controversy that must be resolved on the remand we order today. [Footnote 10] In Golden v. Zwickler, 394 U. S. 103 (1969), the appellee sought a declaratory judgment that a state criminal statute prohibiting the distribution of anonymous election-campaign literature was unconstitutional. The appellee's complaint had expressed a desire to distribute handbills during the forthcoming reelection campaign of a Congressman, but it was later learned that the Congressman Page 415 U. S. 460 had retired from the House of Representatives to become a New York Supreme Court Justice. In that circumstance, we found no extant controversy, since the record revealed that appellee's sole target of distribution had been the Congressman, and there was no immediate prospect of the Congressman's again becoming a candidate for public office. Here, petitioner's complaint indicates that his handbilling activities were directed "against the War in Vietnam and the United States' foreign policy in Southeast Asia." Since we cannot ignore the recent developments reducing the Nation's involvement in that part of the world, it will be for the District Court on remand to determine if subsequent events have so altered petitioner's desire to engage in handbilling at the shopping center that it can no longer be said that this case presents"a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 312 U. S. 273 (1941); see Zwickler v. Koota, 389 U. S. 241, 389 U. S. 244 n. 3 (1967).IIWe now turn to the question of whether the District Court and the Court of Appeals correctly found petitioner's request for declaratory relief inappropriate.Sensitive to principles of equity, comity, and federalism, we recognized in Younger v. Harris, supra, that federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions. We were cognizant that a pending state proceeding, in all but unusual cases, would provide the federal plaintiff with the necessary vehicle for vindicating his constitutional rights, and, in that circumstance, the restraining of an ongoing prosecution would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility, Page 415 U. S. 461 equally with the federal courts "to guard, enforce, and protect every right granted or secured by the Constitution of the United States. . . ." Robb v. Connolly, 111 U. S. 624, 111 U. S. 637 (1884). In Samuels v. Mackell, supra, the Court also found that the same principles ordinarily would be flouted by issuance of a federal declaratory judgment when a state proceeding was pending, since the intrusive effect of declaratory relief"will result in precisely the same interference with and disruption of state proceedings that the longstanding policy limiting injunctions was designed to avoid."401 U.S. at 401 U. S. 72. [Footnote 11] We therefore held in Samuels that,"in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment. . . ."Id. at 401 U. S. 73.Neither Younger nor Samuels, however, decided the question whether federal intervention might be permissible in the absence of a pending state prosecution. In Younger, the Court said:"We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun."401 U.S. at 401 U. S. 41. See also id. at 401 U. S. 55 (STEWART and Harlan, JJ., concurring); id. at 401 U. S. 57 (BRENNAN, WHITE, and MARSHALL, JJ., concurring). Similarly, in Samuels v. Mackell, the Court stated: ."We, of course, express no views on the propriety Page 415 U. S. 462 of declaratory relief when no state proceeding is pending at the time the federal suit is begun."401 U.S. at 401 U. S. 73-74. See also id. at 401 U. S. 55 (STEWART and Harlan, JJ., concurring); id. at 401 U. S. 75-76 (BRENNAN, WHITE, and MARSHALL, JJ., concurring).These reservations anticipated the Court's recognition that the relevant principles of equity, comity, and federalism "have little force in the absence of a pending state proceeding." Lake Carriers' Assn. v. MacMullan, 406 U. S. 498, 406 U. S. 509 (1972). When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding. Cf. Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 490 (1965).When no state proceeding is pending, and thus considerations of equity, comity, and federalism have little vitality, the propriety of granting federal declaratory relief may properly be considered independently of a request for injunctive relief. Here, the Court of Appeals held that, because injunctive relief would not be appropriate, since petitioner failed to demonstrate irreparable injury -- a traditional prerequisite to Page 415 U. S. 463 injunctive relief, e.g., Dombrowski v. Pfister, supra -- it followed that declaratory relief was also inappropriate. Even if the Court of Appeals correctly viewed injunctive relief as inappropriate -- a question we need not reach today, since petitioner has abandoned his request for that remedy, see n 6 supra [Footnote 12] -- the court erred in treating the requests for injunctive and declaratory relief as a single issue."[W]hen no state prosecution is pending and the only question is whether declaratory relief is appropriate[,] . . . the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance."Perez v. Ledesma, 401 U. S. 82, 401 U. S. 104 (1971) (separate opinion of BRENNAN, J.).The subject matter jurisdiction of the lower federal courts was greatly expanded in the wake of the Civil War. A pervasive sense of nationalism led to enactment of the Civil Rights Act of 1871, 17 Stat. 13, empowering the Page 415 U. S. 464 lower federal courts to determine the constitutionality of actions, taken by persons under color of state law, allegedly depriving other individuals of rights guaranteed by the Constitution and federal law, see 42 U.S.C. § 1983, 28 U.S.C. § 1343(3). [Footnote 13] Four years later, in the Judiciary Act of March 3, 1875, 18 Stat. 470, Congress conferred upon the lower federal courts, for but the second time in their nearly century-old history, general federal question jurisdiction subject only to a jurisdictional amount requirement, see 28 U.S.C. § 1331. [Footnote 14] With this latter enactment, the lower federal courts"ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States."F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928) (emphasis added). [Footnote 15] These two statutes, together with the Court's decision in Ex parte Young, 209 U. S. 123 (1908) -- holding that state officials who threaten to enforce an unconstitutional state statute may be enjoined by a federal court of equity, and that a federal court may, in appropriate circumstances, enjoin Page 415 U. S. 465 future state criminal prosecutions under the unconstitutional Act -- have "established the modern framework for federal protection of constitutional rights from state interference." Perez v. Ledesma, supra, at 401 U. S. 107 (separate opinion of BRENNAN, J.).A "storm of controversy" raged in the wake of Ex parte Young, focusing principally on the power of a single federal judge to grant ex parte interlocutory injunctions against the enforcement of state statutes, H. Hart & H. Wechsler, The Federal Courts and the Federal System 967 (2d ed.1973); see generally Goldstein v. Cox, 396 U. S. 471 (1970); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795, 804-805 (1934). This uproar was only partially quelled by Congress' passage of legislation, 36 Stat. 557, requiring the convening of a three-judge district court [Footnote 16] before a preliminary injunction against enforcement of a state statute could issue, and providing for direct appeal to this Court from a decision granting or denying such relief. [Footnote 17] See 28 Page 415 U. S. 466 U.S.C. §§ 2281, 1253. From a State's viewpoint the granting of injunctive relief -- even by these courts of special dignity -- "rather clumsily" crippled state enforcement of its statutes pending further review, see H.R.Rep. No. 288, 70th Cong., 1st Sess., 2 (1928); H.R.Rep. No. 94, 71st Cong., 2d Sess., 2 (1929); H.R.Rep. No. 627, 72d Cong., 1st Sess., 2 (1932). Furthermore, plaintiffs were dissatisfied with this method of testing the constitutionality of state statutes, since it placed upon them the burden of demonstrating the traditional prerequisites to equitable relief -- most importantly, irreparable injury. See, e.g., Fenner v. Boykin, 271 U. S. 240, 271 U. S. 243 (1926).To dispel these difficulties, Congress, in 1934, enacted the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. That Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction and to be utilized to test the constitutionality of state criminal statutes in cases where injunctive relief would be unavailable is amply evidenced by the legislative history of the Act, traced in full detail in Perez v. Ledesma, supra, at 401 U. S. 111-115 (separate opinion of BRENNAN, J.). The highlights of that history, particularly pertinent to our inquiry today, emphasize that:"[I]n 1934, without expanding or reducing the subject matter jurisdiction of the federal courts or in any way diminishing the continuing vitality of Ex parte Young with respect to federal injunctions, Congress empowered the federal courts to grant a new remedy, the declaratory judgment. . . . "Page 415 U. S. 467"The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy. . . . Of particular significance on the question before us, the Senate report [S.Rep. No. 1005, 73d Cong., 2d Sess. (1934)] makes it even clearer that the declaratory judgment was designed to be available to test state criminal statutes in circumstances where an injunction would not be appropriate. . . .""* * * *" "Much of the hostility to federal injunctions referred to in the Senate report was hostility to their use against state officials seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U.S.C. § 1342, and the Tax Injunction Act of 1937, 28 U.S.C. § 1341. The Federal Declaratory Judgment Act was intended to provide an alternative to injunctions against state officials, except where there was a federal policy against federal adjudication of the class of litigation altogether. . . . Moreover, the Senate report's clear implication that declaratory relief would have been appropriate in Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), both cases involving federal.adjudication of the constitutionality of a state statute carrying criminal penalties, and the report's quotation from Terrace v. Thompson which also involved anticipatory federal adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the constitutionality Page 415 U. S. 468 of state criminal statutes."401 U.S. at 401 U. S. 111-112, 401 U. S. 115. [Footnote 18]It was this history that formed the backdrop to our decision in Zwickler v. Koota, 389 U. S. 241 (1967), where a state criminal statute was attacked on grounds of unconstitutional overbreadth and no state prosecution was pending against the federal plaintiff. There, we found error in a three-judge district court's considering, as a single question, the propriety of granting injunctive and declaratory relief. Although we noted that injunctive relief might well be unavailable under principles of equity jurisprudence canvassed in Douglas v. City of Jeannette, 319 U. S. 157 (1943), we held that"a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction."389 U.S. at 389 U. S. 254. Only one year ago, we Page 415 U. S. 469 reaffirmed the Zwickler v. Koota holding in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973). In those two cases, we declined to decide whether the District Courts had properly denied to the federal plaintiffs, against whom no prosecutions were pending, injunctive relief restraining enforcement of the Texas and Georgia criminal abortion statutes; instead, we affirmed the issuance of declaratory judgments of unconstitutionality, anticipating that these would be given effect by state authorities. We said:"The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U. S. 241, 389 U. S. 252-255 (1967); Dombrowski v. Pfister, 380 U. S. 479 (1965)."Roe v. Wade, supra, at 410 U. S. 166 (emphasis added). See Doe v. Bolton, supra, at 410 U. S. 201.The "different considerations" entering into a decision whether to grant declaratory relief have their origins in the preceding historical summary. First, as Congress recognized in 1934, a declaratory judgment will have a less intrusive effect on the administration of state criminal laws. As was observed in Perez v. Ledesma, 401 U.S. at 401 U. S. 124-126 (separate opinion of BRENNAN, J.):"Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in toto -- that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad -- that is, incapable of being constitutionally applied to the full extent of its purport. In either case, a federal declaration of unconstitutionality reflects the Page 415 U. S. 470 opinion of the federal court that the statute cannot be fully enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that, if the statute is narrowly construed by the state courts it will not be incapable of constitutional applications. Accordingly, the declaration does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a federal court declares the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the federal court decision, to bring a prosecution under the statute if he reasonably believes that the defendant's conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. Even where a declaration of unconstitutionality is not reviewed by this Court, the declaration may still be able to cut down the deterrent effect of an unconstitutional state statute. The persuasive force of the court's opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew. Finally, the federal court judgment may have some res judicata effect, though this point is not free from difficulty, and the governing rules remain to be developed with Page 415 U. S. 471 a view to the proper workings of a federal system. What is clear, however, is that, even though a declaratory judgment has 'the force and effect of a final judgment,' 28 U.S.C. § 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt. [Footnote 19]"(Footnote omitted.)Second, engrafting upon the Declaratory Judgment Act a requirement that all of the traditional equitable prerequisites to the issuance of an injunction be satisfied before the issuance of a declaratory judgment is considered would defy Congress' intent to make declaratory relief available in cases where an injunction would be inappropriate."Were the law to be that a plaintiff could not obtain a declaratory judgment that a local ordinance was unconstitutional when no state prosecution is pending unless he could allege and prove circumstances justifying a federal injunction of an existing state prosecution, the Federal Declaratory Judgment Act would have been pro tanto repealed."Wulp v. Corcoran, 454 F.2d 826, 832 (CA1 1972) (Coffin, J.). See Perez v. Ledesma, 401 U.S. at 401 U. S. 116 (separate opinion of BRENNAN, J.). Thus, the Court of Appeals was in error when it ruled that a failure to demonstrate irreparable injury -- a traditional prerequisite to injunctive relief, Page 415 U. S. 472 having no equivalent in the law of declaratory judgments, see Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 300 U. S. 241 (1937); Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 288 U. S. 264 (1933) -- precluded the granting of declaratory relief.The only occasions where this Court has disregarded these "different considerations" and found that a preclusion of injunctive relief inevitably led to a denial of declaratory relief have been cases in which principles of federalism militated altogether against federal intervention in a class of adjudications. See Great Lakes Co. v. Huffman, 319 U. S. 293 (1943) (federal policy against interfering with the enforcement of state tax laws); [Footnote 20] Samuels v. Mackell, 401 U. S. 66 (1971). In the instant case, principles of federalism not only do not preclude federal intervention, they compel it. Requiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head. When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) -- as they are here -- we have not required exhaustion of state judicial or administrative remedies, Page 415 U. S. 473 recognizing.the paramount role Congress has assigned to the federal courts to protect constitutional rights. See, e.g., McNeese v. Board of Education, 373 U. S. 668 (1963); Monroe v. Pape, 365 U. S. 167 (1961). But exhaustion of state remedies is precisely what would be required if both federal injunctive and declaratory relief were unavailable in a case where no state prosecution had been commenced.IIIRespondents, however, relying principally upon our decision in Cameron v. Johnson, 390 U. S. 611 (1968), argue that, although it may be appropriate to issue a declaratory judgment when no state criminal proceeding is pending and the attack is upon the facial validity of a state criminal statute, such a step would be improper where, as here, the attack is merely upon the constitutionality of the statute as applied, since the State's interest in unencumbered enforcement of its laws outweighs the minimal federal interest in protecting the constitutional rights of only a single individual. We reject the argument.In Cameron v. Johnson, the appellants sought a declaratory judgment that a Mississippi anti-picketing law was an overly broad and vague regulation of protected expression and an injunction restraining pending prosecutions against them for violations of the statute. We agreed with the District Court that the statute was not overly broad or vague, and that nothing in the record supported appellants' assertion that they were being prosecuted in bad faith. In that circumstance, we held that"[t]he mere possibility of erroneous application of the statute does not amount 'to the irreparable injury necessary to justify a disruption of orderly state proceedings.' . . . The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to Page 415 U. S. 474 escape the finding that the State had no expectation of securing valid convictions."Id. at 390 U. S. 621. Our holding in Cameron was thus that the state courts in which prosecutions were already pending would have to be given the first opportunity to correct any misapplication of the state criminal laws; Cameron is plainly not authority for the proposition that, in the absence of a pending state proceeding, a federal plaintiff may not seek a declaratory judgment that the state statute is being applied in violation of his constitutional rights.Indeed, the State's concern with potential interference in the administration of its criminal laws is of lesser dimension when an attack is made upon the constitutionality of a state statute as applied. A declaratory judgment of a lower federal court that a state statute is invalid in toto -- and therefore incapable of any valid application -- or is overbroad or vague -- and therefore no person can properly be convicted under the statute until it is given a narrowing or clarifying construction, see, e.g., United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 369 (1971); Gooding v. Wilson, 405 U. S. 518, 405 U. S. 520 (1972) -- will likely have a more significant potential for disruption of state enforcement policies than a declaration specifying a limited number of impermissible applications of the statute. While the federal interest may be greater when a state statute is attacked on its face, since there exists the potential for eliminating any broad-ranging deterrent effect on would-be actors, see Dombrowski v. Pfister, 380 U. S. 479 (1965), we do not find this consideration controlling. The solitary individual who suffers a deprivation of his constitutional rights is no less deserving of redress than one who suffers together with others. [Footnote 21] Page 415 U. S. 475We therefore hold that, regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied. [Footnote 22] 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 CourtSteffel v. Thompson, 415 U.S. 452 (1974)Steffel v. ThompsonNo. 72-5581Argued November 13, 1973Decided March 19, 1974415 U.S. 452SyllabusPetitioner, who had twice been warned to stop handbilling on an exterior sidewalk of a shopping center against American involvement in Vietnam and threatened with arrest by police if he failed to do so, and whose companion continued handbilling and was charged with violating the Georgia criminal trespass law, brought an action for injunctive and declaratory relief in the District Court, claiming that application to him of that law would violate his First and Fourteenth Amendment rights. The District Court dismissed the action, finding that "no meaningful contention can be made that the state has [acted] or will . . . act in bad faith," and therefore "the rudiments of an active controversy between the parties . . . [are] lacking." The Court of Appeals affirmed, being of the view that Younger v. Harris, 401 U. S. 37, made it clear that irreparable injury must be measured by bad faith harassment, and such a test must be applied to a request for injunctive relief against threatened, as well as pending, state court criminal prosecution; and that it followed from the reasoning of Samuels v. Mackell, 401 U. S. 66, that the same test of bad faith harassment is a prerequisite for declaratory relief with respect to a threatened prosecution.Held:1. This case presents an "actual controversy" under Art. III of the Constitution and the Federal Declaratory Judgment Act, the alleged threats of prosecution in the circumstances alleged not being "imaginary or speculative" and it being unnecessary for petitioner to expose himself to actual arrest or prosecution to make his constitutional challenge. Whether the controversy remains substantial and continuing in the light of the effect of the recent reduction of the Nation's involvement in Vietnam on petitioner's desire to engage in the handbilling at the shopping center must be resolved by the District Court on remand. Pp. 415 U. S. 458-460.2. Federal declaratory relief is not precluded when a prosecution based upon an assertedly unconstitutional state statute has been threatened, but is not pending, even if a showing of bad faith Page 415 U. S. 453 enforcement or other special circumstances has not been made. Pp. 415 U. S. 460-473.(a) When no state criminal proceeding is pending at the time the federal complaint is filed, considerations of equity, comity, and federalism on which Younger v. Harris and Samuels v. Mackell both supra, were based, have little vitality: federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state courts' ability to enforce constitutional principles. Pp. 415 U. S. 460-462(b) Even if the Court of Appeals correctly viewed injunctive relief as inappropriate (a question not reached here, petitioner having abandoned his request for that remedy), the court erred in treating the requests for injunctive and declaratory relief as a single issue and in holding that a failure to demonstrate irreparable injury precluded the granting of declaratory relief. Congress plainly intended that a declaratory judgment be available as a milder alternative than the injunction to test the constitutionality of state criminal statutes. Pp. 415 U. S. 462-473.3. In determining whether it is appropriate to grant declaratory relief when no state criminal proceeding is pending, it is immaterial whether the attack is made on the constitutionality of a state criminal statute on its face or as applied. Cameron v. Johnson, 390 U. S. 611, distinguished. Pp. 415 U. S. 473-475.459 F.2d 919, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. STEWART, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 415 U. S. 475. WHITE, J., filed a concurring opinion, post, p. 415 U. S. 476. REHNQUIST, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 415 U. S. 478. Page 415 U. S. 454

1985_84-1480

JUSTICE STEVENS delivered the opinion of the Court.Respondent entered a plea of not guilty by reason of insanity to a charge of sexual battery. At his trial in the Circuit Court for Sarasota County, Florida, the prosecutor argued that respondent's silence after receiving Miranda warnings was evidence of his sanity. The question presented is whether such use of a defendant's silence violates the Due Process Clause of the Fourteenth Amendment as construed in Doyle v. Ohio, 426 U. S. 610 (1976). Page 474 U. S. 286IThe battery occurred in woods near a beach in the vicinity of Sarasota, Florida. After respondent released his victim, she drove directly to the police station to report the incident. Based on her description, Officer Pilifant identified respondent on the beach and placed him under arrest about two hours after the assault occurred. After handcuffing him, the officer gave respondent the warnings required by our decision in Miranda v. Arizona, 384 U. S. 436, 384 U. S. 467-473 (1966). Specifically, Officer Pilifant stated:"You have a right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?"App. 73.Respondent replied by stating that he understood his rights and that he wanted to talk to an attorney before making any statement. The Miranda warnings were repeated by Officer Pilifant while driving to the police station, and reiterated by Detective Jolley after they arrived at the station. Each time that respondent was asked "if he wished to give up the right to remain silent," he declined, stating that he wanted to talk to an attorney. App. 77.Under Florida law, when a defendant pleads not guilty by reason of insanity and when his evidence is sufficient to raise a reasonable doubt about his sanity, the State has the burden of proving sanity beyond a reasonable doubt. [Footnote 1] In his case in Page 474 U. S. 287 chief, the prosecutor introduced the testimony of Officer Pilifant and Detective Jolley. They described the occasions on which respondent had exercised his right to remain silent and had expressed a desire to consult counsel before answering any questions. Both officers repeated the several colloquies with respondent. In his defense, respondent did not testify, but two psychiatrists expressed the opinion that he was a paranoid schizophrenic who had been unable to distinguish right from wrong at the time of the alleged offense. In rebuttal, the prosecutor relied on a third psychiatrist who expressed a contrary opinion.In his closing argument, over defense counsel's objection, the prosecutor reviewed the testimony of Officer Pilifant and Detective Jolley and suggested that respondent's repeated refusals to answer questions without first consulting an attorney demonstrated a degree of comprehension that was inconsistent with his claim of insanity. [Footnote 2] The jury found respondent guilty, and the judge sentenced him to life imprisonment. Page 474 U. S. 288By a 2-to-1 vote, the Florida Court of Appeal for the Second District affirmed the conviction. Greenfield v. State, 337 So. 2d 1021 (1976). After noting that "prosecutorial comment relating to a defendant's insistence on his right to remain silent generally constitutes reversible error," id. at 1022, the majority held that the general rule did not apply to a case in which an insanity plea had been filed. The dissenting judge suggested that the application of the general rule would not have prejudiced the prosecution because the"questions and answers could have been couched in such a manner as to permit the officer to convey to the jury the fact that the appellant carried on a perfectly rational conversation without specifically stating that he chose to avail himself of his right to remain silent."Id. at 1023.The Florida Supreme Court granted respondent's petition for certiorari and summarily remanded the case to the Court of Appeal for reconsideration in light of Clark v. State, 363 So. 2d 331 (1978), a case in which it had held that improper comment on a defendant's silence was constitutional error reviewable on appeal if an adequate contemporaneous objection was made either at the time the evidence was introduced or at the time of the prosecutor's comment. Greenfield v. State, 364 So. 2d 885 (1978). On reconsideration, the Court of Appeal adhered to its earlier decision.Having exhausted his state remedies, respondent filed a petition for a writ of habeas corpus in the Federal District Court. The petition was referred to a Magistrate. The State argued that the silence issue was barred because respondent's counsel had failed to make an adequate objection. The Magistrate concluded that federal review of the claim was not foreclosed, because counsel had objected to the prosecutor's closing argument and because the Florida Court of Appeal had rejected the claim on its merits. The Page 474 U. S. 289 Magistrate, however, agreed with the Florida courts' disposition of the merits and recommended that the habeas corpus petition be denied. The District Court accepted that recommendation. [Footnote 3]The United States Court of Appeals for the Eleventh Circuit reversed. 741 F.2d 329 (1984). Disagreeing with two other Federal Courts of Appeals [Footnote 4] -- but not with the position taken by the Florida Supreme Court in a case decided after this respondent had exhausted his state remedies, see State v. Burwick, 442 So. 2d 944 (1983), cert. denied, 466 U.S. 931 (1984) -- the Court of Appeals held that, under the reasoning of Doyle v. Ohio, 426 U. S. 610 (1976), respondent was entitled to a new trial. We agree.IIDoyle, the defendants had taken the witness stand and offered an exculpatory explanation for their participation in what the State's evidence had portrayed as a routine marihuana transaction. On cross-examination, the prosecutor impeached their testimony by asking them why they had not explained their conduct at the time of their arrest. The Court held that such cross-examination was fundamentally unfair Page 474 U. S. 290 and therefore violated the Due Process Clause of the Fourteenth Amendment.The source of the unfairness was the implicit assurance contained in the Miranda warnings "that silence will carry no penalty." [Footnote 5] The critical importance of the implied promise that is conveyed to an arrested person by the Miranda warnings has been repeatedly confirmed in subsequent decisions. Thus, in Fletcher v. Weir, 455 U. S. 603, 455 U. S. 606 (1982), we explained:"In Jenkins [v. Anderson, 447 U. S. 231 (1980)], as in other post-Doyle cases, we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him. In Roberts v. United States, 445 U. S. 552, 445 U. S. 561 (1980), we observed that the Page 474 U. S. 291 postconviction, presentencing silence of the defendant did not resemble 'postarrest silence that may be induced by the assurances contained in Miranda warnings.' In Jenkins, we noted that the failure to speak involved in that case occurred before the defendant was taken into custody and was given his Miranda warnings, commenting that no governmental action induced the defendant to remain silent before his arrest. 447 U.S. at 447 U. S. 239-240. Finally, in Anderson v. Charles, 447 U. S. 404, 447 U. S. 407-408 (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because""Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances."Since Fletcher, moreover, we have continued to reiterate our view that Doyle rests on"the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial."South Dakota v. Neville, 459 U. S. 553, 459 U. S. 565 (1983.) [Footnote 6] Doyle and subsequent cases have thus made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires. [Footnote 7] Page 474 U. S. 292The Florida Attorney General argues that Doyle does not control this case because proof of sanity is significantly different from proof of the commission of the underlying offense, and that the Doyle due process rationale thus does not apply. At the outset, we note that, in this case, unlike Doyle and its progeny, the silence was used as affirmative proof in the case in chief, not as impeachment. [Footnote 8] The Florida Attorney General argues that an insanity defense should be viewed as an "affirmative defense," and that the use of silence to overcome an insanity defense should thus be viewed as impeachment. Without accepting that argument, or its characterization of the insanity defense, [Footnote 9] we address the claim that the Doyle due process analysis should not prevent the use of post-Miranda warnings silence to overcome an insanity defense.We find no warrant for the claimed distinction in the reasoning of Doyle and of subsequent cases. The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant's plea of insanity. In both situations, the State gives warnings to protect constitutional rights, and implicitly promises that any exercise of those rights will not be penalized. In both situations, the State then seeks to make use of the defendant's exercise of those rights in obtaining his conviction. The implicit promise, the breach, and the consequent penalty are identical in both situations. Page 474 U. S. 293The Florida Attorney General argues, however, that introduction of the evidence of respondent's post-Miranda warnings silence no more violates the Constitution than did the reference to a defendant's refusal to take a blood-alcohol test in South Dakota v. Neville, supra. In Neville, we rejected the due process challenge -- and the attempt to rely on Doyle -- because of the important differences between the refusal to take a blood-alcohol test and the post-Miranda warnings silence. We noted that, unlike the refusal to take an optional blood-alcohol test, the right of silence after Miranda warnings is of constitutional dimension. 459 U.S. at 459 U. S. 565. We also noted that, unlike the state warning about the refusal to take the blood-alcohol test (which expressly advised Neville that his refusal could be used to deprive him of his driving privileges), Miranda warnings contain implied assurances that silence will not be used against the suspect. 459 U.S. at 459 U. S. 565-566. Both Doyle elements -- the constitutional dimension and the implied assurance -- are equally present when post-Miranda warnings silence is used to prove sanity. Unlike Neville, therefore, and like Doyle, Greenfield received "the sort of implicit promise to forgo use of evidence that would unfairly trick' [him] if the evidence were later offered against him at trial." 459 U.S. at 459 U. S. 566. [Footnote 10]The Florida Attorney General further contends that a suspect's comprehension of Miranda warnings, as evidenced by his silence, is far more probative of sanity than of commission of the underlying offense. He therefore argues that the reliance on the "insolubly ambiguous" character of the post-Miranda warnings silence in the Doyle opinion, 426 U.S. at 426 U. S. 617, is inappropriate in the context of an insanity defense. We need not evaluate the probative value of respondent's silence Page 474 U. S. 294 to reject this argument. [Footnote 11] For the ambiguity of the defendants' silence in Doyle merely added weight to the Court's principal rationale, which rested on the implied assurance contained in the Miranda warning. See South Dakota v. Neville, 459 U.S. at 459 U. S. 564-565; Jenkins v. Anderson, 447 U. S. 231, 447 U. S. 239-240 (1980). [Footnote 12] The Attorney General's argument about the probative value of silence therefore fails entirely to meet the problem of fundamental unfairness that flows from the State's breach of its implied assurances.Finally, the Florida Attorney General argues that it is vitally important to be able to present evidence of a defendant's sanity at the time of the offense and shortly thereafter. Page 474 U. S. 295 However, as the dissenting judge in the Florida Court of Appeal recognized in this very case, the State's legitimate interest in proving that the defendant's behavior appeared to be rational at the time of his arrest could have been served by carefully framed questions that avoided any mention of the defendant's exercise of his constitutional rights to remain silent and to consult counsel. [Footnote 13] What is impermissible is the evidentiary use of an individual's exercise of his constitutional rights after the State's assurance that the invocation of those rights will not be penalized.In Doyle, we held that Miranda warnings contain an implied promise, rooted in the Constitution, that "silence will carry no penalty." 426 U.S. at 426 U. S. 618. Our conclusion that it was fundamentally unfair for the Ohio prosecutor to breach that promise by using the defendants' postarrest, post-Miranda warnings silence to impeach their trial testimony requires us also to conclude that it was fundamentally unfair for the Florida prosecutor to breach the officers' promise to respondent by using his postarrest, post-Miranda warnings silence as evidence of his sanity. [Footnote 14]The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtWainwright v. Greenfield, 474 U.S. 284 (1986)Wainwright v. GreenfieldNo. 84-1480Argued November 13, 1985Decided January 14, 1986474 U.S. 284SyllabusOn three occasions shortly after his arrest in Florida for sexual battery, respondent was given Miranda warnings, and in each instance he exercised his right to remain silent and stated that he wished to speak with an attorney before answering any questions. Respondent later pleaded not guilty by reason of insanity, and in the closing arguments in the Florida trial court, the prosecutor, over defense counsel's objection, reviewed police officer testimony as to the occasions on which respondent had exercised his right to remain silent, and suggested that respondent's repeated refusals to answer questions without first consulting an attorney demonstrated a degree of comprehension that was inconsistent with his claim of insanity. Respondent's subsequent conviction was affirmed by the Florida Court of Appeal, which held that the general rule precluding prosecutorial comment as to a defendant's exercise of his right to remain silent did not apply to a case in which an insanity plea was filed. Respondent then unsuccessfully sought habeas corpus relief in Federal District Court, but the Court of Appeals reversed, holding that, under the reasoning of Doyle v. Ohio, 426 U. S. 610, respondent was entitled to a new trial.Held: The prosecutor's use of respondent's postarrest, post-Miranda warnings silence as evidence of sanity violated the Due Process Clause of the Fourteenth Amendment. Pp. 474 U. S. 289-295.(a) In Doyle, supra, it was held that the prosecutor's impeachment of the defendants' exculpatory testimony by asking them on cross-examination why they had not explained their conduct at the time of their arrest was fundamentally unfair, and therefore violated the Due Process Clause. The source of the unfairness was the implicit assurance contained in Miranda warnings that silence will carry no penalty. Pp. 474 U. S. 289-291.(b) There is no merit to the argument that Doyle does not control this case because proof of sanity is significantly different from proof of the commission of the underlying offense. The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair Page 474 U. S. 285 to breach that promise by using silence to overcome a defendant's plea of insanity. South Dakota v. Neville, 459 U. S. 553, distinguished. Pp. 292-293.(c) The argument that Doyle should not control this case because a suspect's comprehension of Miranda warnings, as evidenced by his silence, is far more probative of sanity than of commission of the underlying offense, is also unpersuasive. Such argument fails to meet the problem of fundamental unfairness that flows from the State's breach of its implied assurances. Pp. 474 U. S. 293-294.(d) A State's legitimate interest in proving that the defendant's behavior appeared to be rational at the time of his arrest can be served by carefully framed questions that avoid any mention of the defendant's exercise of his constitutional rights to remain silent and to consult counsel. Pp. 474 U. S. 294-295.741 F.2d 329, affirmed.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. REHNQUIST, J., filed an opinion concurring in the result, in which BURGER, C.J., joined, post, p. 474 U. S. 296.

1960_198

MR. JUSTICE HARLAN delivered the opinion of the Court.Having been ordered deported as an alien on grounds which are not contested, petitioner, claiming to be a citizen, brought the present declaratory judgment action under 8 U.S.C. § 1503 to determine his citizenship status.Petitioner, whose mother is a native-born United States citizen and whose father is a citizen of Italy (their marriage having been in the United States), was born in Italy in 1906 while his parents were temporarily residing there, and entered the United States with his mother later the same year. He has continuously resided in the United States since that time, and has never been naturalized. His claim of United States citizenship is based primarily upon two statutes: (1) Section 2172 of the Revised Statutes (1878 ed.), [Footnote 1] and (2) Section 5 of an Act of 1907. [Footnote 2] The Court of Appeals found that neither statute obtained as to one in the circumstances of this petitioner, 278 F.2d 68. We granted certiorari to review that conclusion, 364 U.S. 861, in view of the apparent harshness of the result entailed. For reasons given hereafter, we agree with the Court of Appeals.IIn 1874, Congress reenacted two statutes which seem to defy complete reconciliation. R.S. § 2172, a reenactment Page 366 U. S. 310 of § 4 of an Act of April 14, 1802 (2 Stat. 155), provided that"children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof. . . ."(Emphasis added.) R.S. § 1993, substantially a reenactment of § 1 of an Act of February 10, 1855 (10 Stat. 604), provided that"All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."(Emphasis added.) Since R.S. § 2172 spoke broadly of children of citizen "persons" -- perhaps citizen mothers as well as citizen fathers -- while R.S. § 1993 spoke only of children of citizen "fathers" (and even then embraced only citizen fathers who had been United States residents), there is a conflict in the apparent reach of the simultaneously reenacted provisions.In this circumstance, petitioner, claiming that "persons" in R.S. § 2172 included, in the disjunctive, both citizen fathers and mothers, contends that we are faced with deciding either that R.S. § 1993 simply repeats, with modifications, that part of R.S. § 2172 relating to "fathers," (leaving its provisions relating to "mothers" intact), or that it repeals that part of R.S. § 2172 relating to "mothers." He suggests that we make the former choice to avoid the admitted severity of deporting a fifty-five-year-old man who has resided in this country since he was an infant. The Government, on the other hand, Page 366 U. S. 311 asserts that R.S. § 2172 should be read as embracing only children both of whose parents were American citizens. Whatever the force of these opposing contentions may be, other considerations unmistakably lead to the conclusion that petitioner's claim to citizenship under R.S. § 2172 must be rejected.In 1854, Horace Binney, one of the country's leading lawyers and a recognized authority on the immigration laws, published an article entitled "The Alienigenae of the United States" [Footnote 3] in which he argued that the words "who now are, or have been" in the 1802 predecessor of R.S. § 2172 had the effect of granting citizenship to the foreign-born children only of persons who were citizens of the United States on or before the effective date of the 1802 statute (April 14, 1802), in other words, that the statute had no prospective application. Foreign-born children of persons who became American citizens between April 14, 1802 and 1854, were aliens, Mr. Binney argued. In 1855, Congress responded to the situation by enacting the predecessor (10 Stat. 604) of R.S. § 1993. [Footnote 4] The provision had retroactive, as well as prospective, effect, but was clearly intended to apply only to children of citizen fathers. [Footnote 5] Page 366 U. S. 312The view of Mr. Blinney and the 1855 Congress that the Act of 1802 had no application to the children of persons who were not citizens in 1802 has found acceptance in the decisions of this Court. See United States v. Wong Kim Ark, 169 U. S. 649, 169 U. S. 673-674; Weedin v. Chin Bow, 274 U. S. 657, 274 U. S. 663-664; see also Mock Gum Ying v. Cahill, 81 F.2d 940. The commentators have agreed. See 2 Kent, Commentaries at 53; 3 Hackworth, Digest of International Law, § 222; cf. Matter of Owen, 36 Op.Atty.Gen. 197, 200. Finally Congress has repeatedly stated and acted upon that premise. See, e.g., H.R.Rep. No. 1110, 67th Cong., 2d Sess. at p. 3. Indeed when, in 1934, Congress finally granted citizenship rights to the foreign-born children of citizen mothers, 48 Stat. 797, it not only specifically made the provision prospective, but further made clear its view that this was a reversal of prior law. See H.R.Rep. No. 131, 73d Cong., 1st Sess., p. 2, and S.Rep. No. 865, 73d Cong., 2d Sess., p. 1.Whatever may have been the reason for the 1874 reenactment of the Act of 1802 as R.S. § 2172, we find nothing in that action which suggests a purpose to reverse the structure of inherited citizenship that Congress created in 1855 and recognized and reaffirmed until 1934. On this basis and in the light of our precedents, we hold that, at the time of petitioner's birth in 1906, R.S. § 1993 provided the sole source of inherited citizenship status for foreign-born children of American parents. That statute cannot avail this petitioner, who is the foreign-born child of an alien father.IIPetitioner's second ground for claiming citizenship is founded upon § 5 of an Act of March 2, 1907 (34 Stat. Page 366 U. S. 313 1229), which provided in relevant part"[T]hat a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of . . . resumption of American citizenship by the parent. . . . [Footnote 6]"Petitioner's claim in this regard necessarily depends upon our finding (1) that his mother was an alien at the time of his birth, having lost her citizenship either when she married an alien or when she traveled abroad with her alien husband in 1906, and (2) that his mother resumed her citizenship on her return to the United States.It is sufficient to dispose of the contention that we find that mere marriage to an alien, without change of domicile, did not terminate the citizenship of an American woman either at the time of petitioner's birth or his mother's return to the United States, both of which occurred in 1906. [Footnote 7] This view, which is supported by the weight of authority, [Footnote 8] is indeed not contested by petitioner, who instead asks this Court to construe § 5 of the 1907 Act so as to avoid the obvious paradox of giving preferred treatment to the children of a woman who has lost her citizenship over that afforded to the children of a Page 366 U. S. 314 woman who has never lost her citizenship. [Footnote 9] Paradoxical though this may be, we have no power to "construe" away the unambiguous statutory requirement of § 5 that petitioner's mother must have lost her citizenship at the time of his birth. [Footnote 10]IIIPetitioner makes a further contention. It is urged that the Government should not be heard to say that petitioner was born outside the United States because of its own misconduct. Petitioner's mother testified that she had been prevented from leaving Italy prior to petitioner's birth by the refusal of an American Consular Officer to issue her a passport because of her pregnant condition. However, it is uncontested that the United States did not require a passport for a citizen to return to the country in 1906. Moreover, petitioner has presented no evidence of any Italian requirement of an American passport to leave Italy at that time. In this light, the testimony by petitioner's mother as to what may have been only the consular official's well meant advice -- "I am sorry, Mrs., you cannot [return to the United States] in that condition" -- falls far short of misconduct such Page 366 U. S. 315 as might prevent the United States from relying on petitioner's foreign birth. In this situation, we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials. [Footnote 11]Affirmed

U.S. Supreme CourtMontana v. Kennedy, 366 U.S. 308 (1961)Montana v. KennedyNo. 198Argued March 22, 1961Decided May 22, 1961366 U.S. 308SyllabusPetitioner's mother is a native-born citizen of the United States, and his father is an Italian citizen who has never been naturalized. They were married in the United States, and their marital relationship has never been terminated. Petitioner was born in Italy in 1906, while his parents were residing there temporarily, and his mother brought him to the United States later in the same year. He has since resided continuously in the United States, and has never been naturalized.Held: Petitioner is not a citizen of the United States. Pp. 366 U. S. 309-315.(a) R.S. § 2172, granting inherited citizenship to children born abroad of parents who "now are, or have been," citizens, applies only to children whose parents were citizens on or before April 14, 1802, when its predecessor became effective. When petitioner was born in 1906, R.S. § 1993 provided the sole source of inherited citizenship for foreign-born children, and it applied only to children whose fathers were citizens. Pp. 366 U. S. 309-312.(b) Section 5 of the Act of March 2, 1907, which provided that"a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of . . . resumption of American citizenship by the parent,"is not applicable to petitioner, since mere marriage to an alien, without change of domicile, did not terminate the citizenship of an American woman either at the time of petitioner's birth or at the time of his mother's return to the United States, both of which occurred in 1906. Pp. 366 U. S. 312-314.(c) A different conclusion is not required by the testimony of petitioner's mother that she had been prevented from returning to the United States prior to petitioner's birth by the wrongful refusal of an American Consular Officer to issue her a passport because of her pregnant condition. Pp. 366 U. S. 314-315.278 F.2d 68 affirmed. Page 366 U. S. 309

1977_76-5325

MR. JUSTICE POWELL delivered the opinion of the Court.This case requires us to decide whether the Court of Appeals lacked jurisdiction to review an order directing petitioner's discharge from respondent's custody because respondent's appeal was untimely. In order to resolve this question, we must consider the applicability of Federal Rules of Civil Procedure 52(b) and 59 in habeas corpus proceedings. Because we conclude that the Court of Appeals lacked jurisdiction, we reverse. [Footnote 1] Page 434 U. S. 259IOn January 29, 1971, a teenage girl reported to Chicago police that she had been raped. She gave a physical description of her assailants to one officer and told another officer that one of her attackers was named "Browder," was about 17 years old, and lived in the 4000 block of West Monroe. On the basis of this information and further investigation, the police focused on petitioner's brother, Tyrone Browder, whose name was in the files of the Youth Division of the Chicago Police Department. A telephone conversation between a Youth Division officer and Mrs. Lucille Browder shifted the officers' suspicions from Tyrone to petitioner, and Mrs. Browder agreed to keep both her sons at home until the police arrived to talk to them. Four officers interviewed petitioner and his brother, both of whom denied knowledge of the rape. The officers arrested the brothers along with two other teenage Negro males who were present at the Browder home. The four arrestees were taken to the police station, where another officer noticed that petitioner fit the description of the assailant in a rape that had taken place on January 30. In separate lineups, each complainant identified petitioner as her assailant. After being informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966), petitioner confessed Page 434 U. S. 260 to the second rape but denied having committed the rape on January 29.At his trial for the January 30 rape, petitioner moved unsuccessfully to suppress the lineup identification and the confession on grounds unrelated to the lawfulness of his arrest, which petitioner did not challenge. On direct appeal, however, petitioner argued that the identification and confession were the fruits of an unlawful arrest, effected without probable cause and without a warrant. The Illinois intermediate appellate court invoked its contemporaneous objection rule and held that petitioner had waived this claim. Petitioner's efforts to obtain review of this claim on direct appeal to the Illinois Supreme Court and on state collateral attack fared no better.Petitioner met with success at last when he petitioned for a writ of habeas corpus in Federal District Court. On October 21, 1975, the District Court issued an opinion and order directing that petitioner be released from custody unless the State retried him within 60 days. The court did not hold an evidentiary hearing, but it found on the basis of the petition, the respondent's "motion to dismiss," [Footnote 2] and the state court record that the police lacked probable cause to arrest petitioner on the evening of January 31, 1971. Unable to conclude that the taint of the unlawful arrest had been dissipated when the identification and confession were obtained, the court held that both were inadmissible. [Footnote 3]On November 18, or 28 days after entry of the District Page 434 U. S. 261 Court's order, respondent filed with the District Court a motion "to Further Stay the Execution of the Writ of Habeas Corpus and to Conduct an Evidentiary Hearing." Respondent submitted that the state court record was inadequate, and that the District Court had "erred in granting the writ without first conducting an evidentiary hearing to determine if in fact petitioner was arrested without probable cause and, if so, whether his confession was thereby tainted." App. 118. Respondent cited Townsend v. Sain, 372 U. S. 293 (1963), and United States ex rel. McNair v. New Jersey, 492 F.2d 1307 (CA3 1974), as authority for his asserted right to an evidentiary hearing, but did not identify the source of the court's authority to consider the motion.The District Court nevertheless entertained the motion, granted a stay of execution on December 8, and, on December 12, set a date for an evidentiary hearing on the issue of probable cause. The court noted that the inadequacy of the state trial record had not been raised in respondent's "motion to dismiss," but concluded "that the request for an evidentiary hearing should not be denied solely because it is untimely." [Footnote 4] App. 120. Petitioner moved immediately to vacate the orders granting a stay and an evidentiary hearing on the ground that the court lacked jurisdiction to enter them. Petitioner explained that, because the period of time prescribed by the Federal Rules of Civil Procedure for a motion for a new trial or to alter or amend a judgment had elapsed, [Footnote 5] the District Page 434 U. S. 262 Court "no longer ha[d] jurisdiction to alter or amend its final order of October 21, 1975, and the orders whose vacatur is sought are void orders." Id. at 122. [Footnote 6]The evidentiary hearing was held nevertheless on January 7, 1976, and on January 26, 1976, the District Court ruled: "[T]he writ of habeas corpus was properly issued on October 21, 1975. The motion to reconsider is therefore DENIED." Id. at 161. Respondent immediately filed a notice of appeal seeking review of the order of October 21 as well as the order of January 26. Petitioner maintained, consistently, that the Court of Appeals lacked jurisdiction to review the original order granting relief, since respondent's notice of appeal was not filed within 30 days of that order, and the time for appeal had not been tolled by respondent's untimely postjudgment Page 434 U. S. 263 motion. See n 5, supra. Even if the order of January 26 were construed as a denial of relief from judgment under Fed.Rule Civ.Proc. 60(b), as to which the appeal would have been timely, petitioner argued that the Court of Appeals would have jurisdiction only to review that order for abuse of discretion. [Footnote 7] Respondent disclaimed reliance on Rule 60(b), insisting instead that the order of October 21 was not a final order and that a timely appeal had been taken from the final order of January 26. [Footnote 8] Page 434 U. S. 264The Court of Appeals did not address the question of its appellate jurisdiction except to observe, in a cryptic footnote, that it did not have to consider "whether there was an untimely appeal" on the issue whether petitioner's confession was admissible under Brown v. Illinois, 422 U. S. 590 (1975). The court reversed the District Court without a published opinion, holding that the police had had probable cause to arrest petitioner. Judgt. order reported at 534 F.2d 331 (CA7 1976). Rehearing was denied. We granted certiorari. 429 U.S. 1072 (1977).IIUnder Fed.Rule App.Proc. 4(a) and 28 U.S.C. § 2107, a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken. This 30-day time limit is "mandatory and jurisdictional." United States v. Robinson, 361 U. S. 220, 361 U. S. 229 (1960). See also Fallen v. United States, 378 U. S. 139 (1964); Coppedge v. United States, 369 U. S. 438, 369 U. S. 442 (1962); United States v. Schaefer Brewing Co., 356 U. S. 227 (1958); Matton Steamboat Co. v. Murphy, 319 U. S. 412, 319 U. S. 415 (1943); George v. Victor Talking Mach. Co., 293 U. S. 377, 293 U. S. 379 (1934). The purpose of the rule is clear: it is"to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant's demands. Any other construction of the statute would defeat its purpose."Matton Steamboat, supra, at 319 U. S. 415.The running of time for filing a notice of appeal may be tolled, according to the terms of Rule 4(a), by a timely motion filed in the district court pursuant to Rule 52(b) or Rule 59. Respondent's motion for a stay and an evidentiary hearing was filed 28 days after the District Court's order directing that petitioner be discharged. It was untimely Page 434 U. S. 265 under the Civil Rules, see n 5, supra, and therefore could not toll the running of time to appeal under Rule 4(a). The Court of Appeals therefore lacked jurisdiction to review the order of October 21. But respondent answers that Rules 2(b) and 59 do not apply, because the order of October 21 was not final and, in any event, the Federal Rules of Civil Procedure did not apply in this habeas corpus proceeding. [Footnote 9] We consider each of these contentions.AAn appeal in a habeas corpus proceeding lies from a "final order," 28 U.S.C. § 2253. The District Court's order of October 21 purported to be final, as it granted petitioner's application for a writ of habeas corpus and directed that petitioner be discharged if the State did not retry him within 60 days. Respondent contends, however, that this order was not a final order"'leaving nothing to be done but to enforce by execution what had been determined,' Catlin v. United States, 324 U. S. 229, 324 U. S. 236 (1945), because all required procedures under the Habeas Corpus Act had not been completed at the time the order was issued."Brief for Respondent 42. Respondent cites 28 U.S.C. §§ 2243 and 2254(d) and the Court's decision in Townsend v. Sain, 372 U. S. 293 (1963), in support of his contention that the October 21 order"cannot be considered a final order under 28 U.S.C. [§] 2253 because it left unresolved the statutorily prescribed question of whether Page 434 U. S. 266 an evidentiary hearing would be required. . . ."Brief for Respondent 43.Respondent's position confuses error with nonfinality and fails to distinguish between the requirements of the habeas corpus statutes and the procedural means for correcting asserted error in fulfilling the statutory command. Here the District Court discharged its duty "summarily [to] hear and determine the facts," 28 U.S.C. § 2243, by granting the petition on the state court record. See Walker v. Johnston, 312 U. S. 275, 312 U. S. 284 (1941). [Footnote 10] Respondent's failure to assert the need for an evidentiary hearing in his motion to dismiss did not necessarily deprive him of the right to assert the absence of a hearing as a reason for reconsideration [Footnote 11] or as error on appeal, [Footnote 12] but neither did the absence of an evidentiary hearing render the District Court order nonfinal. If respondent Page 434 U. S. 267 were correct in his theory of finality, any order later alleged to have been entered precipitately or after an incomplete hearing could be considered nonfinal for purposes of appeal. The confusion that would result from litigants' divergent views of the completeness of proceedings would be wholly at odds with the imperative that jurisdictional requirements be explicit and unambiguous.BSince the order of October 21 was a final order, the time for appeal commenced to run on that date. Respondent's notice of appeal therefore was untimely by 68 days, unless respondent's motion of November 18 tolled the time for appeal under Rule 4(a). The rationale behind the tolling principle of the Rule is the same as in traditional practice:"A timely petition for rehearing tolls the running of the [appeal] period because it operates to suspend the finality of the . . . court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties."Department of Banking v. Pink, 317 U. S. 264, 317 U. S. 266 (1942) (emphasis supplied). An untimely request for rehearing does not have the same effect. Respondent seeks to avoid the conclusion that his motion was untimely under the Civil Rules, and therefore did not toll the time for appeal under Appellate Rule 4(a), by asserting that his motion was not based on Rule 52(b) or Rule 59 because the Federal Rules of Civil Procedure were not applicable in this habeas proceeding.Respondent's failure to rely on a particular rule in making his motion does not suffice to make the Federal Rules inapplicable. Respondent's insistence that his motion was not based on any of the Federal Rules, but rather on the habeas corpus statutes and Townsend v. Sain, supra, parallels his theory of the nonfinality of the October 21 order and reflects his failure to recognize that the habeas corpus statutes do not prescribe postjudgment procedures During the pendency of Page 434 U. S. 268 a habeas proceeding, the procedure indeed is set out in the habeas corpus statutes, and Fed.Rule Civ.Proc. 81(a)(2) recognizes the supremacy of the statutory procedures over the Federal Rules. But those procedures say nothing about the proper method for obtaining the correction of asserted errors after judgment, whether on appeal or in the District Court.Respondent asserts that his motion of November 18 was timely because it was filed within the 30-day period allowed for appeal, as was the case in United States v. Dieter, 429 U. S. 6 (1976). In relying upon Dieter, respondent misconceives our holding in that case. There the Court followed United States v. Healy, 376 U. S. 75 (1964), and held that a timely motion for rehearing in a criminal case would toll the running of the time for appeal. In Dieter, as in Healy, no rule governed the timeliness of a motion for rehearing by the Government in a criminal case or the effect of such a motion on the time allowed for appeal. Instead, "traditional and virtually unquestioned practice'" dictated that a timely petition for rehearing would render the original judgment nonfinal for purposes of appeal, and therefore would toll the time for appeal, Dieter, supra at 429 U. S. 8, and n. 3 (quoting Healy, supra at 376 U. S. 79); and absent a rule specifying a different time limit, a petition for rehearing in a criminal case would be considered timely "when filed within the original period for review," 376 U.S. at 376 U. S. 78. In a civil case, however, the timeliness of a motion for rehearing or reconsideration is governed by Rule 52(b) or Rule 59, each of which allows only 10 days; [Footnote 13] and Page 434 U. S. 269 Rule 4(a) follows the "traditional and virtually unquestioned practice" in requiring that a motion be timely if it is to toll the time for appeal.Respondent has maintained throughout that the Federal Rules of Civil Procedure are wholly inapplicable on habeas. [Footnote 14] We think this is a mistaken assumption. It is well settled that habeas corpus is a civil proceeding. Fisher v. Baker, 203 U. S. 174, 203 U. S. 181 (1906); Ex parte Tom Tong, 108 U. S. 56 (1883); see Hein v. United States, 358 U. S. 415, 358 U. S. 418 n. 7 (1959). Perhaps in recognition of the differences between general civil litigation and habeas corpus proceedings, see Harris v. Nelson, 394 U. S. 286, 394 U. S. 293-294, and n. 4 (1969), the Federal Rules of Civil Procedure apply in habeas proceedings only "to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions." Fed.Rule Civ.Proc. 81(a)(2); see Fed.Rule Civ.Proc. 1.In Harris, the Court considered whether the discovery procedure authorized by Fed.Rule Civ.Proc. 33 is available in a habeas corpus proceeding. The Court concluded"that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure . . . make it clear that Page 434 U. S. 270 Rule 81(a)(2) must be read to exclude the application of Rule 33 in habeas corpus proceedings."394 U.S. at 394 U. S. 293. In Thompson v. INS, 375 U. S. 384 (1964), on the ether hand, the Court assumed without discussion that Rules 52(b) and 59 applied in a "proceeding for admission to citizenship" in which, as in a habeas corpus proceeding, the applicability of the Civil Rules is qualified by Rule 81(a)(2).Although this Court has not had occasion to hold Rules 52(b) and 59 applicable in habeas corpus proceedings, the Courts of Appeals uniformly have so held or assumed. E.g., Rothman v. United States, 508 F.2d 648, 651 (CA3 1975); Hunter v. Thomas, 173 F.2d 810 (CA10 1949) (motion for a new trial by the custodian). The combined application of the time limit in Rule 52(b) or 59 and the tolling principle of Rule 4(a) or its predecessor, Fed.Rule Civ.Proc. 73(a), has resulted in dismissal of appeals from dispositions on habeas corpus petitions. E.g., Flint v. Howard, 464 F.2d 1084, 1086 (CA1 1972). See also Fitzsimmons v. Yeager, 391 F.2d 849 (CA3) (en banc), cert. denied, 393 U.S. 868 (1968); Munich v. United States, 330 F.2d 774 (CA9 1964).We see no reason to hold to the contrary. No other statute of the United States is addressed to the timeliness of a motion to reconsider the grant or denial of habeas corpus relief, and the practice in habeas corpus proceedings before the advent of the Federal Rules of Civil Procedure conformed to the practice in other civil proceedings with respect to the correction or reopening of a judgment. At common law, a court had the power to alter or amend its own judgments during, but not after, the term of court in which the original judgment was rendered, United States v. Mayer, 235 U. S. 55, 235 U. S. 67 (1914); Bronson v. Schulten, 104 U. S. 410, 104 U. S. 415 (1882); Ex parte Lange, 18 Wall. 163, 85 U. S. 167 (1874); Basset v. United States, 9 Wall. 38, 76 U. S. 41 (1870); and this rule was applied in habeas corpus cases, see Aderhold v. Murphy, 103 F.2d 492 (CA10 Page 434 U. S. 271 1939); Tiberg v. Warren, 192 F. 458, 463 (CA9 1911). The 1946 amendments to the Rules of Civil Procedure abolished terms of court and instead confined the power of a district court to alter or amend a final order to the time period stated in Rules 52(b) and 59. See Advisory Committee Report, 5 F.R.D. 483, 486-487 (1946)."The Rules, in abolishing the term rule, did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed."United States v. Smith, 331 U. S. 469, 331 U. S. 473 n. 2 (1947) (referring to the time limit prescribed by the Federal Rules of Criminal Procedure for new trial motions).In addition to the settled conformity of habeas corpus and other civil proceedings with respect to time limits on post-judgment relief, the emphasis in the Federal Rules of Civil Procedure on "just" and "speedy" adjudication, see Fed.Rule Civ.Proc. 1, parallels the ideal of "a swift, flexible, and summary determination" of a habeas corpus petitioner's claim. Preiser v. Rodriguez, 411 U. S. 475, 411 U. S. 495 (1973). See also Fay v. Noia, 372 U. S. 391, 372 U. S. 401-402 (1963); United States ex rel. Mattox v. Scott, 507 F.2d 919, 923 (CA7 1974); Wallace v. Heinze, 351 F.2d 39, 40 (CA9 1965), cert. denied, 384 U.S. 954 (1966). Rule 59 in particular is based on an "interest in speedy disposition and finality," Silk v. Sandoval, 435 F.2d 1266, 1268 (CA1), cert. denied, 402 U.S. 1012 (1971). Although some aspects of the Federal Rules of Civil Procedure may be inappropriate for habeas proceedings, see Harris v. Nelson, supra; Preiser, supra at 411 U. S. 495-496, the requirement of a prompt motion for reconsideration is well suited to the "special problems and character of such proceedings." Harris v. Nelson, supra at 394 U. S. 296. Application of the strict time limits of Rules 52(b) and 59 to motions for reconsideration of rulings on habeas corpus petitions, then, is thoroughly consistent with the spirit of the habeas corpus statutes.Because respondent failed to comply with these "mandatory Page 434 U. S. 272 and jurisdictional" time limits, the judgment of the Court of Appeals must beReversed

U.S. Supreme CourtBrowder v. Director, Dept. of Corrections, 434 U.S. 257 (1978)Browder v. Director, Dept. of CorrectionsNo. 76-5325Argued October 31, 1977Decided January 10, 1978434 U.S. 257SyllabusAfter unsuccessful efforts to overturn his state court conviction on direct appeal and state collateral attack, petitioner sought a writ of habeas corpus in a Federal District Court, which on October 21, 1975, ordered his release from respondent Corrections Director's custody unless the State retried him within 60 days. The court held no evidentiary hearing, but based its order on the habeas corpus petition, respondent's "motion to dismiss," and the state court record. Twenty-eight days after entry of the order, respondent moved for a stay of the conditional release order and for an evidentiary hearing. The District Court granted the motion, but, after a hearing, ruled, on January 26, 1976, that the writ of habeas corpus was properly issued. Respondent immediately filed a notice of appeal seeking review of both the October 21 and January 26 orders, and the Court of Appeals reversed. Federal Rule App.Proc. 4(a) and 28 U.S.C. § 2107 require that a notice of appeal in a civil case be filed within 30 days of entry of the judgment or order from which the appeal is taken, but, under Rule 4(a), the running of time for filing an appeal may be tolled by a timely motion filed in the district court pursuant to Fed.Rule Civ.Proc. 52(b) or 59.Held: The Court of Appeals lacked jurisdiction to review the original October 21 order because respondent's motion for a stay and an evidentiary hearing (in essence a motion for rehearing or reconsideration) was untimely under Rule 52(b) or 59 and hence could not toll the running of the "mandatory and jurisdictional" 30-day time limit of Rule 4(a). Pp. 434 U. S. 264-271.(a) The October 21 order was final for purposes of 28 U.S.C. § 2253, which provides for an appeal in a habeas corpus proceeding from a "final order." The District Court discharged its duty under 28 U.S.C. § 2243 "summarily [to] hear and determine the facts" by granting the habeas corpus petition on the state court record, and the absence of an evidentiary hearing, whether error or not, did not render the release order nonfinal. Pp. 434 U. S. 265-267.(b) Habeas corpus is a civil proceeding, and Rules 52(b) and 59 were applicable. While the procedures set forth in the habeas corpus Page 434 U. S. 258 statutes apply during the pendency of such a proceeding and Fed.Rule Civ.Proc. 81(a)(2) recognizes the supremacy of such procedures over the Federal Rules, the habeas corpus statutes say nothing about the proper method for obtaining correction of asserted errors after judgment, whether on appeal or in the district court. Accordingly, the timeliness of respondent's postjudgment motion was governed by Rule 52(b) or 59. Pp. 434 U. S. 267-271.534 F.2d 331, reversed.POWELL, J., delivered the opinion for a unanimous Court. BLACKMUN, J., filed a concurring opinion, in which REHNQUIST, J., joined, post, p. 434 U. S. 272.

1979_79-289

MR. JUSTICE REHNQUIST delivered the opinion of the Court.We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented. Those are whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth Page 447 U. S. 77 and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.IAppellant PruneYard is a privately owned shopping center in the City of Campbell, Cal. It covers approximately 21 acres -- 5 devoted to parking and 16 occupied by walkways, plazas, sidewalks, and buildings that contain more than 65 specialty shops, 10 restaurants, and a movie theater. The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. This policy has been strictly enforced in a nondiscriminatory fashion. The PruneYard is owned by appellant Fred Sahadi.Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against "Zionism." On a Saturday afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly, and, so far as the record indicates, was not objected to by PruneYard's patrons.Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard's perimeter. Appellees immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access to the PruneYard for the purpose of circulating their petitions.The Superior Court held that appellees were not entitled under either the Federal or California Constitution to exercise Page 447 U. S. 78 their asserted rights on the shopping center property. App. to Juris.Statement A-2. It concluded that there were "adequate, effective channels of communication for [appellees] other than soliciting on the private property of the [PruneYard]." Id. at A-3. The California Court of Appeal affirmed.The California Supreme Court reversed, holding that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." 23 Cal. 3d 899, 910, 592 P.2d 341, 347 (1979). It concluded that appellees were entitled to conduct their activity on PruneYard property. In rejecting appellants' contention that such a result infringed property rights protected by the Federal Constitution, the California Supreme Court observed:"'It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations (see Diamond [v. Bland, 3 Cal. 3d 653, 665, 477 P.2d 733, 741 (1970)]) would not markedly dilute defendant's property rights.' ([Diamond v. Bland, 11 Cal. 3d 331, 345, 521 P.2d 460, 470 (1974)] (dis. opn. of Mosk, J.).)"Id. at 910-911, 592 P.2d at 347-348. The California Supreme Court thus expressly overruled its earlier decision in Diamond v. Bland, 11 Cal. 3d 331, 521 P.2d 460 (Diamond II), cert. denied, 419 U.S. 885 (1974), which had reached an opposite conclusion. 23 Cal.3d at Page 447 U. S. 79 910, 592 P.2d at 347. [Footnote 1] Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State's laws of private property. We postponed consideration of the question of jurisdiction until the hearing of the case on the merits. 444 U.S. 949. We now affirm.IIWe initially conclude that this case is properly before us as an appeal under 28 U.S.C. § 1257(2). It has long been established that a state constitutional provision is a "statute" within the meaning of § 1257(2). See, e.g., Torcaso v. Watkins, 367 U. S. 488, 367 U. S. 489 (1961); Adamson v. California, 332 U. S. 46, 332 U. S. 48, n. 2 (1947); Railway Express Agency, Inc. v. Virginia, 282 U. S. 440 (1931). Here the California Supreme Court decided that Art. 1, §§ 2 and 3, of the California Constitution gave appellees the right to solicit signatures on appellants' property in exercising their state rights of free expression and petition. [Footnote 2] In so doing, the California Supreme Court Page 447 U. S. 80 rejected appellants' claim that recognition of such a right violated appellants' "right to exclude others," which is a fundamental component of their federally protected property rights. Appeal is thus the proper method of review.IIIAppellants first contend that Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Lloyd dealt with the question whether, under the Federal Constitution, a privately owned shopping center may prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center's operations. Id. at 407 U. S. 552. The shopping center had adopted a strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Id. at 407 U. S. 555. [Footnote 3] Respondents in Lloyd argued that, because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. Id. at 407 U. S. 564. [Footnote 4] Page 447 U. S. 81 In rejecting this claim, we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza, 391 U. S. 308 (198), which was later overruled in Hudgens v. NLRB, 424 U. S. 507 (1976). We stated that property does not "lose its private character merely because the public is generally invite to use it for designated purposes," and that " [t]he 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." 407 U.S. at 407 U. S. 569.Our reasoning in Lloyd, however, does not, ex proprio vigore, limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. Cooper v. California, 386 U. S. 58, 386 U. S. 62 (1967). See also 407 U.S. at 407 U. S. 569-570. In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. See, e.g., Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976). Lloyd held that, when a shopping center owner opens his private property to the public for the purpose of shopping, the First Amendment to the United States Constitution does not thereby create individual rights in expression beyond those already existing under applicable law. See also Hudgens v. NLRB, supra at 424 U. S. 517-521. Page 447 U. S. 82IVAppellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law. [Footnote 5]It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna v. United States, 444 U. S. 164, 444 U. S. 179-10 (1979). And here there has literally been a "taking" of that right to the extent that the California Supreme Court has interpreted the State constitution to entitle its citizens to exercise free expression and petition rights on shopping center property. [Footnote 6] But it is well established that "not every destruction or injury to property by governmental action has been held to be a taking' in the constitutional sense." Armstrong v. United States, 364 U. S. 40, 364 U. S. 48 (1960). Rather, the determination whether a state law unlawfully infringes a landowner's property in Page 447 U. S. 83 violation of the Taking Clause requires an examination of whether the restriction on private property "forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Id. at 364 U. S. 49. [Footnote 7] This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser Aetna v. United States, supra, at 444 U. S. 175. When "regulation goes too far, it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 260 U. S. 415 (1922).Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants' property right under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the Page 447 U. S. 84 common areas of the shopping center. In these circumstances, the fact that they may have "physically invaded" appellants' property cannot be viewed as determinative.This case is quite different from Kaiser Aetna v. United States, supra. Kaiser Aetna was a case in which the owners of a private pond had invested substantial amounts of money in dredging the pond, developing it into an exclusive marina, and building a surrounding marina community. The marina was open only to fee-paying members, and the fees were paid in part to "maintain the privacy and security of the pond." Id. at 444 U. S. 168. The Federal Government sought to compel free public use of the private marina on the ground that the marina became subject to the federal navigational servitude because the owners had dredged a channel connecting it to "navigable water."The Government's attempt to create a public right of access to the improved pond interfered with Kaiser Aetna's "reasonable investment backed expectations." We held that it went "so far beyond ordinary regulation or improvement for navigation as to amount to a taking. . . ." Id. at 444 U. S. 178. Nor, as a general proposition, is the United States, as opposed to the several States, possessed of residual authority that enables it to define "property" in the first instance. A State is, of course, bound by the Just Compensation Clause of the Fifth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 166 U. S. 233, 236-237 (1897), but here appellants have failed to demonstrate that the "right to exclude others" is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a "taking."There is also little merit to appellants' argument that they have been denied their property without due process of law. In Nebbia v. New York, 291 U. S. 502 (1934), this Court stated:"[N]either property rights nor contract rights are absolute. . . . Equally fundamental with the private right Page 447 U. S. 85 is that of the public to regulate it in the common interest. . . .""* * * *" ". . . [T]he guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objective sought to be attained."Id. at 291 U. S. 523, 291 U. S. 525. See also Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949); Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 437 U. S. 124-125 (1978). Appellants have failed to provide sufficient justification for concluding that this test is not satisfied by the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. [Footnote 8]VAppellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others. [Footnote 9] They Page 447 U. S. 86 state that, in Wooley v. Maynard, 430 U. S. 705 (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideological Page 447 U. S. 87 message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale applies here, they argue, because the message of Wooley is that the State may not force an individual to display any message at all.Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee's personal property that was used "as part of his daily life," and refused to permit him to take any measures to cover up the motto even though the Court found that the display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping center, by choice of its owner, is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here, appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law.Appellants also argue that their First Amendment rights have been infringed in light of West Virginia State Board of Page 447 U. S. 88 Education v. Barnette, 319 U. S. 624 (1943), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Barnette is inapposite, because it involved the compelled recitation of a message containing an affirmation of belief. This Court held such compulsion unconstitutional because it "require[d] the individual to communicate by word and sign his acceptance" of government-dictated political ideas, whether or not he subscribed to them. 319 U.S. at 319 U. S. 633. Appellants are not similarly being compelled to affirm their belief in any governmentally prescribed position or view, and they are free to publicly dissociate themselves from the views of the speakers or handbillers.Tornillo struck down a Florida statute requiring a newspaper to publish a political candidate's reply to criticism previously published in that newspaper. It rests on the principle that the State cannot tell a newspaper what it must print. The Florida statute contravened this principle in that it "exact[ed] a penalty on the basis of the content of a newspaper." 418 U.S. at 418 U. S. 256. There also was a danger in Tornillo that the statute would "dampe[n] the vigor and limi[t] the variety of public debate" by deterring editors from publishing controversial political statements that might trigger the application of the statute. Id. at 447 U. S. 257. Thus, the statute was found to be an "intrusion into the function of editors." Id. at 447 U. S. 258. These concerns obviously are not present here.We conclude that neither appellants' federally recognized property rights nor their First Amendment right have been infringed by the California Supreme Court's decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants' property. The judgment of the Supreme Court of California is thereforeAffirmed

U.S. Supreme CourtPruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980)Pruneyard Shopping Center v. RobinsNo. 79-289Argued March 18, 1980Decided June 9, 1980447 U.S. 74SyllabusSoon after appellees had begun soliciting in appellant privately owned shopping center's central courtyard for signatures from passersby for petitions in opposition to a United Nations resolution, a security guard informed appellees that they would have to leave because their activity violated shopping center regulations prohibiting any visitor or tenant from engaging in any publicly expressive activity that is not directly related to the center's commercial purposes. Appellees immediately left the premises and later filed suit in a California state court to enjoin the shopping center and its owner (also an appellant) from denying appellees access to the center for the purpose of circulating their petitions. The trial court held that appellees were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property, and the California Court of Appeal affirmed. The California Supreme Court reversed, holding that the California Constitution protects speech and petitioning, reasonably exercised, in shopping centers even when the center is privately owned, and that such result does not infringe appellants' property rights protected by the Federal Constitution.Held:1. This case is properly before this Court as an appeal under 28 U.S.C. § 1257(2). A state constitutional provision is a "statute" within the meaning of § 1257(2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants' property, the California Supreme Court rejected appellants' claim that recognition of such a right violated their "right to exclude others," a fundamental component of their federally protected property rights. Pp. 447 U. S. 79-80.2. State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments. Pp. 447 U.S. 88.(a) The reasoning in Lloyd Corp. v. Tanner, 407 U. S. 551 -- which Page 447 U. S. 75 held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills unrelated to the center's operations -- does not ex proprio vigore limit a State's authority to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution. And a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. Pp. 447 U. S. 80-81.(b) The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does not amount to an unconstitutional infringement of appellants' property rights under the Taking Clause of the Fifth Amendment, appellants having failed to demonstrate that the "right to exclude others" is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a "taking." Kaiser Aetna v. United States, 444 U. S. 164, distinguished. And there is no merit to appellants' argument that they have been denied property without due process of law, where they have failed to show that the due process test whereby the challenged law must not be unreasonable, arbitrary, or capricious and the means selected must have a real and substantial relation to the objective to be obtained, is not satisfied by the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. Pp. 447 U. S. 82-85.(c) Nor have appellants' First Amendment rights been infringed by the California Supreme Court's decision. The shopping center, by choice of its owner, is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Furthermore, no specific message is dictated by the State to be displayed on appellants' property, and appellants are free to publicly dissociate themselves from the views of the speakers or handbillers. Wooley v. Maynard, 430 U. S. 705; West Virginia State Board of Education v. Barnette, 319 U. S. 624; and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, distinguished. Pp. 447 U. S. 85-88.23 Cal. 3d 899, 592 P.2d 341, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, MARSHALL, and STEVENS, JJ., joined; in Parts I, II, III, and IV of which WHITE and POWELL, JJ., joined; and Page 447 U. S. 76 in all but one sentence of which BLACKMUN, J., joined. MARSHALL, J., filed a concurring opinion, post, p. 447 U. S. 89. WHITE, J., filed an opinion concurring in part and in the judgment, post, p. 447 U. S. 95. POWELL, J., filed an opinion concurring in part and in the judgment, in which WHITE, J., joined, post, p. 447 U. S. 96. BLACKMUN, J., filed a statement concurring in part, post, p. 447 U.S. 88.

1990_89-1215

JUSTICE BLACKMUN delivered the opinion of the Court.In this case, we are concerned with an employer's gender-based fetal-protection policy. May an employer exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive?IRespondent Johnson Controls, Inc., manufactures batteries. In the manufacturing process, the element lead is a primary ingredient. Occupational exposure to lead entails health risks, including the risk of harm to any fetus carried by a female employee. Page 499 U. S. 191Before the Civil Rights Act of 1964, 78 Stat. 241, became law, Johnson Controls did not employ any woman in a battery-manufacturing job. In June, 1977, however, it announced its first official policy concerning its employment of women in lead-exposure work:"[P]rotection of the health of the unborn child is the immediate and direct responsibility of the prospective parents. While the medical profession and the company can support them in the exercise of this responsibility, it cannot assume it for them without simultaneously infringing their rights as persons.""* * * *" ". . . . Since not all women who can become mothers, wish to become mothers, (or will become mothers), it would appear to be illegal discrimination to treat all who are capable of pregnancy as though they will become pregnant."App. 140.Consistent with that view, Johnson Controls "stopped short of excluding women capable of bearing children from lead exposure," id. at 138, but emphasized that a woman who expected to have a child should not choose a job in which she would have such exposure. The company also required a woman who wished to be considered for employment to sign a statement that she had been advised of the risk of having a child while she was exposed to lead. The statement informed the woman that, although there was evidence "that women exposed to lead have a higher rate of abortion," this evidence was "not as clear . . . as the relationship between cigarette smoking and cancer," but that it was, "medically speaking, just good sense not to run that risk if you want children and do not want to expose the unborn child to risk, however small. . . ."Id. at 142-143.Five years later, in 1982, Johnson Controls shifted from a policy of warning to a policy of exclusion. Between 1979 and 1983, eight employees became pregnant while maintaining blood lead levels in excess of 30 micrograms per deciliter. Tr. of Oral Arg. 25, 34. This appeared to be the critical level Page 499 U. S. 192 noted by the Occupational Health and Safety Administration (OSHA) for a worker who was planning to have a family. See 29 CFR § 1910.1025 (1989). The company responded by announcing a broad exclusion of women from jobs that exposed them to lead:". . . [I]t is [Johnson Controls'] policy that women who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which could expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights."App. 85-86. The policy defined "women . . . capable of bearing children" as "[a]ll women except those whose inability to bear children is medically documented." Id. at 81. It further stated that an unacceptable work station was one where, "over the past year," an employee had recorded a blood lead level of more than 30 micrograms per deciliter or the work site had yielded an air sample containing a lead level in excess of 30 micrograms per cubic meter. Ibid.IIIn April, 1984, petitioners filed in the United States District Court for the Eastern District of Wisconsin a class action challenging Johnson Controls' fetal-protection policy as sex discrimination that violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Among the individual plaintiffs were petitioners Mary Craig, who had chosen to be sterilized in order to avoid losing her job, Elsie Nason, a 50-year-old divorcee, who had suffered a loss in compensation when she was transferred out of a job where she was exposed to lead, and Donald Penney, who had been denied a request for a leave of absence for the purpose of lowering his lead level because he intended to become a father. Upon stipulation of the parties, the District Court certified a class consisting of "all past, present and future production and maintenance employees" in United Auto Workers bargaining Page 499 U. S. 193 units at nine of Johnson Controls' plants "who have been and continue to be affected by [the employer's] Fetal Protection Policy implemented in 1982." Order of Feb. 25, 1985.The District Court granted summary judgment for defendant-respondent Johnson Controls. 680 F. Supp. 309 (1988). Applying a three-part business necessity defense derived from fetal-protection cases in the Courts of Appeals for the Fourth and Eleventh Circuits, the District Court concluded that, while "there is a disagreement among the experts regarding the effect of lead on the fetus," the hazard to the fetus through exposure to lead was established by "a considerable body of opinion"; that, although"[e]xpert opinion has been provided which holds that lead also affects the reproductive abilities of men and women . . . [and] that these effects are as great as the effects of exposure of the fetus . . . a great body of experts are of the opinion that the fetus is more vulnerable to levels of lead that would not affect adults;"and that petitioners had "failed to establish that there is an acceptable alternative policy which would protect the fetus." Id. at 315-316. The court stated that, in view of this disposition of the business necessity defense, it did not "have to undertake a bona fide occupational qualification's (BFOQ) analysis." Id. at 316, n. 5.The Court of Appeals for the Seventh Circuit, sitting en banc, affirmed the summary judgment by a 7-to-4 vote. 886 F.2d 871 (1989). The majority held that the proper standard for evaluating the fetal-protection policy was the defense of business necessity; that Johnson Controls was entitled to summary judgment under that defense; and that, even if the proper standard was a BFOQ, Johnson Controls still was entitled to summary judgment.The Court of Appeals, see id. at 883-885, first reviewed fetal-protection opinions from the Eleventh and Fourth Circuits. See Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (CA11 1984), and Wright v. Olin Corp., 697 F.2d 1172 Page 499 U. S. 194 (CA4 1982). Those opinions established the three-step business necessity inquiry: whether there is a substantial health risk to the fetus; whether transmission of the hazard to the fetus occurs only through women; and whether there is a less discriminatory alternative equally capable of preventing the health hazard to the fetus. 886 F.2d at 885. The Court of Appeals agreed with the Eleventh and Fourth Circuits that"the components of the business necessity defense the courts of appeals and the EEOC have utilized in fetal protection cases balance the interests of the employer, the employee and the unborn child in a manner consistent with Title VII."Id. at 886. The court further noted that, under Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989), the burden of persuasion remained on the plaintiff in challenging a business necessity defense, and -- unlike the Fourth and Eleventh Circuits -- it thus imposed the burden on the plaintiffs for all three steps. 886 F.2d at 887-893. Cf. Hayes, 726 F.2d at 1549, and Wright, 697 F.2d at 1187.Applying this business necessity defense, the Court of Appeals ruled that Johnson Controls should prevail. Specifically, the court concluded that there was no genuine issue of material fact about the substantial health-risk factor, because the parties agreed that there was a substantial risk to a fetus from lead exposure. 886 F.2d at 888-889. The Court of Appeals also concluded that, unlike the evidence of risk to the fetus from the mother's exposure, the evidence of risk from the father's exposure, which petitioners presented, "is, at best, speculative and unconvincing." Id. at 889. Finally, the court found that petitioners had waived the issue of less discriminatory alternatives by not adequately presenting it. It said that, in any event, petitioners had not produced evidence of less discriminatory alternatives in the District Court. Id. at 890-893.Having concluded that the business necessity defense was the appropriate framework and that Johnson Controls satisfied Page 499 U. S. 195 that standard, the court proceeded to discuss the BFOQ defense, and concluded that Johnson Controls met that test, too. Id. at 893-894. The en banc majority ruled that industrial safety is part of the essence of respondent's business, and that the fetal-protection policy is reasonably necessary to further that concern. Quoting Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 335 (1977), the majority emphasized that, in view of the goal of protecting the unborn, "more is at stake" than simply an individual woman's decision to weigh and accept the risks of employment. 886 F.2d at 898.Judges Cudahy and Posner dissented, and would have reversed the judgment and remanded the case for trial. Judge Cudahy explained: "It may (and should) be difficult to establish a BFOQ here, but I would afford the defendant an opportunity to try." Id. at 901. "[T]he BFOQ defense need not be narrowly limited to matters of worker productivity, product quality and occupational safety." Id. at 901, n. 1. He concluded that this case's "painful complexities are manifestly unsuited for summary judgment." Id. at 902.Judge Posner stated: "I think it is a mistake to suppose that we can decide this case once and for all on so meager a record." Ibid. He, too, emphasized that, under Title VII, a fetal-protection policy which explicitly applied just to women could be defended only as a BFOQ. He observed that Title VII defines a BFOQ defense as a "bona fide occupational qualification reasonably necessary to the normal operation" of a business, and that"the 'normal operation' of a business encompasses ethical, legal, and business concerns about the effects of an employer's activities on third parties."Id. at 902 and 904. He emphasized, however, that whether a particular policy is lawful is a question of fact that should ordinarily be resolved at trial. Id. at 906. Like Judge Cudahy, he stressed that "it will be the rare case where the lawfulness of such a policy can be decided on the defendant's motion for summary judgment." Ibid. Page 499 U. S. 196Judge Easterbrook, also in dissent and joined by Judge Flaum, agreed with Judges Cudahy and Posner that the only defense available to Johnson Controls was the BFOQ. He concluded, however, that the BFOQ defense would not prevail, because respondent's stated concern for the health of the unborn was irrelevant to the operation of its business under the BFOQ. He also viewed the employer's concern as irrelevant to a woman's ability or inability to work under the Pregnancy Discrimination Act's amendment to Title VII, 92 Stat. 2076, 42 U.S.C. § 2000e(k). Judge Easterbrook also stressed what he considered the excessive breadth of Johnson Controls' policy. It applied to all women (except those with medical proof of incapacity to bear children), although most women in an industrial labor force do not become pregnant, most of those who do become pregnant will have blood lead levels under 30 micrograms per deciliter, and most of those who become pregnant with levels exceeding that figure will bear normal children anyway. 886 F.2d at 912-913. "Concerns about a tiny minority of women cannot set the standard by which all are judged." Id. at 913.With its ruling, the Seventh Circuit became the first Court of Appeals to hold that a fetal-protection policy directed exclusively at women could qualify as a BFOQ. We granted certiorari, 494 U.S. 1055 (1990), to resolve the obvious conflict between the Fourth, Seventh, and Eleventh Circuits on this issue, and to address the important and difficult question whether an employer, seeking to protect potential fetuses, may discriminate against women just because of their ability to become pregnant. [Footnote 1] Page 499 U. S. 197IIIThe bias in Johnson Controls' policy is obvious. Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job. Section 703(a) of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. § 2000e-2(a), prohibits sex-based classifications in terms and conditions of employment, in hiring and discharging decisions, and in other employment decisions that adversely affect an employee's status. [Footnote 2] Respondent's fetal-protection policy explicitly discriminates against women on the basis of their sex. The policy excludes women with childbearing capacity from lead-exposed jobs, and so creates a facial classification based on gender. Respondent assumes as much in its brief before this Court. Brief for Respondent 17, n. 24.Nevertheless, the Court of Appeals assumed, as did the two appellate courts who already had confronted the issue, that sex-specific fetal-protection policies do not involve facial discrimination. 886 F.2d at 886-887; Hayes, 726 F.2d at 1547; Wright, 697 F.2d at 1190. These courts analyzed the policies as though they were facially neutral, and had only a Page 499 U. S. 198 discriminatory effect upon the employment opportunities of women. Consequently, the courts looked to see if each employer in question had established that its policy was justified as a business necessity. The business necessity standard is more lenient for the employer than the statutory BFOQ defense. The Court of Appeals here went one step further and invoked the burden-shifting framework set forth in Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989), thus requiring petitioners to bear the burden of persuasion on all questions. 886 F.2d at 887-888. The court assumed that, because the asserted reason for the sex-based exclusion (protecting women's unconceived offspring) was ostensibly benign, the policy was not sex-based discrimination. That assumption, however, was incorrect.First, Johnson Controls' policy classifies on the basis of gender and childbearing capacity, rather than fertility alone. Respondent does not seek to protect the unconceived children of all its employees. Despite evidence in the record about the debilitating effect of lead exposure on the male reproductive system, Johnson Controls is concerned only with the harms that may befall the unborn offspring of its female employees. Accordingly, it appears that Johnson Controls would have lost in the Eleventh Circuit under Hayes because its policy does not "effectively and equally protec[t] the offspring of all employees." 726 F.2d at 1548. This Court faced a conceptually similar situation in Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971), and found sex discrimination because the policy established "one hiring policy for women and another for men -- each having pre-school-age children." Id. at 400 U. S. 544. Johnson Controls' policy is facially discriminatory, because it requires only a female employee to produce proof that she is not capable of reproducing.Our conclusion is bolstered by the Pregnancy Discrimination Act of 1978 (PDA), 92 Stat. 2076, 42 U.S.C. § 2000e(k), in which Congress explicitly provided that, for purposes of Title VII, discrimination "on the basis of sex" includes discrimination "because Page 499 U. S. 199 of or on the basis of pregnancy, childbirth, or related medical conditions." [Footnote 3]"The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex."Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 462 U. S. 684 (1983). In its use of the words "capable of bearing children" in the 1982 policy statement as the criterion for exclusion, Johnson Controls explicitly classifies on the basis of potential for pregnancy. Under the PDA, such a classification must be regarded, for Title VII purposes, in the same light as explicit sex discrimination. Respondent has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of sex.We concluded above that Johnson Controls' policy is not neutral, because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females. Moreover, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates, but rather on the explicit terms of the discrimination. In Martin Marietta, supra, the motives underlying the employers' express exclusion of women did not alter the intentionally discriminatory character of the policy. Nor did the arguably benign motives lead to consideration of a business necessity defense. The question Page 499 U. S. 200 in that case was whether the discrimination in question could be justified under § 703(e) as a BFOQ. The beneficence of an employer's purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under § 703(a). and thus may be defended only as a BFOQ.The enforcement policy of the Equal Employment Opportunity Commission accords with this conclusion. On January 24, 1990, the EEOC issued a Policy Guidance in the light of the Seventh Circuit's decision in the present case. App. to Pet. for Cert. 127a. The document noted:"For the plaintiff to bear the burden of proof in a case in which there is direct evidence of a facially discriminatory policy is wholly inconsistent with settled Title VII law."Id. at 133a. The Commission concluded: "[W]e now think BFOQ is the better approach." Id. at 134a.In sum, Johnson Controls' policy"does not pass the simple test of whether the evidence shows 'treatment of a person in a manner which, but for that person's sex, would be different.'"Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 711 (1978), quoting Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1170 (1971). We hold that Johnson Controls' fetal-protection policy is sex discrimination forbidden under Title VII unless respondent can establish that sex is a "bona fide occupational qualification."IVUnder § 703(e)(1) of Title VII, an employer may discriminate on the basis of"religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."42 U.S.C. § 2000e-2(e)(1). We therefore turn to the question whether Johnson Controls' fetal-protection policy Page 499 U. S. 201 is one of those "certain instances" that come within the BFOQ exception.The BFOQ defense is written narrowly, and this Court has read it narrowly. See, e.g., Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 332-337 (1977); Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 469 U. S. 122-125 (1985). We have read the BFOQ language of § 4(f) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 603, as amended, 29 U.S.C. § 623(f)(1), which tracks the BFOQ provision in Title VII, just as narrowly. See Western Air Lines, Inc. v. Criswell, 472 U. S. 400 (1985). Our emphasis on the restrictive scope of the BFOQ defense is grounded on both the language and the legislative history of § 703.The wording of the BFOQ defense contains several terms of restriction that indicate that the exception reaches only special situations. The statute thus limits the situations in which discrimination is permissible to "certain instances" where sex discrimination is "reasonably necessary" to the "normal operation" of the "particular" business. Each one of these terms -- certain, normal, particular -- prevents the use of general subjective standards and favors an objective, verifiable requirement. But the most telling term is "occupational"; this indicates that these objective, verifiable requirements must concern job-related skills and aptitudes.JUSTICE WHITE defines "occupational" as meaning related to a job. Post at 499 U. S. 212, n. 1. According to the him, any discriminatory requirement imposed by an employer is "job-related" simply because the employer has chosen to make the requirement a condition of employment. In effect, he argues that sterility may be an occupational qualification for women because Johnson Controls has chosen to require it. This reading of "occupational" renders the word mere surplusage. "Qualification" by itself would encompass an employer's idiosyncratic requirements. By modifying "qualification" with "occupational," Congress narrowed the term to qualifications that affect an employee's ability to do the job. Page 499 U. S. 202Johnson Controls argues that its fetal-protection policy falls within the so-called safety exception to the BFOQ. Our cases have stressed that discrimination on the basis of sex because of safety concerns is allowed only in narrow circumstances. In Dothard v. Rawlinson, this Court indicated that danger to a woman herself does not justify discrimination. 433 U.S. at 433 U. S. 336. We there allowed the employer to hire only male guards in contact areas of maximum-security male penitentiaries only because more was at stake than the "individual woman's decision to weigh and accept the risks of employment." Ibid. We found sex to be a BFOQ inasmuch as the employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman. Sex discrimination was tolerated because sex was related to the guard's ability to do the job -- maintaining prison security. We also required in Dothard a high correlation between sex and ability to perform job functions, and refused to allow employers to use sex as a proxy for strength although it might be a fairly accurate one.Similarly, some courts have approved airlines' layoffs of pregnant flight attendants at different points during the first five months of pregnancy on the ground that the employer's policy was necessary to ensure the safety of passengers. See Harriss v. Pan American World Airways, Inc., 649 F.2d 670 (CA9 1980); Burwell v. Eastern Air Lines, Inc., 633 F.2d 361 (CA4 1980), cert. denied, 450 U.S. 965 (1981); Condit v. United Air Lines, Inc., 558 F.2d 1176 (CA4 1977), cert. denied, 435 U. S. 934 (1978); In re National Airlines, Inc., 434 F. Supp. 249 (S.D.Fla.1977). In two of these cases, the courts pointedly indicated that fetal, as opposed to passenger, safety was best left to the mother. Burwell, 633 F.2d at 371; National Airlines, 434 F. Supp. at 259.We considered safety to third parties in Western Airlines, Inc. v. Criswell, supra, in the context of the ADEA. We focused upon "the nature of the flight engineer's tasks," and the "actual capabilities of persons over age 60" in relation to Page 499 U. S. 203 those tasks. 472 U.S. at 472 U. S. 406. Our safety concerns were not independent of the individual's ability to perform the assigned tasks, but rather involved the possibility that, because of age-connected debility, a flight engineer might not properly assist the pilot, and might thereby cause a safety emergency. Furthermore, although we considered the safety of third parties in Dothard and Criswell, those third parties were indispensable to the particular business at issue. In Dothard, the third parties were the inmates; in Criswell, the third parties were the passengers on the plane. We stressed that, in order to qualify as a BFOQ, a job qualification must relate to the "essence," Dothard, 433 U.S. at 433 U. S. 333, or to the "central mission of the employer's business," Criswell, 472 U.S. at 472 U. S. 413.JUSTICE WHITE ignores the "essence of the business" test, and so concludes that"the safety to fetuses in carrying out the duties of battery manufacturing is as much a legitimate concern as is safety to third parties in guarding prisons (Dothard) or flying airplanes (Criswell)."Post at 499 U. S. 217. By limiting its discussion to cost and safety concerns and rejecting the "essence of the business" test that our case law has established, the he seeks to expand what is now the narrow BFOQ defense. Third-party safety considerations properly entered into the BFOQ analysis in Dothard and Criswell because they went to the core of the employee's job performance. Moreover, that performance involved the central purpose of the enterprise. Dothard, 433 U.S. at 433 U. S. 335 ("The essence of a correctional counselor's job is to maintain prison security"); Criswell, 472 U.S. at 472 U. S. 413 (the central mission of the airline's business was the safe transportation of its passengers). JUSTICE WHITE attempts to transform this case into one of customer safety. The unconceived fetuses of Johnson Controls' female employees, however, are neither customers nor third parties whose safety is essential to the business of battery manufacturing. No one can disregard the possibility of injury to future children; the BFOQ, however, Page 499 U. S. 204 is not so broad that it transforms this deep social concern into an essential aspect of battery-making.Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job. This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job. Johnson Controls suggests, however, that we expand the exception to allow fetal-protection policies that mandate particular standards for pregnant or fertile women. We decline to do so. Such an expansion contradicts not only the language of the BFOQ and the narrowness of its exception, but the plain language and history of the Pregnancy Discrimination Act.The PDA's amendment to Title VII contains a BFOQ standard of its own: unless pregnant employees differ from others "in their ability or inability to work," they must be "treated the same" as other employees "for all employment-related purposes." 42 U.S.C. § 2000e(k). This language clearly sets forth Congress' remedy for discrimination on the basis of pregnancy and potential pregnancy. Women who are either pregnant or potentially pregnant must be treated like others "similar in their ability . . . to work." Ibid. In other words, women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job.JUSTICE WHITE asserts that the PDA did not alter the BFOQ defense. Post at 499 U. S. 218. The he arrives at this conclusion by ignoring the second clause of the Act, which states that"women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work."42 U.S.C. § 2000e(k). Until this day, every Member of this Court had acknowledged that"[t]he second clause [of the PDA] could not be clearer: it mandates that pregnant employees 'shall be Page 499 U. S. 205 treated the same for all employment-related purposes' as nonpregnant employees similarly situated with respect to their ability or inability to work."California Federal S. & L. Assn. v. Guerra, 479 U. S. 272, 479 U. S. 297 (1987) (WHITE, J., dissenting). JUSTICE WHITE now seeks to read the second clause out of the Act.The legislative history confirms what the language of the Pregnancy Discrimination Act compels. Both the House and Senate Reports accompanying the legislation indicate that this statutory standard was chosen to protect female workers from being treated differently from other employees simply because of their capacity to bear children. See Amending Title VII, Civil Rights Act of 1964, S.Rep. No. 95-331, pp. 4-6 (1977):"Under this bill, the treatment of pregnant women in covered employment must focus not on their condition alone, but on the actual effects of that condition on their ability to work. Pregnant women who are able to work must be permitted to work on the same conditions as other employees. . . . "". . . [U]nder this bill, employers will no longer be permitted to force women who become pregnant to stop working regardless of their ability to continue."See also Prohibition of Sex Discrimination Based on Pregnancy, H.R.Rep. No. 9948, pp. 3-6 (1978), U.S.Code Cong. & Admin. News 1978, p. 4749.This history counsels against expanding the BFOQ to allow fetal-protection policies. The Senate Report quoted above states that employers may not require a pregnant woman to stop working at any time during her pregnancy unless she is unable to do her work. Employment late in pregnancy often imposes risks on the unborn child, see Chavkin, Walking a Tightrope: Pregnancy, Parenting, and Work, in Double Exposure 196, 196-202 (W. Chavkin ed.1984), but Congress indicated that the employer may take into account only the woman's ability to get her job done. See Becker, From Muller v. Oregon to Fetal Vulnerability Policies, 53 U.Chi.L.Rev. Page 499 U. S. 206 1219, 1255-1256 (1986). With the PDA, Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.We conclude that the language of both the BFOQ provision and the PDA which amended it, as well as the legislative history and the case law, prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job. We reiterate our holdings in Criswell and Dothard that an employer must direct its concerns about a woman's ability to perform her job safely and efficiently to those aspects of the woman's job-related activities that fall within the "essence" of the particular business. [Footnote 4]VWe have no difficulty concluding that Johnson Controls cannot establish a BFOQ. Fertile women, as far as appears in the record, participate in the manufacture of batteries as efficiently as anyone else. Johnson Controls' professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them, rather than to the employers who hire those parents. Congress has mandated this choice through Title VII, as amended by the Page 499 U. S. 207 PDA. Johnson Controls has attempted to exclude women because of their reproductive capacity. Title VII and the PDA simply do not allow a woman's dismissal because of her failure to submit to sterilization.Nor can concerns about the welfare of the next generation be considered a part of the "essence" of Johnson Controls' business. Judge Easterbrook in this case pertinently observed:"It is word play to say that 'the job' at Johnson [Controls] is to make batteries without risk to fetuses in the same way 'the job' at Western Air Lines is to fly planes without crashing."886 F.2d at 913.Johnson Controls argues that it must exclude all fertile women because it is impossible to tell which women will become pregnant while working with lead. This argument is somewhat academic in light of our conclusion that the company may not exclude fertile women at all; it perhaps is worth noting, however, that Johnson Controls has shown no"factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved."Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235 (CA5 1969), quoted with approval in Dothard, 433 U.S. at 433 U. S. 333. Even on this sparse record, it is apparent that Johnson Controls is concerned about only a small minority of women. Of the eight pregnancies reported among the female employees, it has not been shown that any of the babies have birth defects or other abnormalities. The record does not reveal the birth rate for Johnson Controls' female workers, but national statistics show that approximately nine percent of all fertile women become pregnant each year. The birthrate drops to two percent for blue collar workers over age 30. See Becker, 53 U.Chi.L.Rev. at 1233. Johnson Controls' fear of prenatal injury, no matter how sincere, does not begin to show that substantially all of its fertile women employees are incapable of doing their jobs. Page 499 U. S. 208VIA word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary. One of the dissenting judges in this case expressed concern about an employer's tort liability, and concluded that liability for a potential injury to a fetus is a social cost that Title VII does not require a company to ignore. 886 F.2d at 904-905. It is correct to say that Title VII does not prevent the employer from having a conscience. The statute, however, does prevent sex-specific fetal-protection policies. These two aspects of Title VII do not conflict.More than 40 States currently recognize a right to recover for a prenatal injury based either on negligence or on wrongful death. See, e.g., Wolfe v. Isbell, 291 Ala. 327, 333-334, 280 So. 2d 758, 763 (1977); Simon v. Mullin, 34 Conn.Sup. 139, 147, 380 A.2d 1353, 1357 (1977). See also Note, 22 Suffolk U.L.Rev. 747, 754-756, and nn. 54, 57, and 58 (1988) (listing cases). According to Johnson Controls, however, the company complies with the lead standard developed by OSHA and warns its female employees about the damaging effects of lead. It is worth noting that OSHA gave the problem of lead lengthy consideration, and concluded that"there is no basis whatsoever for the claim that women of childbearing age should be excluded from the workplace in order to protect the fetus or the course of pregnancy."43 Fed.Reg. 52952, 52966 (1978). See also id. at 54354, 54398. Instead, OSHA established a series of mandatory protections which, taken together, "should effectively minimize any risk to the fetus and newborn child." Id. at 52966. See 29 CFR § 1910.125(k)(ii) (1989). Without negligence, it would be difficult for a court to find liability on the part of the employer. If, under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote, at best. Page 499 U. S. 209Although the issue is not before us, JUSTICE WHITE observes that "it is far from clear that compliance with Title VII will preempt state tort liability." Post at 499 U. S. 213. The cases relied upon by HIM to support its prediction, however, are inapposite. For example, in California Federal S. & L. Assn. v. Guerra, 479 U. S. 272 (1987), we considered a California statute that expanded upon the requirements of the PDA, and concluded that the statute was not preempted by Title VII because it was not inconsistent with the purposes of the federal statute, and did not require an act that was unlawful under Title VII. Id. at 479 U. S. 291-292. Here, in contrast, the tort liability that JUSTICE WHITE fears will punish employers for complying with Title VII's clear command. When it is impossible for an employer to comply with both state and federal requirements, this Court has ruled that federal law preempts that of the States. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963).This Court faced a similar situation in Farmers Union v. WDAY, Inc., 360 U. S. 525 (1959). In WDAY, it held that § 315(a) of the Federal Communications Act of 1934 barred a broadcasting station from removing defamatory statements contained in speeches broadcast by candidates for public office. It then considered a libel action which arose as a result of a speech made over the radio and television facilities of WDAY by a candidate for the 1966 senatorial race in North Dakota. It held that the statutory prohibition of censorship carried with it an immunity from liability for defamatory statements made by the speaker. To allow libel actions"would sanction the unconscionable result of permitting civil and perhaps criminal liability to be imposed for the very conduct the statute demands of the licensee."Id. at 360 U. S. 531. It concluded:"We are aware that causes of action for libel are widely recognized throughout the States. But we have not hesitated to abrogate state law where satisfied that Page 499 U. S. 210 its enforcement would stand 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"Id. at 360 U. S. 535, quoting Bethlehem Steel Co. v. New York Labor Board, 330 U. S. 767, 330 U. S. 773 (1947)If state tort law furthers discrimination in the workplace and prevents employers from hiring women who are capable of manufacturing the product as efficiently as men, then it will impede the accomplishment of Congress' goals in enacting Title VII. Because Johnson Controls has not argued that it faces any costs from tort liability, not to mention crippling ones, the preemption question is not before us. We therefore say no more than that the concurrence's speculation appears unfounded, as well as premature.The tort liability argument reduces to two equally unpersuasive propositions. First, Johnson Controls attempts to solve the problem of reproductive health hazards by resorting to an exclusionary policy. Title VII plainly forbids illegal sex discrimination as a method of diverting attention from an employer's obligation to police the workplace. Second, the spectre of an award of damages reflects a fear that hiring fertile women will cost more. The extra cost of employing members of one sex, however, does not provide an affirmative Title VII defense for a discriminatory refusal to hire members of that gender. See Manhart, 435 U.S. at 435 U. S. 716-718, and n. 32, and n. 32. Indeed, in passing the PDA, Congress considered at length the considerable cost of providing equal treatment of pregnancy and related conditions, but made the "decision to forbid special treatment of pregnancy despite the social costs associated therewith." Arizona Governing Committee v. Norris, 463 U. S. 1073, 463 U. S. 1084, n. 14 (1983) (opinion of MARSHALL, J.). See Price Waterhouse v. Hopkins, 490 U. S. 228 (1988).We, of course, are not presented with, nor do we decide, a case in which costs would be so prohibitive as to threaten the Page 499 U. S. 211 survival of the employer's business. We merely reiterate our prior holdings that the incremental cost of hiring women cannot justify discriminating against them.VIIOur holding today that Title VII, as so amended, forbids sex-specific fetal-protection policies is neither remarkable nor unprecedented. Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities. See, e.g., Muller v. Oregon, 208 U. S. 412 (1908). Congress in the PDA prohibited discrimination on the basis of a woman's ability to become pregnant. We do no more than hold that the Pregnancy Discrimination Act means what it says.It is no more appropriate for the courts than it is for individual employers to decide whether a woman's reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make.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 CourtUnited Automobile Workers v. Johnson Controls, 499 U.S. 187 (1991)International Union, United Automobile, Aerospace &Agricultural Implement Workers of America, UAWNo. 89-1215Argued Oct. 10, 1990Decided March 20, 1991499 U.S. 187SyllabusA primary ingredient in respondent's battery manufacturing process is lead, occupational exposure to which entails health risks, including the risk of harm to any fetus carried by a female employee. After eight of its employees became pregnant while maintaining blood lead levels exceeding that noted by the Occupational Safety and Health Administration (OSHA) as critical for a worker planning to have a family, respondent announced a policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding the OSHA standard. Petitioners, a group including employees affected by respondent's fetal-protection policy, filed a class action in the District Court, claiming that the policy constituted sex discrimination violative of Title VII of the Civil Rights Act of 1964, as amended. The court granted summary judgment for respondent, and the Court of Appeals affirmed. The latter court held that the proper standard for evaluating the policy was the business necessity inquiry applied by other Circuits; that respondent was entitled to summary judgment because petitioners had failed to satisfy their burden of persuasion as to each of the elements of the business necessity defense under Wards Cove Packing Co. v. Atonio, 490 U. S. 642; and that, even if the proper evaluative standard was bona fide occupational qualification (BFOQ) analysis, respondent still was entitled to summary judgment because its fetal-protection policy is reasonably necessary to further the industrial safety concern that is part of the essence of respondent's business.Held: Title VII, as amended by the Pregnancy Discrimination Act (PDA), forbids sex-specific fetal-protection policies. Pp. 499 U. S. 197-211.(a) By excluding women with childbearing capacity from lead-exposed jobs, respondent's policy creates a facial classification based on gender and explicitly discriminates against women on the basis of their sex under § 703(a) of Title VII. Moreover, in using the words "capable of bearing children" as the criterion for exclusion, the policy explicitly classifies on the basis of potential for pregnancy, which classification must be Page 499 U. S. 188 regarded, under the PDA, in the same light as explicit sex discrimination. The Court of Appeals erred in assuming that the policy was facially neutral because it had only a discriminatory effect on women's employment opportunities, and because its asserted purpose, protecting women's unconceived offspring, was ostensibly benign. The policy is not neutral, because it does not apply to male employees in the same way as it applies to females, despite evidence about the debilitating effect of lead exposure on the male reproductive system. Also, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Cf. Phillips v. Martin Marietta Corp., 400 U. S. 542. Because respondent's policy involves disparate treatment through explicit facial discrimination, the business necessity defense and its burden-shifting under Wards Cove are inapplicable here. Rather, as indicated by the Equal Employment Opportunity Commission's enforcement policy, respondent's policy may be defended only as a BFOQ, a more stringent standard than business necessity. Pp. 499 U. S. 197-200.(b) The language of both the BFOQ provision set forth in § 703(e)(1) of Title VII -- which allows an employer to discriminate on the basis of sex "in those certain instances where . . . sex . . . is a [BFOQ] reasonably necessary to the normal operation of [the] particular business" -- and the PDA provision that amended Title VII-which specifies that, unless pregnant employees differ from others "in their ability or inability to work," they must be "treated the same" as other employees "for all employment-related purposes" -- as well as these provisions' legislative history and the case law, prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job. The so-called safety exception to the BFOQ is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform, and the employer must direct its concerns in this regard to those aspects of the woman's job-related activities that fall within the "essence" of the particular business. Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 333, 433 U. S. 335; Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 472 U. S. 413. The unconceived fetuses of respondent's female employees are neither customers nor third parties whose safety is essential to the business of battery manufacturing. Pp. 499 U. S. 200-206.(c) Respondent cannot establish a BFOQ. Fertile women, as far as appears in the record, participate in the manufacture of batteries as efficiently as anyone else. Moreover, respondent's professed concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Title VII, as amended by the PDA, mandates that decisions about the welfare of future children be left to the parents Page 499 U. S. 189 who conceive, bear, support, and raise them, rather than to the employers who hire those parents or the courts. Pp. 499 U. S. 206-207.(d) An employer's tort liability for potential fetal injuries and its increased costs due to fertile women in the workplace do not require a different result. If, under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote, at best. Moreover, the incremental cost of employing members of one sex cannot justify a discriminatory refusal to hire members of that gender. See, e.g., Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 716-718, and n. 32. Pp. 499 U. S. 208-211.886 F.2d 871 (CA7 1989), reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which MARSHALL, STEVENS, O'CONNOR, and SOUTER, JJ., joined. WHITE, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C.J., and KENNEDY, J., joined, post, p. 499 U. S. 211. SCALIA, J., filed an opinion concurring in the judgment, post, p. 499 U. S. 223. Page 499 U. S. 190

1976_75-1805

STEVENS, J., filed an opinion dissenting in part Page 432 U. S. 139 and concurring in the judgment in part, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 432 U. S. 158.MR. JUSTICE BLACKMUN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join.This case involves the extent of the protection against multiple prosecutions afforded by the Double Jeopardy Clause of the Fifth Amendment, under circumstances in which the defendant opposes the Government's efforts to try charges under 21 U.S.C. §§ 846 and 848 in one proceeding. It also raises the question whether § 846 is a lesser included offense of § 848. Finally, it requires further explication of the Court's decision in Iannelli v. United States, 420 U. S. 770 (1975).IA. According to evidence presented at trial, petitioner Garland Jeffers was the head of a highly sophisticated narcotics distribution network that operated in Gary, Ind., from January, 1972, to March, 1974. The "Family," as the organization was known, originally was formed by Jeffers and five others and was designed to control the local drug traffic in the city of Gary. Petitioner soon became the dominant figure in the organization. He exercised ultimate authority over the substantial revenues derived from the Family's drug sales, extortionate practices, and robberies. He disbursed funds to pay salaries of Family members, commissions of street workers, and incidental expenditures for items such as apartment rental fees, bail bond fees, and automobiles for certain Page 432 U. S. 140 members. Finally, he maintained a strict and ruthless discipline within the group, beating and shooting members on occasion. The Family typically distributed daily between 1,000 and 2,000 capsules of heroin. This resulted in net daily receipts of about $5,000, exclusive of street commissions. According to what the Court of Appeals stated was "an extremely conservative estimate," [Footnote 1] petitioner's personal share from the operations exceeded a million dollars over the two-year period. On March 18, 1974, a federal grand jury for the Northern District of Indiana returned two indictments against petitioner in connection with his role in the Family's operations. The first, No. H-CR-74-56, charged petitioner and nine others with an offense under 21 U.S.C. § 846, [Footnote 2] by conspiring to distribute both heroin and cocaine during the period between November 1, 1971, and the date of the indictment, in violation of 21 U.S.C. § 841(a)(1). [Footnote 3] App. 11. The indictment specified, among other things, that the conspiracy was to be accomplished by petitioner's assumption of leadership of the Family organization, by distribution of controlled substances, and by acquisition of substantial sums of money through the distribution of the controlled substances. Id. at 6. The Page 432 U. S. 141 second indictment, No. H-CR-74-57, charged petitioner alone with a violation of 21 U.S.C. § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws. [Footnote 4] Like the first, or conspiracy, indictment, this second indictment charged that petitioner had distributed and possessed with intent to distribute both heroin and cocaine, in violation of § 841(a)(1), again between November 1, 1971, and the date of the indictment. As required by the statute, the indictment alleged that petitioner had undertaken the distribution "in concert with five or more other people with respect to whom he occupied a position of organizer, supervisor and Page 432 U. S. 142 manager," and that, as a result of the distribution and other activity, he had obtained substantial income. App. 3-4.Shortly after the indictments were returned, the Government filed a motion for trial together, requesting that the "continuing criminal enterprise" charge be tried with the general conspiracy charges against petitioner and his nine codefendants. Id. at 12-14. The motion alleged that joinder would be proper under Fed.Rule Crim.Proc. 8, since the offenses charged were of the same or similar character and they were based on the same acts or transactions constituting parts of a common scheme or plan. It also represented that much of the evidence planned for the § 848 trial was based on the same transactions as those involved in the § 846 case. Consequently, it argued that joinder was appropriate and within the court's power pursuant to Fed.Rule Crim.Proc. 13.The defendants in the § 846 case filed a joint objection to the Government's motion. App. 124. Petitioner and his nine codefendants argued generally that joinder would be improper under Fed.Rules Crim.Proc. 8 and 14, since neither the parties nor the charges were the same. The codefendants were particularly concerned about the probable effect of the evidence that would be introduced to support the continuing criminal enterprise charge and about the jury's ability to avoid confusing the two cases. Another argument in the objection focused directly on petitioner. [Footnote 5] It noted that the § 846 indictment Page 432 U. S. 143 charged 17 overt acts, but that petitioner was named in only 10 of them, and was alleged to have participated actively in only 9. Thus, the argument went, it was likely that much of the evidence in the conspiracy trial would not inculpate petitioner, and would therefore be inadmissible against him in the "continuing criminal enterprise" trial. Although a severance of the conspiracy charges against petitioner from those against the nine codefendants might have alleviated this problem, petitioner never made such a motion under Rule 14. On May 7, the court denied the Government's motion for trial together, and thereby set the stage for petitioner's first trial on the conspiracy charges.B. The trial on the § 846 indictment took place in June, 1974. A jury found petitioner and six of his codefendants guilty. Petitioner received the maximum punishment applicable to him under the statute -- 15 years in prison, a fine of $25,000, and a 3-year special parole term. [Footnote 6] The Court of Appeals affirmed the conviction, 520 F.2d 1256 (CA7 1975), and this Court denied certiorari, 423 U.S. 1066 (1976). [Footnote 7] Page 432 U. S. 144While the conspiracy trial and appeal were proceeding, petitioner was filing a series of pretrial motions in the pending criminal enterprise case. When it appeared that trial was imminent, petitioner filed a motion to dismiss the indictment on the ground that in the conspiracy trial he already had been placed in jeopardy once for the same offense. He argued both that the two indictments arose out of the same transaction, and therefore the second trial should be barred under that theory of double jeopardy, and that the "same evidence" rule of Blockburger v. United States, 284 U. S. 299 (1932), should bar the second prosecution, since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. [Footnote 8] To forestall the Government's anticipated waiver argument, petitioner asserted that waiver was impossible, since his objection to trying the two counts together was based on his Sixth Amendment right to a fair trial, and his opposition to the § 848 trial was based on his Fifth Amendment double jeopardy right. A finding of waiver, according to his argument, would amount to penalizing the exercise of one constitutional right by denying another. App. 227.The Government, in its response to the motion to dismiss, asserted that § § 846 and 848 were separate offenses, and, for this reason, petitioner would not be placed twice in jeopardy by the second trial. [Footnote 9] The District Court agreed with this analysis and denied petitioner's motion shortly before the second trial began. Page 432 U. S. 145At the second trial, the jury found petitioner guilty of engaging in a continuing criminal enterprise. Again, he received the maximum sentence for a first offender: life imprisonment and a fine of $100,000. See n 4, supra. The judgment specified that the prison sentence and the fine were "to run consecutive with sentence imposed in H-CR-74-56 [the conspiracy case]." Record, Doc. 105. Thus, at the conclusion of the second trial, petitioner found himself with a life sentence without possibility of probation, parole, or suspension of sentence, and with fines totaling $125,000. [Footnote 10]On appeal, the conviction and sentence were upheld. 532 F.2d 1101 (CA7 1976). The Court of Appeals concluded that 846 was a lesser included offense of § 848, since the "continuing criminal enterprise" statute expressly required proof that the accused had acted in concert with five or more other persons. In the court's view, this requirement was tantamount to a proof of conspiracy requirement. [Footnote 11] Construing § 848 to require proof of agreement meant that all the elements of the § 846 offense had to be proved for § 848, in addition to the elements of a supervisory position and the obtaining of substantial income or resources; [Footnote 12] thus, §§ 846 Page 432 U. S. 146 and 848 satisfied the general test for lesser included offenses. Although the court stated that ordinarily conviction of a lesser included offense would bar a subsequent prosecution for the greater offense, relying on Gavieres v. United States, 220 U. S. 338 (1911); Blockburger v United States, supra; and Waller v. Florida, 397 U. S. 387 (1970), it read Iannelli v. United States, 420 U. S. 770 (1975), to create a new double jeopardy rule applicable only to complex statutory crimes.The two statutes at issue in Iannelli were 18 U.S.C. § 371, the general federal conspiracy statute, and 18 U.S.C. § 1955, the statute prohibiting illegal gambling businesses involving five or more persons. Despite language in Iannelli seemingly to the contrary, 420 U.S. at 420 U. S. 785 n. 17, the Court of Appeals stated that § 371 is a lesser included offense of § 1955. 532 F.2d at 1109. The court attached no significance to the fact that § 1955 contains no requirement of action "in concert." It believed that Iannelli held that greater and lesser offenses could be punished separately if Congress so intended, and it adopted the same approach to the multiple prosecution question before it. Finding that Congress, in enacting § 848, was interested in punishing severely those who made a substantial living from drug dealing, and that Congress intended to make § 848 an independent crime, the court concluded that §§ 846 and 848 were not the "same offense" for double jeopardy purposes. It therefore held that the conviction on the first indictment did not bar the prosecution on the second.In his petition for certiorari, petitioner challenged the Court of Appeals' reading of Iannelli and suggested again that § 846 was a lesser included offense of § 848. He also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense after conviction for the lesser. Finally, he argued that he had not waived the double jeopardy Page 432 U. S. 147 issue. In addition to these issues, it appears that cumulative fines were imposed on petitioner, which creates a multiple punishment problem. We granted certiorari. 42 U.S. 815 (1976). We consider first the multiple prosecution, lesser included offense, and waiver points, and then we address the multiple punishment problem.IIA. The Government's principal argument for affirming the judgment of the Court of Appeals is that Iannelli controls this case. Like the conspiracy and gambling statutes at issue in Iannelli, the conspiracy and "continuing criminal enterprise" statutes at issue here, in the Government's view, create two separate offenses under the "same evidence" test of Blockburger. The Government's position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848(b)(2)(A) of the phrase "in concert with." If five "innocent dupes" each separately acted "in concert with" the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23.If the Government's position were right, this would be a simple case. In our opinion, however, it is not so easy to transfer the Iannelli result, reached in the context of two other and different statutes, to this case. In Iannelli, the Court specifically noted: "Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents." 420 U.S. at 420 U. S. 785 (emphasis in original). Elaborating on that point, the Court stated: "The essence of the crime of conspiracy is agreement, . . . an element not contained in the statutory definition of the § 1955 offense." Id. at 785 � 17. Because of the silence of § 1955 with regard to the necessity of concerted activity, the Court felt constrained to construe the statute to permit the possibility that Page 432 U. S. 148 the five persons "involved" in the gambling operation might not be acting together. [Footnote 13] See also Pinkerton v. United States, 328 U. S. 640, 328 U. S. 643 (1946).The same flexibility does not exist with respect to the "continuing criminal enterprise" statute. Section 848(b)(2)(A) restricts the definition of the crime to a continuing series of violations undertaken by the accused "in concert with five or more other persons." Clearly, then, a conviction would be impossible unless concerted activity were present. The express "in concert" language in the statutory definition quite plausibly may be read to provide the necessary element of "agreement" found wanting in § 1955. Even if § 848 were read to require individual agreements between the leader of the enterprise and each of the other five necessary participants, enough would be shown to prove a conspiracy. It would be unreasonable to assume that Congress did not mean anything at all when it inserted these critical words in § 848. [Footnote 14] In the Page 432 U. S. 149 absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word "concert" to have its common meaning of agreement in a design or plan. For the purposes of this case, therefore, we assume, arguendo, that § 848 does Page 432 U. S. 150 require proof of an agreement among the persons involved in the continuing criminal enterprise. [Footnote 15] So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846, as well as proof of several additional elements. [Footnote 16]B. Brown v. Ohio, post, p. 432 U. S. 161, decided today, establishes the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. Post at 432 U. S. 168-169. What lies at the heart of the Double Jeopardy Clause is the prohibition against multiple prosecutions for "the same offense." See United States v. Wilson, 420 U. S. 332, 420 U. S. 343 (1975). Brown reaffirms the rule that one convicted of the greater offense may not be Page 432 U. S. 151 subjected to a second prosecution on the lesser offense, since that would be the equivalent of two trials for "the same offense." Post at 432 U. S. 168. See In re Nielsen, 131 U. S. 176, 131 U. S. 187 (1889). Because two offenses are "the same" for double jeopardy purposes unless each requires proof of an additional fact that the other does not, post at 432 U. S. 168, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial, [Footnote 17] and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding. [Footnote 18] Cf. Waller v. Florida, 397 U.S. at 397 U. S. 390. Contrary to the suggestion of the Court of Appeals, Iannelli created no exception to these general jeopardy principles for complex statutory crimes. [Footnote 19]The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, post at 432 U.S. 169 n. 7; Blackledge v. Perry, 417 U. S. 21, 417 U. S. 229, and n. 7 (1974); Diaz v. United States, 223 U. S. 442 (1912). See also Ashe v. Swenson, 397 U. S. 436, Page 432 U. S. 152 397 U. S. 453 n. 7 (1970) (BRENNAN, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid.If the defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other, another exception to the Brown rule emerges. This situation is no different from others in which a defendant enjoys protection under the Double Jeopardy Clause, but for one reason or another retrial is not barred. Thus, for example, in the case of a retrial after a successful appeal from a conviction, the concept of continuing jeopardy on the offense for which the defendant was convicted applies, thereby making retrial on that offense permissible. See Price v. Georgia, 398 U. S. 323 (1970); Green v. United States, 355 U. S. 184 (1957); United States v. Ball, 163 U. S. 662 (1896). In a slightly different context, the defendant's right to have the need for a retrial measured by the strict "manifest necessity" standard of United States v. Perez, 9 Wheat. 579 (1824), does not exist if the mistrial was granted at the defendant's request. United States v. Dinitz, 424 U. S. 600 (1976). Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Similarly, although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election. [Footnote 20] Page 432 U. S. 153C. In this case, trial together of the conspiracy and "continuing criminal enterprise" charges could have taken place without undue prejudice to petitioner's Sixth Amendment right to a fair trial. [Footnote 21] If the two charges had been tried in one proceeding, it appears that petitioner would have been entitled to a lesser included offense instruction. See Fed, Rule Crim.Proc. 31(c); Keeble v. United States, 412 U. S. 205 (1973); cf. Sansone v. United States, 380 U. S. 343, 380 U. S. 349-350 Page 432 U. S. 154 (1965). If such an instruction had been denied on the ground that § 846 was not a lesser included offense of § 848, petitioner could have preserved his point by proper objection. Nevertheless, petitioner did not adopt that course. Instead, he was solely responsible for the successive prosecutions for the conspiracy offense and the "continuing criminal enterprise" offense. [Footnote 22] Under the circumstances, we hold that his action deprived him of any right that he might have had against consecutive trials. It follows, therefore, that the Government was entitled to prosecute petitioner for the § 848 offense, and the only issue remaining is that of cumulative punishments upon such prosecution and conviction.IIIAlthough both parties, throughout the proceedings, appear to have assumed that no cumulative punishment problem is present in this case, [Footnote 23] the imposition of the separate fines Page 432 U. S. 155 seems squarely to contradict that assumption. [Footnote 24] Fines, of course, are treated in the same way as prison sentences for purposes of double jeopardy and multiple punishment analysis. See North Carolina v. Pearce, 395 U. S. 711, 395 U. S. 718 n. 12 (1969). In this case, since petitioner received the maximum fine applicable to him under § 848, it is necessary to decide whether cumulative punishments are permissible for violations of §§ 846 and 848.The critical inquiry is whether Congress intended to punish each statutory violation separately. See, e.g., Prince v. United States, 352 U. S. 322, 352 U. S. 327 (1957); Callanan v. United States, 364 U. S. 587, 364 U. S. 594 (1961); Milanovich v. United States, 365 U. S. 551, 365 U. S. 554 (1961). Cf. Bell v. United States, 349 U. S. 81, 349 U. S. 82 (1955). In Iannelli v. United States, the Court concluded that Congress did intend to punish violations of § 1965 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. See 420 U.S. at 420 U. S. 785-786, nn. 17-18. See also Gore v. United States, 357 U. S. 386 (1958). If some possibility exists that the two statutory offenses are the "same offense" for double jeopardy purposes, however, it is necessary to examine the problem closely in order to avoid constitutional multiple punishment difficulties. See North Carolina v. Pearce, 395 U.S. at 395 U. S. 717; United States v. Wilson, 420 U.S. at 420 U. S. 343. [Footnote 25]As petitioner concedes, Reply Brief for Petitioner 3, the first issue to be considered is whether Congress intended to allow cumulative punishment for violations of §§ 846 and 848. We have concluded that it did not, and this again makes it unnecessary to reach the lesser included offense issue. Page 432 U. S. 156Section 848 itself reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Even for a first offender, the statute authorizes a maximum prison sentence of life, a fine of $100,000, and a forfeiture of all profits obtained in the enterprise and of any interest in, claim against, or property or contractual rights of any kind affording a source of influence over, the enterprise. §§ 848(a)(1), (2). The statute forbids suspension of the imposition or execution of any sentence imposed, the granting of probation, and eligibility for parole. § 848(c). In addition, § 848 is the only section in the statutes controlling drug abuse that provides for a mandatory minimum sentence. For a first offender, that minimum is 10 years. § 848(a)(1). A second or subsequent offender must receive a minimum sentence of 20 years, and he is subject to a fine of up to $200,000, as well as the forfeiture described above and the maximum of lifetime imprisonment. Ibid. Since every § 848 violation by definition also will involve a series of other felony violations of the Act, see §§ 848(b)(1), (2), there would have been no point in specifying maximum fines for the § 848 violation if cumulative punishment was to be permitted.The legislative history of § 848 is inconclusive on the question of cumulative punishment. [Footnote 26] The policy reasons usually offered to justify separate punishment of conspiracies and Page 432 U. S. 157 underlying substantive offenses, however, are inapplicable to §§ 846 and 848. In Callanan v. United States, 364 U.S. at 364 U. S. 593-594, the Court summarized these reasons:"[C]ollective criminal agreement -- partnership in crime presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise."Accord, Iannelli v. United States, 420 U.S. at 420 U. S. 778.As this discussion makes clear, the reason for separate penalties for conspiracies lies in the additional dangers posed by concerted activity. Section 848, however, already expressly prohibits this kind of conduct. Thus, there is little legislative need to further this admittedly important interest by authorizing consecutive penalties from the conspiracy statute.Our conclusion that Congress did not intend to impose cumulative penalties under § 846 and 848 is of minor significance in this particular case. Since the Government had the right to try petitioner on the § 848 indictment, the court had the power to sentence him to whatever penalty was authorized by that statute. It had no power, however, to impose on him a fine greater than the maximum permitted by § 848. Thus, if petitioner received a total of $125,000 in fines Page 432 U. S. 158 on the two convictions, as the record indicates, he is entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000.The judgment of the Court of Appeals, accordingly, is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtJeffers v. United States, 432 U.S. 137 (1977)Jeffers v. United StatesNo. 75-1805Argued March 21, 1977Decided June 16, 1977432 U.S. 137SyllabusA federal grand jury returned two indictments against petitioner for offenses under 21 U.S.C. One charged him and nine others with violating § 846 by conspiring to distribute heroin and cocaine during a specified period in violation of § 841(a)(1), the indictment specifying, inter alia, that the conspiracy was to be accomplished by petitioner's assumption of leadership of a certain organization, by distribution of controlled substances, and by acquisition of substantial sums of money through such distribution. The other charged petitioner alone with violating § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws, by his distributing and possessing with intent to distribute heroin and cocaine, in violation of § 841(a)(1) during the same specified period, the indictment alleging that he had undertaken the distribution "in concert" with five or more others, with respect to whom he occupied the position of organizer and supervisor, and that, as a result of the distribution, he had obtained a substantial income. The court denied a motion by the Government to consolidate the indictments for trial, which the petitioner and his codefendants had opposed on the grounds that neither the parties nor the charges were the same and that, based on the overt acts charged, much of the § 846 evidence would not inculpate petitioner, and would therefore be inadmissible against him on the § 848 charge. Petitioner and six codefendants were first tried and found guilty on the § 846 indictment, petitioner receiving the maximum sentence applicable to him of 15 years in prison, a $25,000 fine, and three-year special parole term, and the conviction was affirmed on appeal. Petitioner then moved to dismiss the § 848 indictment on the ground that in the § 846 trial he had already been placed in jeopardy for the same offense and that the "same evidence" rule of Blockburger v. United States, 284 U. S. 299, barred the second prosecution since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. Following denial of petitioner's motion on the ground that the offenses were separate, petitioner was tried and found guilty of the § 848 offense, and was given the maximum sentence for a first offender, viz., life imprisonment and a $100,000 fine, to run consecutively with the § 846 sentence. The Court of Appeals, Page 432 U. S. 138 although concluding that § 846 was a lesser included offense of § 848, and that the earlier conviction would normally, under Blockburger, bar the subsequent prosecution, held that Iannelli v. United States, 420 U. S. 770, created a new double jeopardy rule applicable only to complex statutory crimes, where greater and lesser offenses could be separately punished if, as here, Congress so intended. Petitioner challenged the Iannelli interpretation, and also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense and conviction of the lesser and that he had not waived the double jeopardy issue.Held: The judgment is affirmed in part, vacated in part, and remanded. Pp. 432 U. S. 147-158; 432 U. S. 160.532 F.2d 1101, affirmed in part, vacated in part, and remanded.MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, MR JUSTICE POWELL, and MR. JUSTICE REHNQUIST, concluded:1. Petitioner's action in opposing the Government's motion to consolidate the indictments for trial deprived him of any right he might have had against consecutive trials, and the Government was therefore entitled to prosecute petitioner for the § 848 offense. This result is an exception to the rule established in Brown v. Ohio, post, p. 432 U. S. 161, that the Double Jeopardy Clause prohibits the trial of a defendant for a greater offense after he has been convicted of a lesser included offense, being no different from other situations where a defendant enjoys protection under the Double Jeopardy Clause but, for one reason or another, may be retried. Here petitioner, who could have been tried in one proceeding, chose not to adopt that course, and therefore was solely responsible for the separate prosecutions. Pp. 432 U. S. 147-154.2. It cannot be assumed that Congress intended to impose cumulative penalties under §§ 846 and 848, and petitioner is therefore entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000. Pp. 154-158.MR. JUSTICE WHITE concluded that Iannelli v. United States, supra, controls this case, and therefore concurs in the judgment with respect to petitioner's conviction. P. 432 U. S. 158.MR JUSTICE STEVENS, joined by MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL, concurs in the judgment to the extent that it vacates the cumulative fines. P. 432 U. S. 160.BLACKMUN, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in part in the judgment and dissenting in part, post, p. 432 U. S. 158. STEVENS, J., filed an opinion dissenting in part Page 432 U. S. 139 and concurring in the judgment in part, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 432 U. S. 158.

1964_489

MR. JUSTICE WHITE delivered the opinion of the Court.The Life Insurance Company Income Tax Act of 1959, [Footnote 1] which represents a comprehensive overhaul of the laws relating to the taxation of life insurance companies, places a tax upon taxable investment income and upon one-half the amount by which total gain from operations exceeds taxable investment income. [Footnote 2] In arriving at taxable investment income and gain from operations, the 1959 Act, consistent with prior law in this regard, recognizes that Page 381 U. S. 236 life insurance companies are required by law to maintain policyholder reserves to meet future claims, that they normally add to these reserves a large portion of their investment income, and that these annual reserve increments should not be subjected to tax. The question in this case is whether the method by which Congress chose to deal with these annual reserve increments and to arrive at taxable investment income places an impermissible tax on the interest earned by life insurance companies from municipal bonds, within the meaning of the Act itself and the relevant cases in this Court.IThe 1959 Act defines life insurance company reserves, [Footnote 3] provides a rather intricate method for establishing the amount which for tax purposes is deemed to be added each year to these reserves, [Footnote 4] and, in § 804, prescribes a division Page 381 U. S. 237 of the investment income of an insurance company into two parts, the policyholders' share and the company's share. [Footnote 5] More specifically, the total amount to be added to the reserve -- the policy and other contract liability requirements -- is divided by the total investment yield, [Footnote 6] and the resulting percentage is used to allocate each item of investment income, including tax-exempt interest, partly to the policyholders and partly to the company. In this case, approximately 85% of each item of income was assigned to the policyholders, and was, as the Act provides, excluded from the company's taxable income. The remainder of each item is considered to be the company's share of investment income. From the total amount allocated to the company, the Act allows a deduction of the company's share of tax-exempt interest (and of other nontaxed items) to arrive at taxable investment income. [Footnote 7] The taxable investment income for the purposes Page 381 U. S. 238 of arriving at the portion of gain from operations which is to be subjected to tax is arrived at by much the same process as above described.Section 804(a)(6), however, provides as follows:"(6) Exception. -- If it is established in any case that the application of the definition of taxable investment income contained in paragraph (2) results in the imposition of tax on --""(A) any interest which under section 103 is excluded from gross income,""* * * *" "adjustment shall be made to the extent necessary to prevent such imposition."An identical exception is contained in § 809(b)(4), providing for the calculation of gain from operation. Section 103 of the Code provides for the exclusion from gross income of the interest earned on state and municipal bonds.According to the Commissioner, the company's income from investments includes only its pro rata share of tax-exempt interest, and, since this share is fully deductible by the company, the law imposes no tax at all on exempt interest. Atlas, however, claims otherwise: the company is entitled to deduct from total investment income both the full amount of the annual addition to reserves and the full amount of exempt interest received; by assigning part of exempt interest to the reserve account, rather than assigning only taxable income, the Act necessarily places more taxable income in the company's share of investment return; the company thus pays more tax because it has received tax-exempt interest of which a portion must be allocated to the reserve account.Claiming that it was entitled to the adjustments provided for in §§ 804(a)(6) and 809(b)(4), the company sued for a refund in the District Court. The complaint Page 381 U. S. 239 also alleged the treatment accorded tax-exempt interest was contrary to the Constitution of the United States and to the principles set forth in National Life Ins. Co. v. United States, 277 U. S. 508, and Missouri Ins. Co. v. Gehner, 281 U. S. 313. The District Court rejected these claims, 216 F. Supp. 457 (D.C.N.D.Okl.), but the Court of Appeals reversed, 333 F.2d 389 (C.A.10th Cir.). That court considered the 1959 formula to impose a tax on tax-exempt interest within the meaning of the National Life and Gehner cases, and hence, by the terms of §§ 804(a)(6) and 809(b)(4), an adjustment was required. We granted certiorari to consider this important question relating to the taxation of life insurance companies. 379 U.S. 927.We reverse, holding that, in the circumstances of this case, there is no statutory or constitutional barrier to the application of the formula provided in § 804 to arrive at the taxable investment income of Atlas, and hence the exceptions provided in §§ 804(a)(6) and 809(b)(4) are not applicable.IIUnder the 1959 Act, the undivided part of a life insurance company's assets represented by its reserves is considered as a fund held for the benefit of the policyholders. The required annual addition to reserve is drawn from the income earned from investments of the commingled assets. Each item of investment income, including tax-exempt interest, is divided into a policyholders' share and a company's share. The policyholders' share is added to the reserve, is excluded for tax purposes from the gross income of the company, and is not taxed to either the company or the policyholders. The company's share of investment income is then reduced by its share of tax-exempt interest to arrive at taxable investment income. It is apparent from the face of the Act that this is the formula which Congress intended to be of general application, Page 381 U. S. 240 and that Congress did not consider the application of the formula in the usual case to lay a tax on exempt interest, or to have any such effect, so as to bring the exception clauses into operation. Otherwise the exception would become the rule, and the general formula of little, if any, utility.This view of the section is fully supported by its legislative history. As H.R. 4245 came to the Senate after passage by the House, it provided for deducting the annual addition to reserves, but, to prevent a "double deduction," reduced the deduction by a portion of tax-exempt interest. [Footnote 8] This treatment of tax-exempt interest was one of many subjects of comment in the extensive hearings which followed before the Senate Committee on Finance. It was repeatedly and strongly argued by many that life insurance companies were entitled to deduct in full both the annual addition to reserves and the entire amount of tax-exempt interest, that the provisions of H.R. 4245 with regard to tax-exempt interest discriminated against the insurance companies, that the section was constitutionally invalid under the National Life and Gehner cases, and that the formula would have adverse consequences on the municipal bond market. [Footnote 9] Other witnesses, however, including those representing the Treasury Department, supported the bill and considered it to accord proper and constitutionally permissible treatment to municipal bond interest. [Footnote 10] It is very doubtful that there remained at the conclusion of the hearings any unexplored facts or legal arguments concerning this aspect of the bill. Page 381 U. S. 241The Senate Committee, with the hearings behind it, reported out a bill with amendments which, among other things, took a decidedly different approach to the ascertainment of the annual addition to reserves and to the handling of tax-exempt interest. This approach was essentially that which is contained in the statute as described above. [Footnote 11]As time and again stated in the Committee Report and by those who presented the bill on the floor of the Senate, the purpose of the formula provided by the Senate was to avoid taxing exempt interest. [Footnote 12] Senator Byrd, the Page 381 U. S. 242 Committee chairman, stated that, "[i]n providing the formula I have described to the Senate, it was the intention of the committee not to impose any tax or tax-exempt interest." 105 Cong.Rec. 8401. It is extremely difficult to read the hearings, the reports, and the debates without concluding that, in the opinion of Congress, the formula it provided, without adjustment under § 804(a)(6) or § 809(b)(4), did not impose a tax on exempt interest in either the statutory or constitutional sense.None of the materials called to our attention, however, explains why or for what purpose §§ 804(a)(6) and 809(b)(4) were added to the Act, save for mere recitations in the reports and the debates that an adjustment would be required in any case where tax-exempt interest was shown to be subjected to tax. [Footnote 13] It may be that Congress thought that peculiar facts and circumstances in particular cases would require different treatment than the general formula would provide. If this was the case, no examples or illustrations of these aberrational situations were referred to or explained. And if this was to be the sole function of §§ 804(a)(6) and 809(b)(4), the Commissioner is surely entitled to a judgment, for there is Page 381 U. S. 243 nothing in this record indicating that this case is anything but the typical one to which Congress intended to apply the general formula.Atlas, however, in effect views §§ 804(a)(6) and 809(b)(4) as built-in safety valves to be triggered and become fully operational by a final determination in a lawsuit, such as this one, that the new formula, contrary to the judgment of Congress, does indeed place a tax on exempt interest within the meaning of the relevant cases heretofore decided by this Court. This is not an unreasonable view of the purposes which Congress may have had in writing the exception provisions into the Act, but we cannot agree with Atlas or the Court of Appeals that National Life, 277 U. S. 508, and Gehner, 281 U. S. 313, provide the necessary triggering to bring these clauses into play.IIIIn National Life, the Court struck down a provision of the federal income tax law which permitted insurance companies to exclude municipal bond interest from their gross income, and, at the same time, reduce the reserve deduction otherwise available to the company by the full amount of the exempt interest which was excluded from gross income, the result being that the company paid as much tax as it would have paid had the same total income been entirely from taxable sources. Under that provision, a company shifting its investments from taxable to nontaxable securities would have lowered neither its taxable income nor its total tax. As compared with the company deriving its income only from taxable sources, the enterprise with the same total amount of investment income derived partly from exempt and partly from taxable sources would pay more tax per dollar of taxable gross income, i.e., taxable income before deduction for the reserve. Unable to perceive any purpose in reducing one reduction by the full amount of another, save for an Page 381 U. S. 244 intent to impose a tax on exempt receipts, the Court ruled that "[o]ne may not be subjected to greater burdens upon his taxable property solely because he owns some that is free." 277 U.S. at 277 U. S. 519.It is obvious that this is not the case under the 1959 Act. Here, a company receiving income from both exempt and nonexempt securities pays not the same, but less, tax than the company with an identical amount of gross income derived from only taxable sources. As the taxpayer displaces taxable income with exempt income, the size of the tax base, and the tax, are reduced. The tax burden per taxable dollar of taxable gross income does not increase, but remains the same. [Footnote 14]But Atlas urges that the rule of National Life, when read in conjunction with State of Missouri Ins. Co. v. Gehner, 281 U. S. 313, means that a tax is imposed on tax-exempt interest whenever the liability of the taxpayer receiving such interest is greater than it would have been if the tax-exempt interest had not been received. In the Gehner case, a state ad valorem property tax was imposed on the net personal property of an insurance company. Exempt government bonds were excluded from the tax base, but only 84% -- the ratio of taxable assets to total assets -- of Page 381 U. S. 245 the legally required reserves was allowed as a deduction. The Court considered National Life to hold that "a state may not subject one to a greater burden upon his taxable property merely because he owns tax-exempt government securities." 281 U.S. at 281 U. S. 321. This paraphrase of the National Life holding was correct, and states the principle for which both of these cases have been cited. [Footnote 15] But it is obvious that the tax in Gehner did not infringe this rule. Reducing the reserve deduction by the ratio of taxable assets to total assets did not result in an increased tax burden on taxable property. The Court, nevertheless, invalidated the tax because "the ownership of United States bonds is made the basis of denying the full exemption which is accorded to those who own no such bonds." 281 U.S. at 281 U. S. 321-322. The company was apparently to have the full benefit of both the exclusion of the government bonds and the deduction for the full amount of policyholder reserves. Otherwise, the law would not disregard the ownership of the bonds in exacting the tax. The Gehner case does, therefore, condemn more than an increase in the tax rate on taxable dollars for those owning exempt securities.This extension of National Life was soon repudiated. [Footnote 16] In Denman v. Slayton, 282 U. S. 514, decided but one Term after Gehner, the Court unanimously upheld § 214(a)(2) of the Revenue Act of 1921, which permitted the deduction of interest generally except interest on Page 381 U. S. 246 indebtedness incurred or continued to purchase or carry tax-exempt securities, as applied to a dealer in securities whose disallowed interest incurred to carry exempt bonds exceeded the return from the bonds. Although the parties argued both Gehner and National Life, the Court did not mention Gehner, and said National Life was radically different, since the dealer"was not in effect required to pay more upon his taxable receipts than was demanded of others who enjoyed like incomes solely because he was the recipient of interest from tax-free securities."282 U.S. at 282 U. S. 519. But he was, like the taxpayer in Gehner, required to pay a greater tax than would be the case if the exempt securities were ignored entirely; absent ownership of the exempt bonds, the disallowed interest would have been deductible from taxable income. Ownership of exempt bonds was indeed the "basis of denying the full exemption which is accorded to those who own no such bonds." Gehner, 281 U.S. at 281 U. S. 321-322. Thus the Court not only refused to follow the implications of Gehner in the context of the federal income tax, but also sustained the propriety of disallowing an expense attributable to the production of nontaxable income. Such disallowance was not to impose an impermissible burden on the exempt receipts."While guaranteed exemptions must be strictly observed, this obligation is not inconsistent with reasonable classification designed to subject all to the payment of their just share of a burden fairly imposed."282 U.S. at 282 U. S. 519.The Court followed Denman, and again distinguished National Life, without mentioning Gehner, in Helvering v. Independent Life Ins. Co., 292 U. S. 371, where the Revenue Acts of 1921 and 1924 permitted deduction of depreciation and expenses of buildings owned by life insurance companies only if the company included in its gross income the rental value of space it occupied. The Court assumed that the rental value was not income, Page 381 U. S. 247 and could not constitutionally be taxed, but upheld the measure as a valid apportionment of expenses attributable to the space occupied by the company and the space for which rents are received. Denman v. Slayton was said to make clear the distinction between a permissible exclusion from deductions of the amount attributable to exempt income and a tax on exempt property. This apportionment fell within the former, and did not lay a tax on the rental value of the owner's use of his building.IVWe affirm the principle announced in Denman and Independent Life that the tax laws may require tax-exempt income to pay its way. In our view, Congress has done no more in the 1959 Act than to particularize this principle in connection with taxing the income of life insurance companies.An insurance company obtains most of its funds from premiums paid to it by policyholders in exchange for the company's promise to pay future death claims and other benefits. The company is also obligated to maintain reserves, which, if they are to be adequate to pay future claims, must grow at a sufficient rate each year. The receipt of premiums necessarily entails the creation of reserves and additions to reserves from investment income. Thus, the insurance company is not only permitted to invest, but it must invest; and it must return to the reserve a large portion of its investment income. As no insurance company would deny, there is sufficient economic and legal substance to the company's obligation to return a large portion of investment income to policyholder reserves to warrant or require the exclusion of investment income so employed from the taxable income of the company. And we think the policyholders' claim against investment income is sufficiently direct and immediate to justify the Congress in treating a major Page 381 U. S. 248 part of investment income not as income to the company, but as income to the policyholders. Whether viewed as income to the policyholders, or, as Atlas would have it, as the principal cost of carrying on the business which produces the company's net investment income, [Footnote 17] a large Page 381 U. S. 249 portion of total investment income is credited to the reserve and eliminated from taxable investment income.Under the 1959 Act, this portion is arrived at by subjecting each dollar of investment income, whatever its source, to a pro rata share of the obligation owed by the company to the policyholders, from whom the invested funds are chiefly obtained. In our view, there is nothing inherently arbitrary or irrational in such a formula for setting aside that share of investment income which must be committed to the reserves. Undoubtedly policyholders have not contracted to have assigned to them either taxable or exempt dollars. Their claim can be fully satisfied with either, but it runs against all investment income, whatever its source. We see no sound reason, legal or economic, for distinguishing between the taxable and nontaxable dollar or for saying that the reserve must be satisfied by resort to taxable income alone. Interest on municipal bonds may be exempt from tax, but this does not carry with it exemption from the company's obligation to add a large portion of investment income to policyholder reserve. [Footnote 18] Page 381 U. S. 250Tax exemption cannot change the substance of this undertaking. And the statutory formula allocating so much of each dollar of investment income as the reserve increment bears to total investment income is quite clearly consistent with it. For the formula treats taxable and exempt income in the same way, deeming that both are saddled with an equal share of the company's obligation to policyholders. We think that Congress can treat the receipts from investment of a pool of fungible assets in this manner, and that the taxpayer's desired allocation of these receipts is not constitutionally required.It is said, however, that a company investing "idle" assets in municipal bonds, and thereby adding exempt interest to its income, will pay more tax, and at a higher rate per dollar of taxable income, than if it had not made the additional investment at all. Likewise, it is claimed, two companies having the same amount of investment in taxable securities and the same amount of commitments to policyholders, but one having some municipal securities in addition, will have a different tax bill, the latter paying more tax and at a higher rate because of the ownership of the bonds. But insurance companies accumulate funds to invest, and they must, and do, invest. Their choice is not between investing and not investing at all, but between investing in one kind of securities or another. Under the 1959 formula, investing in exempt securities results in a lower total tax than investing in taxable securities, and the tax rate per taxable dollar does not increase. It is likewise unrealistic to compare the tax burdens of two companies, each with the same amount of taxable income but one with exempt income in addition, and to assume in the comparison that each has the same obligation to augment reserves. The likelihood is that, if the one company has additional exempt income which the other does not have, it also has more assets, larger reserves and a greater reserve claim against investment Page 381 U. S. 251 income, which will reduce taxable income and substantially offset the alleged disparity in tax burden between the two companies.Undoubtedly, the 1959 Act does not wholly ignore the receipt of tax-exempt interest in arriving at taxable investment income. The formula does preempt a share of tax-exempt interest for policyholders, and the company will pay more than it would if it had the full benefit of the exclusion for reserve additions and, at the same time, could reduce taxable income by the full amount of exempt interest. But this result necessarily follows from the application of the principle of charging exempt income with a fair share of the burdens properly allocable to it. In the last analysis, Atlas' insistence on both the full reserve and exempt-income exclusions is tantamount to saying that those who purchase exempt securities instead of taxable ones are constitutionally entitled to reduce their tax liability and to pay less tax per taxable dollar than those owning no such securities. The doctrine of intergovernmental immunity does not require such a benefit to be conferred on the ownership of municipal bonds. Congress was entitled to allocate investment income to policyholders as it did. The formula was "designed to subject all to the payment of their just share of a burden fairly imposed," Denman, supra, at 282 U. S. 519, and, as applied to this case, did not impose a tax on income excludable under § 103 of the Internal Revenue Code.Reversed

U.S. Supreme CourtUnited States v. Atlas Life Ins. Co., 381 U.S. 233 (1965)United States v. Atlas Life Ins. Co.No. 489Argued March 31, 1965Decided May 17, 1965381 U.S. 233SyllabusThe Life Insurance Company Income Tax Act of 1959 provides for the division of an insurance company's investment income into two parts, the policyholder's share (to be added to reserves for payment of future claims), and the company's share, with a pro rata allocation of each item of income to each share, including tax-exempt interest. Only the company's share is subject to the tax, and, from this share, the Act permits a deduction of its pro rata amount amount of tax-exempt interest to arrive at taxable income. The Act contains exceptions where the application of the definition of taxable investment income results in the imposition of tax on "any interest which, under section 103, is excluded from gross income" -- interest earned on state and municipal bonds -- in which case an adjustment shall be made to prevent such imposition. Respondent claims that it is entitled to deduct from total income both the full amount of the policyholders' share and the full amount of exempt interest received; otherwise, by assigning part of the exempt interest to the policyholders' share, the statute would place more taxable income in the company's share, and thus the company would pay more tax because it has received tax-exempt interest, since it must allocate a portion thereof to the reserve account. Respondent sued in District Court for a refund, claiming an adjustment under the statutory exceptions and asserting that the treatment of tax-exempt interest was unconstitutional and contrary to National Life Ins. Co. v. United States, 277 U. S. 508, and Missouri Ins. Co. v. Gehner, 281 U. S. 313. The District Court rejected these claims, but the Court of Appeals reversed.Held: there is no statutory or constitutional barrier to the application in this case of the pro rata formula set forth in the Act to compute respondent's taxable income, and the statutory exceptions are not applicable. Pp. 381 U. S. 239-251.(a) The legislative history clearly shows that Congress intended the pro rata formula to be of general application, and that Congress did not consider it to lay a tax on exempt interest in the usual case, such as this one. Pp. 381 U. S. 239-242. Page 381 U. S. 234(b) This tax is not inconsistent with the rule of National Life, supra, that "one may not be subjected to greater burdens upon his taxable property solely because he owns some that is free," since the displacement of taxable income with exempt income under the formula reduces the tax bas and the burden per taxable dollar remains the same. Pp. 381 U. S. 243-244.(c) The extension of the rule of National Life in Missouri Ins. Co. v. Gehner, supra, was unexplained, and was not followed in Denman v. Slayton, 282 U. S. 514, decided but one term after Gehner, and Helvering v. Independent Life Ins. Co., 292 U. S. 371, which hold that disallowance of an expense attributable to the production of nontaxable income is not to impose an impermissible tax on the exempt receipts. Pp. 381 U. S. 244-247.(d) Respondent has an obligation to set aside each year a large portion of its income for the benefit of policyholders, from whom it obtains most of its funds; the policyholders' claim against income is sufficiently direct and immediate to justify treating a major portion of income not as income to the company, but as income to the policyholders. Pp. 381 U. S. 247-248.(e) The pro rata formula treats taxable and exempt income in the same way, deeming that both are saddled with an equal share of the company's obligation to policyholders. It does no more than charge the exempt income with a fair share of the burdens properly allocable to it, which is permissible under Denman and Independent Life, supra. Pp. 381 U. S. 249-251.333 F.2d 389 reversed. Page 381 U. S. 235

1975_74-773

MR. JUSTICE STEWART delivered the opinion of the Court.A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended 61 Stat. 136, 29 U.S.C. 151 et seq. The National Labor Relations Board concluded that it did, 205 N.L.R.B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F.2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U.S. 971. Page 424 U. S. 509IThe petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler's, can be entered only from the interior mall.In January, 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company's failure to agree to demands made by their union in contract negotiations. [Footnote 1] The strikers decided to picket not only Butler's warehouse, but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed, but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that, if they did not leave, they would be arrested for trespassing. The pickets departed.The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by § 7 of the Act, 29 Page 424 U. S. 510 U.S.C. § 157. [Footnote 2] Relying on this Court's decision in Food Employees v. Logan Valley Plaza, 391 U. S. 308, the Board entered a cease and desist order against Hudgens, reasoning that, because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated § 8(a)(1) of the Act, 29 U.S.C. § 15,8(a)(1). [Footnote 3] Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551, and Central Hardware Co. v. NLRB, 407 U. S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. Page 424 U. S. 511 This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer's private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge's opinion also relied on this Court's constitutional decision in Logan Valley for a "realistic view of the facts." The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens' invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store. [Footnote 4]Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U. S. 793 a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board's cease and desist order, but on the basis of yet another theory. While acknowledging that the source of the pickets' rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property right considerations discussed in Lloyd Corp. v. Tanner, supra, "burde[n] the General Counsel with the duty to Page 424 U. S. 512 prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective," 501 F.2d at 169, and that the Board's General Counsel had met that burden in this case.In this Court, the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that, under the criteria of that case, the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock, but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals' judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board's asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.IIAs the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeal. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case, the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn. Page 424 U. S. 513It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U. S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U. S. 501. In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court's opinion 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 can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly Page 424 U. S. 514 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 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."Id. at 326 U. S. 502-503.The Court pointed out that, if the "title" to Chickasaw had"belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed."Id. at 326 U. S. 504. Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," id. at 326 U. S. 506 508, the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction.It was the Marsh case that, in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308. That case involved peaceful picketing within a large Page 424 U. S. 515 shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.The Court's opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:"It is clear that, if the shopping center premises were not privately owned, but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. 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 essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely."391 U.S. at 391 U. S. 315.The Court's opinion then reviewed the Marsh case in detail, emphasized the similarities between the business Page 424 U. S. 516 block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded:"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. Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black. His disagreement with the Court's reasoning was total:"In affirming petitioners' contentions, the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. . . . I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a 'town.'"391 U.S. at 391 U. S. 330-331 (footnote omitted)."The question is, under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i.e., "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. I Page 424 U. S. 517 can find nothing in Marsh which indicates that, if one of these features is present, e.g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it.Id. at 391 U. S. 332."To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . ."Id. at 391 U. S. 332-333.Four years later, the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U. S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968, five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." Id. at 407 U. S. 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F.2d 545, expressly relying on this Court's Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the handbilling in Lloyd, the picketing in Logan Valley had been Page 424 U. S. 518 specifically directed to a store in the shopping center, and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U.S. at 407 U. S. 561-567. [Footnote 5] But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan Valley.It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. [Footnote 6] Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And, in the performance of that duty, we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court's decision in the Lloyd case. [Footnote 7] Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U.S. at 407 U. S. 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley:"The basic issue in this case is whether respondents, in the exercise of asserted First Amendment Page 424 U. S. 519 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. . . ."407 U.S. at 407 U. S. 567."Respondents contend . . . 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 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-social municipal functions as a delegate of the State. 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."Id. at 407 U. S. 568-569 (footnote omitted). Page 424 U. S. 520"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. . . ."Id. at 407 U. S. 570.If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content. [Footnote 8] For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U. S. 569; Poulos v. New Hampshire, 345 U. S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U. S. 39, what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U. S. 205."[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"Police Dept. of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 95. [Footnote 9] It conversely follows, therefore, that, if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment Page 424 U. S. 521 right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.We conclude, in short, that, under the present state of the law, the constitutional guarantee of free expression has no part to play in a case such as this.IIIFrom what has been said, it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act, the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware Co. v. NLRB, 407 U.S. at 407 U. S. 543. What is "a proper accommodation" in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires, "above all else," that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content."In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U. S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees' § 7 rights and employers' property rights, the Court said in Babcock & Wilcox, "must be obtained with as little destruction of one as is consistent with the maintenance of the other." 351 U.S. at 351 U. S. 112.Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemployees on the employers' property. [Footnote 10] The context of the § 7 Page 424 U. S. 522 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity, rather than organizational activity. See Steelworkers v. NLRB, 376 U. S. 492, 376 U. S. 499; Bus Employees v. Missouri, 374 U. S. 74, 374 U. S. 82; NLRB v. Erie Resistor Corp., 373 U. S. 221, 373 U. S. 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U. S. 664, 386 U. S. 668-669. Second, the § 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra at 351 U. S. 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another. [Footnote 11]The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other." [Footnote 12] The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra at 351 U. S. 112; cf. NLRB v. Erie Resistor Corp., supra at 373 U. S. 235-236; Page 424 U. S. 523 NLRB v. Truckdrivers Union, 353 U. S. 87, 353 U. S. 97. "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." NLRB v. Weingarten, Inc., 420 U. S. 251, 420 U. S. 266.For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.It is so ordered

U.S. Supreme CourtHudgens v. NLRB, 424 U.S. 507 (1976)Hudgens v. National Labor Relations BoardNo. 74-773Argued October 14, 1975Decided March 3, 1976424 U.S. 507SyllabusWhen striking members of respondent union picketed in front of their employer's leased store located in petitioner's shopping center, the shopping center's general manager threatened them with arrest for criminal trespass if they did not depart, and they left. The union then filed unfair labor practice charges against petitioner, alleging that the threat constituted interference with rights protected by § 7 of the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB), concluding that the NLRA had been violated, issued a cease and desist order against petitioner, and the Court of Appeals enforced the order. Petitioner and respondent union contend that the respective rights and liabilities of the parties are to be decided under the criteria of the NLRA alone, whereas the NLRB contends that such rights and liabilities must be measured under a First Amendment standard.Held:1. Under the present state of the law, the constitutional guarantee of free expression has no part to play in a case such as this, and the pickets here did not have a First Amendment right to enter the shopping center for the purpose of advertising their strike against their employer. Lloyd Corp. v. Tanner, 407 U. S. 551. Pp. 424 U. S. 512-521.2. The rights and liabilities of the parties are dependent exclusively upon the NLRA, under which it is the NLRB's task, subject to judicial review, to resolve conflicts between § 7 rights and private property rights and to seek accommodation of such rights "with as little destruction of one as is consistent with the maintenance of the other," NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 351 U. S. 112. Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 424 U. S. 521-523.501 F.2d 161, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. Page 424 U. S. 508 POWELL, filed a concurring opinion, in which BURGER, C.J., joined, post, p. 424 U. S. 523. WHITE, J., filed an opinion concurring in the result, post, p. 424 U. S. 524. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 424 U. S. 525. STEVENS, J., took no part in the consideration or decision of the case.

1994_94-623

Thomas H. Walsh, Jr., argued the cause for respondents.With him on the brief was John J. Finn. *JUSTICE KENNEDY delivered the opinion of the Court. This case requires us to interpret the Carriage of Goods by Sea Act (COGSA), 46 U. S. C. App. § 1300 et seq., as it relates to a contract containing a clause requiring arbitration in a foreign country. The question is whether a foreign arbitration clause in a bill of lading is invalid under COGSA because it lessens liability in the sense that COGSA prohibits. Our holding that COGSA does not forbid selection of the foreign forum makes it unnecessary to resolve the further question whether the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq. (1988 ed. and Supp. V), would override COGSA were it interpreted otherwise. In our view, the relevant provisions of COGSA and the FAA are in accord, not in conflict.IThe contract at issue in this case is a standard form bill of lading to evidence the purchase of a shipload of Moroccan oranges and lemons. The purchaser was Bacchus Associates (Bacchus), a New York partnership that distributes fruit at wholesale throughout the Northeastern United States. Bacchus dealt with Galaxie Negoce, S. A. (Galaxie), a Moroccan fruit supplier. Bacchus contracted with Galaxie to purchase the shipload of fruit and chartered a ship to transport it from Morocco to Massachusetts. The ship was the M/V Sky Reefer, a refrigerated cargo ship owned by M. H. Maritima, S. A., a Panamanian company, and time-chartered to Nichiro Gyogyo Kaisha, Ltd., a Japanese company. Stevedores* Marilyn L. Lytle filed a brief for the American Association of Exporters and Importers et al. as amici curiae urging reversal.Michael F. Sturley filed a brief for the American Steamship Owners Mutual Protection and Indemnity Association, Inc., et al. as amici curiae urging affirmance.531hired by Galaxie loaded and stowed the cargo. As is customary in these types of transactions, when it received the cargo from Galaxie, Nichiro as carrier issued a form bill of lading to Galaxie as shipper and consignee. Once the ship set sail from Morocco, Galaxie tendered the bill of lading to Bacchus according to the terms of a letter of credit posted in Galaxie's favor.Among the rights and responsibilities set out in the bill of lading were arbitration and choice-of-Iaw clauses. Clause 3, entitled "Governing Law and Arbitration," provided:"(1) The contract evidenced by or contained in this Bill of Lading shall be governed by the Japanese law."(2) Any dispute arising from this Bill of Lading shall be referred to arbitration in Tokyo by the Tokyo Maritime Arbitration Commission (TOMAC) of The Japan Shipping Exchange, Inc., in accordance with the rules of TOMAC and any amendment thereto, and the award given by the arbitrators shall be final and binding on both parties." App. 49.When the vessel's hatches were opened for discharge in Massachusetts, Bacchus discovered that thousands of boxes of oranges had shifted in the cargo holds, resulting in over $1 million damage. Bacchus received $733,442.90 compensation from petitioner Vimar Seguros y Reaseguros (Vi mar Seguros), Bacchus' marine cargo insurer that became subrogated pro tanto to Bacchus' rights. Petitioner and Bacchus then brought suit against Maritima in personam and M/V Sky Reefer in rem in the District Court for the District of Massachusetts under the bill of lading. These defendants, respondents here, moved to stay the action and compel arbitration in Tokyo under clause 3 of the bill of lading and § 3 of the FAA, which requires courts to stay proceedings and enforce arbitration agreements covered by the Act. Petitioner and Bacchus opposed the motion, arguing the arbitra-532tion clause was unenforceable under the FAA both because it was a contract of adhesion and because it violated COGSA § 3(8). The premise of the latter argument was that the inconvenience and costs of proceeding in Japan would "lesse[n] ... liability" as those terms are used in COGSA.The District Court rejected the adhesion argument, observing that Congress defined the arbitration agreements enforceable under the FAA to include maritime bills of lading, 9 U. S. C. § 1, and that petitioner was a sophisticated party familiar with the negotiation of maritime shipping transactions. It also rejected the argument that requiring the parties to submit to arbitration would lessen respondents' liability under COGSA § 3(8). The court granted the motion to stay judicial proceedings and to compel arbitration; it retained jurisdiction pending arbitration; and at petitioner's request, it certified for interlocutory appeal under 28 U. S. C. § 1292(b) its ruling to compel arbitration, stating that the controlling question of law was "whether [COGSA § 3(8)] nullifies an arbitration clause contained in a bill of lading governed by COGSA." Pet. for Cert. 30a.The First Circuit affirmed the order to arbitrate. 29 F.3d 727 (1994). Although it expressed grave doubt whether a foreign arbitration clause lessened liability under COGSA § 3(8), id., at 730, the Court of Appeals assumed the clause was invalid under COGSA and resolved the conflict between the statutes in favor of the FAA, which it considered to be the later enacted and more specific statute, id., at 731-733. We granted certiorari, 513 U. S. 1013 (1995), to resolve a Circuit split on the enforceability of foreign arbitration clauses in maritime bills of lading. Compare the case below (enforcing foreign arbitration clause assuming arguendo it violated COGSA), with State Establishment for Agricultural Product Trading v. M/V Wesermunde, 838 F.2d 1576 (CAll) (declining to enforce foreign arbitration clause because that would violate COGSA), cert. denied, 488 U. S. 916 (1988). We now affirm.533IIThe parties devote much of their argument to the question whether COGSA or the FAA has priority. "[W]hen two statutes are capable of co-existence," however, "it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U. S. 535, 551 (1974); Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn., 491 U. S. 490, 510 (1989). There is no conflict unless COGSA by its own terms nullifies a foreign arbitration clause, and we choose to address that issue rather than assume nullification arguendo, as the Court of Appeals did. We consider the two arguments made by petitioner. The first is that a foreign arbitration clause lessens COGSA liability by increasing the transaction costs of obtaining relief. The second is that there is a risk foreign arbitrators will not apply COGSA.AThe leading case for invalidation of a foreign forum selection clause is the opinion of the Court of Appeals for the Second Circuit in Indussa Corp. v. S. S. Ranborg, 377 F.2d 200 (1967) (en bane). The court there found that COGSA invalidated a clause designating a foreign judicial forum because it "puts 'a high hurdle' in the way of enforcing liability, and thus is an effective means for carriers to secure settlements lower than if cargo [owners] could sue in a convenient forum." Id., at 203 (citation omitted). The court observed "there could be no assurance that [the foreign court] would apply [COGSA] in the same way as would an American tribunal subject to the uniform control of the Supreme Court." Id., at 203-204. Following Indussa, the Courts of Appeals without exception have invalidated foreign forum selection clauses under § 3(8). See Union Ins. Soc. of Canton, Ltd. v. S. S. Elikon, 642 F.2d 721, 723-725 (CA4 1981); Conklin & Garrett, Ltd v. MN Finnrose, 826 F.2d 1441, 1442-1444 (CA51987); see also G. Gilmore & C. Black, Law of Admiralty534145-146, n. 23 (2d ed. 1975) (approving lndussa rule). As foreign arbitration clauses are but a subset of foreign forum selection clauses in general, Scherk v. Alberto-Culver Co., 417 U. S. 506, 519 (1974), the lndussa holding has been extended to foreign arbitration clauses as well. See State Establishment for Agricultural Product Trading, supra, at 1580-1581; cf. Vimar Seguros y Reaseguros, supra, at 730, (assuming, arguendo, lndussa applies). The logic of that extension would be quite defensible, but we cannot endorse the reasoning or the conclusion of the lndussa rule itself.The determinative provision in COGSA, examined with care, does not support the arguments advanced first in Indussa and now by petitioner. Section 3(8) of COGSA provides as follows:"Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect." 46 U. S. C. App. § 1303(8).The liability that may not be lessened is "liability for loss or damage ... arising from negligence, fault, or failure in the duties and obligations provided in this section." The statute thus addresses the lessening of the specific liability imposed by the Act, without addressing the separate question of the means and costs of enforcing that liability. The difference is that between explicit statutory guarantees and the procedure for enforcing them, between applicable liability principles and the forum in which they are to be vindicated.The liability imposed on carriers under COGSA § 3 is defined by explicit standards of conduct, and it is designed to correct specific abuses by carriers. In the 19th century it was a prevalent practice for common carriers to insert535clauses in bills of lading exempting themselves from liability for damage or loss, limiting the period in which plaintiffs had to present their notice of claim or bring suit, and capping any damages awards per package. See 2A M. Sturley, Benedict on Admiralty § 11, pp. 2-2 to 2-3 (1995); 2 T. Schoenbaum, Admiralty and Maritime Law § 10-13 (2d ed. 1994); Yancey, The Carriage of Goods: Hague, COGSA, Visby, and Hamburg, 57 Tulane L. Rev. 1238, 1239-1240 (1983). Thus, § 3, entitled "Responsibilities and liabilities of carrier and ship," requires that the carrier "exercise due diligence to ... [m]ake the ship seaworthy" and "[p]roperly man, equip, and supply the ship" before and at the beginning of the voyage, § 3(1), "properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried," § 3(2), and issue a bill of lading with specified contents, § 3(3). 46 U. S. C. App. §§ 1303(1), (2), and (3). Section 3(6) allows the cargo owner to provide notice of loss or damage within three days and to bring suit within one year. These are the substantive obligations and particular procedures that § 3(8) prohibits a carrier from altering to its advantage in a bill of lading. Nothing in this section, however, suggests that the statute prevents the parties from agreeing to enforce these obligations in a particular forum. By its terms, it establishes certain duties and obligations, separate and apart from the mechanisms for their enforcement.Petitioner's contrary reading of § 3(8) is undermined by the Court's construction of a similar statutory provision in Carnival Cruise Lines, Inc. v. Shute, 499 U. S. 585 (1991). There a number of Washington residents argued that a Florida forum selection clause contained in a cruise ticket should not be enforced because the expense and inconvenience of litigation in Florida would "caus[e] plaintiffs unreasonable hardship in asserting their rights," id., at 596, and therefore " 'lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for ... loss or injury, or the measure of damages therefor'"536in violation of the Limitation of Vessel Owner's Liability Act, id., at 595-596 (quoting 46 U. S. C. App. § 183c). We observed that the clause "does not purport to limit petitioner's liability for negligence," 499 U. S., at 596-597, and enforced the agreement over the dissent's argument, based in part on the lndussa line of cases, that the cost and inconvenience of traveling thousands of miles "lessens or weakens [plaintiffs'] ability to recover," 499 U. S., at 603 (STEVENS, J., dissenting).If the question whether a provision lessens liability were answered by reference to the costs and inconvenience to the cargo owner, there would be no principled basis for distinguishing national from foreign arbitration clauses. Even if it were reasonable to read § 3(8) to make a distinction based on travel time, airfare, and hotels bills, these factors are not susceptible of a simple and enforceable distinction between domestic and foreign forums. Requiring a Seattle cargo owner to arbitrate in New York likely imposes more costs and burdens than a foreign arbitration clause requiring it to arbitrate in Vancouver. It would be unwieldy and unsupported by the terms or policy of the statute to require courts to proceed case by case to tally the costs and burdens to particular plaintiffs in light of their means, the size of their claims, and the relative burden on the carrier.Our reading of "lessening such liability" to exclude increases in the transaction costs of litigation also finds support in the goals of the Brussels Convention for the Unification of Certain Rules Relating to Bills of Lading, 51 Stat. 233 (1924) (Hague Rules), on which COGSA is modeled. Sixty-six countries, including the United States and Japan, are now parties to the Convention, see Department of State, Office of the Legal Adviser, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 1994, p. 367 (June 1994), and it appears that none has interpreted its enactment of § 3(8) of the Hague Rules to prohibit foreign forum selection clauses, see Sturley, International Uniform Laws in National Courts:537The Influence of Domestic Law in Conflicts of Interpretation, 27 Va. J. Int'l L. 729, 776-796 (1987). The English courts long ago rejected the reasoning later adopted by the lndussa court. See Maharani Woollen Mills Co. v. Anchor Line, [1927] 29 Lloyd's List L. Rep. 169 (C. A.) (Scrutton, L. J.) ("[T]he liability of the carrier appears to me to remain exactly the same under the clause. The only difference is a question of procedure-where shall the law be enforced?and I do not read any clause as to procedure as lessening liability"). And other countries that do not recognize foreign forum selection clauses rely on specific provisions to that effect in their domestic versions of the Hague Rules, see, e. g., Sea-Carriage of Goods Act 1924, § 9(2) (Australia); Carriage of Goods by Sea Act, No. 1 of 1986, § 3 (South Africa). In light of the fact that COGSA is the culmination of a multilateral effort "to establish uniform ocean bills of lading to govern the rights and liabilities of carriers and shippers inter se in international trade," Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U. S. 297, 301 (1959), we decline to interpret our version of the Hague Rules in a manner contrary to every other nation to have addressed this issue. See Sturley, supra, at 736 (conflicts in the interpretation of the Hague Rules not only destroy esthetic symmetry in the international legal order but impose real costs on the commercial system the Rules govern).It would also be out of keeping with the objects of the Convention for the courts of this country to interpret COGSA to disparage the authority or competence of international forums for dispute resolution. Petitioner's skepticism over the ability of foreign arbitrators to apply COGSA or the Hague Rules, and its reliance on this aspect of lndussa Corp. v. S. S. Ranborg, 377 F.2d 200 (CA2 1967), must give way to contemporary principles of international comity and commercial practice. As the Court observed in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (1972), when it enforced a foreign forum selection clause, the historical judicial resist-538ance to foreign forum selection clauses "has little place in an era when ... businesses once essentially local now operate in world markets." Id., at 12. "The expansion of American business and industry will hardly be encouraged," we explained, "if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts." Id., at 9. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 638 (1985) (if international arbitral institutions "are to take a central place in the international legal order, national courts will need to 'shake off the old judicial hostility to arbitration,' and also their customary and understandable unwillingness to cede jurisdiction of a claim arising under domestic law to a foreign or transnational tribunal") (citation omitted); Scherk v. Alberto-Culver Co., 417 U. S., at 516 ("A parochial refusal by the courts of one country to enforce an international arbitration agreement" would frustrate "the orderliness and predictability essential to any international business transaction"); see also Allison, Arbitration of Private Antitrust Claims in International Trade: A Study in the Subordination of National Interests to the Demands of a World Market, 18 N. Y. U. J. Int'l Law & Pol. 361, 439 (1986).That the forum here is arbitration only heightens the irony of petitioner's argument, for the FAA is also based in part on an international convention, 9 U. S. C. § 201 et seq. (codifying the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, [1970] 21 U. S. T. 2517, T. 1. A. S. No. 6997), intended "to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries," Scherk, supra, at 520, n. 15. The FAA requires enforcement of arbitration agreements in contracts that involve interstate commerce, see Allied-Bruce Terminix Coso v. Dobson, 513 U. S. 265 (1995), and in maritime transactions, including bills539of lading, see 9 U. S. C. §§ 1, 2, 201, 202, where there is no independent basis in law or equity for revocation, cf. Carnival Cruise Lines, 499 U. S., at 595 ("[F]orum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness"). If the United States is to be able to gain the benefits of international accords and have a role as a trusted partner in multilateral endeavors, its courts should be most cautious before interpreting its domestic legislation in such manner as to violate international agreements. That concern counsels against construing COGSA to nullify foreign arbitration clauses because of inconvenience to the plaintiff or insular distrust of the ability of foreign arbitrators to apply the law.BPetitioner's second argument against enforcement of the Japanese arbitration clause is that there is no guarantee foreign arbitrators will apply COGSA. This objection raises a concern of substance. The central guarantee of § 3(8) is that the terms of a bill of lading may not relieve the carrier of the obligations or diminish the legal duties specified by the Act. The relevant question, therefore, is whether the substantive law to be applied will reduce the carrier's obligations to the cargo owner below what COGSA guarantees. See Mitsubishi Motors, supra, at 637, n. 19.Petitioner argues that the arbitrators will follow the J apanese Hague Rules, which, petitioner contends, lessen respondents' liability in at least one significant respect. The Japanese version of the Hague Rules, it is said, provides the carrier with a defense based on the acts or omissions of the stevedores hired by the shipper, Galaxie, see App. 112, Article 3(1) (carrier liable "when he or the persons employed by him" fail to take due care), while COGSA, according to petitioner, makes nondelegable the carrier's obligation to "properly and carefully ... stow ... the goods carried," COGSA § 3(2), 46 U. S. C. App. § 1303(2); see Associated Metals &540Minerals Corp. v. M/V Arktis Sky, 978 F.2d 47, 50 (CA2 1992). But see COGSA § 4(2)(i), 46 U. S. C. App. § 1304(2)(i) ("Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from ... [a]ct or omission of the shipper or owner of the goods, his agent or representative"); COGSA § 3(8), 46 U. S. C. App. § 1303(8) (agreement may not relieve or lessen liability "otherwise than as provided in this chapter"); Hegarty, A COGSA Carrier's Duty to Load and Stow Cargo is Nondelegable, or Is It?: Associated Metals & Minerals Corp. v. M/V Arktis Sky, 18 Tulane Mar. L. J. 125 (1993).Whatever the merits of petitioner's comparative reading of COGSA and its Japanese counterpart, its claim is premature. At this interlocutory stage it is not established what law the arbitrators will apply to petitioner's claims or that petitioner will receive diminished protection as a result. The arbitrators may conclude that COGSA applies of its own force or that Japanese law does not apply so that, under another clause of the bill of lading, COGSA controls. Respondents seek only to enforce the arbitration agreement. The District Court has retained jurisdiction over the case and "will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the ... laws has been addressed." Mitsubishi Motors, supra, at 638; cf. 1 Restatement (Third) of Foreign Relations Law of the United States §482(2)(d) (1986) ("A court in the United States need not recognize a judgment of the court of a foreign state if ... the judgment itself, is repugnant to the public policy of the United States"). Were there no subsequent opportunity for review and were we persuaded that "the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies ... , we would have little hesitation in condemning the agreement as against public policy." Mitsubishi Motors, supra, at 637, n. 19. Cf. Knott v. Botany Mills, 179 U. S. 69 (1900) (nullifying choice-of-law provision under the Harter Act, the statutory precursor to COGSA,541where British law would give effect to provision in bill of lading that purported to exempt carrier from liability for damage to goods caused by carrier's negligence in loading and stowage of cargo); The Hollandia, [1983] A. C. 565, 574575 (H. L. 1982) (noting choice-of-forum clause "does not ex facie offend against article III, paragraph 8," but holding clause unenforceable where "the foreign court chosen as the exclusive forum would apply a domestic substantive law which would result in limiting the carrier's liability to a sum lower than that to which he would be entitled if [English COGSA] applied"). Under the circumstances of this case, however, the First Circuit was correct to reserve judgment on the choice-of-Iaw question, 29 F. 3d, at 729, n. 3, as it must be decided in the first instance by the arbitrator, cf. Mitsubishi Motors, 473 U. S., at 637, n. 19. As the District Court has retained jurisdiction, mere speculation that the foreign arbitrators might apply Japanese law which, depending on the proper construction of COGSA, might reduce respondents' legal obligations, does not in and of itself lessen liability under COGSA § 3(8).Because we hold that foreign arbitration clauses in bills of lading are not invalid under COGSA in all circumstances, both the FAA and COGSA may be given full effect. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusVIMAR SEGUROS Y REASEGUROS, S. A. v. M/V SKY REEFER ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUITNo. 94-623. Argued March 20, 1995-Decided June 19, 1995After a New York fruit distributor's produce was damaged in transit from Morocco to Massachusetts aboard respondent vessel, which was owned by respondent Panamanian company and chartered to a Japanese carrier, petitioner insurer paid the distributor's claim, and they both sued respondents under the standard form bill of lading tendered to the distributor by its Moroccan supplier. Respondents moved to stay the action and compel arbitration in Tokyo under the bill of lading's foreign arbitration clause and the Federal Arbitration Act (FAA). The District Court granted the motion, rejecting the argument of petitioner and the distributor that the arbitration clause was unenforceable under the FAA because, inter alia, it violated §3(8) of the Carriage of Goods by Sea Act (COGSA) in that the inconvenience and costs of proceeding in Japan would "lesse[n] ... liability" in the sense that COGSA prohibits. However, the court certified for interlocutory appeal its ruling to compel arbitration, stating that the controlling question of law was "whether [§ 3(8)] nullifies an arbitration clause contained in a bill of lading governed by COGSA." In affirming the order to arbitrate, the First Circuit expressed grave doubt whether a foreign arbitration clause lessened liability under § 3(8), but assumed the clause was invalid under COGSA and resolved the conflict between the statutes in the FAA's favor.Held: COGSA does not nullify foreign arbitration clauses contained in maritime bills of lading. Pp.533-541.(a) Examined with care, § 3(8) does not support petitioner's argument that a foreign arbitration clause lessens COGSA liability by increasing the transaction costs of obtaining relief. Because it requires that the "liability" that may not be "lessen[ed]" "aris[e] from ... failure in the duties or obligations provided in this section," § 3(8) is concerned with the liability imposed elsewhere in § 3, which defines that liability by explicit obligations and procedures designed to correct certain abuses by carriers, but does not address the separate question of the particular forum or other procedural enforcement mechanisms. Petitioner's contrary reading of § 3(8) is undermined by Carnival Crnise Lines, Inc. v. Shute, 499 U. S. 585, 595-596, whereas the Court's reading finds support529in the goals of the so-called Hague Rules, the international convention on which COGSA is modeled, and in the pertinent decisions and statutes of other nations. It would be out of keeping with such goals and with contemporary principles of international comity and commercial practice to interpret COGSA to disparage the authority or competence of international forums for dispute resolution. The irony of petitioner's argument in favor of such an interpretation is heightened by the fact that the forum here is arbitration, for the FAA is also based in part on an international convention. For the United States to be able to gain the benefits of international accords, its courts must not construe COGSA to nullify foreign arbitration clauses because of inconvenience to the plaintiff or insular distrust of the ability of foreign arbitrators to apply the law. Pp. 533-539.(b) Also rejected is petitioner's argument that the arbitration clause should not be enforced because there is no guarantee foreign arbitrators will apply COGSA. According to petitioner, the arbitrators will follow the Japanese Hague Rules, which significantly lessen respondents' liability by providing carriers with a defense based on the acts or omissions of the stevedores hired by the shipper, rather than COGSA, which makes nondelegable the carrier's obligation to properly and carefully stow the goods carried. Whatever the merits of this comparative reading, petitioner's claim is premature because, at this interlocutory stage, it is not established what law the arbitrators will apply or that petitioner will receive diminished protection as a result. The District Court has retained jurisdiction over the case and will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the laws has been addressed. Pp. 539-541.(c) In light of the foregoing, the relevant provisions of COGSA and the FAA are in accord, and both Acts may be given full effect. It is therefore unnecessary to resolve the further question whether the FAA would override COGSA were COGSA interpreted otherwise. P.541.29 F.3d 727, affirmed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 541. STEVENS, J., filed a dissenting opinion, post, p. 542. BREYER, J., took no part in the consideration or decision of the case.Stanley McDermott III argued the cause for petitioner.With him on the briefs was Lawrence S. Robbins.530Full Text of Opinion

1998_97-1754

cious acts. Nor is there any reason to find such equivalence. In common usage, "atrocious" suggests a deed more culpable and aggravated than a serious one. In light of this conclusion, the Court rejects the Ninth Circuit's suggestion that the BIA was required to compare the facts of this case with Circuit precedent on atrociousness. Pp. 428-431.(d) The Ninth Circuit also erred to the extent it believed the BrA had to give more express consideration to the necessity and success of respondent's actions than it did. Although the Attorney General has suggested that a crime will not be deemed political unless it has a causal link to the alleged political purpose and object, the BIA was required to do no more than find that respondent's acts were not political based on the lack of proportion with his objectives. Even with a clear causal connection, a lack of proportion may render crimes nonpolitical. Moreover, respondent had the burden of proving entitlement to withholding, yet he failed to submit a brief to the BIA and the Immigration Judge did not address this point. In these circumstances, the BIA's rather cursory discussion does not warrant reversal. Pp.431-432.(e) The Court does not address respondent's argument, raised at this late stage, that there are errors in the translation and transcription of his testimony. Should the BIA determine modification of the record is necessary, it can decide whether to consider the withholding issue further. Pp. 432-433.121 F.3d 521, reversed and remanded.KENNEDY, J., delivered the opinion for a unanimous Court.Patricia A. Millett argued the cause for petitioner. With her on the briefs were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Alison R. Drucker, and M. Jocelyn Lopez Wright.Nadine K. Wettstein argued the cause for respondent.With her on the brief were Ira J. Kurzban, Karen Musalo, and Carolyn Patty Blum. **Briefs of amici curiae urging affirmance were filed for the Massachusetts Law Reform Institute et al. by Iris Gomez; for the Lawyers Committee for Human Rights by Sheldon E. Hochberg; and for the Office of the United Nations High Commissioner for Refugees by Daniel Wolf, Regina Germain, and Andrew I. Schoenholtz.418JUSTICE KENNEDY delivered the opinion of the Court.We granted certiorari to consider the analysis employed by the Court of Appeals in setting aside a determination of the Board of Immigration Appeals (BIA). The BIA ruled that respondent, a native and citizen of Guatemala, was not entitled to withholding of deportation based on his expressed fear of persecution for earlier political activities in Guatemala. The issue in the case is not whether the persecution is likely to occur, but whether, even assuming it is, respondent is ineligible for withholding because he "committed a serious nonpolitical crime" before his entry into the United States. 8 U. S. C. § 1253(h)(2)(C). The beginning point for the BIA's analysis was its determination that respondent, to protest certain governmental policies in Guatemala, had burned buses, assaulted passengers, and vandalized and destroyed property in private shops, after forcing customers out. These actions, the BIA concluded, were serious nonpolitical crimes. In reaching this conclusion, it relied on a statutory interpretation adopted in one of its earlier decisions, Matter of McMullen, 19 1. & N. Dec. 90 (BIA 1984), aff'd, 788 F.2d 591 (CA9 1986).On appeal, the Court of Appeals for the Ninth Circuit concluded the BIA had applied an incorrect interpretation of the serious nonpolitical crime provision, and it remanded for further proceedings. In the Court of Appeals' view, as we understand it, the BIA erred by misconstruing the controlling statute and by employing an analytical framework insufficient to take account of the Court of Appeals' own precedent on this subject. According to the court, the BIA erred in failing to consider certain factors, including "the political necessity and success of Aguirre's methods"; whether his acts were grossly out of proportion to their objective or were atrocious; and the persecution respondent might suffer upon return to Guatemala. 121 F.3d 521, 524 (1997).419We granted certiorari. 525 U. S. 808 (1998). We disagree with the Court of Appeals and address each of the three specific areas in which it found the BIA's analysis deficient. We reverse the judgment of the court and remand for further proceedings.IThe statutory provision for withholding of deportation that is applicable here provides that "[t]he Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U. S. C. § 1253(h)(1). The provision was added to the Immigration and Nationality Act (IN A), 66 Stat. 166, 8 U. S. C. § 1101 et seq. (1994 ed. and Supp. III), by the Refugee Act of 1980 (Refugee Act), Pub. L. 96-212, 94 Stat. 102. See INS v. Stevie, 467 U. S. 407, 414-416, 421422 (1984). As a general rule, withholding is mandatory if an alien "establish[es] that it is more likely than not that [he] would be subject to persecution on one of the specified grounds," id., at 429-430, but the statute has some specific exceptions. As is relevant here, withholding does not apply, and deportation to the place of risk is authorized, "if the Attorney General determines that""there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." 8 U. S. C. § 1253(h)(2)(C).Under the immigration laws, withholding is distinct from asylum, although the two forms of relief serve similar purposes. Whereas withholding only bars deporting an alien to a particular country or countries, a grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year. See INS v. Cardoza-420Fonseca, 480 U. S. 421, 428-429, n. 6 (1987). In addition, whereas withholding is mandatory unless the Attorney General determines one of the exceptions applies, the decision whether asylum should be granted to an eligible alien is committed to the Attorney General's discretion. Ibid. As a consequence, under the law then in force, respondent was able to seek asylum irrespective of his eligibility for withholding.As an incidental point, we note that in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009-546, Congress revised the withholding and asylum provisions. The withholding provisions are now codified at 8 U. S. C. § 1231(b)(3) (1994 ed., Supp. III), and the asylum provisions at § 1158. Under current law, as enacted by IIRIRA, the Attorney General may not grant asylum if she determines "there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." § 1158(b)(2)(A)(iii). The parties agree IIRIRA does not govern respondent's case. See IIRIRA, Tit. III-A, §§ 309(a), (c), 110 Stat. 3009-625; IIRIRA, Div. C, Tit. VI-A, § 604(c), 110 Stat. 3009-692. Prior to IIRIRA, in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, Tit. IV-B, §413(f), 110 Stat. 1269, Congress granted the Attorney General discretion to withhold deportation when necessary to ensure compliance with the international treaty upon which the Refugee Act was based, see infra, at 427-429. This provision was made applicable to "applications filed before, on, or after" April 24, 1996, "if final action has not been taken on them before such date." AEDPA § 413(g), 110 Stat. 1269-1270. The BIA's decision constituted final action when rendered on March 5, 1996, 8 CFR §243.1 (1995), App. to Pet. for Cert. 12a, so AEDPA §413(f) was not applicable to respondent's case.421We turn to the matter before us. In 1994, respondent was charged with deportability by the Immigration and N aturalization Service (INS) for illegal entry into the United States. Respondent conceded deportability but applied for asylum and withholding. At a hearing before an Immigration Judge respondent testified, through an interpreter, that he had been politically active in Guatemala from 1989 to 1992 with a student group called Estudeante Syndic ado (ES) and with the National Central Union political party. App. 19-20, 36-37. He testified about threats due to his political activity. The threats, he believed, were from different quarters, including the Guatemalan Government, right-wing government support groups, and left-wing guerillas. App. to Pet. for Cert. 23a.Respondent described activities he and other ES members engaged in to protest various government policies and actions, including the high cost of bus fares and the government's failure to investigate the disappearance or murder of students and others. App. 20-21; App. to Pet. for Cert. 22a-23a. For purposes of our review, we assume that the amount of bus fares is an important political and social issue in Guatemala. We are advised that bus fare represents a significant portion of many Guatemalans' annual living expense, and a rise in fares may impose substantial economic hardship. See Brief for Massachusetts Law Reform Institute et al. as Amicus Curiae 18-19. In addition, government involvement with fare increases, and other aspects of the transportation system, has been a focus of political discontent in that country. Id., at 16-21.According to the official hearing record, respondent testified that he and his fellow members would "strike" by "burning buses, breaking windows or just attacking the police, police cars." App. 20. Respondent estimated that he participated in setting about 10 buses on fire, after dousing them with gasoline. Id., at 46. Before setting fire to the buses, he and his group would order passengers to leave422the bus. Passengers who refused were stoned, hit with sticks, or bound with ropes. Id., at 46-47. In addition, respondent testified that he and his group "would break the windows of ... stores," "t[ake] the people out of the stores that were there," and "throw everything on the floor." Id., at 48.The Immigration Judge granted respondent's applications for withholding of deportation and for asylum, finding a likelihood of persecution for his political opinions and activities if he was returned to Guatemala. App. to Pet. for Cert. 31a-32a. The INS appealed to the BIA. Respondent did not file a brief with the BIA, although his request for an extension of time to do so was granted. Brief for Petitioner 10, n. 6; Record 13-15. The BIA sustained the INS's appeal from this decision, vacated the Immigration Judge's order, and ordered respondent deported. App. to Pet. for Cert. 18a. With respect to withholding, the BIA did not decide whether respondent had established the requisite risk of persecution because it determined that, in any event, he had committed a serious nonpolitical crime within the meaning of § 1253(h)(2)(C).In addressing the definition of a serious nonpolitical crime, the BIA applied the interpretation it first set forth in Matter of McMullen, 19 1. & N. Dec., at 97-98: "In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature." In the instant case, the BIA found, "the criminal nature of the respondent's acts outweigh their political nature." App. to Pet. for Cert. 18a. The BIA acknowledged respondent's dissatisfaction with the Guatemalan Government's "seeming inaction in the investigation of student deaths and in its raising of student bus fares." Ibid. It said, however: "The ire of the ES manifested itself disproportionately in the destruction of property and423assaults on civilians. Although the ES had a political agenda, those goals were outweighed by their criminal strategy of strikes .... " Ibid. The BIA further concluded respondent should not be granted discretionary asylum relief in light of "the nature of his acts against innocent Guatemalans." Id., at 17a.A divided panel of the Court of Appeals granted respondent's petition for review and remanded to the BIA. 121 F.3d 521 (CA9 1997). According to the majority, the BIA's analysis of the serious nonpolitical crime exception was legally deficient in three respects. First, the BIA should have "consider[ed] the persecution that Aguirre might suffer if returned to Guatemala" and "balance[d] his admitted offenses against the danger to him of death." Id., at 524. Second, it should have "considered whether the acts committed were grossly out of proportion to the[ir] alleged objective" and were "of an atrocious nature," especially with reference to Ninth Circuit precedent in this area. Ibid. (internal quotation marks and citation omitted). Third, the BIA "should have considered the political necessity and success of Aguirre's methods." Id., at 523-524.Judge Kleinfeld dissented. In his view, "[t]he BIA correctly identified the legal question, whether 'the criminal nature of the respondent's acts outweigh their political nature.'" Id., at 524 (quoting McMullen v. INS, 788 F.2d 591, 592 (CA9 1986)). Given the violent nature of respondent's acts, and the fact the acts were in large part directed against innocent civilians, the BIA "reasonably conclude[d] that [his] crimes were disproportionate to his political objectives." 121 F. 3d, at 525.IIAs an initial matter, the Court of Appeals expressed no disagreement with the Attorney General or the BIA that the phrase "serious nonpolitical crime" in § 1253(h)(2)(C) should be applied by weighing "the political nature" of an act against its "common-law" or "criminal" character. See Mat-424ter of McMullen, supra, at 97-98; App. to Pet. for Cert. 18a; Deportation Proceedings for Doherty, 13 Op. Off. Legal Counsell, 23 (1989) (an act" 'should be considered a serious nonpolitical crime if the act is disproportionate to the objective"') (quoting McMullen v. INS, supra, at 595), rev'd on other grounds, Doherty v. INS, 908 F.2d 1108 (CA2 1990), rev'd, 502 U. S. 314 (1992). Nor does respondent take issue with this basic inquiry.The Court of Appeals did conclude, however, that the BIA must supplement this weighing test by examining additional factors. In the course of its analysis, the Court of Appeals failed to accord the required level of deference to the interpretation of the serious nonpolitical crime exception adopted by the Attorney General and BIA. Because the Court of Appeals confronted questions implicating "an agency's construction of the statute which it administers," the court should have applied the principles of deference described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). Thus, the court should have asked whether "the statute is silent or ambiguous with respect to the specific issue" before it; if so, "the question for the court [was] whether the agency's answer is based on a permissible construction of the statute." Id., at 843. See also INS v. Cardoza-Fonseca, 480 U. S., at 448-449.It is clear that principles of Chevron deference are applicable to this statutory scheme. The INA provides that "[t]he Attorney General shall be charged with the administration and enforcement" of the statute and that the "determination and ruling by the Attorney General with respect to all questions of law shall be controlling." 8 U. S. C. § 1103(a)(1) (1994 ed., Supp. III). Section 1253(h), moreover, in express terms confers decisionmaking authority on the Attorney General, making an alien's entitlement to withholding turn on the Attorney General's "determin[ation]" whether the statutory conditions for withholding have been425met. 8 U. S. C. §§ 1253(h)(1), (2). In addition, we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials "exercise especially sensitive political functions that implicate questions of foreign relations." INS v. Abudu, 485 U. S. 94, 110 (1988). A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.The Attorney General, while retaining ultimate authority, has vested the BIA with power to exercise the "discretion and authority conferred upon the Attorney General by law" in the course of "considering and determining cases before it." 8 CFR § 3.1(d)(1) (1998). Based on this allocation of authority, we recognized in Cardoza-Fonseca, supra, that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms "concrete meaning through a process of case-by-case adjudication" (though we ultimately concluded that the agency's interpretation in that case was not sustainable). 480 U. S., at 448-449. In the case before us, by failing to follow Chevron principles in its review of the BIA, the Court of Appeals erred.AThe Court of Appeals' error is clearest with respect to its holding that the BIA was required to balance respondent's criminal acts against the risk of persecution he would face if returned to Guatemala. In Matter of RodriguezCoto, 19 1. & N. Dec. 208, 209-210 (1985), the BIA "reject[ed] any interpretation of the phras[e] ... 'serious nonpolitical crime' in [§ 1253(h)(2)(C)] which would vary with the nature of evidence of persecution." The text and structure of § 1253(h) are consistent with this conclusion. Indeed, its426words suggest that the BIA's reading of the statute, not the interpretation adopted by the Court of Appeals, is the more appropriate one. As a matter of plain language, it is not obvious that an already-completed crime is somehow rendered less serious by considering the further circumstance that the alien may be subject to persecution if returned to his home country. See ibid. ("We find that the modifie[r] ... 'serious' ... relate[s] only to the nature of the crime itself").It is important, too, as Rodriguez-Coto points out, id., at 209-210, that for aliens to be eligible for withholding at all, the statute requires a finding that their "life or freedom would be threatened in [the country to which deportation is sought] on account of their race, religion, nationality, membership in a particular social group, or political opinion," i. e., that the alien is at risk of persecution in that country. 8 D. S. C. § 1253(h)(1). By its terms, the statute thus requires independent consideration of the risk of persecution facing the alien before granting withholding. It is reasonable to decide, as the BIA has done, that this factor can be considered on its own and not also as a factor in determining whether the crime itself is a serious, nonpolitical crime. Though the BIA in the instant case declined to make findings respecting the risk of persecution facing respondent, App. to Pet. for Cert. 18a, this was because it determined respondent was barred from withholding under the serious nonpolitical crime exception. Ibid. The BIA, in effect, found respondent ineligible for withholding even on the assumption he could establish a threat of persecution. This approach is consistent with the language and purposes of the statute.In reaching the contrary conclusion and ruling that the risk of persecution should be balanced against the alien's criminal acts, the Court of Appeals relied on a passage from the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) (D. N. Handbook).427We agree the U. N. Handbook provides some guidance in construing the provisions added to the INA by the Refugee Act. INS v. Cardoza-Fonseca, 480 U. S., at 438-439, and n. 22. As we explained in Cardoza-Fonseca, "one of Congress' primary purposes" in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. 1. A. S. No. 6577 (1968), to which the United States acceded in 1968. 480 U. S., at 436-437. The Protocol incorporates by reference Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951), reprinted in 19 U. S. T., at 6259, 6264-6276. The basic withholding provision of § 1253(h)(1) parallels Article 33, which provides that "[n]o Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." Id., at 6276. The Convention, in a part incorporated by the Protocol, also places certain limits on the availability of this form of relief; as pertinent here, the Convention states that its provisions "shall not apply to any person with respect to whom there are serious reasons for considering that ... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee." Convention Art. I(F)(b), 19 U. S. T., at 6263-6264. Paragraph 156 of the U. N. Handbook, the portion relied upon by the Court of Appeals, states that in applying the serious nonpolitical crime provision of Convention Art. I(F)(b), "it is ... necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared .... "The U. N. Handbook may be a useful interpretative aid, but it is not binding on the Attorney General, the BIA, or United States courts. "Indeed, the Handbook itself dis-428claims such force, explaining that 'the determination of refugee status under the 1951 Convention and the 1967 Protocol ... is incumbent upon the Contracting State in whose territory the refugee finds himself.'" INS v. Cardoza-Fonseca, 480 U. S., at 439, n. 22 (quoting U. N. Handbook ~ (ii), at 1). See also 480 U. S., at 439, n. 22 ("We do not suggest, of course, that the explanation in the U. N. Handbook has the force of law or in any way binds the INS ... "). For the reasons given, supra, at 425-426, we think the BIA's determination that § 1253(h)(2)(C) requires no additional balancing of the risk of persecution rests on a fair and permissible reading of the statute. See also T. v. Secretary of State for the Home Dept., 2 All E. R. 865, 882 (H. L. 1996) (Lord Mustill) ("[T]he crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned").BAlso relying on the U. N. Handbook, the Court of Appeals held that the BIA "should have considered whether the acts committed were 'grossly out of proportion to the alleged objective.' ... The political nature of the offenses would be 'more difficult to accept' if they involved 'acts of an atrocious nature.'" 121 F. 3d, at 524 (quoting U. N. Handbook ~ 152, at 36). The court further suggested that the BIA should have considered prior Circuit case law that "cast[s] light on what under the law are acts of [an] atrocious nature." 121 F. 3d, at 524. Citing its own opinion affirming the BIA's decision in Matter of McMullen, see McMullen v. INS, 788 F. 2d 591 (CA9 1986), the Court of Appeals stated that "[a] comparison of what the McMullen court found atrocious with the acts committed by Aguirre suggests a startling degree of difference." 121 F. 3d, at 524. It reasoned that while McMullen had involved "indiscriminate bombing, murder, torture, [and] the maiming of innocent civilians," respondent's "only acts against innocent Guatemalans were429the disruption of some stores and his use of methods that we would all find objectionable if practiced upon us on a bus in the United States but which fall far short of the kind of atrocities attributed to McMullen and his associates." 121 F. 3d, at 524.We do not understand the BIA to dispute that these considerations-gross disproportionality, atrociousness, and comparisons with previous decided cases-may be important in applying the serious nonpolitical crime exception. In fact, by the terms of the BIA's test (which is similar to the language quoted by the Court of Appeals from the U. N. Handbook), gross disproportion and atrociousness are relevant in the determination. According to the BIA: "In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature." Matter of McMullen, 19 1. & N. Dec., at 97-98. See also Deportation Proceedings for Doherty, 13 Op. Off. Legal Counsel, at 22-26, rev'd on other grounds, Doherty v. INS, 908 F. 2d 1108 (CA2 1990), rev'd, 502 U. S. 314 (1992). The BIA's formulation does not purport to provide a comprehensive definition of the § 1253(h)(2)(C) exception, and the full elaboration of that standard should await further cases, consistent with the instruction our legal system always takes from considering discrete factual circumstances over time. See also 13 Op. Off. Legal Counsel, at 23 ("[T]he statute recognizes that cases involving alleged political crimes arise in myriad circumstances, and that what constitutes a 'serious nonpolitical crime' is not susceptible of rigid definition"). Our decision takes into account that the BIA's test identifies a general standard (whether the political aspect of an offense outweighs its common-law character) and then provides two more specific inquiries that may be used in applying the rule: whether there is a gross disproportion between means and430ends, and whether atrocious acts are involved. Under this approach, atrocious acts provide a clear indication that an alien's offense is a serious nonpolitical crime. In the BIA's judgment, where an alien has sought to advance his agenda by atrocious means, the political aspect of his offense may not fairly be said to predominate over its criminal character. Commission of the acts, therefore, will result in a denial of withholding. The criminal element of an offense may outweigh its political aspect even if none of the acts are deemed atrocious, however. For this reason, the BIA need not give express consideration to the atrociousness of the alien's acts in every case before determining that an alien has committed a serious nonpolitical crime.The BIA's approach is consistent with the statute, which does not equate every serious nonpolitical crime with atrocious acts. Cf. 8 U. S. C. § 1253(h)(2)(B) (establishing an exception to withholding for a dangerous alien who has been convicted of a "particularly serious crime," defined to include an "aggravated felony"). Nor is there any reason to find this equivalence under the statute. In common usage, the word "atrocious" suggests a deed more culpable and aggravated than a serious one. See Webster's Third New International Dictionary 139 (1971) (defining "atrocious" as, "marked by or given to extreme wickedness ... [or] extreme brutality or cruelty"; "outrageous: violating the bounds of common decency"; "marked by extreme violence: savagely fierce: murderous"; "utterly revolting: abominable"). As a practical matter, if atrocious acts were deemed a necessary element of all serious nonpolitical crimes, the Attorney General would have severe restrictions upon her power to deport aliens who had engaged in serious, though not atrocious, forms of criminal activity. These restrictions cannot be discerned in the text of § 1253(h), and the Attorney General and BIA are not bound to impose the restrictions on themselves.431In the instant case, the BIA determined that "the criminal nature of the respondent's acts outweigh their political nature" because his group's political dissatisfaction "manifested itself disproportionately in the destruction of property and assaults on civilians" and its political goals "were outweighed by [the group's] criminal strategy of strikes." App. to Pet. for Cert. 18a. The BIA concluded respondent had committed serious nonpolitical crimes by applying the general standard established in its prior decision, so it had no need to consider whether his acts might also have been atrocious. The Court of Appeals erred in holding otherwise.We further reject the Court of Appeals' suggestion that reversal was required due to the BIA's failure to compare the facts of this case with those of McMullen. The court thought doing so was necessary because of the guidance provided by McMullen on the meaning of atrociousness. In light of our holding that the BIA was not required expressly to consider the atrociousness of respondent's acts, the BIA's silence on this point does not provide a ground for reversal.CThe third reason given by the Court of Appeals for reversing the BIA was what the court deemed to be the BIA's failure to consider respondent's "offenses in relation to [his] declared political objectives" and to consider "the political necessity and success of [his] methods." 121 F. 3d, at 523-524. As we have discussed, supra, at 422-423 and this page, the BIA did address the relationship between respondent's political goals and his criminal acts, concluding that the violence and destructiveness of the crimes, and their impact on civilians, were disproportionate to his acknowledged political objectives. To the extent the court believed the BIA was required to give more express consideration to the "necessity" and "success" of respondent's actions, it erred.432It is true the Attorney General has suggested that a crime will not be deemed political unless there is a "'close and direct causal link between the crime committed and its alleged political purpose and object.' " Deportation Proceedings for Doherty, 13 Op. Off. Legal Counsel, at 23 (quoting McMullen v. INS, 788 F.2d 591 (CA9 1986)). The BIA's analysis, which was quite brief in all events, did not explore this causal link beyond noting the general disproportion between respondent's acts and his political objectives. Whatever independent relevance a causal link inquiry might have in another case, in this case the BIA determined respondent's acts were not political based on the lack of proportion with his objectives. It was not required to do more. Even in a case with a clear causal connection, a lack of proportion between means and ends may still render a crime nonpolitical. Moreover, it was respondent who bore the burden of proving entitlement to withholding, see 8 CFR § 208. 16(c)(3) (1995) ("If the evidence indicates that one or more of the grounds for denial of withholding of deportation ... apply, the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply"). He failed to submit a brief on the causal link or any other issue to the BIA, and the decision of the Immigration Judge does not address the point. In these circumstances, the rather cursory nature of the BIA's discussion does not warrant reversal.IIIFinally, respondent contends the record of his testimony before the Immigration Judge contains errors. He testified in Spanish and now contends there are errors in translation and transcription. Brief for Respondent 11-22. Respondent advanced this argument for the first time in his Brief in Opposition to Certiorari in this Court, see Brief in Opposition 1-5, having failed to raise it before either the BIA or the Court of Appeals. We decline to address the argument at this late stage.433Respondent has filed a motion in the BIA for a new hearing in light of the alleged errors. App. to Brief for Respondent la-6a. Should the BIA determine modification of the record is necessary, it can determine whether further consideration of the withholding issue is warranted.***The reasons given by the Court of Appeals for reversing the BIA do not withstand scrutiny. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusIMMIGRATION AND NATURALIZATION SERVICE v.AGUIRRE-AGUIRRECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 97-1754. Argued March 3, 1999-Decided May 3,1999The Immigration and Nationality Act (INA) permits withholding of deportation to a country when "the Attorney General determines that [an] alien's life or freedom would be threatened in such country on account of ... political opinion." 8 U. S. C. § 1253(h)(1). In general, withholding is mandatory if an alien establishes that he is more likely than not to "be subject to persecution on [that ground]," INS v. Stevie, 467 U. S. 407,429-430. However, as relevant here, it is not available if the Attorney General finds that the alien committed a "serious nonpolitical crime" before arriving in the United States, § 1253(h)(2)(C). Respondent, a Guatemalan, requested, inter alia, withholding of his deportation by the Immigration and Naturalization Service. He testified at an administrative hearing that, in protesting various government policies and actions in Guatemala, he had burned buses, assaulted passengers, and vandalized and destroyed private property. The Immigration Judge granted his request, but the Board of Immigration Appeals (BIA) vacated the order, finding that his were "serious nonpolitical crime[s]." Applying the weighing test it had developed in an earlier decision, the BIA concluded that the common-law or criminal character of respondent's acts outweighed their political nature. The Ninth Circuit remanded the case, finding the BIA's analysis deficient in three respects:It should have balanced respondent's admitted offenses against the threat of persecution; it should have considered whether his acts were grossly disproportionate to their alleged objective and were atrocious, especially with reference to Circuit precedent; and it should have considered the political necessity and success of respondent's methods.Held: In ruling that the BIA must supplement its weighing test by examining these additional factors, the Ninth Circuit failed to accord the BIA's interpretation the level of deference required under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. Pp. 423-433.(a) Because the Ninth Circuit confronted questions implicating "an agency's construction of the statute which it administers," that court should have asked whether "the statute is silent or ambiguous with respect to the specific issue" before it, and, if so, "whether the agency's416Syllabusanswer is based on a permissible construction of the statute." Chevron, supra, at 843. It is clear that Chevron deference applies to this statutory scheme. The Attorney General is charged with the INA's administration and enforcement, and § 1253(h) expressly makes an alien's entitlement to withholding turn on the Attorney General's determination whether the statutory conditions for withholding have been met. Judicial deference to the Executive Branch is especially appropriate in the immigration context. INS v. Abudu, 485 U. S. 94, 110. The BIA, which is vested with the Attorney General's discretion and authority in cases before it, should be accorded Chevron deference when it gives ambiguous statutory terms meaning through a process of caseby-case adjudication. INS v. Cardoza-Fonseca, 480 U. S. 421, 448-449. Pp. 423-425.(b) The Ninth Circuit's error is clearest with respect to its holding that the BIA must balance respondent's criminal acts against his risk of persecution in Guatemala. The BIA has rejected any such interpretation, and § 1253(h)'s text and structure are consistent with that conclusion. By its terms, the statute requires independent consideration of the persecution risk facing an alien before granting withholding. It is reasonable to decide, as the BIA has done, that this factor can be considered on its own and not also as a factor in determining whether the crime itself is serious and nonpolitical. A United Nations handbook relied on by the Ninth Circuit is not binding on the Attorney General, the BrA, or the United States courts. Pp. 425-428.(c) The Ninth Circuit erred in finding that the BrA should have considered whether respondent's acts were grossly disproportionate to their alleged objective and atrocious in light of Circuit precedent. The BIA does not dispute that such considerations may be important in applying the serious nonpolitical crime exception. However, the BIA's formulation does not purport to provide a comprehensive definition of the exception, and the standard's full elaboration should await further cases. The BIA's test identifies the general standard whether an offense's political aspect outweighs its common-law character and then provides two specific inquiries that may be used in applying the rule: whether there is a gross disproportion between means and ends, and whether the acts are atrocious. Although an offense involving atrocious acts will result in denial of withholding, an offense's criminal element may outweigh its political aspect even if none of the acts are atrocious. Thus, the BIA did not need to give express consideration to atrociousness before determining that respondent had committed serious nonpolitical crimes. This approach is consistent with the statute, which does not equate every serious nonpolitical crime with atro-417Full Text of Opinion

1975_74-1148

MR. JUSTICE BRENNAN delivered the opinion of the Court.Section 11 of Mississippi's Regulation Governing the Production and Sale of Milk and Milk Products in Mississippi, promulgated by the Mississippi State Board of Health (1967), provides, among other things, that"[m]ilk and milk products from . . . [another State] may be sold in . . . Mississippi . . . provided . . . that the regulatory agency [of the other State that] has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis. [Footnote 1] Page 424 U. S. 368 The question presented by this case is whether Mississippi, consistently with the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, [Footnote 2] may, pursuant to this regulation, constitutionally deny a Louisiana milk producer the right to sell in Mississippi milk satisfying Mississippi's health standards solely because the State of Louisiana has not signed a reciprocity agreement with the State of Mississippi as required by the regulation. A three-judge District Court in the Southern District of Mississippi rejected appellant's Commerce Clause challenge, holding that""[s]ection 11 is within the permissible limits of state police powers even though it incidentally or indirectly involves or burdens interstate commerce."383 F. Supp. 569, 575 (1974). We noted probable jurisdiction of appellant's appeal, 421 U.S. 961 (1975). We reverse. [Footnote 3]IAppellant, The Great Atlantic & Pacific Tea Co., Inc. (A&P), a Maryland corporation, owns and operates 38 outlets in Mississippi that engage in the retail sale Page 424 U. S. 369 of milk and milk products. A&P also operates at Kentwood, La., a plant for the processing of raw milk into milk and milk products for delivery to its retail outlets. A&P invested over $1 million in the Kentwood processing facilities, intending that part of the dairy products produced at the facility would supply its retail outlets in Mississippi. However, A&P's application on August 28, 1972, to the Mississippi State Board of Health for a permit to distribute the products from its Kentwood facility for sale in Mississippi was denied by the Board because A&P failed to submit the reciprocal agreement between Louisiana and Mississippi required by § 11. [Footnote 4] Appellant thereupon brought this action.Evidence was stipulated before the District Court which conclusively established that the milk produced at the Kentwood plant fully complied with the requirements of § 11 in all respects save the required reciprocity agreement. The Kentwood plant had received milk sanitation-compliance ratings in excess of 90% in all respects following each inspection by Louisiana officials. These sanitation-compliance ratings were published in the Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers, a list compiled by the Public Health Service and the Food and Drug Administration of the United States Department of Health, Education, and Welfare (HEW), which includes only processors receiving compliance ratings from state officials who have been certified by the Public Health Service. Page 424 U. S. 370 Further, the parties stipulated that the Spervisor of the Milk Control Program of the Mississippi State Board of Health testified, on the basis of an inspection by Louisiana officials of the Kentwood plant reported on an HEW form, that Kentwood milk would be acceptable in Mississippi, as the Louisiana regulations were substantially equivalent to Mississippi's within the meaning of § 11. Thus, only the lack of a reciprocity agreement between the two States prevented appellant from marketing its Kentwood milk at its Mississippi retail outlets. [Footnote 5]IIMississippi's answer to appellant's Commerce Clause challenge is that the reciprocity requirement of § 11 is a reasonable exercise of its police power over local affairs, designed to assure the distribution of healthful milk products to the people of its State. We begin our analysis by again emphasizing that "[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States." McLeod v. J. E. Dilworth Co., 322 U. S. 327, 322 U. S. 330 (1944). And, at least since Cooley v. Board of Wardens, 12 How. 299 (1852), it has been clear that"the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but, by its own force, created an area of trade free from interference by the States. . . . [T]he Commerce Page 424 U. S. 371 Clause, even without implementing legislation by Congress, is a limitation upon the power of the States."Freeman v. Hewit, 329 U. S. 249, 329 U. S. 252 (1946). It is no less true, of course, that, under our constitutional scheme, the States retain "broad power" to legislate protection for their citizens in matters of local concern such as public health, H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 531-532 (1949), and that not every exercise of local power is invalid merely because it affects in some way the flow of commerce between the States. Freeman v. Hewit, supra at 329 U. S. 253; Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346, 306 U. S. 351-352 (1939). Rather, in areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause where local and national powers are concurrent -- the Court, in the absence of congressional guidance, is called upon to make "delicate adjustment of the conflicting state and federal claims," H. P. Hood & Sons, Inc. v. Du Mond, supra, at 336 U. S. 553 (Black, J., dissenting), thereby attempting "the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce." Freeman v. Hewit, supra at 329 U. S. 253. In undertaking this task, the Court, if it finds that a challenged exercise of local power serves to further a legitimate local interest but simultaneously burdens interstate commerce, is confronted with a problem of balance:"Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly Page 424 U. S. 372 excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U. S. 440, 362 U. S. 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 142 (1970). [Footnote 6]Adjudication of Commerce Clause challenges to the validity of local milk regulations burdening interstate milk is not a novel experience for this Court. See, e.g., Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361 (1964); Dean Milk Co. v. Madison, 340 U. S. 349 (1951); H. P. Hood & Sons, Inc. v. Du Mond, supra; Milk Control Board v. Eisenberg Farm Products, supra; Baldwin v. G.A.F. Seelig, Inc., 294 U. S. 511 (1935). The District Court seems to have concluded that Dean Milk Co. v. Madison, supra, while especially pertinent to a decision upon the validity of the reciprocity provision Page 424 U. S. 373 of § 11, did not require the conclusion that the requirement rendered the section violative of the Commerce Clause. We disagree. Dean Milk involved a Madison, Wis., ordinance that forbade the sale of milk in the city unless it had been pasteurized and bottled at an approved plant located within five miles of the center of the city. Although agreeing that sanitary regulation of milk originating in remote areas is a "matter . . . which may appropriately be regulated in the interest of the safety, health and wellbeing of local communities,'" 340 U.S. at 340 U. S. 353, the Court held that the Madison ordinance could not withstand challenge under the Commerce Clause,"even in the exercise of [the city's] unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available."Id. at 340 U. S. 354. Inquiry whether adequate and less burdensome alternatives exist is, of course, important in discharge of the Court's task of "accommodation" of conflicting local and national interests, since any "realistic' judgment" whether a given state action "unreasonably" trespasses upon national interests must, of course, consider the "consequences to the state if its action were disallowed." Dowling, Interstate Commerce and State Power, 27 Va.L.Rev. 1, 22 (1940).Dean Milk identified as adequate to serve local interests, and yet less burdensome to the flow of interstate commerce, the alternatives of either inspection of the distant plants by city officials or reliance on milk ratings obtained by officials in localities having standards as high as those of Madison, the enforcement of which could be verified by reliance on the United States Public Health Service's system of checking local ratings. This latter alternative reflected the recommendation of the United States Public Health Service based on § 11 of the Page 424 U. S. 374 Model Milk Ordinance proposed by the Service, Dean Milk, supra at 340 U. S. 355 n. 5, that the local"health officer approve milk or milk products from distant points without his inspection if they are produced and processed under regulations equivalent to those of this ordinance, and if the milk or milk products have been awarded by the State control agency a rating of 90 percent or more on the basis of the Public Health Service rating method."The Illinois producer's milk involved in Dean Milk was processed in plants inspected by the public health authorities in Chicago on the basis of the Public Health Service rating method.The District Court in the instant case acknowledged that,"[i]nterestingly enough, Section 11 of the Mississippi regulation, but for the reciprocal clause, is identical in every material aspect to Section 11 of the U.S. Public Health Service Ordinance"discussed in Dean Milk. 383 F. Supp. at 574. Accordingly, the District Court concluded that § 11 was "free of any constitutional infirmity," "insofar as it follows Section 11 of the U.S. Public Health Service Milk Ordinance." Id. at 575. The District Court held, further, that the reciprocity clause of Mississippi's § 11 -- not found in HEW's proposed Model Milk Ordinance § 11 -- did not constitute a sufficient burden on interstate commerce to violate the Commerce Clause. Mississippi, said the District Court, may constitutionally"enforce its own standards, either through inspections at the source of the processed milk, although such may require out-of-state inspections, or through reciprocal agreements . . . ,"and "[a]s long as Mississippi mutually exchanges standards of inspection with other states, there can be no burden on interstate trade." 383 F. Supp. at 575. Further, said the District Court, "Mississippi adopted the reciprocity clause to avoid the expense of out-of-state inspections," Page 424 U. S. 375 id. at 576, and offers reciprocity to all States without discrimination.The fallacy in the District Court's reasoning is that it attached insufficient significance to the interference effected by the clause upon the national interest in freedom for the national commerce, and attached too great significance to the state interests purported to be served by the clause. Although not in terms an absolute and universal bar to sales of out-of-state milk, which was the effect of the Madison ordinance invalidated in Dean Milk, the barrier of the reciprocity clause to sales of out-of-state milk in Mississippi has, in this case, also, "in practical effect, exclude[d] from distribution in [Mississippi] wholesome milk produced . . . in [Louisiana]." 340 U.S. at 340 U. S. 354. [Footnote 7] Only state interests of substantial importance can save § 11 in the face of that devastating effect upon the free flow of interstate milk.Mississippi's contention that the reciprocity clause serves its vital interests in maintaining the State's health standards borders on the frivolous. The clause clearly does not do so in the sense of furthering Mississippi's established milk quality standards. For, according to appellee,"§ 11 covenants that Mississippi will do the inspections, will certify them, and will accept a standard below that applicable to domestic producers if the forwarding state will do the same."Brief for Appellee 9. Thus, even if Louisiana's standards were lower than Mississippi's, the clause permits Louisiana milk to be admitted to Mississippi if Louisiana enters into a reciprocity agreement. The reciprocity clause thus disserves, rather than promotes, any higher Mississippi milk quality standards. Page 424 U. S. 376 Therefore, this is a case where the "burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. at 397 U. S. 142.Mississippi next argues that the reciprocity clause somehow enables Mississippi to assure itself that the reciprocating State's (here Louisiana's) health standards are the "substantial equivalent" of Mississippi's. [Footnote 8] But even if this were true, and the premise may be disputed, [Footnote 9] there are means adequate to serve this interest Page 424 U. S. 377 that are substantially less burdensome on commerce, and, therefore, Dean Milk teaches that the burden of the mandatory reciprocity clause cannot be justified in view of the character of the local interest and these available methods of protecting it. In the absence of adequate assurance that the standards of a sister State, either as constituted or as applied, are substantially equivalent to its own, Mississippi has the obvious alternative of applying its own standards of inspection to shipments of milk from a nonreciprocating State. [Footnote 10] Dean Milk, 340 U.S. at 340 U. S. 355, expressly supported the adequacy of this alternative:"[S]uch inspection is readily open to it without hardship, for it could charge the actual and reasonable cost of such inspection to the importing producers and processors. [Footnote 11]"Cf. 405 U. S. S. 378� District v. Delta Airlines, Inc.,@ 405 U. S. 707 (1972).IIIMississippi argues that, apart from the putative health-related interests served by the clause, the reciprocity requirement is, in effect, a free-trade provision advancing the identical national interest that is served by the Commerce Clause.The argument is two-pronged. First, Mississippi argues that the reciprocity requirement serves to help eliminate "hypertechnical" inspection standards that vary between different States. [Footnote 12] Such hypertechnical standards are said to burden commerce by requiring costly duplicative or out-of-state inspection in instances where, for truly health-related purposes, the standards of the different States are "substantially equivalent." The Court has recognized that mutually beneficial objectives may be promoted by voluntary reciprocity agreements, and that the existence of such an agreement between two or more States is not a per se violation of the Commerce Clause of which citizens of nonreciprocating States who do not receive the benefits conferred by the agreement may complain. See Kane v. New Jersey, 242 U. S. 160, 242 U. S. 167-168 (1916); cf. Bode v. Barrett, 344 U. S. 583 Page 424 U. S. 379 (1953). [Footnote 13] But we have not held that acceptance of offered reciprocity is required from other States, see Kane v. New Jersey, supra at 242 U. S. 168, or that a State may threaten complete isolation as the alternative to acceptance of its offer of reciprocity. Mississippi may offer reciprocity to States with substantially equivalent health standards, and insist on enforcement of its own, somewhat different, standards as the alternative. But Mississippi may not use the threat of economic isolation as a weapon to force sister States to enter into even a desirable reciprocity agreement.The second prong of appellee's argument that the reciprocity requirement promotes trade between the States draws upon Mississippi's allegations that Louisiana is itself violating the Commerce Clause by refusing to admit milk produced in Mississippi. Mississippi asserts that Louisiana has refused reciprocity with Mississippi in bad faith, and, in fact, has erected economic barriers to the sale of Mississippi milk in Louisiana under the guise of health and inspection regulations. Hence, the reciprocity agreement, it is argued, is a legitimate means by which Mississippi may seek to gain access to Louisiana markets for its own producers as a condition to allowing Louisiana milk to be sold in Mississippi. We cannot agree.First, to the extent, if any, that Louisiana is unconstitutionally burdening the flow of milk in interstate commerce by erecting and enforcing economic trade barriers Page 424 U. S. 380 to protect its own producers from competition under the guise of health regulations, the Commerce Clause itself creates the necessary reciprocity: Mississippi and its producers may pursue their constitutional remedy by suit in state or federal court challenging Louisiana's actions as violative of the Commerce Clause.Second, to the extent that Louisiana is legitimately exercising its local powers in the interest of the health of its citizens by refusing reciprocity and consequently the admission of milk deemed in good faith by state officials to be of insufficient quality, Mississippi is not privileged under the Commerce Clause to force its own judgments as to an adequate level of milk sanitation on Louisiana at the pain of an absolute ban on the interstate flow of commerce in milk. However available such methods in an international system of trade between wholly sovereign nation states, they may not constitutionally be employed by the States that constitute the common market created by the Framers of the Constitution. To allow Mississippi to insist that a sister State either sign a reciprocal agreement acceptable to Mississippi or else be absolutely foreclosed from exporting its products to Mississippi would plainly "invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause." Dean Milk, 340 U.S. at 340 U. S. 356. No "parochial legislative polic[y]," H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. at 336 U. S. 538, could be more precisely calculated to open "the door . . . to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation." Baldwin v. G.A.F. Seelig, Inc., 294 U.S. at 294 U. S. 522."The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and Page 424 U. S. 381 that, in the long run, prosperity and salvation are in union, and not division."Id. at 294 U. S. 523. The mandatory reciprocity provision of § 11, insofar as justified by the State as an economic measure, is"precisely the kind of hindrance to the introduction of milk from other States . . . condemned as an 'unreasonable clog upon the mobility of commerce. . . . [It is] hostile in conception as well as burdensome in result.'"Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. at 375 U. S. 377.Accordingly, we hold that the mandatory character of the reciprocity requirement of § 11 unduly burdens the free flow of interstate commerce, and cannot be justified as a permissible exercise of any state power. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtGreat A&P Tea Co., Inc. v. Cottrell, 424 U.S. 366 (1976)Great Atlantic & Pacific Tea Co., Inc. v. CottrellNo. 74-1148Argued December 1, 1975Decided February 25, 1976424 U.S. 366SyllabusA Mississippi regulation provides that milk and milk products from another State may be sold in Mississippi only if the other State accepts milk or milk products produced and processed in Mississippi on a reciprocal basis. Appellant's application for a permit to distribute for sale at its retail outlets in Mississippi milk and milk products from its Louisiana processing plant was denied solely on the ground that Louisiana had not signed a reciprocity agreement with Mississippi as required by the regulation. Appellant then brought suit claiming that the regulation violated the Commerce Clause, but a three-judge District Court upheld the regulation as a valid exercise of state police powers, even though it incidentally burdened interstate commerce.Held: The mandatory character of the regulation's reciprocity requirement unduly burdens the free flow of interstate commerce in violation of the Commerce Clause, and cannot be justified as a permissible exercise of any state power. Pp. 424 U. S. 370-381.(a) Only state interests of substantial importance can save the regulation in the face of its devastating effect upon the free flow of interstate milk by in practical effect, though not in absolute terms, excluding from Mississippi wholesome milk produced in Louisiana. Cf. Dean Milk Co. v. Madison, 340 U. S. 349. Pp. 424 U. S. 372-375.(b) The reciprocity requirement cannot be justified as serving Mississippi's vital interests in maintaining the State's health standards, for even if Louisiana's standards were lower than Mississippi's, such requirement, if met, permits Louisiana milk to be admitted to Mississippi if Louisiana enters into a reciprocity agreement. And even if the requirement enables Mississippi to assure itself that the reciprocating State's health standards are the "substantial equivalent" of its own, Mississippi has available for accomplishing that objective the alternative, substantially less burdensome on commerce, of applying its own inspection Page 424 U. S. 367 standards to milk shipments from a nonreciprocating State. Pp. 424 U. S. 375-378.(c) Nor can the reciprocity requirement be justified as an economic "free trade" measure, since it is"precisely the kind of hindrance to the introduction of milk from other states . . . condemned as an 'unreasonable clog upon the mobility of commerce'"and "hostile in conception as well as burdensome in result.'" Polar Ice Cream & Creamer Co. v. Andrews, 375 U. S. 361, 375 U. S. 377. Pp. 424 U.S. 378-381.383 F. Supp. 569, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which all Members joined except STEVENS, J., who took no part in the consideration or decision of the case.

1982_82-486

JUSTICE WHITE, delivered the opinion of the Court.This case concerns the scope of the cause of action made available by 42 U.S.C. § 1985(3) (1976 ed., Supp. V) * to those injured by conspiracies formed"for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws."IA. A. Cross Construction Co., Inc. (Cross), contracted with the Department of the Army to construct the Alligator Bayou Pumping Station and Gravity Drainage Structure on the Taylor Bayou Hurricane Levee near Port Arthur, Tex. In accordance with its usual practice, Cross hired workers for the project without regard to union membership. Some of them were from outside the Port Arthur area. Employees Page 463 U. S. 828 of Cross were several times warned by local residents that Cross' practice of hiring nonunion workers was a matter of serious concern to many in the area, and that it could lead to trouble. According to the District Court, the evidence showed that, at a January 15, 1975, meeting of the Executive Committee of the Sabine Area Building and Construction Trades Council a citizen protest against Cross' hiring practices was discussed and a time and place for the protest were chosen. On the morning of January 17, a large group assembled at the entrance to the Alligator Bayou construction site. In the group were union members present at the January 15 meeting. From this gathering, several truckloads of men emerged, drove on to the construction site, assaulted and beat Cross employees, and burned and destroyed construction equipment. The District Court found that continued violence was threatened "if the nonunion workers did not leave the area or concede to union policies and principles." Scott v. Moore, 461 F. Supp. 224, 227 (ED Tex.1978). The violence and vandalism delayed construction and led Cross to default on its contract with the Army.The plaintiffs in this case, after amendment of the complaint, were respondents Scott and Matthews -- two Cross employees who had been beaten -- and the company itself. The Sabine Area Building and Trades Council, 25 local unions, and various individuals were named as defendants. Plaintiffs asserted that defendants had conspired to deprive plaintiffs of their legally protected rights, contrary to 42 U.S.C. § 1985(3) (1976 ed., Supp. V). The case was tried to the court. A permanent injunction was entered, and damages were awarded against 11 of the local unions, $5,000 each to the individual plaintiffs and $112,385.44 to Cross, plus attorney's fees in the amount of $25,000.In arriving at its judgment, the District Court recognized that, to make out a violation of § 1985(3), as construed in Griffin v. Breckenridge, 403 U. S. 88, 403 U. S. 102-103 (1971), the plaintiff must allege and prove four elements: (1) a conspiracy; Page 463 U. S. 829 (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. The District Court found that the first, third, and fourth of these elements were plainly established. The issue, the District Court thought, concerned the second element, for in construing that requirement in Griffin, we held that the conspiracy not only must have as its purpose the deprivation of "equal protection of the laws, or of equal privileges and immunities under the laws," but also must be motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. at 403 U. S. 102. Griffin having involved racial animus and interference with rights that Congress could unquestionably protect against private conspiracies, the issue the District Court identified was whether private conspiratorial discrimination against employees of a nonunionized entity is the kind of conduct that triggers the proscription of § 1985(3). The District Court concluded that the conspiracy encompassed violations of both the civil and criminal laws of the State of Texas, thus depriving plaintiff of the protections afforded by those laws, that § 1985(3) proscribes class-based animus other than racial bias, and that the class of nonunion laborers and employers is a protected class under the section. The District Court believed that"men and women have the right to associate or not to associate with any group or class of individuals, and concomitantly, to be free of violent acts against their bodies and property because of such association or non-association."461 F. Supp. at 230. The conduct evidenced a discriminatory animus against nonunion workers; hence, there had been a violation of the federal law.The Court of Appeals, sitting en banc, except for setting aside for failure of proof the judgment against 8 of the 11 local Page 463 U. S. 830 unions, affirmed the judgment of the District Court. Scott v. Moore, 680 F.2d 979 (CA5 1982). The Court of Appeals understood respondents' submission to be that petitioners' conspiracy was aimed at depriving respondents of their First Amendment right to associate with their fellow nonunion employees, and that this curtailment was a deprivation of the equal protection of the laws within the meaning of § 1985(3). The Court of Appeals agreed, for the most part, holding that the purpose of the conspiracy was to deprive plaintiffs of their First Amendment right not to associate with a union. The court rejected the argument that it was necessary to show some state involvement to demonstrate an infringement of First Amendment rights. This argument, it thought, had been expressly rejected in Griffin, and it therefore felt compelled to disagree with two decisions of the Court of Appeals for the Seventh Circuit espousing that position. Murphy v. Mount Carmel High School, 543 F.2d 1189 (1976); Dombrowski v. Dowling, 459 F.2d 190 (1972). The Court of Appeals went on to hold that § 1985(3) reached conspiracies motivated either by political or economic bias. Thus petitioners' conspiracy to harm the nonunion employees of a nonunionized contractor embodied the kind of class-based animus contemplated by § 1985(3) as construed in Griffin. Because of the importance of the issue involved, we granted certiorari, 459 U.S. 1034. We now reverse.IIWe do not disagree with the District Court and the Court of Appeals that there was a conspiracy, an act done in furtherance thereof, and a resultant injury to persons and property. Contrary to the Court of Appeals, however, we conclude that an alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is proved that the State is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the State. We Page 463 U. S. 831 also disagree with the Court of Appeals' view that there was present here the kind of animus that § 1985(3) requires.AThe Equal Protection Clause of the Fourteenth Amendment prohibits any State from denying any person the equal protection of the laws. The First Amendment, which by virtue of the Due Process Clause of the Fourteenth Amendment now applies to state governments and their officials, prohibits either Congress or a State from making any "law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble." Had § 1985(3) in so many words prohibited conspiracies to deprive any person of the equal protection of the laws guaranteed by the Fourteenth Amendment or of freedom of speech guaranteed by the First Amendment, it would be untenable to contend that either of those provisions could be violated by a conspiracy that did not somehow involve or affect a State."It is a commonplace that rights under the Equal Protection Clause itself arise only where there has been involvement of the State or of one acting under the color of its authority. The Equal Protection Clause 'does not . . . add any thing to the rights which one citizen has under the Constitution against another.' United States v. Cruikshank, 92 U. S. 542, 92 U. S. 554-555. As Mr. JUSTICE DOUGLAS more recently put it, 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' United States v. Williams, 341 U. S. 70, 341 U. S. 92 (dissenting opinion). This has been the view of the Court from the beginning. United States v. Cruikshank, supra; United States v. Harris, 106 U. S. 629; Civil Rights Cases, 109 U. S. 3; Hodges v. United States, 203 U. S. 1; United States v. Powell, 212 U.S. 564. It remains the Court's view today. See, e.g., Evans v. Newton, 382 U. S. 296; Page 463 U. S. 832 United States v. Price, post, p. 383 U. S. 787."United States v. Guest, 383 U. S. 745, 383 U. S. 755 (1966). The opinion for the Court by Justice Fortas in the companion case characterized the Fourteenth Amendment rights in the same way:"As we have consistently held 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' Williams I, 341 U.S. at 341 U. S. 92 (opinion of Douglas, J.)"United States v. Price, 383 U. S. 787, 383 U. S. 799 (1966). In this respect, the Court of Appeals for the Seventh Circuit was thus correct in holding that a conspiracy to violate First Amendment rights is not made out without proof of state involvement. Murphy v. Mount Carmel High School, supra, at 1193.Griffin v. Breckenridge is not to the contrary. There we held that § 1985(3) reaches purely private conspiracies and, as so interpreted, was not invalid on its face or as there applied. We recognized that the language of the section referring to deprivations of "equal protection" or of "equal privileges and immunities" resembled the language and prohibitions of the Fourteenth Amendment, and that, if § 1985(3) was so understood, it would be difficult to conceive of a violation of the statute that did not involve the State in some respect. But we observed that the section does not expressly refer to the Fourteenth Amendment, and that there is nothing "inherent" in the language used in § 1985(3) "that requires the action working the deprivation to come from the State." 403 U.S. at 403 U. S. 97. This was a correct reading of the language of the Act; the section is not limited by the constraints of the Fourteenth Amendment. The broader scope of § 1985(3) became even more apparent when we explained that the conspiracy at issue was actionable because it was aimed at depriving the plaintiffs of rights protected by the Thirteenth Amendment and the right to travel guaranteed by the Federal Constitution. Page 463 U. S. 833 Section 1985(3) constitutionally can and does protect those rights from interference by purely private conspiracies.Griffin did not hold that, even when the alleged conspiracy is aimed at a right that is by definition a right only against state interference, the plaintiff in a § 1985(3) suit nevertheless need not prove that the conspiracy contemplated state involvement of some sort. The complaint in Griffin alleged, among other things, a deprivation of First Amendment rights, but we did not sustain the action on the basis of that allegation, and paid it scant attention. Instead, we upheld the application of § 1985(3) to private conspiracies aimed at interfering with rights constitutionally protected against private, as well as official, encroachment.Neither is respondents' position helped by the assertion that, even if the Fourteenth Amendment does not provide authority to proscribe exclusively private conspiracies, precisely the same conduct could be proscribed by the Commerce Clause. That is no doubt the case; but § 1985(3) is not such a provision, since it "provides no substantive rights itself" to the class conspired against. Great American Federal Savings & Loan Assn. v. Novotny, 442 U. S. 366, 442 U. S. 372 (1979). The rights, privileges, and immunities that § 1985(3) vindicates must be found elsewhere, and here the right claimed to have been infringed has its source in the First Amendment. Because that Amendment restrains only official conduct, to make out their § 1985(3) case, it was necessary for respondents to prove that the State was somehow involved in or affected by the conspiracy.The Court of Appeals accordingly erred in holding that § 1985(3) prohibits wholly private conspiracies to abridge the right of association guaranteed by the First Amendment. Because of that holding, the Court of Appeals found it unnecessary to determine whether respondents' action could be sustained under § 1985(3) as involving a conspiracy to deprive respondents of rights, privileges, or immunities under state law or those protected against private action by the Federal Page 463 U. S. 834 Constitution or federal statutory law. Conceivably, we could remand for consideration of these possibilities, or we ourselves could consider them. We take neither course, for, in our view, the Court of Appeals should also be reversed on the dispositive ground that § 1985(3)'s requirement that there must be "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action," Griffin v. Breckenridge, 403 U.S. at 403 U. S. 102, was not satisfied in this case.BAs indicated above, after examining the language, structure, and legislative history of § 1985(3), the Griffin opinion emphatically declared that the section was intended to reach private conspiracies that in no way involved the State. The Court was nevertheless aware that the sweep of § 1985 as originally introduced in the House provoked strong opposition in that chamber and precipitated the proposal and adoption of a narrowing amendment, which limited the breadth of the bill so that the bill did not provide a federal remedy for "all tortious, conspiratorial interferences with the rights of others." 403 U.S. at 403 U. S. 101. In large part, opposition to the original bill had been motivated by a belief that Congress lacked the authority to punish every assault and battery committed by two or more persons. Id. at 403 U. S. 102; Cong.Globe, 42d Cong., 1st Sess., App. 68, 115, 153, 188, 315 (1871); id. at 485-486, 514. As we interpreted the legislative history 12 years ago in Griffin, the narrowing amendment "centered entirely on the animus or motivation that would be required. . . ." 403 U.S. at 403 U. S. 100. Thus:"The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose -- by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. Page 463 U. S. 835 See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all."Id. at 102 (footnotes omitted). This conclusion was warranted by the legislative history, was reaffirmed in Novotny, supra, and we accept it as the authoritative construction of the statute.Because the facts in Griffin revealed an animus against Negroes and those who supported them, a class-based, invidious discrimination which was the central concern of Congress in enacting § 1985(3), the Court expressly declined to decide "whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under the portion of § 1985(3) before us." 403 U.S. at 403 U. S. 102, n. 9. Both courts below answered that question; both held that the section not only reaches conspiracies other than those motivated by racial bias, but also forbids conspiracies against workers who refuse to join a union. We disagree with the latter conclusion, and do not affirm the former.CThe Court of Appeals arrived at its result by first describing the Reconstruction-era Ku Klux Klan as a political organization that sought to deprive a large segment of the Southern population of political power and participation in the governance of those States and of the Nation. The Court of Appeals then reasoned that, because Republicans were among the objects of the Klan's conspiratorial activities, Republicans in particular and political groups in general were to be protected by § 1985(3). Finally, because it believed that an animus against an economic group such as those who preferred Page 463 U. S. 836 nonunion association is "closely akin" to the animus against political association, the Court of Appeals concluded that the animus against nonunion employees in the Port Arthur area was sufficiently similar to the animus against a political party to satisfy the requirements of § 1985(3).We are unpersuaded. In the first place, it is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans. The central theme of the bill's proponents was that the Klan and others were forcibly resisting efforts to emancipate Negroes and give them equal access to political power. The predominant purpose of § 1985(3) was to combat the prevalent animus against Negroes and their supporters. The latter included Republicans generally, as well as others, such as Northerners who came South with sympathetic views towards the Negro. Although we have examined with some care the legislative history that has been marshaled in support of the position that Congress meant to forbid wholly nonracial, but politically motivated, conspiracies, we find difficult the question whether § 1985(3) provided a remedy for every concerted effort by one political group to nullify the influence of or do other injury to a competing group by use of otherwise unlawful means. To accede to that view would go far toward making the federal courts, by virtue of § 1985(3), the monitors of campaign tactics in both state and federal elections, a role that the courts should not be quick to assume. If respondents' submission were accepted, the proscription of § 1985(3) would arguably reach the claim that a political party has interfered with the freedom of speech of another political party by encouraging the heckling of its rival's speakers and the disruption of the rival's meetings.We realize that there is some legislative history to support the view that § 1985(3) has a broader reach. Senator Edmunds' statement on the floor of the Senate is the clearest expression of this view. He said that, if a conspiracy Page 463 U. S. 837 were formed against a man"because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter, . . . then this section could reach it."Cong.Globe, 42d Cong., 1st Sess., 567 (1871). The provision that is now § 1985(3), however, originated in the House. The narrowing amendment, which changed § 1985(3) to its present form, was proposed, debated, and adopted there, and the Senate made only technical changes to the bill. Senator Edmunds' views, since he managed the bill on the floor of the Senate, are not without weight. But we were aware of his views in Griffin, 403 U.S. at 403 U. S. 102, n. 9, and still withheld judgment on the question whether § 1985(3), as enacted, went any farther than its central concern -- combating the violent and other efforts of the Klan and its allies to resist and to frustrate the intended effects of the Thirteenth, Fourteenth, and Fifteenth Amendments. Lacking other evidence of congressional intention, we follow the same course here.DEven if the section must be construed to reach conspiracies aimed at any class or organization on account of its political views or activities, or at any of the classes posited by Senator Edmunds, we find no convincing support in the legislative history for the proposition that the provision was intended to reach conspiracies motivated by bias towards others on account of their economic views, status, or activities. Such a construction would extend § 1985(3) into the economic life of the country in a way that we doubt that the 1871 Congress would have intended when it passed the provision in 1871.Respondents submit that Congress intended to protect two general classes of Republicans, Negroes and Northern immigrants, the latter because the Klan resented carpetbagger efforts to dominate the economic life of the South. Respondents rely on a series of statements made during the debates on the Civil Rights Act of 1871, of which § 1985 was a part, Page 463 U. S. 838 indicating that Northern laborers and businessmen who had come from the North had been the targets of Klan conspiracies. Brief for Respondents 42-44. As we understand these remarks, however, the speakers believed that these Northerners were viewed as suspect because they were Republicans and were thought to be sympathetic to Negroes. We do not interpret these parts of the debates as asserting that the Klan had a general animus against either labor or capital, or against persons from other States as such. Nor is it plausible that the Southern Democrats were prejudiced generally against enterprising persons trying to better themselves, even if those enterprising persons were from Northern States. The animus was against Negroes and their sympathizers, and perhaps against Republicans as a class, but not against economic groups as such. Senator Pool, on whose remarks respondents rely, identified what he thought was the heart of the matter:"The truth is that, whenever a northern man, who goes into a southern State, will prove a traitor to the principles which he entertained at home, when he will lend himself to the purposes of the Democracy or be purchased by them, they forget that he is a carpet-bagger and are ready to use him and elevate him to any office within their gift."Cong Globe, 42nd Cong., 1st. Sess., 607 (1871).We thus cannot construe § 1985(3) to reach conspiracies motivated by economic or commercial animus. Were it otherwise, for example, § 1985(3) could be brought to bear on any act of violence resulting from union efforts to organize an employer or from the employer's efforts to resist it, so long as the victim merely asserted and proved that the conduct involved a conspiracy motivated by an animus in favor of unionization, or against it, as the case may be. The National Labor Relations Act, 29 U.S.C. § 151 et seq. (1976 ed. and Supp. V), addresses in great detail the relationship between employer, employee, and union in a great variety of situations, Page 463 U. S. 839 and it would be an unsettling event to rule that strike and picket-line violence must now be considered in the light of the strictures of § 1985(3). Moreover, if anti-union, anti-nonunion, or anti-employer biases represent the kinds of animus that trigger § 1985(3), there would be little basis for concluding that the statute did not provide a cause of action in a variety of other situations where one economic group is pitted against another, each having the intent of injuring or destroying the economic health of the other. We think that such a construction of the statute, which is at best only arguable, and surely not compelled by either its language or legislative history, should be eschewed, and that group actions generally resting on economic motivations should be deemed beyond the reach of § 1985(3). Economic and commercial conflicts, we think, are best dealt with by statutes, federal or state, specifically addressed to such problems, as well as by the general law proscribing injuries to persons and property. If we have misconstrued the intent of the 1871 Congress, or, in any event, if Congress now prefers to take a different tack, the Court will, of course, enforce any statute within the power of Congress to enact.Accordingly, the judgment of the Court of Appeals is Reversed

U.S. Supreme CourtCarpenters v. Scott, 463 U.S. 825 (1983)United Brotherhood of Carpenters & Joiners of America,Local 610, AFL-CIO v. ScottNo. 82-486Argued April 26, 1983Decided July 5, 1983463 U.S. 825SyllabusRespondent construction company hired nonunion workers for a project near Port Arthur, Tex., and a citizen protest against the company's hiring practice was organized at a meeting held by the Executive Committee of the Sabine Area Building and Construction Trades Council. During the protest at the construction site, company employees (including the two individual respondents) were assaulted and beaten, and construction equipment was burned and destroyed. The violence and vandalism delayed construction and led the company to default on its contract. In their action in Federal District Court against petitioners -- the Sabine Area Building and Construction Trades Council and certain local unions and individuals -- respondents asserted that petitioners had conspired to deprive respondents of their legally protected rights, contrary to the provisions of 42 U.S.C. § 1985(3) (1976 ed., Supp. V) making available a cause of action to those injured by conspiracies formed"for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws."The District Court entered judgment for respondents, granting injunctive relief and awarding damages. The Court of Appeals affirmed in pertinent part, holding that the purpose of the conspiracy was to deprive respondents of their First Amendment right not to associate with a union, that for purposes of § 1985(3) it was not necessary to show some state involvement in the infringement of First Amendment rights, and that § 1985(3) reaches conspiracies motivated by political or economic bias as well as those motivated by racial bias, thus including the conspiracy to harm the nonunion employees of the nonunion contractor.Held: An alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is proved that the State is involved in the conspiracy or the aim of the conspiracy is to influence the activity of the State. Moreover, the kind of animus that § 1985(3) requires is not present in this case. Pp. 463 U. S. 830-839.(a) Griffin v. Breckenridge, 403 U. S. 88, upheld the application of § 1985(3) to purely private conspiracies aimed at interfering with rights Page 463 U. S. 826 constitutionally protected against private as well as official encroachment, such as the rights involved in that case -- the right to travel and Thirteenth Amendment rights. However, Griffin did not hold or declare that, when the alleged conspiracy is aimed at a right that is, by definition, only a right against state interference, such as First and Fourteenth Amendment rights, the plaintiff in a § 1985(3) suit nevertheless need not prove that the conspiracy contemplated state involvement of some sort. Pp. 463 U. S. 831-834.(b) The language and legislative history of § 1985(3) establish that it requires "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin, supra, at 403 U. S. 102. Pp. 463 U. S. 834-835.(c) Though the predominant purpose of § 1985(3) was to combat the then-prevalent animus against Negroes and their supporters, it is not necessary to determine here whether § 1985(3) must be construed to reach only cases involving racial bias. Pp. 463 U. S. 835-837.(d) Even if it is assumed that § 1985(3) is to be construed to reach conspiracies aimed at any class or organization on account of its political views or activities, the provision does not reach conspiracies motivated by bias towards others on account of their economic views, status, or activities. Neither the language nor the legislative history of § 1985(3) compels a construction that would include group action resting on economic or commercial animus, such as animus in favor of or against unionization. Pp. 463 U. S. 837-839.680 F.2d 979, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST and STEVENS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and O'CONNOR, JJ., joined,post, p. 463 U. S. 839. Page 463 U. S. 827

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provides that a sentence imposed under that statute "shall [not] ... run concurrently with any other term of imprisonment." We hold that it may not.IRespondents were arrested in a drug sting operation during which two of them pulled guns on undercover police officers. All three were convicted in New Mexico courts on charges arising from the holdup. The state courts sentenced them to prison terms ranging from 13 to 17 years. After they began to serve their state sentences, respondents were convicted in federal court of committing various drug offenses connected to the sting operation, and conspiring to do so, in violation of 21 U. s. C. §§ 841 and 846. They were also convicted of using firearms during and in relation to those drug trafficking crimes, in violation of 18 U. s. C. § 924(c). Respondents received sentences ranging from 120 to 147 months in prison, of which 60 months reflected the mandatory sentence required for their firearms convictions. Pursuant to § 924(c), the District Court ordered that the portion of respondents' federal sentences attributable to the drug convictions run concurrently with their state sentences, with the remaining 60 months due to the firearms offenses to run consecutively to both.The Court of Appeals for the Tenth Circuit vacated respondents' sentences for the firearms violations, on the ground that the § 924(c) sentences should have run concurrently with the state prison terms. 65 F.3d 814 (1995). (The court also vacated respondents' substantive drug convictions and dealt with various other sentencing issues not before us.) Although the Court of Appeals recognized that other Circuits had uniformly "held that § 924(c)'s plain language prohibits sentences imposed under that statute from running concurrently with state sentences," it nevertheless thought that "a literal reading of the statutory language would produce an absurd result." Id., at 819. Feeling4obliged to "venture into the thicket of legislative history," id., at 820 (citations and internal quotation marks omitted), the court found a line in a Senate Committee Report indicating that" 'the mandatory sentence under the revised subsection 924(c) [should] be served prior to the start of the sentence for the underlying or any other offense,'" ibid. (quoting S. Rep. No. 98-225, pp. 313-314 (1983) (hereinafter S. Rep.)) (emphasis deleted). If this statement were applied literally, respondents would have to serve first their state sentences, then their 5-year federal firearms sentences, and finally the sentences for their narcotics convictions-even though the narcotics sentences normally would have run concurrently with the state sentences, since they all arose out of the same criminal activity. 65 F. 3d, at 821. To avoid this irrational result, the court held that "§ 924(c)'s mandatory five-year sentence may run concurrently with a previously imposed state sentence that a defendant has already begun to serve." Id., at 819.We granted certiorari, 518 U. S. 1003, and now vacate and remand.IIOur analysis begins, as always, with the statutory text.Section 924(c)(1) provides:"Whoever, during and in relation to any ... drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime ... , be sentenced to imprisonment for five years .... 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, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the ... drug trafficking crime in which the firearm was used or carried." 18 U. S. C. § 924(c)(1) (emphasis added).5The question we face is whether the phrase "any other term of imprisonment" "means what it says, or whether it should be limited to some subset" of prison sentences, Maine v. Thiboutot, 448 U. S. 1, 4 (1980)-namely, only federal sentences. Read naturally, the word "any" has an expansive meaning, that is, "one or some indiscriminately of whatever kind." Webster's Third New International Dictionary 97 (1976). Congress did not add any language limiting the breadth of that word, and so we must read § 924(c) as referring to all "term[s] of imprisonment," including those imposed by state courts. Cf. United States v. AlvarezSanchez, 511 U. S. 350, 358 (1994) (noting that statute referring to "any law enforcement officer" includes "federal, state, or local" officers); Collector v. Hubbard, 12 Wall. 1, 15 (1871) (stating "it is quite clear" that a statute prohibiting the filing of suit "in any court" "includes the State courts as well as the Federal courts," because "there is not a word in the [statute] tending to show that the words 'in any court' are not used in their ordinary sense"). There is no basis in the text for limiting § 924(c) to federal sentences.In his dissenting opinion, JUSTICE STEVENS suggests that the word "any" as used in the first sentence of § 924(c) "unquestionably has the meaning 'any federal.'" Post, at 14. In that first sentence, however, Congress explicitly limited the scope of the phrase "any crime of violence or drug trafficking crime" to those "for which [a defendant] may be prosecuted in a court of the United States." Given that Congress expressly limited the phrase "any crime" to only federal crimes, we find it significant that no similar restriction modifies the phrase "any other term of imprisonment," which appears only two sentences later and is at issue in this case. See Russello v. United States, 464 U. S. 16, 23 (1983) (" 'Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion' ").6The Court of Appeals also found ambiguity in Congress' decision, in drafting § 924(c), to prohibit concurrent sentences instead of simply mandating consecutive sentences. 65 F. 3d, at 820. Unlike the lower court, however, we see nothing remarkable (much less ambiguous) about Congress' choice of words. Because consecutive and concurrent sentences are exact opposites, Congress implicitly required one when it prohibited the other. This "ambiguity" is, in any event, beside the point because this phraseology has no bearing on whether Congress meant § 924(c) sentences to run consecutively only to other federal terms of imprisonment.Given the straightforward statutory command, there is no reason to resort to legislative history. Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254 (1992). Indeed, far from clarifying the statute, the legislative history only muddies the waters. The excerpt from the Senate Report accompanying the 1984 amendment to § 924(c), relied upon by the Court of Appeals, reads:"[T]he Committee intends that the mandatory sentence under the revised subsection 924(c) be served prior to the start of the sentence for the underlying or any other offense." S. Rep., at 313-314.This snippet of legislative history injects into § 924(c) an entirely new idea-that a defendant must serve the 5-year prison term for his firearms conviction before any other sentences. This added requirement, however, is "in no way anchored in the text of the statute." Shannon v. United States, 512 U. S. 573, 583 (1994).The Court of Appeals was troubled that this rule might lead to irrational results. Normally, a district court has authority to decide whether federal prison terms should run concurrently with or consecutively to other prison sentences. 18 U. S. C. § 3584(a) (vesting power in district court to run most prison terms either concurrently or consecutively); United States Sentencing Commission, Guidelines Manual7§ 5G1.3 (Nov. 1995) (USSG) (guiding court's discretion under § 3584(a)). If the prison terms for respondents' other federal sentences could not begin until after their § 924(c) terms were completed, however, the District Court would effectively be stripped of its statutory power to decide whether the sentences for the underlying narcotics offenses should run concurrently with respondents' state terms of imprisonment. 65 F. 3d, at 822. The court observed that such a rule could lead to dramatically higher sentences, particularly for the respondents in this case. Perez, for example, is already serving a 17 -year state prison term for his role in the holdup. Normally, his 7.25-year federal sentence for narcotics possession would run concurrently with that state term under USSG § 5G1.3(b); his 5-year firearm sentence under § 924(c) would follow both, for a total of 22 years in prison. If he must serve his federal narcotics sentence after his 5-year firearms sentence, however, he would face a total of 29.25 years in prison. 65 F. 3d, at 821.Seeking to avoid this conflict between § 924(c) (as reinterpreted in light of its legislative history) and § 3584(a), the Court of Appeals held that § 924(c) only prohibited running federal terms of imprisonment concurrently. Ibid. It also reasoned that such a narrow reading was necessary because "there is no way in which a later-sentencing federal court can cause the mandatory 5-year § 924(c) sentence to be served before a state sentence that is already being served." Ibid.We see three flaws in this reasoning. First, the statutory texts of §§ 924(c) and 3584(a), unvarnished by legislative history, are entirely consistent. Section 924 (c) specifies only that a court must not run a firearms sentence concurrently with other prison terms. It leaves plenty of room for a court to run other sentences-whether for state or federal offenses-concurrently with one another pursuant to § 3584(a) and USSG § 5G 1.3. The statutes clash only if we engraft onto § 924(c) a requirement found only in a single8sentence buried in the legislative history: that the firearms sentence must run first. We therefore follow the text, rather than the legislative history, of § 924(c). By disregarding the suggestion that a district court must specify that a sentence for a firearms conviction be served before other sentences, we give full meaning to the texts of both §§ 924(c) and 3584(a). See United States v. Wiltberger, 5 Wheat. 76, 95-96 (1820) (Marshall, C. J.) ("Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words ... in search of an intention which the words themselves did not suggest").Second, even if we ignored the plain language of § 924(c) and required courts to list the order in which a defendant must serve the sentences for different convictions, we would thereby create a rule that is superfluous in light of § 3584(c). That statute instructs the Bureau of Prisons to treat multiple terms of imprisonment, whether imposed concurrently or consecutively, "for administrative purposes as a single, aggregate term of imprisonment." Ibid. As a practical matter, then, it makes no difference whether a court specifies the sequence in which each portion of an aggregate sentence must be served. We will not impose on sentencing courts new duties that, in view of other statutory commands, will be effectively meaningless.Third, the Court of Appeals' solution-to allow § 924(c) prison terms to run concurrently with state sentences-does not eliminate any anomaly that arises when a firearms sentence must run "first." Although it is clear that a prison term under § 924(c) cannot possibly run before an earlier imposed state prison term, the same holds true when a prisoner is already serving a federal sentence. See § 3585(a) (providing that a federal prison term commences when the defendant is received into custody or voluntarily arrives to begin serving the sentence). Because it is impossible to start a9§ 924(c) sentence before any prison term that the prisoner is already serving, whether imposed by a state or federal court, limiting the phrase "any other term of imprisonment" to state sentences does not get rid of the problem. Thus, we think that the Court of Appeals both invented the problem and devised the wrong solution.JUSTICE BREYER questions, in dissent, whether Congress wanted to impose a § 924(c) sentence on a defendant who is already serving a prison term pursuant to a virtually identical state sentencing enhancement statute. Post, at 15. A federal court could not (for double jeopardy reasons) sentence a person to two consecutive federal prison terms for a single violation of a federal criminal statute, such as § 924(c). If Congress cannot impose two consecutive federal § 924(c) sentences, the dissent argues, it is unlikely that Congress would have wanted to stack a § 924(c) sentence onto a prison term under a virtually identical state firearms enhancement. Ibid.As we have already observed, however, the straightforward language of § 924(c) leaves no room to speculate about congressional intent. See supra, at 4-5. The statute speaks of "any term of imprisonment" without limitation, and there is no intimation that Congress meant § 924(c) sentences to run consecutively only to certain types of prison terms. District courts have some discretion under the Sentencing Guidelines, of course, in cases where related offenses are prosecuted in multiple proceedings, to establish sentences "with an eye toward having such punishments approximate the total penalty that would have been imposed had the sentences for the different offenses been imposed at the same time .... " Witte v. United States, 515 U. S. 389, 404 (1995) (discussing USSG § 5G1.3). See post, at 14-15 (BREYER, J., dissenting). When Congress enacted § 924(c)'s consecutive-sentencing provision, however, it cabined the sentencing discretion of district courts in a single circumstance: When a defendant violates § 924(c), his sentencing en-10hancement under that statute must run consecutively to all other prison terms. Given this clear legislative directive, it is not for the courts to carve out statutory exceptions based on judicial perceptions of good sentencing policy.Other language in § 924(c) reinforces our conclusion. In 1984, Congress amended § 924(c) so that its sentencing enhancement would apply regardless of whether the underlying felony statute "provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device." Comprehensive Crime Control Act of 1984, Pub. L. 98-473, § 1005(a), 98 Stat. 2138-2139. Congress thus repudiated the result we reached in Busic v. United States, 446 U. S. 398 (1980), in which we held that "prosecution and enhanced sentencing under § 924(c) is simply not permissible where the predicate felony statute contains its own enhancement provision," irrespective of whether the Government had actually sought an enhancement under that predicate statute. Id., at 404; see also Simpson v. United States, 435 U. S. 6, 15 (1978) (holding that a federal court may not impose sentences under both § 924(c) and the weapon enhancement under the armed bank robbery statute, 18 U. S. C. § 2113, based on a single criminal transaction). Our holdings in these cases were based on our conclusion that the unamended text of § 924(c) left us with little "more than a guess" as to how Congress meant to mesh that statute with the sentencing enhancement provisions scattered throughout the federal criminal code. Simpson, supra, at 15; Busic, supra, at 405. The 1984 amendment, however, eliminated these ambiguities. At that point, Congress made clear its desire to run § 924(c) enhancements consecutively to all other prison terms, regardless of whether they were imposed under firearms enhancement statutes similar to § 924(c). We therefore cannot agree with JUSTICE BREYER'S contention that our interpretation of § 924(c) distinguishes between "those subject to undischarged state, and those subject to11undischarged federal, sentences." Post, at 16. Both sorts of defendants face sentences for their other convictions that run concurrently with or consecutively to each other according to normal sentencing principles, plus an enhancement under § 924(c). In short, in light of the 1984 amendment, we think that Congress has foreclosed the dissent's argument that § 924(c) covers only federal sentences.Finally, we pause to comment on JUSTICE STEVENS' concern over how today's decision might affect other cases where "the state trial follows the federal trial and the state judge imposes a concurrent sentence" that might be viewed as inconsistent with § 924(c). Post, at 12. That, of course, was not the sequence in which the respondents were sentenced in this case, and so we have no occasion to decide whether a later sentencing state court is bound to order its sentence to run consecutively to the § 924(c) term of imprisonment. See ibid. All that is before us today is the authority of a later sentencing federal court to impose a consecutive sentence under § 924(c). We are hesitant to reach beyond the facts of this case to decide a question that is not squarely presented for our review.IIIIn sum, we hold that the plain language of 18 U. S. C. § 924(c) forbids a federal district court to direct that a term of imprisonment under that statute run concurrently with any other term of imprisonment, whether state or federal. The statute does not, however, limit the court's authority to order that other federal sentences run concurrently with or consecutively to other prison terms-state or federalunder § 3584.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

CASES ADJUDGEDIN THESUPREME COURT OF THE UNITED STATESATOCTOBER TERM, 1996SyllabusUNITED STATES v. GONZALES ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo. 95-1605. Argued December 11, 1996-Decided March 3,1997All three respondents were convicted in New Mexico courts and sentenced to prison terms on state charges arising from the use of guns by two of them to hold up undercover officers during a drug sting operation. After they began to serve their state sentences, respondents were convicted on various drug and related federal charges connected to the sting operation, and of using firearms during those crimes in violation of 18 U. S. C. § 924(c). In ordering their imprisonment, the District Court directed that the portion of their federal sentences attributable to the drug convictions run concurrently with their state sentences, with the remaining 60-month sentences required by § 924(c) to run consecutively to both. Among other rulings, the Tenth Circuit vacated the firearms sentences on the ground that they should have run concurrently with the state prison terms. The court found § 924(c)'s language to be ambiguous, resorted to the legislative history, and held that a § 924(c) sentence may run concurrently with a previously imposed, already operational state sentence, but not with another federal sentence.Held: Section § 924(c)'s plain language-i. e., "the sentence ... under this subsection [shall not] run concurrently with any other term of imprisonment" (emphasis added)-forbids a federal district court to direct that the section's mandatory 5-year firearms sentence run concurrently with any other prison term, whether state or federal. Read naturally, the section's word "any" has an expansive meaning that is not limited to federal sentences, and so must be interpreted as referring to all "term[s]2of imprisonment," including those imposed by state courts. Cf., e. g., United States v. Alvarez-Sanchez, 511 U. S. 350, 358. Unlike the Tenth Circuit, this Court sees nothing remarkable (much less ambiguous) about Congress' decision, in drafting § 924(c), to prohibit concurrent sentences instead of simply mandating consecutive ones. Moreover, given the straightforward statutory command, there is no reason to resort to legislative history. Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254. Indeed, the legislative history excerpt relied upon by the Tenth Circuit only muddies the waters. Contrary to that court's interpretation, § 924(c)'s prohibition applies only to the section's mandatory firearms sentence, and does not limit a district court's normal authority under § 3584(a) to order that other federal sentences run concurrently with or consecutively to other state or federal prison terms. pp.4-11.65 F.3d 814, vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined, post, p. 12. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 14.Miguel A. Estrada argued the cause for the United States.With him on the briefs were Acting Solicitor General Dell inger, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.Edward Bustamante, by appointment of the Court, 519 U. S. 804, argued the cause for respondents. With him on the brief were Angela Arellanes, by appointment of the Court, 519 U. S. 804, Roberto Albertorio, by appointment of the Court, 519 U. S. 962, and Carter G. Phillips.*JUSTICE O'CONNOR delivered the opinion of the Court. We are asked to decide whether a federal court may direct that a prison sentence under 18 U. S. C. § 924(c) run concurrently with a state-imposed sentence, even though § 924(c)* Leah J. Prewitt, Jeffrey J. Pokorak, Placido G. Gomez, and Barbara Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.3Full Text of Opinion

1982_81-1945

JUSTICE WHITE delivered the opinion of the Court.The turning of swords into plowshares has symbolized the transformation of atomic power into a source of energy in Page 461 U. S. 194 American society. To facilitate this development, the Federal Government relaxed its monopoly over fissionable materials and nuclear technology and, in its place, erected a complex scheme to promote the civilian development of nuclear energy while seeking to safeguard the public and the environment from the unpredictable risks of a new technology. Early on it was decided that the States would continue their traditional role in the regulation of electricity production. The interrelationship of federal and state authority in the nuclear energy field has not been simple; the federal regulatory structure has been frequently amended to optimize the partnership.This case emerges from the intersection of the Federal Government's efforts to ensure that nuclear power is safe with the exercise of the historic state authority over the generation and sale of electricity. At issue is whether provisions in the 1976 amendments to California's Warren-Alquist Act, Cal.Pub.Res.Code Ann. §§ 25524.1(b) and 25524.2 (West 1977), which condition the construction of nuclear plants on findings by the State Energy Resources Conservation and Development Commission that adequate storage facilities and means of disposal are available for nuclear waste, Page 461 U. S. 195 are preempted by the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. § 2011 et seq.IA nuclear reactor must be periodically refueled and the "spent fuel" removed. This spent fuel is intensely radioactive, and must be carefully stored. The general practice is to store the fuel in a water-filled pool at the reactor site. For many years, it was assumed that this fuel would be reprocessed; accordingly, the storage pools were designed as short-term holding facilities with limited storage capacities. As expectations for reprocessing remained unfulfilled, the spent fuel accumulated in the storage pools, creating the risk that nuclear reactors would have to be shut down. This could occur if there were insufficient room in the pool to store spent fuel and also if there were not enough space to hold the entire fuel core when certain inspections or emergencies required unloading of the reactor. In recent years, the problem has taken on special urgency. Some 8,000 metric tons of spent nuclear fuel have already accumulated, and it is projected that, by the year 2000, there will be some 72,000 metric tons of spent fuel. [Footnote 1] Government studies indicate that a number of reactors could be forced to shut down in the near future due to the inability to store spent fuel. [Footnote 2] Page 461 U. S. 196There is a second dimension to the problem. Even with water pools adequate to store safely all the spent fuel produced during the working lifetime of the reactor, permanent disposal is needed because the wastes will remain radioactive for thousands of years. [Footnote 3] A number of long-term nuclear waste management strategies have been extensively examined. These range from sinking the wastes in stable deep seabeds, to placing the wastes beneath ice sheets in Greenland and Antarctica, to ejecting the wastes into space by rocket. The greatest attention has been focused on disposing of the wastes in subsurface geologic repositories such as salt deposits. [Footnote 4] Problems of how and where to store nuclear wastes has engendered considerable scientific, political, and public debate. There are both safety and economic aspects to the nuclear waste issue: first, if not properly stored, nuclear wastes might leak and endanger both the environment and human health; [Footnote 5] second, the lack of a long-term disposal option increases the risk that the insufficiency of interim storage space for spent fuel will lead to reactor shutdowns, Page 461 U. S. 197 rendering nuclear energy an unpredictable and uneconomical adventure. [Footnote 6]The California laws at issue here are responses to these concerns. In 1974, California adopted the Warren-Alquist State Energy Resources Conservation and Development Act, Cal.Pub.Res.Code Ann. 25000-25986 (West 1977 and Supp.1983). The Act requires that a utility seeking to build in California any electric power generating plant, including a nuclear powerplant, must apply for certification to the State Energy Resources Conservation and Development Commission (Energy Commission). [Footnote 7] The Warren-Alquist Act was amended in 1976 to provide additional state regulation of new nuclear powerplant construction.Two sections of these amendments are before us. Section 25524.1(b) provides that, before additional nuclear plants may be built, the Energy Commission must determine on a case-by-case basis that there will be "adequate capacity" for storage of a plant's spent fuel rods "at the time such nuclear facility requires such . . . storage." The law also requires that each utility provide continuous, on-site, "full core reserve storage capacity" in order to permit storage of the entire reactor Page 461 U. S. 198 core if it must be removed to permit repairs of the reactor. In short, § 25524.1(b) addresses the interim storage of spent fuel.Section 25524.2 deals with the long-term solution to nuclear wastes. This section imposes a moratorium on the certification of new nuclear plants until the Energy Commission"finds that there has been developed and that the United States through its authorized agency has approved and there exists a demonstrated technology or means for the disposal of high-level nuclear waste.""Disposal" is defined as a "method for the permanent and terminal disposition of high-level nuclear waste. . . ." §§ 25524.2(a), (c). Such a finding must be reported to the state legislature, which may nullify it. [Footnote 8]In 1978, petitioners Pacific Gas & Electric Co. and Southern California Edison Co. filed this action in the United States District Court, requesting a declaration that numerous provisions of the Warren-Alquist Act, including the two sections challenged here, are invalid under the Supremacy Clause because they are preempted by the Atomic Energy Act. The District Court held that petitioners had standing to challenge §§ 25524.1(b) and 25524.2, [Footnote 9] that the issues presented by these two statutes are ripe for adjudication, and that the two provisions are void because they are preempted by and in conflict with the Atomic Energy Act. 489 F. Supp. 699 (ED Cal.1980). Page 461 U. S. 199The Court of Appeals for the Ninth Circuit affirmed the District Court's ruling that the petitioners have standing to challenge the California statutes, and also agreed that the challenge to § 25524.2 is ripe for review. It concluded, however, that the challenge to § 25524.1(b) was not ripe "[b]ecause we cannot know whether the Energy Commission will ever find a nuclear plant's storage capacity to be inadequate. . . ." 659 F.2d 903, 918 (1981). [Footnote 10] On the merits, the court held that the nuclear moratorium provisions of § 25524.2 were not preempted because §§ 271 and 274(k) of the Atomic Energy Act, 42 U.S.C. §§ 2018 and 2021(k), constitute a congressional authorization for States to regulate nuclear powerplants "for purposes other than protection against radiation hazards." [Footnote 11] The court held that § 25524.2 was not designed to provide protection against radiation hazards, but Page 461 U. S. 200 was adopted because "uncertainties in the nuclear fuel cycle make nuclear power an uneconomical and uncertain source of energy." 659 F.2d at 925. Nor was the provision invalid as a barrier to fulfillment of the federal goal of encouraging the development of atomic energy. The granting of state authority in §§ 271 and 274(k), combined with recent federal enactments, demonstrated that Congress did not intend that nuclear power be developed "at all costs," but only that it proceed consistent with other priorities and subject to controls traditionally exercised by the States and expressly preserved by the federal statute. [Footnote 12]We granted certiorari limited to the questions of whether §§ 25524.1(b) and 25524.2 are ripe for judicial review, and whether they are preempted by the Atomic Energy Act. 457 U.S. 1132 (1982).IIWe agree that the challenge to § 25524.2 is ripe for judicial review, but that the questions concerning § 25524.1(b) are not. The basic rationale of the ripeness doctrine"is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."Abbott Laboratories v. Gardner, 387 Page 461 U. S. 201 U.S. 136, 387 U. S. 148-149 (1967). In Abbott Laboratories, which remains our leading discussion of the doctrine, we indicated that the question of ripeness turns on "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration." Id. at 387 U. S. 149.Both of these factors counsel in favor of finding the challenge to the waste disposal regulations in § 25524.2 ripe for adjudication. The question of preemption is predominantly legal, and although it would be useful to have the benefit of California's interpretation of what constitutes a demonstrated technology or means for the disposal of high-level nuclear waste, resolution of the preemption issue need not await that development. Moreover, postponement of decision would likely work substantial hardship on the utilities. As the Court of Appeals cogently reasoned, for the utilities to proceed in hopes that, when the time for certification came, either the required findings would be made or the law would be struck down requires the expenditures of millions of dollars over a number of years, without any certainty of recovery if certification were denied. [Footnote 13] The construction of new nuclear facilities requires considerable advance planning -- on the order of 12 to 14 years. [Footnote 14] Thus, as in the Rail Reorganization Act Cases, 419 U. S. 102, 419 U.S. 144 (1974), "decisions to be made now or in the short future may be affected" by whether we act. "One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.'" Id. at 419 U. S. 143, quoting Pennsylvania v. West Virginia, 262 U. S. 553, 262 U. S. 593 (1923). To require the industry to proceed without knowing whether the moratorium is valid would impose a palpable Page 461 U. S. 202 and considerable hardship on the utilities, and may ultimately work harm on the citizens of California. Moreover, if petitioners are correct that § 25524.2 is void because it hinders the commercial development of atomic energy, "delayed resolution would frustrate one of the key purposes of the [Atomic Energy] Act." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 438 U. S. 82 (1978). For these reasons, the issue of whether § 25524.2 is preempted by federal law should be decided now. [Footnote 15] Page 461 U. S. 203Questions concerning the constitutionality of the interim storage provision, § 25524.1(b), however, are not ripe for review. While the waste disposal statute operates on a statewide basis, the Energy Commission is directed to make determinations under § 25524.1(b) on a case-by-case basis. As the Court of Appeals explained, because "we cannot know whether the Energy Commission will ever find a nuclear plant's storage capacity to be inadequate," judicial consideration of this provision should await further developments. [Footnote 16] Furthermore, because we hold today that § 25524.2 is not preempted by federal law, there is little likelihood that industry behavior would be uniquely affected by whatever uncertainty surrounds the interim storage provisions. In these circumstances, a court should not stretch to reach an early, and perhaps premature, decision respecting § 25524.1(b).IIIIt is well established that, within constitutional limits, Congress may preempt state authority by so stating in express terms. Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525 (1977). Absent explicit preemptive language, Congress' intent Page 461 U. S. 204 to supersede state law altogether may be found from a"'scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' because 'the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,' or because 'the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.'"Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 458 U. S. 153 (1982), quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). Even where Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941).Petitioners, the United States, and supporting amici, present three major lines of argument as to why § 25524.2 is preempted. First, they submit that the statute -- because it regulates construction of nuclear plants and because it is allegedly predicated on safety concerns -- ignores the division between federal and state authority created by the Atomic Energy Act, and falls within the field that the Federal Government has preserved for its own exclusive control. Second, the statute, and the judgments that underlie it, conflict with decisions concerning the nuclear waste disposal issue made by Congress and the Nuclear Regulatory Commission. Third, the California statute frustrates the federal goal of developing nuclear technology as a source of energy. We consider each of these contentions in turn. Page 461 U. S. 205AEven a brief perusal of the Atomic Energy Act reveals that, despite its comprehensiveness, it does not at any point expressly require the States to construct or authorize nuclear powerplants or prohibit the States from deciding, as an absolute or conditional matter, not to permit the construction of any further reactors. Instead, petitioners argue that the Act is intended to preserve the Federal Government as the sole regulator of all matters nuclear, and that § 25524.2 falls within the scope of this impliedly preempted field. But as we view the issue, Congress, in passing the 1954 Act and in subsequently amending it, intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns.Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States. Justice Brandeis once observed that the "franchise to operate a public utility . . . is a special privilege which . . may be granted or withheld at the pleasure of the State." Frost v. Corporation Comm'n, 278 U. S. 515, 278 U. S. 534 (1929) (dissenting opinion)."The nature of government regulation of private utilities is such that a utility may frequently be required by the state regulatory scheme to obtain approval for practices a business regulated in less detail would be free to institute without any approval from a regulatory body."Jackson v. Metropolitan Edison Co., 419 U. S. 345, 419 U. S. 357 (1974). See Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557, 447 U. S. 569 (1980) ("The State's concern that rates be fair and efficient represents a clear and substantial governmental interest"). With the exception of the broad authority of the Page 461 U. S. 206 Federal Power Commission, now the Federal Energy Regulatory Commission, over the need for and pricing of electrical power transmitted in interstate commerce, see Federal Power Act, 16 U.S.C. § 824 (1976 ed. and Supp. V), these economic aspects of electrical generation have been regulated for many years and in great detail by the States. [Footnote 17] As we noted in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 435 U. S. 550 (1978):"There is little doubt that, under the Atomic Energy Act of 1954, state public utility commissions or similar bodies are empowered to make the initial decision regarding the need for power."Thus,"Congress legislated here in a field which the States have traditionally occupied. . . . So 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."Rice v. Santa Fe Elevator Corp., supra, at 331 U. S. 230.The Atomic Energy Act must be read, however, against another background. Enrico Fermi demonstrated the first nuclear reactor in 1942, and Congress authorized civilian application of atomic power in 1946, Atomic Energy Act of 1946, see Act of Aug. 1, 1946, 60 Stat. 755, at which time the Atomic Energy Commission (AEC) was created. Until 1954, however, the use, control, and ownership of nuclear technology remained a federal monopoly. The Atomic Energy Act of 1954, Act of Aug. 30, 1954, 68 Stat. 919, as Page 461 U. S. 207 amended, 42 U.S.C. § 2011 et seq. (1976 ed. and Supp. V), grew out of Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing. See H.R.Rep. No. 2181, 83d Cong., 2d Sess., 1-11 (1954). The Act implemented this policy decision by providing for licensing of private construction, ownership, and operation of commercial nuclear power reactors. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 438 U. S. 63. The AEC, however, was given exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession, and use of nuclear materials. 42 U.S.C. §§ 2014(e), (z), (aa), 2061-2064, 2071-2078, 2091-2099, 2111-2114 (1976 ed. and Supp. V). Upon these subjects, no role was left for the States.The Commission, however, was not given authority over the generation of electricity itself, or over the economic question whether a particular plant should be built. We observed in Vermont Yankee, supra, at 435 U. S. 550, that "[t]he Commission's prime area of concern in the licensing context, . . . is national security, public health, and safety." See also Power Reactor Development Co. v. Electrical Workers, 367 U. S. 396, 367 U. S. 415 (1961) (utility's investment not to be considered by Commission in its licensing decisions). The Nuclear Regulatory Commission (NRC), which now exercises the AEC's regulatory authority, does not purport to exercise its authority based on economic considerations, 10 CFR § 8.4 (1982), and has recently repealed its regulations concerning the financial qualifications and capabilities of a utility proposing to construct and operate a nuclear powerplant. 47 Fed.Reg. 13751 (1982). In its notice of rule repeal, the NRC stated that utility financial qualifications are only of concern to the NRC if related to the public health and safety. [Footnote 18] It is Page 461 U. S. 208 almost inconceivable that Congress would have left a regulatory vacuum; the only reasonable inference is that Congress intended the States to continue to make these judgments. Any doubt that ratemaking and plant-need questions were to remain in state hands was removed by § 271, 42 U.S.C. § 2018, which provided:"Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission. . . ."The legislative Reports accompanying this provision do little more than restate the statutory language, S.Rep. No. 1699, 83d Cong., 2d Sess., 31 (1954); H.R.Rep. No. 2181, supra, at 31, but statements on the floor of Congress confirm that. while the safety of nuclear technology was the exclusive business of the Federal Government, state power over the production of electricity was not otherwise displaced. [Footnote 19]The 1959 amendments reinforced this fundamental division of authority. In 1959, Congress amended the Atomic Energy Act in order to"clarify the respective responsibilities Page 461 U. S. 209 . . . of the States and the Commission with respect to the regulation of byproduct, source, and special nuclear materials."42 U.S.C. § 2021(a)(1). See S.Rep. No. 870, 86th Cong., 1st Sess., 8, 10-12 (1959). The authority of the States over the planning for new powerplants and ratemaking were not at issue. Indeed, the point of the 1959 Amendments was to heighten the States' role. Section 274(b), 42 U.S.C. § 2021(b), authorized the NRC, by agreements with state governors to discontinue its regulatory authority over certain nuclear materials under limited conditions. [Footnote 20] State programs permitted under the amendment were required to be "coordinated and compatible" with that of the NRC. § 2021(g); S.Rep. No. 870, supra, at 11. The subject matters of those agreements were also limited by § 274(c), 42 U.S.C. § 2021(c), which states:"[T]he Commission shall retain authority and responsibility with respect to regulation of -- ""(1) the construction and operation of any production or utilization facility;"* * * *"(4) the disposal of such . . . byproduct, source, or special nuclear material as the Commission determines . . . should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission."Although the authority reserved by § 274(c) was exclusively for the Commission to exercise, see S.Rep. No. 870, supra, at 8, 9; H.R.Rep. No. 1125, 86th Cong., 1st Sess., 8, 9 (1959), Congress made clear that the section was not intended to cut back on preexisting state authority outside the Page 461 U. S. 210 NRC's jurisdiction. [Footnote 21] Section 274(k), 42 U.S.C. § 2021(k), states:"Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards."Section 274(k), by itself, limits only the preemptive effect of "this section," that is, § 274, and does not represent an affirmative grant of power to the States. But Congress, by permitting regulation "for purposes other than protection against radiation hazards," underscored the distinction drawn in 1954 between the spheres of activity left respectively to the Federal Government and the States.This regulatory structure has remained unchanged, for our purposes, until 1965, when the following proviso was added to § 271:"Provided, that this section shall not be deemed to confer upon any Federal, State or local agency any authority to regulate, control, or restrict any activities of the Commission."The accompanying Report by the Joint Committee on Atomic Energy makes clear that the amendment was not intended to detract from state authority over energy facilities. [Footnote 22] Instead, Page 461 U. S. 211 the proviso was added to overrule a Court of Appeals opinion which interpreted § 271 to allow a municipality to prohibit transmission lines necessary for the AEC's own activities. Maun v. United States, 347 F.2d 970 (CA9 1965). There is no indication that Congress intended any broader limitation of state regulatory power over utility companies. Indeed, Reports and debates accompanying the 1965 amendment indicate that § 271's purpose"was to make it absolutely clear that the Atomic Energy Act's special provisions on licensing of reactors did not disturb the status quo with respect to the then-existing authority of Federal, State, and local bodies to regulate generation, sale, or transmission of electric power."111 Cong.Rec.19822 (1965) (statement of Sen. Hickenlooper). [Footnote 23]This account indicates that, from the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of Page 461 U. S. 212 nuclear powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation; the States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like. [Footnote 24]The above is not particularly controversial. But deciding how § 25524.2 is to be construed and classified is a more difficult proposition. At the outset, we emphasize that the statute does not seek to regulate the construction or operation of a nuclear powerplant. It would clearly be impermissible for California to attempt to do so, for such regulation, even if enacted out of nonsafety concerns, would nevertheless directly conflict with the NRC's exclusive authority over plant construction and operation. Respondents appear to concede as much. Respondents do broadly argue, however, that although safety regulation of nuclear plants by States is forbidden, a State may completely prohibit new construction until its safety concerns are satisfied by the Federal Government. We reject this line of reasoning. State safety regulation is not preempted only when it conflicts with federal law. Rather, the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States. [Footnote 25] When the Federal Government Page 461 U. S. 213 completely occupies a given field or an identifiable portion of it, as it has done here, the test of preemption is whether "the matter on which the State asserts the right to act is in any way regulated by the Federal Act." Rice v. Santa Fe Elevator Corp., 331 U.S. at 331 U. S. 236. A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field. Moreover, a state judgment that nuclear power is not safe enough to be further developed would conflict directly with the countervailing judgment of the NRC, see infra at 461 U. S. 218-219, that nuclear construction may proceed notwithstanding extant uncertainties as to waste disposal. A state prohibition on nuclear construction for safety reasons would also be in the teeth of the Atomic Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use -- and would be preempted for that reason. Infra at 461 U. S. 221-222.That being the case, it is necessary to determine whether there is a nonsafety rationale for § 25524.2. California has maintained, and the Court of Appeals agreed, that § 25524.2 was aimed at economic problems, not radiation hazards. The California Assembly Committee on Resources, Land Use, and Energy, which proposed a package of bills including § 25524.2, reported that the waste disposal problem was "largely economic or the result of poor planning, not safety related." Reassessment of Nuclear Energy in California: A Policy Analysis of Proposition 15 and its Alternatives, p. 18 (1976) (Reassessment Report) (emphasis in original). The Committee explained that the lack of a federally approved method of waste disposal created a "clog" in the nuclear fuel cycle. Storage space was limited, while more nuclear wastes were continuously produced. Without a permanent means of disposal, the nuclear waste problem could become critical, Page 461 U. S. 214 leading to unpredictably high costs to contain the problem or, worse, shutdowns in reactors. "Waste disposal safety," the Reassessment Report notes,"is not directly addressed by the bills, which ask only that a method [of waste disposal] be chosen and accepted by the federal government."Id. at 156 (emphasis in original).The Court of Appeals adopted this reading of § 25524.2. Relying on the Reassessment Report, the court concluded:"[S]ection 25524.2 is directed towards purposes other than protection against radiation hazards. While Proposition 15 would have required California to judge the safety of a proposed method of waste disposal, section 25524.2 leaves that judgment to the federal government. California is concerned not with the adequacy of the method, but rather with its existence."659 F.2d at 925.Our general practice is to place considerable confidence in the interpretations of state law reached by the federal courts of appeals. Cf. Mills v. Rogers, 457 U. S. 291, 457 U. S. 306 (1982); Bishop v. Wood, 426 U. S. 341, 426 U. S. 346 (1976). Petitioners and amici nevertheless attempt to upset this interpretation in a number of ways. First, they maintain that § 25524.2 evinces no concern with the economics of nuclear power. The statute states that the "development" and "existence" of a permanent disposal technology approved by federal authorities will lift the moratorium; the statute does not provide for considering the economic costs of the technology selected. This view of the statute is overly myopic. Once a technology is selected and demonstrated, the utilities and the California Public Utilities Commission would be able to estimate costs; such cost estimates cannot be made until the Federal Government has settled upon the method of long-term waste disposal. Moreover, once a satisfactory disposal technology is found and demonstrated, fears of having to close down operating reactors should largely evaporate. Page 461 U. S. 215Second, it is suggested that California, if concerned with economics, would have banned California utilities from building plants outside the State. This objection carries little force. There is no indication that California utilities are contemplating such construction; the state legislature is not obligated to address purely hypothetical facets of a problem.Third, petitioners note that there already is a body, the California Public Utilities Commission, which is authorized to determine on economic grounds whether a nuclear powerplant should be constructed. [Footnote 26] While California is certainly free to make these decisions on a case-by-case basis, a State is not foreclosed from reaching the same decision through a legislative judgment, applicable to all cases. The economic uncertainties engendered by the nuclear waste disposal problems are not factors that vary from facility to facility; the issue readily lends itself to more generalized decisionmaking, and California cannot be faulted for pursuing that course.Fourth, petitioners note that Proposition 15, the initiative out of which § 25524.2 arose, and companion provisions in California's so-called nuclear laws, are more clearly written with safety purposes in mind. [Footnote 27] It is suggested that § 25524.2 shares a common heritage with these laws, and should be presumed to have been enacted for the same purposes. Page 461 U. S. 216 The short answer here is that these other state laws are not before the Court, and indeed, Proposition 15 was not passed; these provisions and their pedigree do not taint other parts of the Warren-Alquist Act.Although these specific indicia of California's intent in enacting § 25524.2 are subject to varying interpretation, there are two further reasons why we should not become embroiled in attempting to ascertain California's true motive. First, inquiry into legislative motive is often an unsatisfactory venture. United States v. O'Brien, 391 U. S. 367, 391 U. S. 383 (1968). What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it. Second, it would be particularly pointless for us to engage in such inquiry here when it is clear that the States have been allowed to retain authority over the need for electrical generating facilities easily sufficient to permit a State so inclined to halt the construction of new nuclear plants by refusing, on economic grounds, to issue certificates of public convenience in individual proceedings. In these circumstances, it should be up to Congress to determine whether a State has misused the authority left in its hands.Therefore, we accept California's avowed economic purpose as the rationale for enacting § 25524.2. Accordingly, the statute lies outside the occupied field of nuclear safety regulation. [Footnote 28] Page 461 U. S. 217BPetitioners' second major argument concerns federal regulation aimed at the nuclear waste disposal problem itself. It is contended that § 25524.2 conflicts with federal regulation of nuclear waste disposal, with the NRC's decision that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, and with Congress' recent passage of legislation directed at that problem.Pursuant to its authority under the Act, 42 U.S.C. §§ 2071-2075, 2111-2114 (1976 ed. and Supp. V), the AEC, and later the NRC, promulgated extensive and detailed regulations concerning the operation of nuclear facilities and the handling of nuclear materials. The following provisions are relevant to the spent fuel and waste disposal issues in this case. To receive an NRC operating license, one must submit a safety analysis report, which includes a "radioactive waste handling syste[m]." 10 CFR § 50.34(b)(2)(i), (ii) (1982). See also 10 CFR § 150.15(a)(1)(i) (1982). The regulations specify general design criteria and control requirements for fuel storage and handling and radioactive waste to be stored at the reactor site. 10 CFR pt. 50, App. A, Criteria 60-64, p. 412 (1982). In addition, the NRC has promulgated detailed regulations governing storage and disposal away from the reactor. 10 CFR pt. 72 (1982). NRC has also promulgated procedural requirements covering license applications for disposal of high-level radioactive waste in geologic repositories. 10 CFR pt. 60 (1982).Congress gave the Department of Energy the responsibility for "the establishment of temporary and permanent facilities for storage, management, and ultimate disposal of nuclear wastes." 42 U.S.C. § 7133(a)(8)(C) (1976 ed., Page 461 U. S. 218 Supp. V). No such permanent disposal facilities have yet been licensed, and the NRC and the Department of Energy continue to authorize the storage of spent fuel at reactor sites in pools of water. In 1977, the NRC was asked by the Natural Resources Defense Council to halt reactor licensing until it had determined that there was a method of permanent disposal for high-level waste. The NRC concluded that, given the progress toward the development of disposal facilities and the availability of interim storage, it could continue to license new reactors. Natural Resources Defense Council, Inc. v. NRC, 582 F.2d 166, 168-169 (CA2 1978).The NRC's imprimatur, however, indicates only that it is safe to proceed with such plants, not that it is economically wise to do so. [Footnote 29] Because the NRC order does not and could Page 461 U. S. 219 not compel a utility to develop a nuclear plant, compliance with both it and § 25524.2 is possible. Moreover, because the NRC's regulation are aimed at insuring that plants are safe, not necessarily that they are economical, § 25524.2 does not interfere with the objective of the federal regulation.Nor has California sought through § 25524.2 to impose its own standards on nuclear waste disposal. The statute accepts that it is the federal responsibility to develop and license such technology. As there is no attempt on California's part to enter this field, one which is occupied by the Federal Government, we do not find § 25524.2 preempted any more by the NRC's obligations in the waste disposal field than by its licensing power over the plants themselves.After this case was decided by the Court of Appeals, a new piece was added to the regulatory puzzle. In its closing week, the 97th Con gress passed the Nuclear Waste Policy Act of 1982, Pub.L. 97-425, 96 Stat. 2201, a complex bill providing for a multifaceted attack on the problem. Inter alia, the bill authorizes repositories for disposal of high-level radioactive waste and spent nuclear fuel, provides for licensing and expansion of interim storage, authorizes research and development, and provides a scheme for financing. While the passage of this new legislation may convince state authorities that there is now a sufficient federal commitment to fuel storage and waste disposal that licensing of nuclear reactors may resume, and, indeed, this seems to be one of the purposes of the Act, [Footnote 30] it does not appear that Congress intended Page 461 U. S. 220 to make that decision for the States through this legislation. Senator McClure attempted to do precisely that with an amendment to the Senate bill providing that the Act satisfied any legal requirements for the existence of an approved technology and facilities for disposal of spent fuel and high-level nuclear waste. The amendment was adopted by the Senate without debate. 128 Cong.Rec. S4310 (Apr. 29, 1982). Duringbrk:subsequent House hearings, it was strongly urged that this language be omitted so as not to affect this case. See Nuclear Waste Disposal Policy, Hearings before the Subcommittee on Energy Conservation and Power of the House Committee on Energy and Commerce, 97th Cong., 2d Sess., 356, 406, 553-554 (1982). The bill which emerged from the House Committee did omit the Senate language, and its manager, Representative Ottinger, stated to the House that the language was deleted "to insure that there be no preemption." 128 Cong.Rec. H8797 (Dec. 2, 1982). The bill ultimately signed into law followed the House language. While we are correctly reluctant to draw inferences from the failure of Congress to act, it would, in this case, appear improper for us to give a reading to the Act that Congress considered and rejected. Moreover, it is certainly possible to interpret the Act as directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken.CFinally, it is strongly contended that § 25524.2 frustrates the Atomic Energy Act's purpose to develop the commercial use of nuclear power. It is well established that state law is preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Page 461 U. S. 221 Hines v. Davidowitz, 312 U.S. at 312 U. S. 67; Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. at 373 U. S. 142-143; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. at 458 U. S. 153.There is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power. The Act itself states that it is a program"to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public."42 U.S.C. § 2013(d). The House and Senate Reports confirmed that it was "a major policy goal of the United States" that the involvement of private industry would "speed the further development of the peaceful uses of atomic energy." H.R.Rep. No. 883, 89th Cong., 1st Sess., 4 (1965); H.R.Rep. No. 2181, 83d Cong., 2d Sess., 9 (1954); S.Rep. No. 1699, 83d Cong., 2d Sess., 9 (1954). The same purpose is manifest in the passage of the Price-Anderson Act, 42 U.S.C. § 2210, which limits private liability from a nuclear accident. The Act was passed "[i]n order to protect the public and to encourage the development of the atomic energy industry. . . ." 42 U.S.C. § 2012(i). Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 438 U. S. 63-67.The Court of Appeals' suggestion that legislation since 1974 has indicated a "change in congressional outlook" is unconvincing. The court observed that Congress reorganized the Atomic Energy Commission in 1974 by dividing the promotional and safety responsibilities of the AEC, giving the former to the Energy Research and Development Administration (ERDA) [Footnote 31] and the latter to the NRC. Energy Reorganization Act of 1974, 88 Stat. 1233, 42 U.S.C. § 5801 et seq. The evident desire of Congress to prevent safety from being Page 461 U. S. 222 compromised by promotional concerns does not translate into an abandonment of the objective of promoting nuclear power. The legislation was carefully drafted, in fact, to avoid any antinuclear sentiment. [Footnote 32] The continuing commitment to nuclear power is reflected in the extension of the Price-Anderson Act's coverage until 1987, Pub.L. 94-197, § 2-14, 89 Stat. 1111-1115, as well as in Congress' express preclusion of reliance on natural gas and petroleum as primary energy sources in new powerplants, Powerplant and Industrial Fuel Use Act of 1978, 92 Stat. 3291, 42 U.S.C. §§ 8301(b)(3), 8311, 8312(a) (1976 ed., Supp. V). It is true, of course, that Congress has sought to simultaneously promote the development of alternative energy sources, but we do not view these steps as an indication that Congress has retreated from its oft-expressed commitment to further development of nuclear power for electricity generation.The Court of Appeals is right, however, that the promotion of nuclear power is not to be accomplished "at all costs." The elaborate licensing and safety provisions and the continued preservation of state regulation in traditional areas belie that. Moreover, Congress has allowed the States to determine -- as a matter of economics -- whether a nuclear plant vis-a-vis a fossil fuel plant should be built. The decision of California to exercise that authority does not, in itself, constitute a basis for preemption. [Footnote 33] Therefore, while the argument Page 461 U. S. 223 of petitioners and the United States has considerable force, the legal reality remains that Congress has left sufficient authority in the States to allow the development of nuclear power to be slowed or even stopped for economic reasons. Given this statutory scheme, it is for Congress to rethink the division of regulatory authority in light of its possible exercise by the States to undercut a federal objective. The courts should not assume the role which our system assigns to Congress. [Footnote 34]IVThe judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtPG & E v. State Energy Comm'n, 461 U.S. 190 (1983)Pacific Gas & Electric Co. v. State Energy ResourcesConservation and Development CommissionNo. 81-1945Argued January 17, 1983Decided April 20, 1983461 U.S. 190SyllabusSection 25524.1(b) of the California Public Resources Code provides that before a nuclear powerplant may be built, the State Energy Resources Conservation and Development Commission must determine on a case-by-case basis that there will be "adequate capacity" for interim storage of the plant's spent fuel at the time the plant requires such storage. Section 25524.2 imposes a moratorium on the certification of new nuclear plants until the State Commission finds that there has been developed, and that the United States through its authorized agency has approved, a demonstrated technology or means for the permanent and terminal disposal of high-level nuclear wastes. Petitioner electric utilities filed an action in Federal District Court seeking a declaration that these provisions, inter alia, are invalid under the Supremacy Clause because they were preempted by the Atomic Energy Act of 1954. The District Court, after finding that the issues presented by the two provisions were ripe for adjudication, held that they were preempted by and in conflict with the Atomic Energy Act. The Court of Appeals agreed that the challenge to § 25524.2 was ripe for review, but found that the challenge to § 25524. 1(b) v. as not, because it could not be known whether the State Commission will ever find a nuclear plant's storage capacity to be inadequate. The court went on to hold that § 25524.2 was not designed to provide protection against radiation hazards but was adopted because uncertainties in the nuclear fuel cycle make nuclear power an uneconomical and uncertain source of energy, and therefore that the section was not preempted because §§ 271 and 274(k) of the Atomic Energy Act constituted authorization for States to regulate nuclear powerplants for purposes other than protection against radiation hazards. The court further held that § 25524.2 was not invalid as a barrier to fulfillment of the federal goal of encouraging the development of atomic energy.Held:1. The challenge to § 25524.2 is ripe for judicial review, but the questions concerning § 25524.1(b) are not. Pp. 200-203.(a) The question of ripeness turns "on the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court Page 461 U. S. 191 consideration." Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 149. Both of these factors counsel in favor of finding the challenge to § 25524.2 ripe for adjudication. The question of preemption is predominantly legal, and to require the industry to proceed without knowing whether the moratorium imposed by § 25524.2 is valid would impose a palpable and considerable hardship on the utilities, and may ultimately work harm on the citizens of California. Moreover, if § 25524.2 is void as hindering commercial development of atomic energy, delayed resolution would frustrate one of the key purposes of the Atomic Energy Act. Pp. 461 U. S. 200-202.(b) Under circumstances where it is uncertain whether the State Commission will ever find a nuclear plant's interim storage capacity to be inadequate, and where, because of this Court's holding infra that § 25524.2 is not preempted by federal law, it is unlikely that industry behavior would be uniquely affected by such uncertainty surrounding the interim storage provision, a court should not stretch to reach an early, and perhaps a premature, decision respecting § 25524.1(b). P. 461 U. S. 203.2. Section 25524.2 is not preempted by the Atomic Energy Act. Pp. 461 U. S. 203-223.(a) From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking. This Court accepts California's avowed economic, rather than safety, purpose as the rationale for enacting § 25524.2, and accordingly the statute lies outside the federally occupied field of nuclear safety regulation. Pp. 461 U. S. 205-216.(b) Section 25524.2 does not conflict with federal regulation of nuclear waste disposal, with the decision of the Nuclear Regulatory Commission (NRC) that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, or with Congress' recent passage of the Nuclear Waste Policy Act of 1982 directed at that problem. Because the NRC's decision does not and could not compel a utility to develop a nuclear plant, compliance with both that decision and § 25524.2 is possible. Moreover, because the NRC's regulations are aimed at insuring that plants are safe, not necessarily that they are economical, § 25524.2 does not interfere with the objective of those regulations. And as there is no attempt on California's part to enter the field of developing and licensing nuclear waste disposal technology, a field occupied by the Federal Government, § 25524.2 is not preempted any more by the NRC's obligations in the waste disposal Page 461 U. S. 192 field than by its licensing power over the plants themselves. Nor does it appear that Congress intended, through the Nuclear Waste Policy Act of 1982, to make the decision for the States as to whether there is now sufficient federal commitment to fuel storage and waste disposal that licensing of nuclear reactors may resume. Moreover, that Act can be interpreted as being directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken. Pp. 461 U. S. 217-220.(c) Section 25524.2 does not frustrate the Atomic Energy Act's purpose to develop the commercial use of nuclear power. Promotion of nuclear power is not to be accomplished "at all costs." Moreover, Congress has given the States authority to determine, as a matter of economics, whether a nuclear plant vis-a-vis a fossil fuel plant should be built. California's decision to exercise that authority does not, in itself, constitute a basis for preemption. Pp. 461 U. S. 220-223.659 F.2d 903, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, POWELL, REHNQUIST and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS, J., joined, post, p. 461 U. S. 223. Page 461 U. S. 193

1957_52

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a suit for back pay, based on petitioner's alleged illegal removal as a member of the War Claims Commission. The facts are not in dispute. By the War Claims Page 357 U. S. 350 Act of 1948, 62 Stat. 1240, Congress established that Commission with "jurisdiction to receive and adjudicate according to law," § 3, claims for compensating internees, prisoners of war, and religious organizations, §§ 5, 6 and 7, who suffered personal injury or property damage at the hands of the enemy in connection with World War II. The Commission was to be composed of three persons, at least two of whom were to be members of the bar, to be appointed by the President, by and with the advice and consent of the Senate. The Commission was to wind up its affairs not later than three years after the expiration of the time for filing claims, originally limited to two years but extended by successive legislation first to March 1, 1951, 63 Stat. 112, and later to March 31, 1952, 65 Stat. 28. This limit on the Commission's life was the mode by which the tenure of the Commissioners was defined, and Congress made no provision for removal of a Commissioner.Having been duly nominated by President Truman, the petitioner was confirmed on June 2, 1950, and took office on June 8 following. On his refusal to heed a request for his resignation, he was, on December 10, 1953, removed by President Eisenhower in the following terms:"I regard it as in the national interest to complete the administration of the War Claims Act of 1948, as amended, with personnel of my own selection."The following day, the President made recess appointments to the Commission, including petitioner's post. After Congress assembled, the President, on February 15, 1954, sent the names of the new appointees to the Senate. The Senate had not confirmed these nominations when the Commission was abolished, July 1, 1954, by Reorganization Plan No. 1 of 1954, 68 Stat. 1279, issued pursuant to the Reorganization Act of 1949, 63 Stat. 203. Thereupon, petitioner brought this proceeding in the Court of Claims for recovery of his salary as a War Claims Commissioner Page 357 U. S. 351 from December 10, 1953, the day of his removal by the President, to June 30, 1954, the last day of the Commission's existence. A divided Court of Claim dismissed the petition, 135 Ct.Cl. 827, 142 F. Supp. 910. We brought the case here, 352 U.S. 980, because it presents a variant of the constitutional issue decided in Humphrey's Executor v. United States, 295 U. S. 602. *Controversy pertaining to the scope and limits of the President's power of removal fills a thick chapter of our political and judicial history. The long stretches of its history, beginning with the very first Congress, with early echoes in the Reports of this Court, were laboriously traversed in Myers v. United States, 272 U. S. 52, and need not be retraced. President Roosevelt's reliance upon the pronouncements of the Court in that case in removing a member of the Federal Trade Commission on the ground that"the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection"reflected contemporaneous professional opinion regarding the significance of the Myers decision. Speaking through a Chief Justice who himself had been President, the Court did not restrict itself to the immediate issue before it, the President's inherent power to remove a postmaster, obviously an executive official. As of set purpose and not by way of parenthetic casualness, the Page 357 U. S. 352 Court announced that the President had inherent constitutional power of removal also of officials who have"duties of a quasi-judicial character . . . whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control."Myers v. United States, supra, at 272 U. S. 135. This view of presidential power was deemed to flow from his "constitutional duty of seeing that the laws be faithfully executed." Ibid.The assumption was short-lived that the Myers case recognized the President's inherent constitutional power to remove officials, no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure. The versatility of circumstances often mocks a natural desire for definitiveness. Within less than ten years, a unanimous Court, in Humphrey's Executor v. United States, 295 U. S. 602, narrowly confined the scope of the Myers decision to include only "all purely executive officers." 295 U.S. at 295 U. S. 628. The Court explicitly "disapproved" the expressions in Myers supporting the President's inherent constitutional power to remove members of quasi-judicial bodies. 295 U.S. at 295 U. S. 626-627. Congress had given members of the Federal Trade Commission a seven-year term, and also provided for the removal of a Commissioner by the President for inefficiency, neglect of duty or malfeasance in office. In the present case, Congress provided for a tenure defined by the relatively short period of time during which the War Claims Commission was to operate -- that is, it was to wind up not later than three years after the expiration of the time for filing of claims. But nothing was said in the Act about removal.This is another instance in which the most appropriate legal significance must be drawn from congressional failure of explicitness. Necessarily, this is a problem in probabilities. Page 357 U. S. 353 We start with one certainty. The problem of the President's power to remove members of agencies entrusted with duties of the kind with which the War Claims Commission was charged was within the lively knowledge of Congress. Few contests between Congress and the President have so recurringly had the attention of Congress as that pertaining to the power of removal. Not the least significant aspect of the Myers case is that, on the Court's special invitation, Senator George Wharton Pepper, of Pennsylvania, presented the position of Congress at the bar of this Court.Humphrey's case was a cause celebre -- and not least in the halls of Congress. And what is the essence of the decision in Humphrey's case? It drew a sharp line of cleavage between officials who were part of the Executive establishment, and were thus removable by virtue of the President's constitutional powers, and those who are members of a body "to exercise its judgment without the leave or hindrance of any other official or any department of the government," 295 U.S. at 295 U. S. 625-626, as to whom a power of removal exists only if Congress may fairly be said to have conferred it. This sharp differentiation derives from the difference in functions between those who are part of the Executive establishment and those whose tasks require absolute freedom from Executive interference. "For it is quite evident," again to quote Humphrey's Executor,"that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will."295 U.S. at 295 U. S. 629.Thus, the most reliable factor for drawing an inference regarding the President's power of removal in our case is the nature of the function that Congress vested in the War Claims Commission. What were the duties that Congress confided to this Commission? And can the inference fairly be drawn from the failure of Congress to Page 357 U. S. 354 provide for removal that these Commissioners were to remain in office at the will of the President? For such is the assertion of power on which petitioner's removal must rest. The ground of President Eisenhower's removal of petitioner was precisely the same as President Roosevelt's removal of Humphrey. Both Presidents desired to have Commissioners, one on the Federal Trade Commission, the other on the War Claims Commission, "of my own selection." They wanted these Commissioners to be their men. The terms of removal in the two cases are identic, and express the assumption that the agencies of which the two Commissioners were members were subject in the discharge of their duties to the control of the Executive. An analysis of the Federal Trade Commission Act left this Court in no doubt that such was not the conception of Congress in creating the Federal Trade Commission. The terms of the War Claims Act of 1948 leave no doubt that such was not the conception of Congress regarding the War Claims Commission.The history of this legislation emphatically underlines this fact. The short of it is that the origin of the Act was a bill, H.R. 4044, 80th Cong., 1st Sess., passed by the House that placed the administration of a very limited class of claims by Americans against Japan in the hands of the Federal Security Administrator, and provided for a Commission to inquire into and report upon other types of claims. See H.R.Rep. No. 976, 80th Cong., 1st Sess. The Federal Security Administrator was indubitably an arm of the President. When the House bill reached the Senate, it struck out all but the enacting clause, rewrote the bill, and established a Commission with "jurisdiction to receive and adjudicate according to law" three classes of claims, as defined by §§ 5, 6 and 7. The Commission was established as an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof, with finality of determination "not subject to Page 357 U. S. 355 review by any other official of the United States or by any court by mandamus or otherwise," § 11. Awards were to be paid out of a War Claims Fund in the hands of the Secretary of the Treasury, whereby such claims were given even more assured collectability than adheres to judgments rendered in the Court of Claims. See S.Rep. No. 1742, 80th Cong., 2d Sess. With minor amendment, see H.R.Conf.Rep. No. 2439, 80th Cong., 2d Sess. 10-11, this Senate bill became law.When Congress has for distribution among American claimants funds derived from foreign sources, it may proceed in different ways. Congress may appropriate directly; it may utilize the Executive; it may resort to the adjudicatory process. See La Abra Silver Mining Co. v. United States, 175 U. S. 423. For Congress itself to have made appropriations for the claims with which it dealt under the War Claims Act was not practical in view of the large number of claimants and the diversity in the specific circumstances giving rise to the claims. The House bill, in effect, put the distribution of the narrow class of claims that it acknowledged into Executive hands, by vesting the procedure in the Federal Security Administrator. The final form of the legislation, as we have seen, left the widened range of claims to be determined by adjudication. Congress could, of course, have given jurisdiction over these claims to the District Courts or to the Court of Claims. The fact that it chose to establish a Commission to "adjudicate according to law" the classes of claims defined in the statute did not alter the intrinsic judicial character of the task with which the Commission was charged. The claims were to be "adjudicated according to law," that is, on the merits of each claim, supported by evidence and governing legal considerations, by a body that was "entirely free from the control or coercive influence, direct or indirect," Humphrey's Executor v. United States, supra, 295 U.S. at 295 U. S. 629, of Page 357 U. S. 356 either the Executive or the Congress. If, as one must take for granted, the War Claims Act precluded the President from influencing the Commission in passing on a particular claim, a fortiori must it be inferred that Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.For such is this case. We have not a removal for cause involving the rectitude of a member of an adjudicatory body, nor even a suspensory removal until the Senate could act upon it by confirming the appointment of a new Commissioner or otherwise dealing with the matter. Judging the matter in all the nakedness in which it is presented, namely, the claim that the President could remove a member of an adjudicatory body like the War Claims Commission merely because he wanted his own appointees on such a Commission, we are compelled to conclude that no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it. The philosophy of Humphrey's Executor, in its explicit language as well as its implications, precludes such a claim.The judgment isReversed

U.S. Supreme CourtWiener v. United States, 357 U.S. 349 (1958)Wiener v. United StatesNo. 52Argued November 18, 1957Decided June 30, 1958357 U.S. 349SyllabusPetitioner was a member of the War Claims Commission created by Congress "to receive and adjudicate according to law" claims for compensating internees, prisoners of war and religious organizations who suffered personal injury or property damage at the hands of the enemy in connection with World War II. The Commission's determinations were to be "final," and "not subject to review by any other official of the United States or by any court." The Commissioners' terms were to expire with the life of the Commission, and there was no provision for removal of a Commissioner. Appointed by President Truman and confirmed by the Senate, petitioner was removed by President Eisenhower before the expiration of the life of the Commission, on the ground that the Act should be administered "with personnel of my own selection." Petitioner sued in the Court of Claims to recover his salary as a Commissioner from the date of his removal to the last day of the Commission's existence.Held: The President had no power under the Constitution or the Act to remove a member of this adjudicatory Commission, and the Court of Claims erred in dismissing petitioner's suit. Pp. 357 U. S. 349-356.135 Ct.Cl. 827, 142 F. Supp. 910, reversed.

1998_97-1709

testimony. General Electric Co. v. Joiner, 522 U. S. 136, 138-139. That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion. Thus, whether Daubert's specific factors are, or are not, reasonable measures ofreliability in a particular case is a matter that the law grants the trial judge broad latitude to determine. See id., at 143. The Eleventh Circuit erred insofar as it held to the contrary. Pp. 152-153.2. Application of the foregoing standards demonstrates that the District Court's decision not to admit Carlson's expert testimony was lawful. The District Court did not question Carlson's qualifications, but excluded his testimony because it initially doubted his methodology and then found it unreliable after examining the transcript in some detail and considering respondents' defense of it. The doubts that triggered the court's initial inquiry were reasonable, as was the court's ultimate conclusion that Carlson could not reliably determine the cause of the failure of the tire in question. The question was not the reliability of Carlson's methodology in general, but rather whether he could reliably determine the cause of failure of the particular tire at issue. That tire, Carlson conceded, had traveled far enough so that some of the tread had been worn bald, it should have been taken out of service, it had been repaired (inadequately) for punctures, and it bore some of the very marks that he said indicated, not a defect, but abuse. Moreover, Carlson's own testimony cast considerable doubt upon the reliability of both his theory about the need for at least two signs of abuse and his proposition about the significance of visual inspection in this case. Respondents stress that other tire failure experts, like Carlson, rely on visual and tactile examinations of tires. But there is no indication in the record that other experts in the industry use Carlson's particular approach or that tire experts normally make the very fine distinctions necessary to support his conclusions, nor are there references to articles or papers that validate his approach. Respondents' argument that the District Court too rigidly applied Daubert might have had some validity with respect to the court's initial opinion, but fails because the court, on reconsideration, recognized that the relevant reliability inquiry should be ''flexible,'' and ultimately based its decision upon Carlson's failure to satisfy either Daubert's factors or any other set of reasonable reliability criteria. Pp. 153-158.131 F.3d 1433, reversed.BREYER, J., delivered the opinion of the Court, Parts I and II of which were unanimous, and Part III of which was joined by REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG,140SyllabusJJ. SCALIA, J., filed a concurring opinion, in which O'CONNOR and THOMAS, JJ., joined, post, p. 158. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 159.Joseph P. H. Babington argued the cause for petitioners.With him on the briefs were Warren C. Herlong, Jr., John T. Dukes, Kenneth S. Geller, and Alan E. Untereiner.Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Wallace, Anthony J. Steinmeyer, and John P. Schnitker.Sidney W Jackson III argued the cause for respondents.With him on the brief were Robert J. Hedge, Michael D. Hausfeld, Richard S. Lewis, Joseph M. Sellers, and Anthony Z. Roisman.**Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by Michael Hoenig, Phillip D. Brady, and Charles H. Lockwood II; for the American Insurance Association et al. by Mark F. Horning and Craig A. Berrington; for the American Tort Reform Association et al. by Victor E. Schwartz, Patrick W Lee, Robert P. Charrow, Mark A. Behrens, Jan S. Amundson, and Quentin Riegel; for the Product Liability Advisory Council, Inc., et al. by Mary A. Wells, Robin S. Conrad, and Donald D. Evans; for the Rubber Manufacturers Association by Bert Black, Michael S. Truesdale, and Michael L. McAllister; for the Washington Legal Foundation et al. by Arvin Maskin, Theodore E. Tsekerides, Daniel J. Popeo, and Paul D. Kamenar; for John Allen et al. by Carter G. Phillips and David M. Levy; and for Stephen N. Bobo et al. by Martin S. Kaufman.Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Jeffrey Robert White and Mark S. Mandell; for the Attorneys Information Exchange Group, Inc., by Bruce J. McKee and Francis H. Hare, Jr.; for Bona Shipping CD. S.), Inc., et al. by Robert L. Klawetter and Michael F. Sturley; for the International Association of Arson Investigators by Kenneth M. Suggs; for the National Academy of Forensic Engineers by Alvin S. Weinstein, Larry E. Coben, and David V. Scott; for Trial Lawyers for Public Justice, P. C., et al. by Gerson H. Smoger, Arthur H. Bryant, Sarah Posner, William A. Rossbach, and Brian Wolfman; and for Margaret A. Berger et al. by Kenneth J. Chese-141JUSTICE BREYER delivered the opinion of the Court.In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), this Court focused upon the admissibility of scientific expert testimony. It pointed out that such testimony is admissible only if it is both relevant and reliable. And it held that the Federal Rules of Evidence "assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id., at 597. The Court also discussed certain more specific factors, such as testing, peer review, error rates, and "acceptability" in the relevant scientific community, some or all of which might prove helpful in determining the reliability of a particular scientific "theory or technique." Id., at 593-594.This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not scientists. We conclude that Daubert's general holdingsetting forth the trial judge's general "gatekeeping" obligation-applies not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" and "other specialized" knowledge. See Fed. Rule Evid. 702. We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.bro, Edward J. Imwinkelried, Ms. Berger, pro se, Stephen A. Saltz burg, David G. Wirtes, Jr., Don Howarth, Suzelle M. Smith, Edward M. Ricci,Briefs of amici curiae were filed for the Defense Research Institute by Lloyd H. Milliken, Jr., Julia Blackwell Gelinas, Nelson D. Alexander, and Sandra Boyd Williams; for the National Academy of Engineering by Richard A. Meserve, Elliott Schulder, and Thomas L. Cubbage III; and for Neil Vidmar et al. by Ronald Simon, Turner W Branch, Ronald Motley, Robert Habush, and M. Clay Alspaugh.142Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U. S. 136, 143 (1997) (courts of appeals are to apply "abuse of discretion" standard when reviewing district court's reliability determination). Applying these standards, we determine that the District Court's decision in this case-not to admit certain expert testimony-was within its discretion and therefore lawful.IOn July 6, 1993, the right rear tire of a minivan driven by Patrick Carmichael blew out. In the accident that followed, one of the passengers died, and others were severely injured. In October 1993, the Carmichaels brought this diversity suit against the tire's maker and its distributor, whom we refer to collectively as Kumho Tire, claiming that the tire was defective. The plaintiffs rested their case in significant part upon deposition testimony provided by an expert in tire failure analysis, Dennis Carlson, Jr., who intended to testify in support of their conclusion.Carlson's depositions relied upon certain features of tire technology that are not in dispute. A steel-belted radial tire like the Carmichaels' is made up of a "carcass" containing many layers of flexible cords, called "plies," along which (between the cords and the outer tread) are laid steel strips called "belts." Steel wire loops, called "beads," hold the cords together at the plies' bottom edges. An outer layer, called the "tread," encases the carcass, and the entire tire is bound together in rubber, through the application of heat and various chemicals. See generally, e. g., J. Dixon, Tires, Suspension and Handling 68-72 (2d ed. 1996). The bead of the tire sits upon a "bead seat," which is part of the wheel assembly. That assembly contains a "rim flange," which extends over the bead and rests against the side of the143tire. See M. Mavrigian, Performance Wheels & Tires 81, 83 (1998) (illustrations).Radial-Ply Tire ConstructionA. Markovich, How To Buy and Care For Tires 4 (1994).Carlson's testimony also accepted certain background facts about the tire in question. He assumed that before the blowout the tire had traveled far. (The tire was made in 1988 and had been installed some time before the Carmichaels bought the used minivan in March 1993; the Carmichaels had driven the van approximately 7,000 additional miles in the two months they had owned it.) Carlson noted that the tire's tread depth, which was 1%2 of an inch when new, App. 242, had been worn down to depths that ranged from %2 of an inch along some parts of the tire, to nothing at all along others. I d., at 287. He conceded that the tire tread had at least two punctures which had been inadequately repaired. Id., at 258-261, 322.Despite the tire's age and history, Carlson concluded that a defect in its manufacture or design caused the blowout. He rested this conclusion in part upon three premises which,144for present purposes, we must assume are not in dispute:First, a tire's carcass should stay bound to the inner side of the tread for a significant period of time after its tread depth has worn away. Id., at 208-209. Second, the tread of the tire at issue had separated from its inner steel-belted carcass prior to the accident. I d., at 336. Third, this "separation" caused the blowout. Ibid.Carlson's conclusion that a defect caused the separation, however, rested upon certain other propositions, several of which the defendants strongly dispute. First, Carlson said that if a separation is not caused by a certain kind of tire misuse called "overdeflection" (which consists of underinflating the tire or causing it to carry too much weight, thereby generating heat that can undo the chemical tread/carcass bond), then, ordinarily, its cause is a tire defect. I d., at 193195, 277-278. Second, he said that if a tire has been subject to sufficient overdeflection to cause a separation, it should reveal certain physical symptoms. These symptoms include (a) tread wear on the tire's shoulder that is greater than the tread wear along the tire's center, id., at 211; (b) signs of a "bead groove," where the beads have been pushed too hard against the bead seat on the inside of the tire's rim, id., at 196-197; (c) sidewalls of the tire with physical signs of deterioration, such as discoloration, id., at 212; and/or (d) marks on the tire's rim flange, id., at 219-220. Third, Carlson said that where he does not find at least two of the four physical signs just mentioned (and presumably where there is no reason to suspect a less common cause of separation), he concludes that a manufacturing or design defect caused the separation. I d., at 223-224.Carlson added that he had inspected the tire in question.He conceded that the tire to a limited degree showed greater wear on the shoulder than in the center, some signs of "bead groove," some discoloration, a few marks on the rim flange, and inadequately filled puncture holes (which can also cause heat that might lead to separation). Id., at 256-257, 258-145261, 277, 303-304, 308. But, in each instance, he testified that the symptoms were not significant, and he explained why he believed that they did not reveal overdeflection. For example, the extra shoulder wear, he said, appeared primarily on one shoulder, whereas an overdeflected tire would reveal equally abnormal wear on both shoulders. Id., at 277. Carlson concluded that the tire did not bear at least two of the four overdeflection symptoms, nor was there any less obvious cause of separation; and since neither overdeflection nor the punctures caused the blowout, a defect must have done so.Kumho Tire moved the District Court to exclude Carlson's testimony on the ground that his methodology failed Rule 702's reliability requirement. The court agreed with Kumho that it should act as a Daubert-type reliability "gatekeeper," even though one might consider Carlson's testimony as "technical," rather than "scientific." See Carmichael v. Samyang Tires, Inc., 923 F. Supp. 1514, 1521-1522 (SD Ala. 1996). The court then examined Carlson's methodology in light of the reliability-related factors that Daubert mentioned, such as a theory's testability, whether it "has been a subject of peer review or publication," the "known or potential rate of error," and the "degree of acceptance ... within the relevant scientific community." 923 F. Supp., at 1520 (citing Daubert, 509 U. S., at 589-595). The District Court found that all those factors argued against the reliability of Carlson's methods, and it granted the motion to exclude the testimony (as well as the defendants' accompanying motion for summary judgment).The plaintiffs, arguing that the court's application of the Daubert factors was too "inflexible," asked for reconsideration. And the court granted that motion. Carmichael v. Samyang Tires, Inc., Civ. Action No. 93-0860-CB-S (SD Ala., June 5, 1996), App. to Pet. for Cert. lc. After reconsidering the matter, the court agreed with the plaintiffs that Daubert should be applied flexibly, that its four factors were146simply illustrative, and that other factors could argue in favor of admissibility. It conceded that there may be widespread acceptance of a "visual-inspection method" for some relevant purposes. But the court found insufficient indications of the reliability of"the component of Carlson's tire failure analysis which most concerned the Court, namely, the methodology employed by the expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis." Id., at 6c.It consequently affirmed its earlier order declaring Carlson's testimony inadmissible and granting the defendants' motion for summary judgment.The Eleventh Circuit reversed. See Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (1997). It "review[ed] ... de novo" the "district court's legal decision to apply Daubert." Id., at 1435. It noted that "the Supreme Court in Daubert explicitly limited its holding to cover only the 'scientific context,'" adding that "a Daubert analysis" applies only where an expert relies "on the application of scientific principles," rather than "on skill- or experience-based observation." Id., at 1435-1436. It concluded that Carlson's testimony, which it viewed as relying on experience, "falls outside the scope of Daubert," that "the district court erred as a matter of law by applying Daubert in this case," and that the case must be remanded for further (non-Daubert-type) consideration under Rule 702. 131 F. 3d, at 1436.Kumho Tire petitioned for certiorari, asking us to determine whether a trial court "may" consider Daubert's specific "factors" when determining the "admissibility of an engineering expert's testimony." Pet. for Cert. i. We granted certiorari in light of uncertainty among the lower courts about whether, or how, Daubert applies to expert testimony that might be characterized as based not upon "scientific" knowledge, but rather upon "technical" or "other special-147ized" knowledge. Fed. Rule Evid. 702; compare, e. g., Watkins v. Telsmith, Inc., 121 F.3d 984, 990-991 (CA5 1997), with, e. g., Compton v. Subaru of America, Inc., 82 F.3d 1513, 1518-1519 (CAlO), cert. denied, 519 U. S. 1042 (1996).II AIn Daubert, this Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to "ensure that any and all scientific testimony ... is not only relevant, but reliable." 509 U. S., at 589. The initial question before us is whether this basic gatekeeping obligation applies only to "scientific" testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony. See Brief for Petitioners 19; Brief for Respondents 17.For one thing, Rule 702 itself says:"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."This language makes no relevant distinction between "scientific" knowledge and "technical" or "other specialized" knowledge. It makes clear that any such knowledge might become the subject of expert testimony. In Daubert, the Court specified that it is the Rule's word "knowledge," not the words (like "scientific") that modify that word, that "establishes a standard of evidentiary reliability." 509 U. S., at 589-590. Hence, as a matter of language, the Rule applies its reliability standard to all "scientific," "technical," or "other specialized" matters within its scope. We concede that the Court in Daubert referred only to "scientific" knowledge. But as the Court there said, it referred to "sci-148entific" testimony "because that [wa]s the nature of the expertise" at issue. Id., at 590, n. 8.Neither is the evidentiary rationale that underlay the Court's basic Daubert "gatekeeping" determination limited to "scientific" knowledge. Daubert pointed out that Federal Rules 702 and 703 grant expert witnesses testimonial latitude unavailable to other witnesses on the "assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Id., at 592 (pointing out that experts may testify to opinions, including those that are not based on firsthand knowledge or observation). The Rules grant that latitude to all experts, not just to "scientific" ones.Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge. There is no clear line that divides the one from the others. Disciplines such as engineering rest upon scientific knowledge. Pure scientific theory itself may depend for its development upon observation and properly engineered machinery. And conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases. Cf. Brief for National Academy of Engineering as Amicus Curiae 9 (scientist seeks to understand nature while the engineer seeks nature's modification); Brief for Rubber Manufacturers Association as Amicus Curiae 14-16 (engineering, as an "'applied science,'" relies on "scientific reasoning and methodology"); Brief for John Allen et al. as Amici Curiae 6 (engineering relies upon "scientific knowledge and methods").Neither is there a convincing need to make such distinctions. Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called "general truths derived from ... specialized experience." Hand, Historical and Practical Considerations Regarding Expert Testi-149mony, 15 Harv. L. Rev. 40, 54 (1901). And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest "upon an experience confessedly foreign in kind to [the jury's] own." Ibid. The trial judge's effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge.We conclude that Daubert's general principles apply to the expert matters described in Rule 702. The Rule, in respect to all such matters, "establishes a standard of evidentiary reliability." 509 U. S., at 590. It "requires a valid ... connection to the pertinent inquiry as a precondition to admissibility." Id., at 592. And where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, see Part III, infra, the trial judge must determine whether the testimony has "a reliable basis in the knowledge and experience of [the relevant] discipline." 509 U. S., at 592.BPetitioners ask more specifically whether a trial judge determining the "admissibility of an engineering expert's testimony" may consider several more specific factors that Daubert said might "bear on" a judge's gatekeeping determination. Brief for Petitioners i. These factors include:-Whether a "theory or technique ... can be (and has been) tested";-Whether it "has been subjected to peer review and publication";-Whether, in respect to a particular technique, there is a high "known or potential rate of error" and whether there are "standards controlling the technique's operation"; and150-Whether the theory or technique enjoys" 'general acceptance'" within a "'relevant scientific community.'" 509 U. S., at 592-594.Emphasizing the word "may" in the question, we answer that question yes.Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases. See, e. g., Brief for Stephen N. Bobo et al. as Amici Curiae 23 (stressing the scientific bases of engineering disciplines). In other cases, the relevant reliability concerns may focus upon personal knowledge or experience. As the Solicitor General points out, there are many different kinds of experts, and many different kinds of expertise. See Brief for United States as Amicus Curiae 18-19, and n. 5 (citing cases involving experts in drug terms, handwriting analysis, criminal modus operandi, land valuation, agricultural practices, railroad procedures, attorney's fee valuation, and others). Our emphasis on the word "may" thus reflects Daubert's description of the Rule 702 inquiry as "a flexible one." 509 U. S., at 594. Daubert makes clear that the factors it mentions do not constitute a "definitive checklist or test." Id., at 593. And Daubert adds that the gatekeeping inquiry must be "'tied to the facts'" of a particular "case." Id., at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985)). We agree with the Solicitor General that "[t]he factors identified in Daubert mayor may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Brief for United States as Amicus Curiae 19. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue.151Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged. It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist. Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.At the same time, and contrary to the Court of Appeals' view, some of Daubert's questions can help to evaluate the reliability even of experience-based testimony. In certain cases, it will be appropriate for the trial judge to ask, for example, how often an engineering expert's experiencebased methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community. Likewise, it will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.We must therefore disagree with the Eleventh Circuit's holding that a trial judge may ask questions of the sort Daubert mentioned only where an expert "relies on the application of scientific principles," but not where an expert relies "on skill- or experience-based observation." 131 F. 3d, at 1435. We do not believe that Rule 702 creates a schematism that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases that it generates are too complex to warrant so definitive a match.152To say this is not to deny the importance of Daubert's gatekeeping requirement. The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Nor do we deny that, as stated in Daubert, the particular questions that it mentioned will often be appropriate for use in determining the reliability of challenged expert testimony. Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.cThe trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert's relevant testimony is reliable. Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "review[s] a trial court's decision to admit or exclude expert testimony." 522 U. S., at 138-139. That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion. Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary "reliability" proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises. Indeed, the Rules seek to avoid "unjustifiable expense and delay" as part of their search for153"truth" and the "jus[tJ determin[ationJ" of proceedings. Fed. Rule Evid. 102. Thus, whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine. See Joiner, supra, at 143. And the Eleventh Circuit erred insofar as it held to the contrary.IIIWe further explain the way in which a trial judge "may" consider Daubert's factors by applying these considerations to the case at hand, a matter that has been briefed exhaustively by the parties and their 19 amici. The District Court did not doubt Carlson's qualifications, which included a masters degree in mechanical engineering, 10 years' work at Michelin America, Inc., and testimony as a tire failure consultant in other tort cases. Rather, it excluded the testimony because, despite those qualifications, it initially doubted, and then found unreliable, "the methodology employed by the expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis." Civ. Action No. 93-0860-CB-S (SD Ala., June 5, 1996), App. to Pet. for Cert. 6c. After examining the transcript in "some detail," 923 F. Supp., at 1518-1519, n. 4, and after considering respondents' defense of Carlson's methodology, the District Court determined that Carlson's testimony was not reliable. It fell outside the range where experts might reasonably differ, and where the jury must decide among the conflicting views of different experts, even though the evidence is "shaky." Daubert, 509 U. S., at 596. In our view, the doubts that triggered the District Court's initial inquiry here were reasonable, as was the court's ultimate conclusion.For one thing, and contrary to respondents' suggestion, the specific issue before the court was not the reasonableness in general of a tire expert's use of a visual and tactile inspection to determine whether overdeflection had caused154the tire's tread to separate from its steel-belted carcass. Rather, it was the reasonableness of using such an approach, along with Carlson's particular method of analyzing the data thereby obtained, to draw a conclusion regarding the particular matter to which the expert testimony was directly relevant. That matter concerned the likelihood that a defect in the tire at issue caused its tread to separate from its carcass. The tire in question, the expert conceded, had traveled far enough so that some of the tread had been worn bald; it should have been taken out of service; it had been repaired (inadequately) for punctures; and it bore some of the very marks that the expert said indicated, not a defect, but abuse through overdeflection. See supra, at 143-144; App. 293294. The relevant issue was whether the expert could reliably determine the cause of this tire's separation.Nor was the basis for Carlson's conclusion simply the general theory that, in the absence of evidence of abuse, a defect will normally have caused a tire's separation. Rather, the expert employed a more specific theory to establish the existence (or absence) of such abuse. Carlson testified precisely that in the absence of at least two of four signs of abuse (proportionately greater tread wear on the shoulder; signs of grooves caused by the beads; discolored sidewalls; marks on the rim flange), he concludes that a defect caused the separation. And his analysis depended upon acceptance of a further implicit proposition, namely, that his visual and tactile inspection could determine that the tire before him had not been abused despite some evidence of the presence of the very signs for which he looked (and two punctures).For another thing, the transcripts of Carlson's depositions support both the trial court's initial uncertainty and its final conclusion. Those transcripts cast considerable doubt upon the reliability of both the explicit theory (about the need for two signs of abuse) and the implicit proposition (about the significance of visual inspection in this case). Among other things, the expert could not say whether the tire had trav-155eled more than 10, or 20, or 30, or 40, or 50 thousand miles, adding that 6,000 miles was "about how far" he could "say with any certainty." Id., at 265. The court could reasonably have wondered about the reliability of a method of visual and tactile inspection sufficiently precise to ascertain with some certainty the abuse-related significance of minute shoulder/center relative tread wear differences, but insufficiently precise to tell "with any certainty" from the tread wear whether a tire had traveled less than 10,000 or more than 50,000 miles. And these concerns might have been augmented by Carlson's repeated reliance on the "subjective[nessJ" of his mode of analysis in response to questions seeking specific information regarding how he could differentiate between a tire that actually had been overdeflected and a tire that merely looked as though it had been. Id., at 222, 224-225, 285-286. They would have been further augmented by the fact that Carlson said he had inspected the tire itself for the first time the morning of his first deposition, and then only for a few hours. (His initial conclusions were based on photographs.) Id., at 180.Moreover, prior to his first deposition, Carlson had issued a signed report in which he concluded that the tire had "not been ... overloaded or underinflated," not because of the absence of "two of four" signs of abuse, but simply because "the rim flange impressions ... were normal." Id., at 335336. That report also said that the "tread depth remaining was %2 inch," id., at 336, though the opposing expert's (apparently undisputed) measurements indicate that the tread depth taken at various positions around the tire actually ranged from .5j32 of an inch to %2 of an inch, with the tire apparently showing greater wear along both shoulders than along the center, id., at 432-433.Further, in respect to one sign of abuse, bead grooving, the expert seemed to deny the sufficiency of his own simple visual-inspection methodology. He testified that most tires have some bead groove pattern, that where there is reason156to suspect an abnormal bead groove he would ideally "look at a lot of [similar] tires" to know the grooving's significance, and that he had not looked at many tires similar to the one at issue. Id., at 212-213,214,217.Finally, the court, after looking for a defense of Carlson's methodology as applied in these circumstances, found no convincing defense. Rather, it found (1) that "none" of the Daubert factors, including that of "general acceptance" in the relevant expert community, indicated that Carlson's testimony was reliable, 923 F. Supp., at 1521; (2) that its own analysis "revealed no countervailing factors operating in favor of admissibility which could outweigh those identified in Daubert," App. to Pet. for Cert. 4c; and (3) that the "parties identified no such factors in their briefs," ibid. For these three reasons taken together, it concluded that Carlson's testimony was unreliable.Respondents now argue to us, as they did to the District Court, that a method of tire failure analysis that employs a visual/tactile inspection is a reliable method, and they point both to its use by other experts and to Carlson's long experience working for Michelin as sufficient indication that that is so. But no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience. Nor does anyone deny that, as a general matter, tire abuse may often be identified by qualified experts through visual or tactile inspection of the tire. See Affidavit of H. R. Baumgardner 1-2, cited in Brief for National Academy of Forensic Engineers as Amicus Curiae 16 (Tire engineers rely on visual examination and process of elimination to analyze experimental test tires). As we said before, supra, at 153-154, the question before the trial court was specific, not general. The trial court had to decide whether this particular expert had sufficient specialized knowledge to assist the jurors "in deciding the particular issues in the case." 4 J. McLaughlin, Weinstein's Federal Evidence ~ 702.05[1], p. 702-33 (2d ed. 1998); see also Advisory157Committee's Note on Proposed Fed. Rule Evid. 702, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and Evidence: Request for Comment 126 (1998) (stressing that district courts must "scrutinize" whether the "principles and methods" employed by an expert "have been properly applied to the facts of the case").The particular issue in this case concerned the use of Carlson's two-factor test and his related use of visual/tactile inspection to draw conclusions on the basis of what seemed small observational differences. We have found no indication in the record that other experts in the industry use Carlson's two-factor test or that tire experts such as Carlson normally make the very fine distinctions about, say, the symmetry of comparatively greater shoulder tread wear that were necessary, on Carlson's own theory, to support his conclusions. Nor, despite the prevalence of tire testing, does anyone refer to any articles or papers that validate Carlson's approach. Cf. Bobo, Tire Flaws and Separations, in Mechanics of Pneumatic Tires 636-637 (S. Clark ed. 1981); C. Schnuth, R. Fuller, G. Follen, G. Gold, & J. Smith, Compression Grooving and Rim Flange Abrasion as Indicators of Over-Deflected Operating Conditions in Tires, presented to Rubber Division of the American Chemical Society, Oct. 2124, 1997; J. Walter & R. Kiminecz, Bead Contact Pressure Measurements at the Tire-Rim Interface, presented to the Society of Automotive Engineers, Inc., Feb. 24-28, 1975. Indeed, no one has argued that Carlson himself, were he still working for Michelin, would have concluded in a report to his employer that a similar tire was similarly defective on grounds identical to those upon which he rested his conclusion here. Of course, Carlson himself claimed that his method was accurate, but, as we pointed out in Joiner, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." 522 U. S., at 146.158Respondents additionally argue that the District Court too rigidly applied Daubert's criteria. They read its opinion to hold that a failure to satisfy anyone of those criteria automatically renders expert testimony inadmissible. The District Court's initial opinion might have been vulnerable to a form of this argument. There, the court, after rejecting respondents' claim that Carlson's testimony was "exempted from Daubert-style scrutiny" because it was "technical analysis" rather than "scientific evidence," simply added that "none of the four admissibility criteria outlined by the Daubert court are satisfied." 923 F. Supp., at 1521. Subsequently, however, the court granted respondents' motion for reconsideration. It then explicitly recognized that the relevant reliability inquiry "should be 'flexible,'" that its" 'overarching subject [should be] ... validity' and reliability," and that "Daubert was intended neither to be exhaustive nor to apply in every case." App. to Pet. for Cert. 4c (quoting Daubert, 509 U. S., at 594-595). And the court ultimately based its decision upon Carlson's failure to satisfy either Daubert's factors or any other set of reasonable reliability criteria. In light of the record as developed by the parties, that conclusion was within the District Court's lawful discretion.In sum, Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case. The District Court did not abuse its discretionary authority in this case. Hence, the judgment of the Court of Appeals isReversed

OCTOBER TERM, 1998SyllabusKUMHO TIRE CO., LTD., ET AL. v. CARMICHAEL ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 97-1709. Argued December 7, 1998-Decided March 23,1999When a tire on the vehicle driven by Patrick Carmichael blew out and the vehicle overturned, one passenger died and the others were injured. The survivors and the decedent's representative, respondents here, brought this diversity suit against the tire's maker and its distributor (collectively Kumho Tire), claiming that the tire that failed was defective. They rested their case in significant part upon the depositions of a tire failure analyst, Dennis Carlson, Jr., who intended to testify that, in his expert opinion, a defect in the tire's manufacture or design caused the blowout. That opinion was based upon a visual and tactile inspection of the tire and upon the theory that in the absence of at least two of four specific, physical symptoms indicating tire abuse, the tire failure of the sort that occurred here was caused by a defect. Kumho Tire moved to exclude Carlson's testimony on the ground that his methodology failed to satisfy Federal Rule of Evidence 702, which says: "If scientific, technical, or other specialized knowledge will assist the trier of fact ... , a witness qualified as an expert ... may testify thereto in the form of an opinion." Granting the motion (and entering summary judgment for the defendants), the District Court acknowledged that it should act as a reliability "gatekeeper" under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589, in which this Court held that Rule 702 imposes a special obligation upon a trial judge to ensure that scientific testimony is not only relevant, but reliable. The court noted that Daubert discussed four factors-testing, peer review, error rates, and "acceptability" in the relevant scientific community-which might prove helpful in determining the reliability of a particular scientific theory or technique, id., at 593-594, and found that those factors argued against the reliability of Carlson's methodology. On the plaintiffs' motion for reconsideration, the court agreed that Daubert should be applied flexibly, that its four factors were simply illustrative, and that other factors could argue in favor of admissibility. However, the court affirmed its earlier order because it found insufficient indications of the reliability of Carlson's methodology. In reversing, the Eleventh Circuit held that the District Court had erred as a matter of law in applying Daubert. Believing that Daubert was limited to the scientific context,138Syllabusthe court held that the Daubert factors did not apply to Carlson's testimony, which it characterized as skill or experience based.Held:1. The Daubert factors may apply to the testimony of engineers and other experts who are not scientists. Pp. 147-153.(a) The Daubert "gatekeeping" obligation applies not only to "scientific" testimony, but to all expert testimony. Rule 702 does not distinguish between "scientific" knowledge and "technical" or "other specialized" knowledge, but makes clear that any such knowledge might become the subject of expert testimony. It is the Rule's word "knowledge," not the words (like "scientific") that modify that word, that establishes a standard of evidentiary reliability. 509 U. S., at 589-590. Daubert referred only to "scientific" knowledge because that was the nature of the expertise there at issue. Id., at 590, n. 8. Neither is the evidentiary rationale underlying Daubert's "gatekeeping" determination limited to "scientific" knowledge. Rules 702 and 703 grant all expert witnesses, not just "scientific" ones, testimonial latitude unavailable to other witnesses on the assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. Id., at 592. Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a "gatekeeping" obligation depended upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge, since there is no clear line dividing the one from the others and no convincing need to make such distinctions. Pp. 147-149.(b) A trial judge determining the admissibility of an engineering expert's testimony may consider one or more of the specific Daubert factors. The emphasis on the word "may" reflects Daubert's description of the Rule 702 inquiry as "a flexible one." 509 U. S., at 594. The Daubert factors do not constitute a definitive checklist or test, id., at 593, and the gatekeeping inquiry must be tied to the particular facts, id., at 591. Those factors mayor may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony. Some of those factors may be helpful in evaluating the reliability even of experience-based expert testimony, and the Court of Appeals erred insofar as it ruled those factors out in such cases. In determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors where they are reasonable measures of reliability. Pp. 149-152.(c) A court of appeals must apply an abuse-of-discretion standard when it reviews a trial court's decision to admit or exclude expert139Full Text of Opinion

1969_37

MR. JUSTICE BLACK delivered the opinion of the Court.This case involves the extent to which the Fourteenth Amendment and the "one man, one vote" principle apply in the election of local governmental officials. Appellants are residents and taxpayers of the Kansas City School District, one of eight separate school districts that have combined to form the Junior College District of Metropolitan Kansas City. Under Missouri law, separate school districts may vote by referendum to establish a consolidated junior college district and elect six trustees to conduct and manage the necessary affairs of that district. [Footnote 1] The state law also provides that these trustees shall be apportioned among the separate school districts on the basis of "school enumeration," defined as the number of persons between the ages of six and 20 years who reside in each district. [Footnote 2] In the case of the Kansas City School District, this apportionment plan results in the election of three trustees, or 50% of the total number, from that district. Since that district contains approximately 60% of the total school enumeration in the junior college district, [Footnote 3] appellants Page 397 U. S. 52 brought suit claiming that their right to vote for trustees was being unconstitutionally diluted in violation of the Equal Protection Clause of the Fourteenth Amendment. The Missouri Supreme Court upheld the trial court's dismissal of the suit, stating that the "one man, one vote" principle was not applicable in this case. 432 S.W.2d 328 (1968). We noted probable jurisdiction of the appeal, 393 U.S. 1115 (1969), and, for the reasons set forth below, we reverse and hold that the Fourteenth Amendment requires that the trustees of this junior college district be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district.In Wesberry v. Sanders, 376 U. S. 1 (1964), we held that the Constitution requires that, "as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's." Id. at 376 U.S. 7-8. Because of this requirement, we struck down a Georgia statute which allowed glaring discrepancies among the populations in that State's congressional districts. In Reynolds v. Sims, 377 U. S. 533 (1964), and the companion cases, [Footnote 4] we considered state laws that had apportioned state legislatures in a way that again showed glaring discrepancies in the number of people who lived in different legislative districts. In an elaborate opinion in Reynolds, we called attention to prior cases indicating that a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted. Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Yarbrough, 110 U. S. 651 (1884); United States v. Mosley, 238 U. S. 383 (1915); Guinn v. United States, Page 397 U. S. 53 238 U. S. 347 (1915); Lane v. Wilson, 307 U. S. 268 (1939); United States v. Classic, 313 U. S. 299 (1941). Applying the basic principle of Wesberry, we therefore held that the various state apportionment schemes denied some voters the right guaranteed by the Fourteenth Amendment to have their votes given the same weight as that of other voters. Finally, in Avery v. Midland County, 390 U. S. 474 (1968), we applied this same principle to the election of Texas county commissioners, holding that a qualified voter in a local election also has a constitutional right to have his vote counted with substantially the same weight as that of any other voter in a case where the elected officials exercised "general governmental powers over the entire geographic area served by the body." Id. at 390 U. S. 485.Appellants in this case argue that the junior college trustees exercised general governmental powers over the entire district, and that, under Avery, the State was thus required to apportion the trustees according to population on an equal basis, as far as practicable. Appellants argue that, since the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior colleges, [Footnote 5] their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. We feel that these powers, while not fully as broad as those of the Midland County Commissioners, [Footnote 6] certainly show that the trustees Page 397 U. S. 54 perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.This Court has consistently held in a long series of cases [Footnote 7] that, in situations involving elections, the States are required to insure that each person's vote counts as much, insofar as it is practicable, as any other person's. We have applied this principle in congressional elections, state legislative elections, and local elections. The consistent theme of those decisions is that the right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varied, in each case, a constant factor is the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions. Thus, in the case now before us, while the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor -- these officials are elected by popular vote.When a court is asked to decide whether a State is required by the Constitution to give each qualified voter the same power in an election open to all, there is no discernible valid reason why constitutional distinctions should be drawn on the basis of the purpose of the election. Page 397 U. S. 55 If one person's vote is given less weight through unequal apportionment, his right to equal voting participation is impaired just as much when he votes for a school board member as when he votes for a state legislator. While there are differences in the powers of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. It should be remembered that, in cases like this one, we are asked by voters to insure that they are given equal treatment, and, from their perspective, the harm from unequal treatment is the same in any election, regardless of the officials selected.If the purpose of a particular election were to be the determining factor in deciding whether voters are entitled to equal voting power, courts would be faced with the difficult job of distinguishing between various elections. We cannot readily perceive judicially manageable standards to aid in such a task. It might be suggested that equal apportionment is required only in "important" elections, but good judgment and common sense tell us that what might be a vital election to one voter might well be a routine one to another. In some instances, the election of a local sheriff may be far more important than the election of a United States Senator. If there is any way of determining the importance of choosing a particular governmental official, we think the decision of the State to select that official by popular vote is a strong enough indication that the choice is an important one. This is so because, in our country, popular election has traditionally been the method followed when government by the people is most desired.It has also been urged that we distinguish, for apportionment purposes, between elections for "legislative" officials and those for "administrative" officers. Such a suggestion would leave courts with an equally unmanageable Page 397 U. S. 56 principle, since governmental activities "cannot easily be classified in the neat categories favored by civics texts," Avery, supra, at 390 U. S. 482, and it must also be rejected. We therefore hold today that, as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. It is, of course, possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds, supra, might not be required, but certainly we see nothing in the present case that indicates that the activities of these trustees fit in that category. Education has traditionally been a vital governmental function, and these trustees, whose election the State has opened to all qualified voters, are governmental officials in every relevant sense of that term.In this particular case the "one man, one vote" principle is to some extent already reflected in the Missouri statute. That act provides that, if no one or more of the component school districts has 33 1/3% or more of the total enumeration of the junior college district, then all six trustees are elected at large. If, however, one or more districts has between 33 1/3% and 50% of the total enumeration, each such district elects two trustees, and the rest are elected at large from the remaining districts. Page 397 U. S. 57 Similarly, if one district has between 50% and 66 2/3% of the enumeration, it elects three trustees, and if one district has more than 66 2/3%, it elects four trustees. [Footnote 8] This scheme thus allocates increasingly more trustees to large districts as they represent an increasing proportion of the total enumeration.Although the statutory scheme reflects to some extent a principle of equal voting power, it does so in a way that does not comport with constitutional requirements. This is so because the Act necessarily results in a systematic discrimination against voters in the more populous school districts. This discrimination occurs because whenever a large district's percentage of the total enumeration falls within a certain percentage range, it is always allocated the number of trustees corresponding to the bottom of that range. Unless a particular large district has exactly 331 /3%, 50%, or 66 2/3% of the total enumeration, it will always have proportionally fewer trustees than the small districts. As has been pointed out, in the case of the Kansas City School District, approximately 60% of the total enumeration entitles that district to only 50% of the trustees. Thus, while voters in large school districts may frequently have less effective voting power than residents of small districts, they can never have more. Such built-in discrimination against voters in large districts cannot be sustained as a sufficient compliance with the constitutional mandate that each person's vote count as much as another's, as far as practicable. Consequently Missouri cannot allocate the junior college trustees according to the statutory formula employed in this case. [Footnote 9] We would be faced with a different Page 397 U. S. 58 question if the deviation from equal apportionment presented in this case resulted from a plan that did not contain a built-in bias in favor of small districts, but rather from the inherent mathematical complications in equally apportioning a small number of trustees among a limited number of component districts. We have said before that mathematical exactitude is not required, Wesberry, supra, at 376 U. S. 18, Reynolds, supra, at 377 U.S. 577, but a plan that does not automatically discriminate in favor of certain districts is.In holding that the guarantee of equal voting strength for each voter applies in all elections of governmental officials, we do not feel that the States will be inhibited in finding ways to insure that legitimate political goals of representation are achieved. We have previously upheld against constitutional challenge an election scheme that required that candidates be residents of certain districts that did not contain equal numbers of people. Dusch v. Davis, 387 U. S. 112 (1967). Since all the officials in that case were elected at large, the right of each voter was given equal treatment. [Footnote 10] We have also held that, where a State chooses to select members of an official body by appointment, rather than election, and that choice does not itself offend the Constitution, the fact that each official does not "represent" the same number of people does not deny those people equal protection of the laws. Sailors v. Board of Education, 387 U. S. 105 (1967); cf. Fortson v. Morris, 385 U. S. 231 (1966). And a State may, in certain cases, limit the Page 397 U. S. 59 right to vote to a particular group or class of people. As we said before,"[v]iable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation."Sailors, supra, at 387 U. S. 110-111. But once a State has decided to use the process of popular election, and"once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded."Gray v. Sanders, 372 U. S. 368, 372 U. S. 381 (1963).For the reasons set forth above, the judgment below is reversed, and the case is remanded to the Missouri Supreme Court for proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtHadley v. Junior Coll. Dist., 397 U.S. 50 (1970)Hadley v. Junior College District of Metropolitan Kansas CityNo. 37Argued November 10, 1969Decided February 25, 1970397 U.S. 50SyllabusAppellants, residents and taxpayers of the Kansas City School District, one of eight school districts constituting the Junior College District of Metropolitan Kansas City, brought this suit claiming that their right to vote for trustees of the district was unconstitutionally diluted in violation of the Equal Protection Clause of the Fourteenth Amendment since their separate district contains approximately 60% of the total apportionment basis of the entire junior college district, but the state statutory formula results in the election of only 50% of the trustees from their district. The trial court's dismissal of the suit was upheld by the Missouri Supreme Court, which held the "one man, one vote" principle inapplicable.Held: Whenever a state or local government by popular election selects persons to perform public functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter have an equal opportunity to participate in the election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that, as far as practicable, will insure that equal numbers of voters can vote for proportionally equal numbers of officials. Avery v. Midland County, 390 U. S. 474. Pp. 397 U. S. 52-59.432 S.W.2d 328, reversed and remanded. Page 397 U. S. 51

1969_270

MR. JUSTICE WHITE delivered the opinion of the Court.In 1959, petitioner was charged with kidnaping in violation of 18 U.S.C. § 1201(a). [Footnote 1] Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea. [Footnote 2] Page 397 U. S. 744 Petitioner was sentenced to 50 years' imprisonment, later reduced to 30.In 1967, petitioner sought relief under 28 U.S.C. § 2255, claiming that his plea of guilty was not voluntarily given because § 1201(a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure. [Footnote 3] Page 397 U. S. 745After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner's counsel did not put impermissible pressure on petitioner to plead guilty, and no representations were made with respect to a reduced sentence or clemency. The court held that § 1201(a) was constitutional, and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty "by reason of other matters and not by reason of the statute" or because of any acts of the trial judge. The court concluded that "the plea was voluntarily and knowingly made."The Court of Appeal for the Tenth Circuit affirmed, determining that the District Court's findings were supported by substantial evidence and specifically approving the finding that petitioner's plea of guilty was voluntary. 404 F.2d 601 (1968). We granted certiorari, 395 U.S. 976 (1969), to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court's decision in United States v. Jackson, 390 U. S. 570 (1968). We affirm.IIn United States v. Jackson, supra, the defendants were indicted under § 1201(a). The District Court dismissed the § 1201(a) count of the indictment, holding Page 397 U. S. 746 the statute unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation, and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court "that the death penalty provision . . . imposes an impermissible burden upon the exercise of a constitutional right. . . ." 390 U.S. at 390 U. S. 572. The problem was to determine"whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury."390 U.S. at 390 U. S. 581. The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision "needlessly penalize[d] the assertion of a constitutional right," 390 U.S. at 390 U. S. 583, and was therefore unconstitutional.Since the "inevitable effect" of the death penalty provision of § 1201(a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the Jackson opinion.The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of guilty pleas:"the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that Page 397 U. S. 747 every defendant who enters a guilty plea to a charge under the Act does so involuntarily."390 U.S. at 390 U. S. 583. Cited in support of this statement, 390 U.S. at 390 U. S. 583 n. 25, was Laboy v. New Jersey, 266 F. Supp. 581 (D.C. N.J.1967), where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty.Moreover, the Court in Jackson rejected a suggestion that the death penalty provision of § 1201(a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers,"however clear [the defendants'] guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings.""[T]hat jury waivers and guilty pleas may occasionally be rejected" was no ground for automatically rejecting all guilty pleas under the statute, for such a rule "would rob the criminal process of much of its flexibility." 390 U.S. at 390 U. S. 584.Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether involuntary or not. Jackson prohibits the imposition of the death penalty under § 1201(a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both "voluntary" and "intelligent." See Boykin v. Alabama, 395 U. S. 238, 395 U. S. 242 (1969). [Footnote 4] Page 397 U. S. 748That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the act charged in the indictment. He thus stands as a witness against himself, and he is shielded by the Fifth Amendment from being compelled to do so -- hence the minimum requirement that his plea be the voluntary expression of his own choice. [Footnote 5] But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial -- a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary, but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. [Footnote 6] On neither score was Brady's plea of guilty invalid. Page 397 U. S. 749IIThe trial judge in 1959 found the plea voluntary before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady's guilty plea.The voluntariness of Brady's plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U. S. 503, 373 U. S. 513 (1963); Leyra v. Denno, 347 U. S. 556, 347 U. S. 558 (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty, and thus limit the penalty to life imprisonment, rather than to elect a jury trial which could result in a death penalty. [Footnote 7] But Page 397 U. S. 750 even if we assume that Brady would not have pleaded guilty except for the death penalty provision of § 1201(a), this assumption merely identifies the penalty provision as a "but for" cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady's claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency, and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for Page 397 U. S. 751 the crime charged if a conviction is obtained after the State is put to its proof.Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged, and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations, [Footnote 8] as in Brady's case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.The issue we deal with is inherent in the criminal law and its administration, because guilty pleas are not Page 397 U. S. 752 constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious -- his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State, there are also advantages -- the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment, and, with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof. [Footnote 9] It is this mutuality of advantage that perhaps explains the fact that, at present, well over three-fourths of the criminal convictions in this country rest on pleas of guilty, [Footnote 10] a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or Page 397 U. S. 753 the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who, in turn, extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.Bram v. United States, 168 U. S. 532 (1897), held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be"'free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.'"168 U.S. at 168 U. S. 542-543. More recently, Malloy v. Hogan, 378 U. S. 1 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination. [Footnote 11] Page 397 U. S. 754Bram is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement, and the possible impact on them too great, to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U. S. 436 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards. [Footnote 12]Brady's situation bears no resemblance to Bram's. Brady first pleaded not guilty; prior to changing his plea to guilty, he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court, and before a judge obviously sensitive to Page 397 U. S. 755 the requirements of the law with respect to guilty pleas. Brady's plea, unlike Bram's confession, was voluntary.The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:"'[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are, by their nature, improper as having no proper relationship to the prosecutor's business (e.g., bribes).' 242 F.2d at page 115. [Footnote 13]"Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty. [Footnote 14] Page 397 U. S. 756IIIThe record before us also supports the conclusion that Brady's plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed.It is true that Brady's counsel advised him that § 1201(a) empowered the jury to impose the death penalty and that, nine years later, in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady's conviction.Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that, in the light of later events, seem improvident, although they were perfectly Page 397 U. S. 757 sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U. S. 708 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties, but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.This is not to say that guilty plea convictions hold no hazards for the innocent, or that the methods of taking guilty pleas presently employed in this country are Page 397 U. S. 758 necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary, and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel, and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made, and we have no reason to doubt that his solemn admission of guilt was truthful.Affirmed

U.S. Supreme CourtBrady v. United States, 397 U.S. 742 (1970)Brady v. United StatesNo. 270Argued November 18, 1969Decided May 4, 1970397 U.S. 742SyllabusPetitioner was indicted in 1959 for kidnaping and not liberating the victim unharmed in violation of 18 U.S.C. § 1201(a), which imposed a maximum penalty of death if the jury's verdict so recommended. Upon learning that his codefendant, who had confessed, would plead guilty and testify against him, petitioner changed his plea from not guilty to guilty. The trial judge accepted the plea after twice questioning petitioner (who was represented throughout by competent counsel) as to the voluntariness of his plea, and imposed sentence. In 1967, petitioner sought post-conviction relief, in part on the ground that § 1201(a) operated to coerce his plea. The District Court, after hearing, denied relief, concluding that petitioner's plea was voluntary and had been induced not by that statute, but by the development concerning his confederate. The Court of Appeals affirmed. Petitioner claims that United States v. Jackson, 390 U. S. 570 (1968), requires reversal of that holding.Held: On the record in this case, there is no basis for disturbing the judgment of the courts below that petitioner's guilty plea was voluntary. Pp. 397 U. S. 745-758.(a) Though United States v. Jackson, supra, prohibits imposition of the death penalty under § 1201(a), it does not hold that all guilty pleas encouraged by the fear of possible death are involuntary, nor does it invalidate such pleas, whether involuntary or not. Pp. 397 U. S. 745-748.(b) A plea of guilty is not invalid merely because entered to avoid the possibility of the death penalty, and here, petitioner's plea of guilty met the standard of voluntariness, as it was made "by one fully aware of the direct consequences" of that plea. Pp. 397 U. S. 749-755.(c) Petitioner's plea, made after advice by competent counsel, was intelligently made, and the fact that petitioner did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of that plea. Pp. 397 U. S. 756-758.404 F.2d 601, affirmed. Page 397 U. S. 743

1962_63

MR. JUSTICE BLACK delivered the opinion of the Court.This is a controversy between a husband and wife over the custody of their three young children which raises questions under the Full Faith and Credit Clause of the Page 371 U. S. 188 United States Constitution. [Footnote 1] Their first litigation was in 1959, when the husband filed in the Richmond Virginia Law and Equity Court a petition for habeas corpus alleging that the wife had the children but was not a suitable person to keep them and asking that they be produced before the court and custody awarded to him. The wife promptly answered, alleging that she was the proper person to have custody of the children and asking that the writ be dismissed. Thereafter, negotiations took place between the parents, both being represented by counsel, and they agreed that the husband was, with minor exceptions, to have custody of the children during the school year, and the wife was to have custody during summer vacation and other holidays. When notified of this agreement, the Richmond court entered the following order:"It being represented to the court by counsel that the parties hereto have agreed concerning the custody of the infant children, it is ordered that this case be dismissed."Some nine months later, August 10, 1960, while the three children were with their mother in Greenville, South Carolina, she began this suit for full custody in the Greenville County Juvenile and Domestic Relations Court, again alleging that she was the proper person to have custody and that the husband was not. Service was had upon the husband, who answered, charging that, for Page 371 U. S. 189 reasons set out, the mother was not fit to have custody of the children, and asserting that he was. He also set up as a defense that". . . Plaintiff has violated and breached the agreement made between the parties by and with their respective legal counsel and further violated the Order of the Court of record in Richmond, Virginia that was duly issued and based upon said agreement."After hearing testimony from 11 witnesses including the husband and wife, the trial judge found as a fact that, while both the father and mother were fit persons to have the children, it was "to the best interest of the children that the mother have custody and control." The judge also rejected the husband's argument that the order of dismissal in the Virginia court should be treated as res judicata of the issue of fitness before the South Carolina court.On appeal, the Court of Common Pleas, like the judge of the juvenile court, held that, under the law of South Carolina, the interests of the children were "paramount," and that it was their welfare which had to be protected. It decided that, while both parents would be suitable custodians, the best interests of the children required that the wife have custody during the school months and the husband during the other parts of the year, in effect inverting the arrangement previously made in the parents' agreement. In rejecting the husband's contention that South Carolina courts should be bound by the dismissal of the habeas corpus proceedings in Virginia which was based on the parents' agreement, the court said:"To hold that the custody of these three children was fully and finally determined in Richmond, Virginia, by the agreement reached between the plaintiff's Page 371 U. S. 190 attorneys and the defendant's attorneys would be unfair to the children, and too harsh a rule to follow."On appeal, the Supreme Court of South Carolina reversed. 239 S.C. 305, 123 S.Ed.2d 33 (1961). That court, after a review of certain Virginia cases, said:"If the respondent [the wife] here had instituted in the Courts of Virginia the action commenced by her in the Courts of this State, the appellant could have successfully interposed a plea of res judicata as a defense to said action. Since the judgment entered in the Virginia Court by agreement or consent is res judicata in that State, it is res judicata and entitled to full faith and credit in this State. We are required under Art. IV, Sec. 1 of the Constitution of the United States to give the same faith and credit in this State to the 'dismissed agreed' order or judgment as 'by law or usage' the Courts of Virginia would give to such order or judgment."239 S.C. at 317, 123 S.E.2d at 39. We granted certiorari to consider this question of full faith and credit upon which the South Carolina Supreme Court's judgment rests. 369 U.S. 801 (1962).The husband has argued that we need not reach the full faith and credit question, because the State Supreme Court rested its decision on South Carolina law, rather than on the Full Faith and Credit Clause of the Federal Constitution. This argument is based on language in the closing part of the court's opinion, where it was said that "[a] judicial award of the custody of a child is never final," and that a South Carolina court may, "even on its own motion," reconsider the custody of a child if new facts and circumstances make it necessary or desirable for the child's welfare to do so. The court concluded, however, that it found in the pleadings and the record"neither allegation Page 371 U. S. 191 nor proof of any changed circumstances authorizing a change of the custody of the minor children of the parties to this action."239 S.C. at 317-318, 123 S.E.2d at 39. It seems clear to us that the State Supreme Court was merely stating that, under its own law, it could modify custody decrees if the circumstances had changed. [Footnote 2] It seems equally clear to us that the court was not attempting to rely on South Carolina law for its conclusion that, since there were no changed circumstances, it had to give effect to the prior Virginia decree. In previously stating the issues submitted in the case, the court had said this:"It was further submitted that the Juvenile and Domestic Relations Court of Greenville County must recognize, in accordance with the full faith and credit clause of the Constitution of the United States, the agreed Order of Dismissal of the Virginia Court, and that such was res judicata, unless there was evidence of subsequent misconduct on the part of the appellant or a change of conditions warranting a change of the custody of the children."239 S.C. at 309, 123 S.E.2d at 34-35. What the court then went on to discuss was not whether the Virginia decree was res judicata under South Carolina law, but whether it was res judicata under Virginia law, and therefore entitled to full faith and credit in South Carolina. We are convinced that the court rested its decision squarely and solely on its reading of Virginia law and of the Full Faith and Credit Clause as requiring South Carolina, in the absence of a change of circumstances, to give full effect to the prior Virginia decree. Nothing in the court's opinion suggests what it might have Page 371 U. S. 192 done under South Carolina law had it not so interpreted the Full Faith and Credit Clause.Whether the South Carolina court's interpretation of the Full Faith and Credit Clause is a correct one is a question we have previously reserved. [Footnote 3] We need not reach that question here. The Full Faith and Credit Clause, if applicable to a custody decree, would require South Carolina to recognize the Virginia order as binding only if a Virginia court would be bound by it. Recognizing this, the South Carolina Supreme Court's opinion was largely devoted to a review of Virginia cases to determine the effect in Virginia of the order of dismissal. The cases relied on by the South Carolina court do hold that the parties to some actions may agree to a dismissal, and that, in such cases, a "dismissed agreed" order is res judicata between the parties. All of the Virginia cases discussed by the South Carolina court, however, involved purely private controversies [Footnote 4] which private litigants can settle, and none involved the custody of children, where the public interest is strong. In each case, the Virginia dismissal was the result of an agreement between the parties equivalent to a compromise intended to settle a cause of action. [Footnote 5] Whatever the effect given such dismissals where only private interests of parties are involved, cases involving custody of children raise very different considerations. We are of the opinion that Virginia law, which Page 371 U. S. 193 does not treat a contract between the parents as a bar to the court's jurisdiction in custody cases, [Footnote 6] would similarly not treat as res judicata the dismissal in this case.The Virginia court held no hearings as to the custody of the children. In entering its order of dismissal, the court neither examined the terms of the parents' agreement nor exercised its own judgment of what was best for the children. The court's order meant no more than that the parents had made an agreement between themselves. Virginia law, like that of probably every State in the Union, [Footnote 7] requires the court to put the child's interest first. The Supreme Court of Appeals of Virginia has stated this policy with unmistakable clarity:"In Virginia, we have established the rule that the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate."Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948). Unfortunately, experience has shown that the question of custody, so vital to a child's happiness and wellbeing, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudice. In Virginia, the parents cannot make agreements which will bind courts to decide a custody case one way or the other. The Virginia Supreme Court of Appeals has emphasized this deep-rooted Virginia policy by declaring: "The custody and welfare of children are not the subject of barter." Buchanan v. Buchanan, 170 Va. 458, 477, 197 S.E. 426, 434 (1938). Page 371 U. S. 194Whatever a Virginia court might do in a case where another court had exercised its considered judgment before awarding custody, [Footnote 8] we do not believe that, in view of Virginia's strong policy of safeguarding the welfare of the child, a court of that State would consider itself bound by a mere order of dismissal where, as here, the trial judge never even saw, much less passed upon, the parents' private agreement for custody, and heard no testimony whatever upon which to base a judgment as to what would be best for the children.We hold that the courts of South Carolina were not precluded by the Full Faith and Credit Clause from determining the best interest of these children and entering a decree accordingly. In holding otherwise, the South Carolina Supreme Court was in error. The case is reversed and remanded to that court for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtFord v. Ford, 371 U.S. 187 (1962)Ford v. FordNo. 63Argued November 15, 1962Decided December 10, 1962371 U.S. 187SyllabusAfter being informed that a husband and his estranged wife had reached an agreement concerning the custody of their children, a Virginia court dismissed a petition for habeas corpus which had been filed by the husband in order to obtain their custody. Subsequently, while the children were with their mother in South Carolina, she sued in a court of that State to have full custody awarded to her, and that was done in a proceeding in which the husband appeared and contended that it was a violation of the agreement reached in Virginia which was the basis of the Virginia court's order of dismissal. The Supreme Court of South Carolina reversed, on the ground that the judgment of the Virginia court was res judicata and binding on the South Carolina courts under the Full Faith and Credit Clause of the Federal Constitution, in the absence of a change of circumstances warranting a change of the custody of the children.Held: Even if the Full Faith and Credit Clause is applicable to cases involving custody of children, the courts of South Carolina were not bound by the Virginia order of dismissal here, since that order was not res judicata in Virginia. Pp. 371 U. S. 187-194.239 S.C. 305, 123 S.E.2d 33, reversed.

1991_91-971

(1982 ed.), based on a finding of inherent distinctiveness, without proof that the trade dress has secondary meaning.IRespondent Taco Cabana, Inc., operates a chain of fastfood restaurants in Texas. The restaurants serve Mexican food. The first Taco Cabana restaurant was opened in San Antonio in September 1978, and five more restaurants had been opened in San Antonio by 1985. Taco Cabana describes its Mexican trade dress as"a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme." 932 F.2d 1113, 1117 (CA5 1991).In December 1985, a Two Pesos, Inc., restaurant was opened in Houston. Two Pesos adopted a motif very similar to the foregoing description of Taco Cabana's trade dress. Two Pesos restaurants expanded rapidly in Houston and other markets, but did not enter San Antonio. In 1986, Taco Cabana entered the Houston and Austin markets and expanded into other Texas cities, including Dallas and EI Paso where Two Pesos was also doing business.In 1987, Taco Cabana sued Two Pesos in the United States District Court for the Southern District of Texas for trade dress infringement under § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a) (1982 ed.),2 and for theft of trade secrets2 Section 43(a) provides: "Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to de-766under Texas common law. The case was tried to a jury, which was instructed to return its verdict in the form of answers to five questions propounded by the trial judge. The jury's answers were: Taco Cabana has a trade dress; taken as a whole, the trade dress is nonfunctional; the trade dress is inherently distinctive; 3 the trade dress has not acquired a secondary meaning 4 in the Texas market; and the alleged infringement creates a likelihood of confusion on the part of ordinary customers as to the source or association of the restaurant's goods or services. Because, as the jury was told, Taco Cabana's trade dress was protected if it either was inherently distinctive or had acquired a secondary meaning, judgment was entered awarding damages to Taco Cabana. In the course of calculating damages, the trial court held that Two Pesos had intentionally and deliberately infringed Taco Cabana's trade dress.5scribe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation." 60 Stat. 441.This provision has been superseded by § 132 of the Trademark Law Revision Act of 1988, 102 Stat. 3946, 15 U. S. C. § 1121.3 The instructions were that, to be found inherently distinctive, the trade dress must not be descriptive.4 Secondary meaning is used generally to indicate that a mark or dress "has come through use to be uniquely associated with a specific source." Restatement (Third) of Unfair Competition § 13, Comment e (Tent. Draft No.2, Mar. 23, 1990). "To establish secondary meaning, a manufacturer must show that, in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself." Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851, n. 11 (1982).5 The Court of Appeals agreed: "The weight of the evidence persuades us, as it did Judge Singleton, that Two Pesos brazenly copied Taco Cabana's successful trade dress, and proceeded to expand in a manner that767The Court of Appeals ruled that the instructions adequately stated the applicable law and that the evidence supported the jury's findings. In particular, the Court of Appeals rejected petitioner's argument that a finding of no secondary meaning contradicted a finding of inherent distinctiveness.In so holding, the court below followed precedent in the Fifth Circuit. In Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 702 (CA5 1981), the court noted that trademark law requires a demonstration of secondary meaning only when the claimed trademark is not sufficiently distinctive of itself to identify the producer; the court held that the same principles should apply to protection of trade dresses. The Court of Appeals noted that this approach conflicts with decisions of other courts, particularly the holding of the Court of Appeals for the Second Circuit in Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F.2d 299 (1981), cert. denied, 455 U. S. 909 (1982), that § 43(a) protects unregistered trademarks or designs only where secondary meaning is shown. Chevron, supra, at 702. We granted certiorari to resolve the conflict among the Courts of Appeals on the question whether trade dress that is inherently distinctive is protectible under § 43(a) without a showing that it has acquired secondary meaning.6 502 U. S. 1071 (1992). We find that it is, and we therefore affirm.IIThe Lanham Act 7 was intended to make "actionable the deceptive and misleading use of marks" and "to protect per-foreclosed several lucrative markets within Taco Cabana's natural zone of expansion." 932 F. 2d, at 1127, n. 20.6We limited our grant of certiorari to the above question on which there is a conflict. We did not grant certiorari on the second question presented by the petition, which challenged the Court of Appeals' acceptance of the jury's finding that Taco Cabana's trade dress was not functional.7 The Lanham Act, including the provisions at issue here, has been substantially amended since the present suit was brought. See Trademark Law Revision Act of 1988, 102 Stat. 3946, 15 U. S. C. § 1121.768sons engaged in ... commerce against unfair competition." § 45, 15 U. S. C. § 1127. Section 43(a) "prohibits a broader range of practices than does § 32," which applies to registered marks, Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 858 (1982), but it is common ground that § 43(a) protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a). See A. J. Canfield Co. v. Honickman, 808 F.2d 291, 299, n. 9 (CA3 1986); Thompson Medical Co. v. Pfizer Inc., 753 F.2d 208, 215-216 (CA2 1985).A trademark is defined in 15 U. S. C. § 1127 as including "any word, name, symbol, or device or any combination thereof" used by any person "to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown." In order to be registered, a mark must be capable of distinguishing the applicant's goods from those of others. § 1052. Marks are often classified in categories of generally increasing distinctiveness; following the classic formulation set out by Judge Friendly, they may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (CA2 1976). The Court of Appeals followed this classification and petitioner accepts it. Brief for Petitioner 11-15. The latter three categories of marks, because their intrinsic nature serves to identify a particular source of a product, are deemed inherently distinctive and are entitled to protection. In contrast, generic marks-those that "refe[r] to the genus of which the particular product is a species," Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 194 (1985), citing Abercrombie & Fitch, supra, at 9-are not registrable as trademarks. Park 'N Fly, supra, at 194.769Marks which are merely descriptive of a product are not inherently distinctive. When used to describe a product, they do not inherently identify a particular source, and hence cannot be protected. However, descriptive marks may acquire the distinctiveness which will allow them to be protected under the Act. Section 2 of the Lanham Act provides that a descriptive mark that otherwise could not be registered under the Act may be registered if it "has become distinctive of the applicant's goods in commerce." §§ 2(e), (f), 15 U. S. C. §§ 1052(e), (f). See Park 'N Fly, supra, at 194, 196. This acquired distinctiveness is generally called "secondary meaning." See ibid.; Inwood Laboratories, supra, at 851, n. 11; Kellogg Co. v. National Biscuit Co., 305 U. S. 111,118 (1938). The concept of secondary meaning has been applied to actions under § 43(a). See, e. g., University of Georgia Athletic Assn. v. Laite, 756 F.2d 1535 (CA111985); Thompson Medical Co. v. Pfizer Inc., supra.The general rule regarding distinctiveness is clear: An identifying mark is distinctive and capable of being protected if it either (1) is inherently distinctive or (2) has acquired distinctiveness through secondary meaning. Restatement (Third) of Unfair Competition § 13, pp. 37-38, and Comment a (Tent. Draft No.2, Mar. 23, 1990). Cf. Park 'N Fly, supra, at 194. It is also clear that eligibility for protection under § 43(a) depends on nonfunctionality. See, e. g., Inwood Laboratories, supra, at 863 (WHITE, J., concurring in result); see also, e. g., Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 517 (CAlO 1987); First Brands Corp. v. Fred Meyers, Inc., 809 F.2d 1378, 1381 (CA9 1987); Stormy Clime Ltd. v. ProGroup, Inc., 809 F.2d 971, 974 (CA2 1987); Ambrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1535 (CAll 1986); American Greetings Corp. v. Dan-Dee Imports, Inc., 807 F.2d 1136, 1141 (CA3 1986). It is, of course, also undisputed that liability under § 43(a) requires proof of the likelihood of confusion. See, e. g., Brunswick Corp., supra, at 516-517; AmBrit,770supra, at 1535; First Brands, supra, at 1381; Stormy Clime, supra, at 974; American Greetings, supra, at 1141.The Court of Appeals determined that the District Court's instructions were consistent with the foregoing principles and that the evidence supported the jury's verdict. Both courts thus ruled that Taco Cabana's trade dress was not descriptive but rather inherently distinctive, and that it was not functional. None of these rulings is before us in this case, and for present purposes we assume, without deciding, that each of them is correct. In going on to affirm the judgment for respondent, the Court of Appeals, following its prior decision in Chevron, held that Taco Cabana's inherently distinctive trade dress was entitled to protection despite the lack of proof of secondary meaning. It is this issue that is before us for decision, and we agree with its resolution by the Court of Appeals. There is no persuasive reason to apply to trade dress a general requirement of secondary meaning which is at odds with the principles generally applicable to infringement suits under § 43(a). Petitioner devotes much of its briefing to arguing issues that are not before us, and we address only its arguments relevant to whether proof of secondary meaning is essential to qualify an inherently distinctive trade dress for protection under § 43(a).Petitioner argues that the jury's finding that the trade dress has not acquired a secondary meaning shows conclusively that the trade dress is not inherently distinctive. Brief for Petitioner 9. The Court of Appeals' disposition of this issue was sound:"Two Pesos' argument-that the jury finding of inherent distinctiveness contradicts its finding of no secondary meaning in the Texas market-ignores the law in this circuit. While the necessarily imperfect (and often prohibitively difficult) methods for assessing secondary meaning address the empirical question of current consumer association, the legal recognition of an inherently distinctive trademark or trade dress acknowledges the771owner's legitimate proprietary interest in its unique and valuable informational device, regardless of whether substantial consumer association yet bestows the additional empirical protection of secondary meaning." 932 F. 2d, at 1120, n. 7.Although petitioner makes the above argument, it appears to concede elsewhere in its brief that it is possible for a trade dress, even a restaurant trade dress, to be inherently distinctive and thus eligible for protection under § 43(a). Brief for Petitioner 10-11, 17-18; Reply Brief for Petitioner 10-14. Recognizing that a general requirement of secondary meaning imposes "an unfair prospect of theft [or] financial loss" on the developer of fanciful or arbitrary trade dress at the outset of its use, petitioner suggests that such trade dress should receive limited protection without proof of secondary meaning. Id., at 10. Petitioner argues that such protection should be only temporary and subject to defeasance when over time the dress has failed to acquire a secondary meaning. This approach is also vulnerable for the reasons given by the Court of Appeals. If temporary protection is available from the earliest use of the trade dress, it must be because it is neither functional nor descriptive, but an inherently distinctive dress that is capable of identifying a particular source of the product. Such a trade dress, or mark, is not subject to copying by concerns that have an equal opportunity to choose their own inherently distinctive trade dress. To terminate protection for failure to gain secondary meaning over some unspecified time could not be based on the failure of the dress to retain its fanciful, arbitrary, or suggestive nature, but on the failure of the user of the dress to be successful enough in the marketplace. This is not a valid basis to find a dress or mark ineligible for protection. The user of such a trade dress should be able to maintain what competitive position it has and continue to seek wider identification among potential customers.772This brings us to the line of decisions by the Court of Appeals for the Second Circuit that would find protection for trade dress unavailable absent proof of secondary meaning, a position that petitioner concedes would have to be modified if the temporary protection that it suggests is to be recognized. Brief for Petitioner 10-14. In Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F.2d 299 (1981), the plaintiff claimed protection under § 43(a) for a product whose features the defendant had allegedly copied. The Court of Appeals held that unregistered marks did not enjoy the "presumptive source association" enjoyed by registered marks and hence could not qualify for protection under § 43(a) without proof of secondary meaning. Id., at 303, 304. The court's rationale seemingly denied protection for unregistered, but inherently distinctive, marks of all kinds, whether the claimed mark used distinctive words or symbols or distinctive product design. The court thus did not accept the arguments that an unregistered mark was capable of identifying a source and that copying such a mark could be making any kind of a false statement or representation under § 43(a).This holding is in considerable tension with the provisions of the Lanham Act. If a verbal or symbolic mark or the features of a product design may be registered under § 2, it necessarily is a mark "by which the goods of the applicant may be distinguished from the goods of others," 60 Stat. 428, and must be registered unless otherwise disqualified. Since § 2 requires secondary meaning only as a condition to registering descriptive marks, there are plainly marks that are registrable without showing secondary meaning. These same marks, even if not registered, remain inherently capable of distinguishing the goods of the users of these marks. Furthermore, the copier of such a mark may be seen as falsely claiming that his products may for some reason be thought of as originating from the plaintiff.Some years after Vibrant, the Second Circuit announced in Thompson Medical Co. v. Pfizer Inc., 753 F.2d 208 (1985),773that in deciding whether an unregistered mark is eligible for protection under § 43(a), it would follow the classification of marks set out by Judge Friendly in Abercrombie & Fitch, 537 F. 2d, at 9. Hence, if an unregistered mark is deemed merely descriptive, which the verbal mark before the court proved to be, proof of secondary meaning is required; however, "[s]uggestive marks are eligible for protection without any proof of secondary meaning, since the connection between the mark and the source is presumed." 753 F. 2d, at 216. The Second Circuit has nevertheless continued to deny protection for trade dress under § 43(a) absent proof of secondary meaning, despite the fact that § 43(a) provides no basis for distinguishing between trademark and trade dress. See, e. g., Stormy Clime Ltd. v. ProGroup, Inc., 809 F. 2d, at 974; Union Mfg. Co. v. Han Baek Trading Co., 763 F.2d 42, 48 (1985); LeSportsac, Inc. v. K mart Corp., 754 F.2d 71, 75 (1985).The Fifth Circuit was quite right in Chevron, and in this case, to follow the Abercrombie classifications consistently and to inquire whether trade dress for which protection is claimed under § 43(a) is inherently distinctive. If it is, it is capable of identifying products or services as coming from a specific source and secondary meaning is not required. This is the rule generally applicable to trademarks, and the protection of trademarks and trade dress under § 43(a) serves the same statutory purpose of preventing deception and unfair competition. There is no persuasive reason to apply different analysis to the two. The "proposition that secondary meaning must be shown even if the trade dress is a distinctive, identifying mark, [is] wrong, for the reasons explained by Judge Rubin for the Fifth Circuit in Chevron." Blau Plumbing, Inc. v. S. O. S. Fix-It, Inc., 781 F.2d 604, 608 (CA7 1986). The Court of Appeals for the Eleventh Circuit also follows Chevron, Ambrit, Inc. v. Kraft, Inc., 805 F.2d 974, 979 (1986), and the Court of Appeals for the Ninth Circuit appears to think that proof of secondary meaning is super-774fiuous if a trade dress is inherently distinctive, Fuddruckers, Inc. v. Doc's B. R. Others, Inc., 826 F.2d 837, 843 (1987).It would be a different matter if there were textual basis in § 43(a) for treating inherently distinctive verbal or symbolic trademarks differently from inherently distinctive trade dress. But there is none. The section does not mention trademarks or trade dress, whether they be called generic, descriptive, suggestive, arbitrary, fanciful, or functional. Nor does the concept of secondary meaning appear in the text of § 43(a). Where secondary meaning does appear in the statute, 15 U. S. C. § 1052 (1982 ed.), it is a requirement that applies only to merely descriptive marks and not to inherently distinctive ones. We see no basis for requiring secondary meaning for inherently distinctive trade dress protection under § 43(a) but not for other distinctive words, symbols, or devices capable of identifying a producer's product.Engrafting onto § 43(a) a requirement of secondary meaning for inherently distinctive trade dress also would undermine the purposes of the Lanham Act. Protection of trade dress, no less than of trademarks, serves the Act's purpose to "secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers. National protection of trademarks is desirable, Congress concluded, because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation." Park 'N Fly, 469 U. S., at 198, citing S. Rep. No. 1333, 79th Cong., 2d Sess., 3-5 (1946) (citations omitted). By making more difficult the identification of a producer with its product, a secondary meaning requirement for a nondescriptive trade dress would hinder improving or maintaining the producer's competitive position.Suggestions that under the Fifth Circuit's law, the initial user of any shape or design would cut off competition from775products of like design and shape are not persuasive. Only nonfunctional, distinctive trade dress is protected under § 43(a). The Fifth Circuit holds that a design is legally functional, and thus unprotectible, if it is one of a limited number of equally efficient options available to competitors and free competition would be unduly hindered by according the design trademark protection. See Sicilia Di R. Biebow & Co. v. Cox, 732 F.2d 417, 426 (1984). This serves to assure that competition will not be stifled by the exhaustion of a limited number of trade dresses.On the other hand, adding a secondary meaning requirement could have anticompetitive effects, creating particular burdens on the startup of small companies. It would present special difficulties for a business, such as respondent, that seeks to start a new product in a limited area and then expand into new markets. Denying protection for inherently distinctive nonfunctional trade dress until after secondary meaning has been established would allow a competitor, which has not adopted a distinctive trade dress of its own, to appropriate the originator's dress in other markets and to deter the originator from expanding into and competing in these areas.As noted above, petitioner concedes that protecting an inherently distinctive trade dress from its inception may be critical to new entrants to the market and that withholding protection until secondary meaning has been established would be contrary to the goals of the Lanham Act. Petitioner specifically suggests, however, that the solution is to dispense with the requirement of secondary meaning for a reasonable, but brief, period at the outset of the use of a trade dress. Reply Brief for Petitioner 11-12. If §43(a) does not require secondary meaning at the outset of a business' adoption of trade dress, there is no basis in the statute to support the suggestion that such a requirement comes into being after some unspecified time.776IIIWe agree with the Court of Appeals that proof of secondary meaning is not required to prevail on a claim under § 43(a) of the Lanham Act where the trade dress at issue is inherently distinctive, and accordingly the judgment of that court is affirmed.It is so ordered

OCTOBER TERM, 1991SyllabusTWO PESOS, INC. v. TACO CABANA, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 91-971. Argued April 21, 1992-Decided June 26, 1992Respondent, the operator of a chain of Mexican restaurants, sued petitioner, a similar chain, for trade dress infringement under § 43(a) of the Trademark Act of 1946 (Lanham Act), which provides that "[a]ny person who ... use[s] in connection with any goods or services ... any false description or representation ... shall be liable to ... any person ... damaged by [such] use." The District Court instructed the jury, inter alia, that respondent's trade dress was protected if it either was inherently distinctive-i. e., was not merely descriptive-or had acquired a secondary meaning-i. e., had come through use to be uniquely associated with a specific source. The court entered judgment for respondent after the jury found, among other things, that respondent's trade dress is inherently distinctive but has not acquired a secondary meaning. In affirming, the Court of Appeals ruled that the instructions adequately stated the applicable law, held that the evidence supported the jury's findings, and rejected petitioner's argument that a finding of no secondary meaning contradicted a finding of inherent distinctiveness.Held: Trade that is inherently distinctive is protectable under § 43(a) without a showing that it has acquired secondary meaning, since such trade dress itself is capable of identifying products or services as coming from a specific source. This is the rule generally applicable to trademarks, see, e. g., Restatement (Third) of Unfair Competition § 13, pp. 37-38, and the protection of trademarks and of trade dress under § 43(a) serves the same statutory purpose of preventing deception and unfair competition. There is no textual basis for applying different analysis to the two. Section 43(a) mentions neither and does not contain the concept of secondary meaning, and that concept, where it does appear in the Lanham Act, is a requirement that applies only to merely descriptive marks and not to inherently distinctive ones. Engrafting a secondary meaning requirement onto § 43(a) also would make more difficult the identification of a producer with its product and thereby undermine the Lanham Act's purposes of securing to a mark's owner the goodwill of his business and protecting consumers' ability to distinguish among competing producers. Moreover, it could have anticompetitive effects by creating burdens on the startup of small businesses. Petitioner's suggestion that such businesses be protected by briefly dispensing with the764secondary meaning requirement at the outset of the trade dress' use is rejected, since there is no basis for such requirement in § 43(a). pp.767-776.932 F.2d 1113, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 776. STEVENS, J., post, p. 776, and THOMAS, J., post, p. 785, filed opinions concurring in the judgment.Kimball J. Corson argued the cause and filed the briefs for petitioner.Richard G. Taranto argued the cause for respondent.With him on the brief were H. Bartow Farr III and James Eliasberg. *JUSTICE WHITE delivered the opinion of the Court.The issue in this case is whether the trade dress 1 of a restaurant may be protected under § 43(a) of the Trademark Act of 1946 (Lanham Act), 60 Stat. 441, 15 U. S. C. § 1125(a)* Arthur M. Handler and Ronald S. Katz filed a brief for the Private Label Manufacturers Association as amicus curiae urging reversal.Bruce P. Keller filed a brief for the United States Trademark Association as amicus curiae.1 The District Court instructed the jury: "'[T]rade dress' is the total image of the business. Taco Cabana's trade dress may include the shape and general appearance of the exterior of the restaurant, the identifying sign, the interior kitchen floor plan, the decor, the menu, the equipment used to serve food, the servers' uniforms and other features reflecting on the total image of the restaurant." 1 App. 83-84. The Court of Appeals accepted this definition and quoted from Blue Bell Bio-Medical v. CinBad, Inc., 864 F.2d 1253, 1256 (CA5 1989): "The 'trade dress' of a product is essentially its total image and overall appearance." See 932 F.2d 1113, 1118 (CA5 1991). It "involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques." John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (CA111983). Restatement (Third) of Unfair Competition § 16, Comment a (Tent. Draft No.2, Mar. 23, 1990).765Full Text of Opinion

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MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This litigation challenges the validity, under the United States Constitution, of Local Act No. 140, passed by the Legislature of Alabama in 1957, redefining the boundaries of the City of Tuskegee. Petitioners, Negro citizens of Alabama who were, at the time of this redistricting measure, residents of the City of Tuskegee, brought an action in the United States District Court for the Middle District of Alabama for a declaratory judgment that Act 140 is unconstitutional, and for an injunction to restrain the Mayor and officers of Tuskegee and the officials of Macon County, Alabama, from enforcing the Act against them and other Negroes similarly situated. Petitioners' claim is that enforcement of the statute, which alters the shape of Tuskegee from a square to an uncouth twenty-eight-sided figure, will constitute a discrimination against them in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution and will deny them the right to vote in defiance of the Fifteenth Amendment.The respondents moved for dismissal of the action for failure to state a claim upon which relief could be granted and for lack of jurisdiction of the District Court. The court granted the motion, stating,"This Court has no control over, no supervision over, and no power to change any boundaries of municipal corporations fixed by a duly Page 364 U. S. 341 convened and elected legislative body, acting for the people in the State of Alabama."167 F. Supp. 405, 410. On appeal, the Court of Appeals for the Fifth Circuit, affirmed the judgment, one judge dissenting. 270 F.2d 594. We brought the case here, since serious questions were raised concerning the power of a State over its municipalities in relation to the Fourteenth and Fifteenth Amendments. 362 U.S. 916.At this stage of the litigation, we are not concerned with the truth of the allegations, that is, the ability of petitioners to sustain their allegations by proof. The sole question is whether the allegations entitle them to make good on their claim that they are being denied rights under the United States Constitution. The complaint, charging that Act 140 is a device to disenfranchise Negro citizens, alleges the following facts: prior to Act 140, the City of Tuskegee was square in shape; the Act transformed it into a strangely irregular twenty-eight-sided figure as indicated in the 364 U.S. 339app|>diagram appended to this opinion. The essential inevitable effect of this redefinition of Tuskegee's boundaries is to remove from the city all save four or five of its 400 Negro voters while not removing a single white voter or resident. The result of the Act is to deprive the Negro petitioners discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in municipal elections.These allegations, if proven, would abundantly establish that Act 140 was not an ordinary geographic redistricting measure, even within familiar abuses of gerrymandering. If these allegations, upon a trial, remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote. Page 364 U. S. 342It is difficult to appreciate what stands in the way of adjudging a statute having this inevitable effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, howsoever speciously defined, obviously discriminate against colored citizens. "The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination." Lane v. Wilson, 307 U. S. 268, 307 U. S. 275.The complaint amply alleges a claim of racial discrimination. Against this claim the respondents have never suggested, either in their brief or in oral argument, any countervailing municipal function which Act 140 is designed to serve. The respondents invoke generalities expressing the State's unrestricted power -- unlimited, that is, by the United States Constitution -- to establish, destroy, or reorganize by contraction or expansion its political subdivisions, to-wit, cities, counties, and other local units. We freely recognize the breadth and importance of this aspect of the State's political power. To exalt this power into an absolute is to misconceive the reach and rule of this Court's decisions in the leading case of Hunter v. Pittsburgh, 207 U. S. 161, and related cases relied upon by respondents.The Hunter case involved a claim by citizens of Allegheny, Pennsylvania, that the General Assembly of that State could not direct a consolidation of their city and Pittsburgh over the objection of a majority of the Allegheny voters. It was alleged that, while Allegheny already had made numerous civic improvements, Pittsburgh was only then planning to undertake such improvements, and that the annexation would therefore greatly increase the tax burden on Allegheny residents. All that the case held was (1) that there is no implied contract between a city and its residents that their taxes will be spent solely for the benefit of that city, and (2) that a citizen of one municipality is not deprived Page 364 U. S. 343 of property without due process of law by being subjected to increased tax burdens as a result of the consolidation of his city with another. Related cases upon which the respondents also rely, such as Trenton v. New Jersey, 262 U. S. 182; Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394, and Laramie County v. Albany County, 92 U. S. 307, are far off the mark. They are authority only for the principle that no constitutionally protected contractual obligation arises between a State and its subordinate governmental entities solely as a result of their relationship.In short, the cases that have come before this Court regarding legislation by States dealing with their political subdivisions fall into two classes: (1) those in which it is claimed that the State, by virtue of the prohibition against impairment of the obligation of contract (Art. I, § 10) and of the Due Process Clause of the Fourteenth Amendment, is without power to extinguish, or alter the boundaries of, an existing municipality; and (2) in which it is claimed that the State has no power to change the identity of a municipality whereby citizens of a preexisting municipality suffer serious economic disadvantage.Neither of these claims is supported by such a specific limitation upon State power as confines the States under the Fifteenth Amendment. As to the first category, it is obvious that the creation of municipalities -- clearly a political act -- does not come within the conception of a contract under the Dartmouth College Case, 4 Wheat. 518. As to the second, if one principle clearly emerges from the numerous decisions of this Court dealing with taxation, it is that the Due Process Clause affords no immunity against mere inequalities in tax burdens, nor does it afford protection against their increase as an indirect consequence of a State's exercise of its political powers.Particularly in dealing with claims under broad provisions of the Constitution, which derive content by an Page 364 U. S. 344 interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts. Thus, a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State's authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.The Hunter opinion itself intimates that a state legislature may not be omnipotent even as to the disposition of some types of property owned by municipal corporations, 207 U.S. at 207 U. S. 178-181. Further, other cases in this Court have refused to allow a State to abolish a municipality, or alter its boundaries, or merge it with another city, without preserving to the creditors of the old city some effective recourse for the collection of debts owed them. Shapleigh v. San Angelo, 167 U. S. 646; Mobile v. Watson, 116 U. S. 289; Mount Pleasant v. Beckwith, 100 U. S. 514; Broughton v. Pensacola, 93 U. S. 266. For example, in Mobile v. Watson, the Court said:"Where the resource for the payment of the bonds of a municipal corporation is the power of taxation existing when the bonds were issued, any law which withdraws or limits the taxing power, and leaves no adequate means for the payment of the bonds, is forbidden by the constitution of the United States, and is null and void."Mobile v. Watson, supra, at 116 U. S. 305.This line of authority conclusively shows that the Court has never acknowledged that the States have power to do as they will with municipal corporations regardless of consequences. Legislative control of municipalities, no less than other state power, lies within the scope of relevant Page 364 U. S. 345 limitations imposed by the United States Constitution. The observation in Graham v. Folsom, 200 U. S. 248, 200 U. S. 253, becomes relevant: "The power of the state to alter or destroy its corporations is not greater than the power of the state to repeal its legislation." In that case, which involved the attempt by state officials to evade the collection of taxes to discharge the obligations of an extinguished township, Mr. Justice McKenna, writing for the Court, went on to point out, with reference to the Mount Pleasant and Mobile cases:"It was argued in those cases, as it is argued in this, that such alteration or destruction of the subordinate governmental divisions was a proper exercise of legislative power, to which creditors had to submit. The argument did not prevail. It was answered, as we now answer it, that such power, extensive though it is, is met and overcome by the provision of the Constitution of the United States which forbids a state from passing any law impairing the obligation of contracts. . . ."200 U.S. at 200 U. S. 253-254.If all this is so in regard to the constitutional protection of contracts, it should be equally true that, to paraphrase, such power, extensive though it is, is met and overcome by the Fifteenth Amendment to the Constitution of the United States, which forbids a State from passing any law which deprives a citizen of his vote because of his race. The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever, so long as it was cloaked in the garb of the realignment of political subdivisions. "It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence." Frost & Frost Trucking Co. v. Railroad Commission of California, 271 U. S. 583, 271 U. S. 594. Page 364 U. S. 346The respondents find another barrier to the trial of this case in Colegrove v. Green, 328 U. S. 549. In that case, the Court passed on an Illinois law governing the arrangement of congressional districts within that State. The complaint rested upon the disparity of population between the different districts which rendered the effectiveness of each individual's vote in some districts far less than in others. This disparity came to pass solely through shifts in population between 1901, when Illinois organized its congressional districts, and 1946, when the complaint was lodged. During this entire period, elections were held under the districting scheme devised in 1901. The Court affirmed the dismissal of the complaint on the ground that it presented a subject not meet for adjudication. * The decisive facts in this case, which at this stage must be taken as proved, are wholly different from the considerations found controlling in Colegrove.That case involved a complaint of discriminatory apportionment of congressional districts. The appellants in Colegrove complained only of a dilution of the strength of their votes as a result of legislative inaction over a course of many years. The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens. Apart from all else, these considerations lift this Page 364 U. S. 347 controversy out of the so-called "political" arena and into the conventional sphere of constitutional litigation.In sum, as Mr. Justice Holmes remarked when dealing with a related situation in Nixon v. Herndon, 273 U. S. 536, 273 U. S. 540, "Of course the petition concerns political action," but "[t]he objection that the subject matter of the suit is political is little more than a play upon words." A statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights, and, to that end, it has incidentally changed the city's boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was no Colegrove v. Green.When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in cases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an "unconstitutional condition." What the Court has said in those cases is equally applicable here, viz., that"Acts generally lawful may become unlawful when done to accomplish an unlawful end, United States v. Reading Co., 226 U. S. 324, 226 U. S. 357, and a constitutional power cannot be used by way of condition to attain an Page 364 U. S. 348 unconstitutional result."Western Union Telegraph Co. v. Foster, 247 U. S. 105, 247 U. S. 114. The petitioners are entitled to prove their allegations at trial.For these reasons, the principal conclusions of the District Court and the Court of Appeals are clearly erroneous, and the decision below must be reversed.Reversed

U.S. Supreme CourtGomillion v. Lightfoot, 364 U.S. 339 (1960)Gomillion v. LightfootNo. 32Argued October 18-19, 1960Decided November 14, 1960364 U.S. 339SyllabusNegro citizens sued in a Federal District Court in Alabama for a declaratory judgment that an Act of the State Legislature changing the boundaries of the City of Tuskegee is unconstitutional and for an injunction against its enforcement. They alleged that the Act alters the shape of Tuskegee from a square to an irregular 28-sided figure; that it would eliminate from the City all but four or five of its 400 Negro voters without eliminating any white voter; and that its effect was to deprive Negroes of their right to vote in Tuskegee elections on account of their race. The District Court dismissed the complaint on the ground that it had no authority to declare the Act invalid or to change any boundaries of municipal corporations fixed by the State Legislature.Held: It erred in doing so, since the allegations, if proven, would establish that the inevitable effect of the Act would be to deprive Negroes of their right to vote on account of their race, contrary to the Fifteenth Amendment. Pp. 364 U. S. 340-348.(a) Even the broad power of a State to fix the boundaries of its municipalities is limited by the Fifteenth Amendment, which forbids a State to deprive any citizen of the right to vote because of his race. Hunter v. Pittsburgh, 207 U. S. 161, and related cases distinguished. Pp. 364 U. S. 342-345.(b) A state statute which is alleged to have the inevitable effect of depriving Negroes of their right to vote in Tuskegee because of their race is not immune to attack simply because the mechanism employed by the Legislature is a "political" redefinition of municipal boundaries. Colegrove v. Green, 328 U. S. 549, distinguished. Pp. 364 U. S. 346-348.270 F.2d 594, reversed. Page 364 U. S. 340

1977_77-240

MR. JUSTICE POWELL delivered the opinion of the Court.Respondents, licensed physicians practicing in the State of Rhode Island and their patients, brought a class action, in part under the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq. (1976 ed.), against petitioners, the four insurance companies writing medical malpractice insurance in the State. The complaint alleged a private conspiracy of the four companies in which three refused to sell respondents insurance of any type as a means of compelling their submission to new ground rules of coverage set by the fourth. Petitioner insurers successfully moved in District Court to dismiss the antitrust claim on the ground that it was barred by the McCarran-Ferguson Act (Act), 59 Stat. 33, as amended, 15 U.S.C. Page 438 U. S. 534 §§ 1011-1015 (1976 ed.). [Footnote 1] The Court of Appeals reversed, holding that respondents' complaint stated a claim within the "boycott" exception in § 3(b) of the Act, which provides that the Sherman Act shall remain applicable "to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation," 15 U.S.C. § 1013(b) (1976 ed.). 555 F.2d 3 (CA1 1977). We are required to decide whether the "boycott" exception applies to disputes between policyholders and insurers.IAs this case comes to us from the reversal of a successful motion to dismiss, we treat the factual allegations of respondents' amended complaint as true. [Footnote 2] During the period in Page 438 U. S. 535 question, petitioners St. Paul Fire & Marine Insurance Co. (St. Paul), Aetna Casualty & Surety Co., Travelers Indemnity of Rhode Island (and two affiliated companies), and Hartford Casualty Co. (and an affiliated company) were the only sellers of medical malpractice insurance in Rhode Island. In April, 1975, St. Paul, the largest of the insurers, announced that it would not renew medical malpractice coverage on an "occurrence" basis, but would write insurance only on a "claims made" basis. [Footnote 3] Following St. Paul's announcement, and in furtherance of the alleged conspiracy, the other petitioners refused to accept applications for any type of insurance from physicians, hospitals, or other medical personnel whom St. Paul then insured. The object of the conspiracy was to restrict St. Paul's policyholders to "claims made" coverage by compelling them to"purchase medical malpractice insurance from one insurer only, to-wit defendant, St. Paul, and that [such] purchase must be made on terms dictated by the defendant, St. Paul."App. 25. It is alleged that this scheme was effectuated by a collective refusal to deal, by unfair rate discrimination, by agreements not to compete, and by horizontal price fixing, and that petitioners engaged in"a purposeful course of coercion, intimidation, boycott and unfair competition with respect to the sale of medical malpractice insurance in the State of Rhode Island."Id. at 24-27. [Footnote 4] Page 438 U. S. 536On November 19, 1975, the District Court for the District of Rhode Island granted petitioners' motion to dismiss. The District Court declined to give the "boycott" exception the reading suggested by its "broad wording," declaring instead that"the purpose of the boycott, coercion, and intimidation exception was solely to protect insurance agents or other insurance companies from being 'black-listed' by powerful combinations of insurance companies, not to affect the insurer-insured relationship."Id. at 44.On May 16, 1977, a divided panel of the Court of Appeals for the First Circuit reversed in pertinent part. The majority reasoned that the "boycott" exception was broadly framed, and that there was no reason to decline to give the term "boycott" its "normal Sherman Act scope." 555 F.2d at 8. "In antitrust law, a boycott is a concerted refusal to deal' with a disfavored purchaser or seller." Id. at 7. The court thought that this reading would not undermine state regulation of the industry."Regulation by the state would be protected; concerted boycotts against groups of consumers not resting on state authority would have no immunity."Id. at 9.On August 12, 1977, petitioners sought a writ of certiorari in this Court. To resolve the conflicting interpretations of § 3(b) adopted by several Courts of Appeals, [Footnote 5] we granted the writ on October 31, 1977. 434 U.S. 919. We now affirm. Page 438 U. S. 537IIAt the threshold, we confront a question of mootness. Although not raised by the parties, this issue implicates our jurisdiction. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 436 U. S. 7-8 (1978); Sosna v. Iowa, 419 U. S. 393, 419 U. S. 398 (1975)The Court of Appeals requested the parties to brief the question whether the antitrust claim was mooted by Rhode Island's formation, after the initial complaint was filed, of a Joint Underwriting Association (JUA) to provide malpractice insurance to all licensed providers of health care services and to require the participation of all personal injury liability insurers in the State in a scheme to pool expenses and losses in providing such insurance. [Footnote 6] The court noted that, while the State's action prevented St. Paul from "gather[ing] the fruits of the alleged conspiracy," it was "convinced that, for purposes of [its] jurisdiction, the state's act did not extinguish plaintiffs' every claim for relief." 555 F.2d at 6, n. 2. We agree.Although later developments may have "reduce[d] the Page 438 U. S. 538 practical importance of this case" for the parties, it cannot be said that "subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U. S. 199, 393 U. S. 203 (1968); see United States v. W. T. Grant Co., 345 U. S. 629, 345 U. S. 632-633 (1953). Since Rhode Island now permit the writing of medical malpractice insurance outside of the JUA, see n 6, supra, we cannot assume that petitioners will not reenter the market in some fashion. The conditions that gave rise to the controversy have not been shown to have abated. And the possibility of a resurgence of the alleged conspiracy is further evidenced by petitioners' acknowledgment in the Court of Appeals "that the alleged antitrust violations could recur in the future." 2 Record 83. [Footnote 7]IIIThe McCarran-Ferguson Act was passed in reaction to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944). Prior to that decision, it had been assumed, in light of Paul v. Virginia, 8 Wall. 168, 75 U. S. 183 Page 438 U. S. 539 (1869), that the issuance of an insurance policy was not a transaction in interstate commerce, and that the States enjoyed a virtually exclusive domain over the insurance industry. South-Eastern Underwriters held that a fire insurance company which conducted a substantial part of its transactions across state lines is engaged in interstate commerce, and that Congress did not intend to exempt the business of insurance from the operation of the Sherman Act. [Footnote 8] The decision provoked widespread concern that the States would no longer be able to engage in taxation and effective regulation of the insurance industry. Congress moved quickly, enacting the McCarran-Ferguson Act within a year of the decision in South-Eastern Underwriters.As this Court observed shortly afterward,"[o]bviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance."Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 328 U. S. 429 (1946). Our decisions have given effect to this purpose in construing the operative terms of the § 2(b) proviso, which is the critical provision limiting the general applicability of the federal antitrust laws "to the business of insurance to the extent that such business is not regulated by State Law." See SEC v. National Securities, Inc., 393 U. S. 453, 393 U. S. 460 (1969); FTC v. National Casualty Co., 357 U.S. Page 438 U. S. 540 560 (1958); infra at 438 U. S. 550-551. Section 2(b) is not in issue in this case. [Footnote 9] Rather, we are called upon to interpret, for the first time, the scope of § 3(b), the principal exception to this scheme of preemptive state regulation of the "business of insurance."The Court of Appeals in this case determined that the word "boycott" in § 3(b) should be given its ordinary Sherman Act meaning as "a concerted refusal to deal." The "boycott" exception, so read, covered the alleged conspiracy of petitioners, conducted"outside any state-permitted structure or procedure, [to] agree among themselves that customers dissatisfied with the coverage offered by one company shall not be sold any policies by any of the other companies."555 F.2d at 9.Petitioners take strong exception to this reading, arguing that the "boycott" exception"should be limited to cases where concerted refusals to deal are used to exclude or penalize insurance companies or other traders which refuse to conform their competitive practices to terms dictated by the conspiracy."Brief for Petitioners 13. This definition is said to accord with the plain meaning and judicial interpretations of the term "boycott," with the evidence of specific legislative intent, and with the overall structure of the Act. Respondents counter that the language of § 3(b) is sweeping, and that there is no warrant for the view that the exception protects insurance companies "or other traders" from anticompetitive practices, but withholds similar protection from policyholders victimized by private, predatory agreements. They urge that this case involves a "traditional boycott," defined as a concerted refusal to deal on any terms, as opposed to a refusal to deal except on specified terms. Brief for Respondents 43. Page 438 U. S. 541We consider first petitioners' definition of "boycott" in view of the language, legislative history, and structure of the Act. [Footnote 10]IVAThe starting point in any case involving construction of a statute is the language itself. See Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 756 (1975) (POWELL, J., concurring). With economy of expression, Congress provided in § 3(b) for the continued applicability of the Sherman Act to "any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." Congress thus employed terminology that evokes a tradition of meaning, as elaborated in the body of decisions interpreting the Sherman Act. It may be assumed, in the absence of indications to the contrary, that Congress intended this language to be read in light of that tradition.The generic concept of boycott refers to a method of pressuring a party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or services from the target. [Footnote 11] The word gained currency in this country largely as a term of opprobrium to describe certain tactics employed by parties to labor disputes. See, e.g., State v. Glidden, 55 Conn.46, 8 A. 890 (1887); Laidler, Boycott, in 2 Encyclopaedia of the Social Sciences 662-666 (1930). Thus it is not surprising that the term first entered the lexicon of antitrust law in decisions involving attempts by labor unions to encourage third parties Page 438 U. S. 542 to cease or suspend doing business with employers unwilling to permit unionization. [Footnote 12] See, e.g, Loewe v. Lawlor, 208 U. S. 274 (1908); Gompers v. Bucks Stove & Range Co., 221 U. S. 418 (1911); Lawlor v. Loewe, 235 U. S. 522 (1915); Duplex Co. v. Deering, 254 U. S. 443 (1921); Bedford Stone Co. v. Stone Cutters' Assn., 274 U. S. 37 (1927). [Footnote 13]Petitioners define "boycott" as embracing only those combinations which target competitors of the boycotters as the ultimate objects of a concerted refusal to deal. They cite commentary that attempts to develop a test for distinguishing the types of restraints that warrant per se invalidation from other concerted refusals to deal that are not inherently destructive of competition. [Footnote 14] But the issue before us is whether the conduct in question involves a boycott, not whether it is per se unreasonable. In this regard, we have not been referred Page 438 U. S. 543 to any decision of this Court holding that petitioners' test states the necessary elements of a boycott within the purview of the Sherman Act. Indeed, the decisions reflect a marked lack of uniformity in defining the term.Petitioners refer to cases stating that "group boycotts" are "concerted refusals by traders to deal with other traders," Klor's v. Broadway-Hale Stores, 359 U. S. 207, 359 U. S. 212 (1959), or are combinations of businessmen "to deprive others of access to merchandise which the latter wish to sell to the public," United States v. General Motors Corp., 384 U. S. 127, 384 U. S. 146 (1966). We note that neither standard, in terms, excludes respondents -- for whom medical malpractice insurance is necessary to ply their "trade" of providing health care services, see n 4, supra -- from the class of cognizable victims. But other verbal formulas also have been used. In FMC v. Svenska Amerika Linien, 390 U. S. 238, 390 U. S. 250 (1968), for example, the Court noted that, "[u]nder the Sherman Act, any agreement by a group of competitors to boycott a particular buyer or group of buyers is illegal per se." The Court also has stated broadly that "group boycotts, or concerted refusals to deal, clearly run afoul of § 1 [of the Sherman Act]." Times-Picayune v. United States, 345 U. S. 594, 345 U. S. 625 (1953). Hence, "boycotts are not a unitary phenomenon." P. Areeda, Antitrust Analysis 381 (2d ed.1974).As the labor-boycott cases illustrate, the boycotters and the ultimate target need not be in a competitive relationship with each other. This Court also has held unlawful concerted refusals to deal in cases where the target is a customer of some or all of the conspirators who is being denied access to desired goods or services because of a refusal to accede to particular terms set by some or all of the sellers. See, e.g., Paramount Famous Corp. v. United States, 282 U. S. 30 (1930); United States v. First Nat. Pictures, Inc., 282 U. S. 44 (1930); Binderup v. Pathe Exchange, 263 U. S. 291 (1923). See also Anderson v. Shipowners Assn., 272 U. S. 359 (1926). As the Page 438 U. S. 544 Court put it in Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211, 340 U. S. 214 (1951), "the Sherman Act makes it an offense for [businessmen] to agree among themselves to stop selling to particular customers." [Footnote 15]Whatever other characterizations are possible, [Footnote 16] petitioners' conduct fairly may be viewed as "an organized boycott," Fashion Guild v. FTC, 312 U. S. 457, 312 U. S. 465 (1941), of St. Paul's policyholders. Solely for the purpose of forcing physicians and hospitals to accede to a substantial curtailment of the coverage previously available, St. Paul induced its competitors to refuse to deal on any terms with its customers. This agreement did not simply fix rates or terms of coverage; it effectively barred St. Paul's policyholders from all access to alternative sources of coverage, and even from negotiating for more favorable terms elsewhere in the market. The pact served as a tactical weapon invoked by St. Paul in support of a dispute with its policyholders. The enlistment of third parties in an agreement not to trade, as a means of compelling capitulation by the boycotted group, long has been Page 438 U. S. 545 viewed as conduct supporting a finding of unlawful boycott. Eastern States Lumber Assn. v. United States, 234 U. S. 600, 234 U. S. 612-613 (1914), citing Loewe v. Lawlor, supra; see Klor's v. Broadway-Hale Stores, supra, at 359 U. S. 213; Anderson v. Shipowners Assn., supra at 272 U. S. 362-363, 272 U. S. 364-365. As in Binderup v. Pathe Exchange, supra, at 263 U. S. 312, where film distributors had conspired to cease dealing with an exhibitor because he had declined to purchase films from some of the distributors,"[t]he illegality consists, not in the separate action of each, but in the conspiracy and combination of all to prevent any of them from dealing with the [target]. [Footnote 17]"Thus, if the statutory language is read in light of the customary understanding of "boycott" at the time of enactment, respondents' complaint states a claim under § 3(b). [Footnote 18] But, as Mr. Justice Cardozo observed, words or phrases in a statute come"freighted with the meaning imparted to them by the mischief to be remedied and by contemporaneous discussion. In such conditions, history is a teacher that is not Page 438 U. S. 546 to be ignored."Duparquet Co. v. Evans, 297 U. S. 216, 297 U. S. 221 (1936) (citation omitted). We therefore must consider whether Congress intended to attach a special meaning to the word "boycott" in § 3(b).BIn the Court of Appeals, petitioners argued that only insurance companies and agents could be victims of practices within the reach of the "boycott" exception. [Footnote 19] That position enjoys some support in the legislative history because the principal targets of the practices termed "boycotts" and "other types of coercion and intimidation" in South-Eastern Underwriters were insurance companies that did not belong to the industry association charged with the conspiracy, as well as agents and customers who dealt with those nonmembers. See 322 U.S. at 322 U. S. 535-536. Moreover, there are references in the debates to the need for preventing insurance companies and agents from "blacklisting" and imposing other sanctions against uncooperative competitors or agents. See 91 Cong.Rec. 1087 (1945) (remarks of Rep. Celler); id. at 1485-1486 (remarks of Sen. O'Mahoney). In this Court, however, petitioners expanded the list of potential targets of § 3(b) conduct to include any victim -- even one outside the insurance industry -- who is in a competitive relationship with any of the members of the boycotting group. Tr. of Oral Arg. 22, 57-58.The principal exception in the McCarran-Ferguson bill to the preemptive role of state regulation was for acts or agreements amounting to a "boycott, coercion, or intimidation" violative of the Sherman Act. Both Committee Reports stated:"[A]t no time are the prohibitions in the Sherman Act against any agreement or act of boycott, coercion, or intimidation Page 438 U. S. 547 suspended. These provisions of the Sherman Act remain in full force and effect."S.Rep. No. 20, 79th Cong., 1st Sess., 3 (1945); H.R.Rep. No. 143, 79th Cong., 1st Sess., 3 (1945). The debates make clear that the "boycott" exception was viewed by the Act's proponents as an important safeguard against the danger that insurance companies might take advantage of purely permissive state legislation to establish monopolies and enter into restrictive agreements falling outside the realm of state-supervised cooperative action.The bill ultimately enacted emerged from Conference Committee as a compromise between conflicting Senate and House proposals. [Footnote 20] Although the conference substitute quickly gained approval in the House, it encountered opposition in the Senate. Senator Pepper spoke at length against privileging the States"[to enact] some mild form of legislation which they may call regulatory, thereby defeating the purpose of the Supreme Court decision and defeating the act itself."91 Cong.Rec. 1443 (1945). The responses of Senators Ferguson and O'Mahoney, floor managers of the conference bill, indicate Page 438 U. S. 548 that, while Congress was willing to permit the States to substitute regulation for competition with respect to matters such as rates and terms of coverage, the "boycott" clause defined a range of conduct that would remain within the purview of the Sherman Act. [Footnote 21]Petitioners cite passages of the debates in which Senator O'Mahoney refers to "blacklisting" and other exclusionary devices directed at independent insurance companies or agents. But those passages also provide support for respondents' position that the eradication of such practices was not the only objective of Congress in enacting § 3(b). In Senator O'Mahoney's view,"[t]he vice in the insurance industry . . . was not that there were rating bureaus, but that there was in the industry a system of private government which had been built up by a small group of insurance companies, which companies undertook by their agreements and understandings to invade the field of Congress to regulate commerce."91 Cong.Rec. 1485 (1945). The conference substitute, he insisted,"outlaws completely all steps by which small groups have attempted to establish themselves in control in the great interstate and international business of insurance."Ibid. Perhaps the most revealing discussion is found in his explanation of why the language of § 3(b) was limited to "boycotts, Page 438 U. S. 549 coercion, or intimidation," and did not reach all combinations among insurance companies and their agents. He stated:"[T]he committee was cognizant of the fact that many salutary combinations might be proposed and which ought to be approved, to which there was no objection. From the very beginning, Mr. President, of this controversy over insurance I have always taken the position that I saw no objection to combinations or agreements among the companies in the public interest provided these combinations and agreements were in the open and approved by law. Public supervision of agreements is essential.""* * * *" "[M]y judgment is that every effective combination or agreement to carry out a program against the public interest of which I have had any knowledge in this whole industry study would be prohibited by [§ (b)]."91 Cong.Rec. 1486 (1945) (emphasis supplied). The rules and regulations of private associations in the industry, while providing Senator O'Mahoney with a vivid example of "the sort of agreement which ought to be condemned," ibid., exemplified a larger evil -- "regulation by private combinations and groups," id. at 1483 -- that required the continued application of the Sherman Act. [Footnote 22] Page 438 U. S. 550The language of § 3(b) is broad and unqualified; it covers "any" act or agreement amounting to a "boycott, coercion, or intimidation." If Congress had intended to limit its scope to boycotts of competing insurance companies or agents, and to preclude all Sherman Act protection for policyholders, it is not unreasonable to assume that it would have made this explicit. While the legislative history does not point unambiguously to the answer, it provides no substantial support for limiting language that Congress itself chose not to limit. [Footnote 23]CPetitioners also contend that the structure of the Act supports their reading of § 3(b). They note that this Court Page 438 U. S. 551 has interpreted the term "business of insurance" in § 2(b) broadly to encompass "[t]he relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement," SEC v. National Securities, Inc., 393 U.S. at 393 U. S. 460, and has held that the mere enactment of "prohibitory legislation" and provision for "a scheme of administrative supervision" constitute adequate regulation to satisfy the proviso to § 2(b), FTC v. National Casualty Co., 357 U.S. at 357 U. S. 564-565. Thus, petitioners conclude, § 3(b) cannot be interpreted in a fashion that would undermine the congressional judgment expressed in § 2(b) that the protection of policyholders is the primary responsibility of the States, and that the state regulation which precludes application of federal law is not limited to regulation specifically authorizing the conduct challenged.Petitioners rely on a syllogism that is faulty in its premise, for it ignores the fact that § 3(b) is an exception to § 2(b), and that Congress intended in the "boycott" clause to carve out of the overall framework of plenary state regulation an area that would remain subject to Sherman Act scrutiny. The structure of the Act embraces this exception. Unless § 3(b) is read to limit somewhat the sweep of § 2(b), it serves no purpose whatever. Petitioners do not press their argument that far, but they suggest no persuasive reason for engrafting a particular limitation on § 3(b) that is justified neither by its language nor by the legislative history. [Footnote 24] Page 438 U. S. 552VWe hold that the term "boycott" is not limited to concerted activity against insurance companies or agents or, more generally, against competitors of members of the boycotting group. It remains to consider whether the type of private conduct alleged to have taken place in this case, directed against policyholders, constitutes a "boycott" within the meaning of § 3(b).AThe conduct in question accords with the common understanding of a boycott. The four insurance companies that control the market in medical malpractice insurance are alleged to have agreed that three of the four would not deal on any terms with the policyholders of the fourth. As a means of ensuring policyholder submission to new, restrictive ground rules of coverage, St. Paul obtained the agreement of the other petitioners, strangers to the immediate dispute, to refuse to sell any insurance to its policyholders."A valuable service germane to [respondents'] business and important to their effective competition with others was withheld from them by Page 438 U. S. 553 collective action."Silver v. New York Stock Exchange, 373 U. S. 341, 373 U. S. 348-349, n. 5 (1963).The agreement binding petitioners erected a barrier between St. Paul's customers and any alternative source of the desired coverage, effectively foreclosing all possibility of competition anywhere in the relevant market. This concerted refusal to deal went well beyond a private agreement to fix rates and terms of coverage, as it denied policyholders the benefits of competition in vital matters such as claims policy and quality of service. Cf. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36, 433 U. S. 55 (1977). St. Paul's policyholders became the captives of their insurer. In a sense, the agreement imposed an even greater restraint on competitive forces than a horizontal pact not to compete with respect to price, coverage, claims policy, and service, since the refusal to deal in any fashion reduced the likelihood that a competitor might have broken ranks as to one or more of the fixed terms. [Footnote 25] The conduct alleged here is certainly not, in Senator O'Mahoney's terms, within the category of "agreements which can normally be made in the insurance business," 91 Cong.Rec. 1444 (1945), or "agreements and combinations in the public interests [sic] which can safely be permitted," id. at 1486.BWe emphasize that the conduct with which petitioners are charged appears to have occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island. There was no state authorization of the conduct in question. This was the explicit premise of the Court of Page 438 U. S. 554 Appeals' decision, see 555 F.2d at 9, and petitioners do not aver that state law or regulatory policy can be said to have required or authorized the concerted refusal to deal with St. Paul's customers. [Footnote 26]Here the complaint alleges an attempt at "regulation by private combinations and groups," 91 Cong.Rec. 1483 (1945) (remarks of Sen. O'Mahoney). This is not a case where a State has decided that regulatory policy requires that certain categories of risks be allocated in a particular fashion among insurers, or where a State authorizes insurers to decline to insure particular risks because the continued provision of that insurance would undermine certain regulatory goals, such as the maintenance of insurer solvency. In this case, a group of insurers decided to resolve by private action the problem of escalating damages claims and verdicts by coercing the policyholders of St. Paul to accept a severe limitation of coverage essential to the provision of medical services. See n 4, supra. We conclude that this conduct, as alleged in the complaint, constitutes a "boycott" under § 3(b). [Footnote 27] Page 438 U. S. 555Our ruling does not alter § 2(b)'s protection of state regulatory and tax laws, its recognition of the primacy of state regulation, or the limited applicability of the federal antitrust laws generally "to the extent that" the "business of insurance" is not regulated by state law. Moreover, conduct by individual actors falling short of concerted activity is simply not a "boycott" within § 3(b). Cf. Times-Picayune v. United States, 345 U.S. at 345 U. S. 625. Finally, while we give force to the congressional intent to preserve Sherman Act review for certain types of private collaborative activity by insurance companies, we do not hold that all concerted activity violative of the Sherman Act comes within § 3(b). Nor does our decision address insurance practices that are compelled or specifically authorized by state regulatory policy.The judgment of the Court of Appeals therefore isAffirmed

U.S. Supreme CourtSt. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531 (1978)St. Paul Fire & Marine Insurance Co. v. BarryNo. 77-240Argued March 27, 1978Decided June 29, 1978438 U.S. 531SyllabusRespondents, licensed physicians practicing in Rhode Island and their patients, brought a class action against petitioners, four insurance companies writing medical malpractice insurance in the State, alleging a conspiracy in violation of the Sherman Act in which three of the four companies refused to deal on any terms with the policyholders of the fourth as a means of compelling them to submit to new ground rules set by the fourth, whereby coverage on an "occurrence" basis would not be renewed and coverage would issue only on a "claims made" basis. Petitioners' motion to dismiss the antitrust claim on the ground that it was barred by the McCarran-Ferguson Act was granted by the District Court. The Court of Appeals reversed, holding that the complaint stated a claim within the "boycott" exception in § 3(b) of that Act, which provides that the Sherman Act shall remain applicable "to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation."Held:1. The antitrust claim is not mooted by the fact that, after the complaint was filed, Rhode Island formed a Joint Underwriters Association to provide medical malpractice insurance and to require all personal injury liability insurers in the State to pool expenses and losses in providing such insurance. Since Rhode Island now permits the writing of such insurance outside of the Association, it cannot be said that "subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," United States v. Phosphate Expert Assn., 393 U. S. 199, 393 U. S. 203. Pp. 438 U. S. 537-538.2. The "boycott" exception of § 3(b) applies to certain types of disputes between policyholders and insurers, and is not limited to concerted activity directed against competitor insurers or agents or, more generally, against competitors of members of the boycotting group. Pp. 438 U. S. 538-551.(a) The language of § 3(b) is broad and unqualified, covering "any" act or agreement amounting to a "boycott, coercion, or intimidation." Had Congress intended to limit its scope to boycotts of competitor insurer companies or agents, and to preclude all Sherman Act Page 438 U. S. 532 protection for policyholders, it presumably would have made this explicit. The customary understanding of "boycott" at the time of enactment, as elaborated in the Sherman Act decisions of this Court, does not support a definition of the term that embraces only those combinations that target competitors of the boycotters as the ultimate objects of a concerted refusal to deal. Pp. 438 U. S. 541-546.(b) The legislative history, while not unambiguous, provides no substantial evidence that Congress sought to attach a special meaning to the language of § 3(b) that would exclude policyholders from all Sherman Act protection from restrictive agreements and practices by insurers falling outside of the realm of state-supervised cooperative action. Congress intended to preserve Sherman Act review of certain forms of regulation by private combinations and groups, including but not limited to the eradication of "blacklisting" and other exclusionary devices directed at independent insurance companies or agents. Pp. 438 U. S. 546-550.(c) Nor does the structure of the McCarran-Ferguson Act support the proposed limitation on the reach of § 3(b). Section 3(b) is an exception to § 2(b), which limits the general applicability of the federal antitrust laws "to the business of insurance to the extent that such business is not regulated by State law." Congress intended in the "boycott" clause of § 3(b) to carve out of the overall framework of plenary state regulation an area that would remain subject to Sherman Act scrutiny. Pp. 438 U. S. 550-551.3. The type of private conduct alleged to have taken place here, directed against policyholders, constitutes a "boycott" within the meaning of § 3(b). Pp. 438 U. S. 552-555.(a) Such conduct accords with the common understanding of a boycott. The agreement binding petitioners erected a barrier between respondents and any alternative source of the desired coverage, effectively foreclosing all possibility of competition anywhere in the relevant market. Pp. 438 U. S. 552-553.(b) The conduct with which petitioners are charged appears to have occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island. This is not a case where a State has decided that regulatory policy requires that certain risks be allocated in a particular fashion among insurers or has authorized insurers to decline to insure particular risks. Here, a group of insurers decided to resolve by private action the problem of escalating damages claims and verdicts by coercing policyholders of one of the insurers to accept a severe limitation of coverage. Pp. 438 U. S. 553-555.555 F.2d 3, affirmed. Page 438 U. S. 533POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 438 U. S. 555.

1983_82-1684

JUSTICE REHNQUIST delivered the opinion of the Court.Section 11(a) of the Fair Labor Standards Act of 1938 (FLSA or Act), 52 Stat. 1066, 29 U.S.C. § 211(a), authorizes the Secretary of Labor to investigate and gather data regarding wages, hours, and other conditions of employment to determine whether an employer is violating the Act. [Footnote 1] Section Page 464 U. S. 410 9 of the FLSA, 29 U.S.C. § 209, empowers the Secretary of Labor to subpoena witnesses and documentary evidence relating to any matter under investigation. [Footnote 2] Pursuant to those provisions, an official of the Department of Labor served an administrative subpoena duces tecum on an employee of appellee Lone Steer, Inc., a motel and restaurant located in Steele, N.D. The subpoena directed an officer or agent of appellee with personal knowledge of appellee's records to appear at the Wage and Hour Division of the United States Department of Labor in Bismarck, N.D., and Page 464 U. S. 411 to produce certain payroll and sales records. In an action filed by appellee to challenge the validity of the subpoena, the District Court for the District of North Dakota held that, although the Secretary of Labor had complied with the applicable provisions of the FLSA in issuing the subpoena, enforcement of the subpoena would violate the Fourth Amendment of the United States Constitution because the Secretary had not previously obtained a judicial warrant. We noted probable jurisdiction of the Secretary's appeal, 462 U.S. 1105 (1983), and we now reverse the judgment of the District Court.On January 6, 1982, Al Godes, a Compliance Officer with the Wage and Hour Division of the Department of Labor, telephoned Susanne White, appellee's manager, to inform her that he intended to begin an investigation of appellee the following morning, and to request that she have available for inspection payroll records for all employees for the past two years. White telephoned Godes later that day to inform him that it would not be convenient to conduct the inspection on the following morning. After some preliminary skirmishing between the parties, during which appellee inquired about the scope and reason for the proposed investigation and appellants declined to provide specific information, Godes and Gerald Hill, Assistant Area Director from the Wage and Hour Division in Denver, arrived at appellee's premises on February 2, 1982, for the purpose of conducting the investigation. After waiting for White, Godes served the administrative subpoena at issue here on one of appellee's other employees. The subpoena was directed to any employee of appellee having custody and personal knowledge of the records specifically described therein, records which appellee was required by law to maintain. See 29 CFR §§ 516.2(a), 516.5(c) (1983). The subpoena directed the employee to appear with those records at the Wage and Hour Division of the Department of Labor in Bismarck, N.D. Page 464 U. S. 412Appellee refused to comply with the subpoena and sought declaratory and injunctive relief in the District Court, claiming that the subpoena constituted an unlawful search and seizure in violation of the Fourth Amendment. Appellants counterclaimed for enforcement of the subpoena. The District Court concluded that the actions of appellants in issuing the administrative subpoena "unquestionably comport with the provisions of the Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et seq." App. A to Juris.Statement 6a. Relying on our decision in Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), however, the District Court held that the applicable provisions of the FLSA violate the Fourth Amendment insofar as they authorize the Secretary of Labor to issue an administrative subpoena without previously having obtained a judicial warrant. In Barlow's, this Court declared unconstitutional the provisions of the Occupational Safety and Health Act of 1970 (OSHA) which authorized inspectors to enter an employer's premises without a warrant to conduct inspections of work areas. The District Court rejected appellants' arguments that Barlow's is not dispositive of the issue here by stating:"It is reasonable to conclude that the exigencies of an entry upon commercial premises for the purpose of conducting a safety and health inspection designed to protect the personal wellbeing of employees supply more compelling bases for proceeding without a warrant than the circumstances presented here, where entry is sought for the purpose of determining compliance with wage and hour regulations. The reasoning of the Supreme Court in Barlow's applies with equal -- if not greater -- force in the instant situation.""In sum, I hold that the Secretary of Labor may not proceed to enter upon the premises of Lone Steer, Inc., for the purpose of inspecting its records under SECTION 11 of the Fair Labor Standards Act without first having Page 464 U. S. 413 obtained a valid warrant."App. A to Juris.Statement 8a. [Footnote 3]We think that the District Court undertook to decide a case not before it when it held that appellants may not "enter upon the premises" of appellee to inspect its records without first having obtained a warrant. The only "entry" upon appellee's premises by appellants, so far as the record discloses, is that of Godes on February 2, 1982, when he and Gerald Hill entered the motel and restaurant to attempt to conduct an investigation. The stipulation of facts entered into by the parties, App. 11-17, and incorporated into the opinion of the District Court, App. A to Juris.Statement 2a-8a, describe what happened next:"They asked for Ms. White and were told she was not available, but expected shortly. They were offered some coffee, and waited in the lobby area. After 20-30 minutes, when Ms. White had not appeared, Mr. Godes served an Administrative Subpoena Duces Tecum on employee Karen Arnold."App. 15.An entry into the public lobby of a motel and restaurant for the purpose of serving an administrative subpoena is scarcely the sort of governmental act which is forbidden by the Fourth Amendment. The administrative subpoena itself did not authorize either entry or inspection of appellee's premises; it merely directed appellee to produce relevant wage and hour records at appellants' regional office some 25 miles away. Page 464 U. S. 414The governmental actions which required antecedent administrative warrants in Marshall v. Barlow's, Inc., supra, and Camara v. Municipal Court, 387 U. S. 523 (1967), are quite different from the governmental action in this case. In Barlow's, an OSHA inspector sought to conduct a search of nonpublic working areas of an electrical and plumbing installation business. In Camara, a San Francisco housing inspector sought to inspect the premises of an apartment building in that city. See also See v. City of Seattle, 387 U. S. 541 (1967) (involving a similar search by a fire inspector of commercial premises). In each case, this Court held that an administrative warrant was required before such a search could be conducted without the consent of the owner of the premises.It is plain to us that those cases turned upon the effort of the government inspectors to make nonconsensual entries into areas not open to the public. As we have indicated, no such entry was made by appellants in this case. Thus, the enforceability of the administrative subpoena duces tecum at issue here is governed not by our decision in Barlow's, as the District Court concluded, but rather by our decision in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 (1946). In Oklahoma Press, the Court rejected an employer's claim that the subpoena power conferred upon the Secretary of Labor by the FLSA violates the Fourth Amendment."The short answer to the Fourth Amendment objections is that the records in these cases present no question of actual search and seizure, but raise only the question whether orders of court for the production of specified records have been validly made; and no sufficient showing appears to justify setting them aside. No officer or other person has sought to enter petitioners' premises against their will, to search them, or to seize or examine their books, records or papers without their assent, otherwise than pursuant to orders of court authorized by law Page 464 U. S. 415 and made after adequate opportunity to present objections. . . ."Id. at 327 U. S. 195 (footnotes omitted).We cited Oklahoma Press with approval in See v. City of Seattle, supra, a companion case to Camara, and described the constitutional requirements for administrative subpoenas as follows:"It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome."See v. City of Seattle, supra, at 387 U. S. 544 (footnote omitted). See also United States v. Morton Salt Co., 338 U. S. 632, 338 U. S. 652-653 (1950).Thus, although our cases make it clear that the Secretary of Labor may issue an administrative subpoena without a warrant, they nonetheless provide protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court. See v. City of Seattle, supra, at 387 U. S. 544-545; Oklahoma Press, supra, at 327 U. S. 208-209. Our holding here, which simply reaffirms our holding in Oklahoma Press, in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents. We hold only that the defenses available to an employer do not include the right to insist upon a judicial warrant as a condition precedent to a valid administrative subpoena.Appellee insists that"[t]he official inspection procedure used by the appellants reveal[s] that the use of the administrative subpoena is inextricably intertwined with the entry process,"Brief for Appellee 11, and states that it is appellants' Page 464 U. S. 416 established policy to seek entry inspections by expressly relying on its inspection authority under § 11 of the FLSA. Id. at 12. We need only observe that no nonconsensual entry into protected premises was involved in this case.The judgment of the District Court is accordingly Reversed

U.S. Supreme CourtDonovan v. Lone Steer, Inc., 464 U.S. 408 (1984)Donovan v. Lone Steer, Inc.No. 82-1684Argued November 29, 1983Decided January 17, 1984464 U.S. 408SyllabusThe Secretary of Labor (Secretary) is authorized by § 11(a) of the Fair Labor Standards Act of 1938 (FLSA) to investigate and gather data regarding wages, hours, and other conditions of employment to determine whether an employer is violating the Act, and by § 9 to subpoena witnesses and documentary evidence relating to any matter under investigation. Pursuant to these provisions, a Department of Labor official, upon entering appellee motel and restaurant, served an administrative subpoena duces tecum on one of appellee's employees, directing the employee to appear at the regional Wage and Hour Office with certain payroll and sales records. Appellee refused to comply with the subpoena and sought declaratory and injunctive relief in Federal District Court, claiming that the subpoena constituted an unlawful search and seizure in violation of the Fourth Amendment. The District Court held that, although the Secretary had complied with the applicable FLSA provisions in issuing the subpoena, enforcement of the subpoena would violate the Fourth Amendment because the Secretary had not previously obtained a judicial warrant.Held: The subpoena duces tecum did not violate the Fourth Amendment. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, controlling. An entry into the public lobby of a motel and restaurant for the purpose of serving an administrative subpoena is not the sort of governmental act that is forbidden by that Amendment. Here, the subpoena itself did not authorize either entry or inspection of appellee's premises, but merely directed appellee to produce certain wage and hour records, and no nonconsensual entry into areas not open to the public was made. Marshall v. Barlow's, Inc., 436 U. S. 307, and Camara v. Municipal Court, 387 U. S. 523, distinguished. While a subpoenaed employer, in an action in federal district court, may question the reasonableness of a subpoena before suffering any penalties for refusing to comply with it, the available defenses do not include the right to insist upon a judicial warrant as a condition precedent to a valid subpoena. Pp. 464 U. S. 413-416.Reversed.REHNQUIST J., delivered the opinion for a unanimous Court. Page 464 U. S. 409

1988_88-449

JUSTICE BLACKMUN delivered the opinion of the Court.The State of Connecticut requires out-of-state shippers of beer to affirm that their posted prices for products sold to Connecticut wholesalers are, as of the moment of posting, no higher than the prices at which those products are sold in the bordering States of Massachusetts, New York, and Rhode Island. In these appeals, we are called upon to decide whether Connecticut's beer price affirmation statute violates the Commerce Clause. [Footnote 1]IAlthough appellees challenge Connecticut's beer price affirmation statute as amended in 1984, this litigation has its roots in the 1981 version of Connecticut's price affirmation scheme. Having determined that the domestic retail price of beer was consistently higher than the price of beer in the three bordering States, and with the knowledge that, as a result, Connecticut residents living in border areas frequently crossed state lines to purchase beer at lower prices, Connecticut enacted a price affirmation statute tying Connecticut beer prices to the prices charged in the border States. See United States Brewers Assn., Inc. v. Healy 532 F. Supp. 1312, 1314, 1316-1317 (Conn.1982). In an effort to eliminate the price differential between Connecticut and the border States, Connecticut required that brewers and importers (out-of-state shippers) [Footnote 2] post bottle, can, and case prices for Page 491 U. S. 327 each brand of beer to be sold in Connecticut. Id. at 1317. These posted prices would take effect on the first day of the following month, and would continue without change for the rest of that month. Conn.Gen.Stat.Ann. § 30-63(c) (1975 and Supp.1982). The 1981 statute further required that out-of-state shippers affirm under oath at the time of posting that their posted prices were and would remain no higher than the lowest prices they would charge for each beer product in the border States during the effective period. § 30-63b(b), quoted in 532 F. Supp. at 1314, n. 3. Moreover, in calculating the lowest price offered in the border States, the statute deducted from the reported price the value of any rebates, discounts, special promotions, or other inducements that the out-of-state shippers offered in one or more of the border States. [Footnote 3] § 30-63c(b), quoted in 532 F. Supp. at 1314, n. 4. To the extent that such inducements lowered border state prices, the statute thus obligated out-of-state shippers to lower their Connecticut prices as well. [Footnote 4]In 1982, a brewers' trade association and various beer producers and importers (a subset of the appellees in the instant litigation) filed suit in the United States District Court for the District of Connecticut, challenging the 1981 statute as Page 491 U. S. 328 unconstitutional under the Commerce Clause. The District Court, relying primarily on this Court's decision in Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35 (1966), upheld the 1981 law. United States Brewers Assn., Inc. v. Healy, 532 F. Supp. at 1325-1326. The Court of Appeals, however, reversed. It held that the 1981 Connecticut statute was facially invalid under the Commerce Clause because it had the practical effect of prohibiting out-of-state shippers from selling beer in any neighboring State in a given month at a price below what it had posted in Connecticut at the start of that month. The court explained:"Nothing in the Twenty-first Amendment permits Connecticut to set the minimum prices for the sale of beer in any other state, and well established Commerce Clause principles prohibit the state from controlling the prices set for sales occurring wholly outside its territory."United States Brewers Assn., Inc. v. Healy, 692 F.2d 275, 282 (CA2 1982) (Healy I). This Court summarily affirmed. 464 U.S. 909 (1983).In 1984, the Connecticut Legislature responded to Healy I by amending its beer price affirmation statute to its current form. The statute now requires out-of-state shippers to affirm that their posted prices are no higher than prices in the border States only at the time of the Connecticut posting. Conn.Gen.Stat. § 30-63b(b) (1989). [Footnote 5] The legislature also Page 491 U. S. 329 added § 30-63b(e), which provides that nothing in § 30-63b prohibits out-of-state shippers from changing their out-of-state prices after the affirmed Connecticut price is posted. [Footnote 6] The legislature, however, did not amend § 30-63a(b), which continued to make it unlawful for out-of-state shippers to sell beer in Connecticut at a price higher than the price at which beer is or would be sold in any bordering State during the month covered by the posting. [Footnote 7]In the wake of the 1984 amendments, appellees (a brewers' trade association and major producers and importers of beer) filed suit in the United States District Court for the District of Connecticut, seeking declaratory and injunctive relief and claiming that the effect of the amended law was not different from that of the law struck down in Healy I. [Footnote 8] See United States Brewers Assn. v. Healy, 669 F. Supp. 543, 544-545 (1987). In response to appellees' complaint, Connecticut filed a "Declaratory Ruling" by the Department of Liquor Control, interpreting the statute as amended as requiring out-of-state shippers to affirm that their posted prices in Connecticut were no higher than their lowest prices in any Page 491 U. S. 330 border State only at the time of posting -- the sixth day of each month. Id. at 547, and n. 9. After the moment of posting, the ruling stated, the statute imposes no restrictions on the right of out-of-state shippers to raise or lower their border state prices at will. Ibid.Appellees argued, however, that the Connecticut beer affirmation statute, even as modified by the declaratory ruling, regulated out-of-state transactions, constituted economic protectionism, and unduly burdened interstate commerce, all in violation of the Commerce Clause. On cross-motions for summary judgment, the District Court upheld the statute as modified by the legislature and construed in the Department of Liquor Control's declaratory ruling, resting its decision on Seagram, supra, and distinguishing this Court's subsequent decision in Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573 (1986), which struck down a statute analogous to Connecticut's 1981 beer affirmation statute. The District Court found the 1984 Connecticut law constitutional on its face because, "unlike the version in Healy I and Brown-Forman," the 1984 law"leaves brewers free to raise or lower prices in the border states before and after posting in Connecticut, and does not, therefore, regulate interstate commerce."669 F. Supp. at 553.As in Healy I, the Court of Appeals reversed. It held that the 1984 law (even as interpreted by the declaratory ruling), like its predecessor, violated the Commerce Clause by controlling the prices at which out-of-state shippers could sell beer in other States. First and foremost, the court held that the Connecticut statute's "purposeful interaction with border state regulatory schemes" means that shippers cannot, as a practical matter, set prices based on market conditions in a border State without factoring in the effects of those prices on its future Connecticut pricing options. In re Beer Institute, 849 F.2d 753, 760-761 (CA2 1988) (Healy II). Second, the Court of Appeals found that the 1984 statute unconstitutionally restricted the ability of out-of-state shippers Page 491 U. S. 331 to offer volume discounts in the border States. Id. at 760. Furthermore, relying on Brown-Forman, supra, the court rejected appellants' argument that the statute was a proper exercise of its regulatory authority under the Twenty-first Amendment. 849 F.2d at 761.We noted probable jurisdiction. 488 U.S. 954 (1988).IIIn deciding this appeal, we engage in our fourth expedition into the area of price affirmation statutes. The Court first explored this territory in Seagram, where it upheld against numerous constitutional challenges a New York statute that required liquor label owners or their agents to affirm that "the bottle and case price of liquor . . . is no higher than the lowest price'" at which such liquor was sold "anywhere in the United States during the preceding month." 384 U.S. at 384 U. S. 39-40, quoting the New York law. The Court ruled that the mere fact that the New York statute was geared to appellants' pricing policies in other States did not violate the Commerce Clause, because, under the Twenty-first Amendment's broad grant of liquor regulatory authority to the States, New York could insist that liquor prices offered to domestic wholesalers and retailers "be as low as prices offered elsewhere in the country." Id. at 43. Although the appellant brand owners in Seagram had alleged that the New York law created serious discriminatory effects on their business outside New York, the Court considered these injuries too conjectural to support a facial challenge to the statute, and suggested that the purported extraterritorial effects could be assessed in a case where they were clearly presented. Ibid.Eighteen years after Seagram, we summarily affirmed the Second Circuit's judgment in Healy I, and then, another two years later, granted plenary review in Brown-Forman, supra. The New York law at issue in Brown-Forman required every liquor distiller or producer selling to wholesalers within the State to affirm that the prices charged for Page 491 U. S. 332 every bottle or case of liquor were no higher than the lowest price at which the same product would be sold in any other State during the month covered by the particular affirmation. 476 U.S. at 476 U. S. 576. Appellant Brown-Forman was a liquor distiller that offered "promotional allowances" to wholesalers purchasing Brown-Forman products. The New York Liquor Authority, however, did not allow Brown-Forman to operate its rebate scheme in New York and, moreover, determined for the purposes of the affirmation law that the promotional allowances lowered the effective price charged to wholesalers outside New York. Because other States with affirmation laws similar to New York's did not deem the promotional allowances to lower the price charged to wholesalers, appellant argued that the New York law offered the company the Hobson's choice of lowering its New York prices, thereby violating the affirmation laws of other States, or of discontinuing the promotional allowances altogether. This, appellant alleged, amounted to extraterritorial regulation of interstate commerce in violation of the Commerce Clause. Id. at 476 U. S. 579-582.This Court agreed, reaffirming and elaborating on our established view that a state law that has the "practical effect" of regulating commerce occurring wholly outside that State's borders is invalid under the Commerce Clause. We began by reviewing past decisions, starting with Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935). The Court in Seelig struck down a New York statute that set minimum prices for milk purchased from producers in New York and other States and banned the resale within New York of milk that had been purchased for a lower price. Because Vermont dairy farmers produced milk at a lower cost than New York dairy farmers, the effect of the statute was to eliminate the competitive economic advantage they enjoyed by equalizing the price of milk from all sources. Writing for the Court, Justice Cardozo pronounced that the Commerce Clause does not permit a State "to establish a wage scale or a scale of prices for use Page 491 U. S. 333 in other states, and to bar the sale of the products . . . unless the scale has been observed." Id. at 294 U. S. 528. Relying on Seelig, the Court in Brown-Forman concluded:"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."476 U.S. at 476 U. S. 580; see also Schwegmann Brothers Giant Super Markets v. Louisiana Milk Comm'n, 365 F. Supp. 1144, 1152-1156 (MD La.1973), summarily aff'd, 416 U.S. 922 (1974). After drawing upon Seelig, the Brown-Forman Court also discussed Healy I with approval. There, as we have noted, the Court of Appeals struck down an earlier version of Connecticut's price affirmation statute, which was essentially identical to the one at issue in Brown-Forman, because the statute"made it impossible for a brewer to lower its price in a bordering State in response to market conditions so long as it had a higher posted price in effect in Connecticut."476 U.S. at 476 U. S. 581-582. [Footnote 9] Page 491 U. S. 334Applying these principles, we concluded that the New York statute had an impermissible extraterritorial effect:"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. Forcing a merchant to seek regulatory approval in one State before undertaking a transaction in another directly regulates interstate commerce."Id. at 476 U. S. 582 (footnote omitted). Although New York might regulate the sale of liquor within its borders, and might seek low prices for its residents, it was prohibited by the Commerce Clause from "project[ing] its legislation into [other States] by regulating the price to be paid'" for liquor in those States. Id. at 476 U. S. 583, quoting Seelig, 294 U.S. at 294 U. S. 521. Despite the language in Seagram, the Court did not find the prospect of these extraterritorial effects to be speculative. The majority rejected as Pollyannaish the dissent's suggestion that flexible application by the relevant administrative bodies would obviate the problem, and noted that the proliferation of affirmation laws after Seagram had greatly multiplied the likelihood that distillers would be subject to blatantly inconsistent obligations. [Footnote 10]The Court squarely rejected New York's argument that the Twenty-first Amendment, which bans the importation or possession of intoxicating liquors into a State "in violation of the laws thereof," saved the statute from invalidation under the Commerce Clause. Although the Court acknowledged that the Amendment vested in New York considerable authority Page 491 U. S. 335 to regulate the domestic sale of alcohol, the Amendment did not immunize the State from the Commerce Clause's proscription of state statutes that regulate the sale of alcohol in other States. 476 U.S. at 476 U. S. 585. Accordingly, the Court's conclusion that the New York law regulated out-of-state sales conclusively resolved the Twenty-first Amendment issue against New York. Ibid.The Court acknowledged that its Brown-Forman decision was in considerable tension with Seagram. The statutes at issue in the two cases were, it observed, factually distinguishable: the Seagram statute was retrospective, tying New York prices to out-of-state prices charged during the previous month, while the Brown-Forman statute was prospective, mandating that New York prices could be no higher than out-of-state prices for the following month. But the Court explicitly refused to give this retrospective/prospective distinction any constitutional significance, and even suggested that the effects of the two statutes might well be the same for the purposes of constitutional analysis. Nonetheless, since the Court was not squarely presented with a retrospective statute, it declined to evaluate Seagram's continued validity. 476 U.S. at 476 U. S. 584, n. 6. [Footnote 11]IIIIn light of this history, we now must assess the constitutionality of the Connecticut statute, which is neither prospective nor retrospective, but rather "contemporaneous." As explained above, the statute requires only that out-of-state shippers affirm that their prices are no higher than the prices being charged in the border States as of the moment of affirmation.The principles guiding this assessment, principles made clear in Brown-Forman and in the cases upon which it relied, reflect the Constitution's special concern both with the maintenance Page 491 U. S. 336 of a national economic union unfettered by state-imposed limitations on interstate commerce [Footnote 12] and with the autonomy of the individual States within their respective spheres. [Footnote 13] Taken together, our cases concerning the extraterritorial effects of state economic regulation stand at a minimum for the following propositions: First, the"Commerce Clause . . . precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State,"Edgar v. MITE Corp., 457 U. S. 624, 457 U. S. 642-643 (1982) (plurality opinion); see also Brown-Forman, 476 U.S. at 476 U. S. 581-583; and, specifically, a State may not adopt legislation that has the practical effect of establishing "a scale of prices for use in other states," Seelig, 294 U.S. at 294 U. S. 528. Second, a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State's authority and is invalid, regardless of whether the statute's extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State. Brown-Forman, 476 U.S. at 476 U. S. 579. Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation. Generally speaking, the Page 491 U. S. 337 Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State. Cf. CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 481 U. S. 88-89 (1987). And, specifically, the Commerce Clause dictates that no State may force an out-of-state merchant to seek regulatory approval in one State before undertaking a transaction in another. Brown-Forman, 476 U.S. at 476 U. S. 582. [Footnote 14]When these principles are applied to Connecticut's contemporaneous price affirmation statute, the result is clear. The Court of Appeals correctly concluded that the Connecticut statute has the undeniable effect of controlling commercial activity occurring wholly outside the boundary of the State. Moreover, the practical effect of this affirmation law, in conjunction with the many other beer pricing and affirmation laws that have been or might be enacted throughout the country, is to create just the kind of competing and interlocking local economic regulation that the Commerce Clause was meant to preclude.First, as explained by the Court of Appeals, the interaction of the Connecticut affirmation statute with the Massachusetts Page 491 U. S. 338 beer-pricing statute (which does not link domestic prices with out-of-state prices) has the practical effect of controlling Massachusetts prices. See 849 F.2d at 759. Massachusetts requires brewers to post their prices on the first day of the month, to become effective on the first day of the following month. See Mass. Gen. Laws § 138:25B (1986). Five days later, however, those same brewers, in order to sell beer in Connecticut, must affirm that their Connecticut prices for the following month will be no higher than the lowest price that they are charging in any border State. Accordingly, on January 1, when a brewer posts his February prices for Massachusetts, that brewer must take account of the price he hopes to charge in Connecticut during the month of March. Not only will the January posting in Massachusetts establish a ceiling price for the brewer's March prices in Connecticut, but also, under the requirements of the Massachusetts law, the brewer will be locked into his Massachusetts price for the entire month of February (absent administrative leave) even though the Connecticut posting will have occurred on February 6. Thus, as a practical matter, Connecticut's nominally "contemporaneous" affirmation statute "prospectively" precludes the alteration of out-of-state prices after the moment of affirmation. More generally, the end result of the Connecticut statute's incorporation of out-of-state prices, as the Court of Appeals concluded, is that"[a] brewer can . . . undertake competitive pricing based on the market realities of either Massachusetts or Connecticut, but not both, because the Connecticut statute ties pricing to the regulatory schemes of the border states."849 F.2d at 759. In other words, the Connecticut statute has the extraterritorial effect, condemned in Brown-Forman, of preventing brewers from undertaking competitive pricing in Massachusetts based on prevailing market conditions.Second, because New York law requires that promotional discounts remain in effect for 180 days, see N.Y.Alco.Bev.Cont.Law § 55-b(2) (McKinney 1987), and the Connecticut Page 491 U. S. 339 statute treats promotional discounts as a reduction in price, the interaction of the New York and Connecticut laws is such that brewers may offer promotional discounts in New York only at the cost of locking in their discounted New York price as the ceiling for their Connecticut prices for the full 180 days of the New York promotional discount.Third, because volume discounts are permitted in Massachusetts, New York, and Rhode Island, but not in Connecticut, the effect of Connecticut's affirmation scheme is to deter volume discounts in each of these other States, because the lowest of the volume discounted prices would have to be offered as the regular price for an entire month in Connecticut. See 849 F.2d at 760.With respect to both promotional and volume discounts, then, the effect of the Connecticut statute is essentially indistinguishable from the extraterritorial effect found unconstitutional in Brown-Forman. The Connecticut statute, like the New York law struck down in Brown-Forman, requires out-of-state shippers to forgo the implementation of competitive pricing schemes in out-of-state markets because those pricing decisions are imported by statute into the Connecticut market regardless of local competitive conditions. As we specifically reaffirmed in Brown-Forman, States may not deprive businesses and consumers in other States of "whatever competitive advantages they may possess" based on the conditions of the local market. 476 U.S. at 476 U. S. 580. The Connecticut statute does precisely this.The Commerce Clause problem with the Connecticut statute appears in even starker relief when it is recalled that if Connecticut may enact a contemporaneous affirmation statute, so may each of the border States and, indeed, so may every other State in the Nation. Suppose, for example, that the border States each enacted statutes essentially identical to Connecticut's. Under those circumstances, in January, when a brewer posts his February prices in Connecticut and the border States, he must determine those prices knowing Page 491 U. S. 340 that the lowest bottle, can, or case price in any State would become the maximum bottle, can, or case price the brewer would be permitted to charge throughout the region for the month of March. This is true because in February, when the brewer posts his March prices in each State, he will have to affirm that no bottle, can, or case price is higher than the lowest bottle, can, or case price in the region -- and these "current" prices would have been determined by the January posting. Put differently, unless a beer supplier declined to sell in one of the States for an entire month, the maximum price in each State would be capped by previous prices in the other State. This maximum price would almost surely be the minimum price as well, since any reduction in either State would permanently lower the ceiling in both. Nor would such "price gridlock" be limited to individual regions. The short-circuiting of normal pricing decisions based on local conditions would be carried to a national scale if a significant group of States enacted contemporaneous affirmation statutes that linked in-state prices to the lowest price in any State in the country. This kind of potential regional and even national regulation of the pricing mechanism for goods is reserved by the Commerce Clause to the Federal Government, and may not be accomplished piecemeal through the extraterritorial reach of individual state statutes.IVThe Connecticut statute, moreover, violates the Commerce Clause in a second respect: On its face, the statute discriminates against brewers and shippers of beer engaged in interstate commerce. In its previous decisions, this Court has followed a consistent practice of striking down state statutes that clearly discriminate against interstate commerce, see, e.g., New Energy Co. of Indiana v. Limbach, 486 U. S. 269 (1988); Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982); Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980), unless that discrimination is demonstrably Page 491 U. S. 341 justified by a valid factor unrelated to economic protectionism, see, e.g., Maine v. Taylor, 477 U. S. 131 (1986). By its plain terms, the Connecticut affirmation statute applies solely to interstate brewers or shippers of beer, that is, either Connecticut brewers who sell both in Connecticut and in at least one border State or out-of-state shippers who sell both in Connecticut and in at least one border State. Under the statute, a manufacturer or shipper of beer is free to charge wholesalers within Connecticut whatever price it might choose, so long as that manufacturer or shipper does not sell its beer in a border State. This discriminatory treatment establishes a substantial disincentive for companies doing business in Connecticut to engage in interstate commerce, essentially penalizing Connecticut brewers if they seek border state markets and out-of-state shippers if they choose to sell both in Connecticut and in a border State. We perceive no neutral justification for this patent discrimination. Connecticut has claimed throughout this litigation that its price affirmation laws are designed to ensure the lowest possible prices for Connecticut consumers. While this may be a legitimate justification for the statute, it is not advanced by, in effect, exempting brewers and shippers engaging in solely domestic sales from the price regulations imposed on brewers and shippers who engage in sales throughout the region.VAAppellants advance two basic arguments in defense of Connecticut's statute: first, that the Twenty-first Amendment sanctions Connecticut's affirmation statute regardless of its effect on interstate commerce; and, second, that the statute is constitutional under this Court's analysis in Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35 (1966), in which the Court stated that a retrospective affirmation statute does not violate the Commerce Clause merely because it is geared to prices in other States. Appellants' reliance Page 491 U. S. 342 on the Twenty-first Amendment is foreclosed by Brown-Forman, where we explicitly rejected an identical argument. In Brown-Forman, the Court specifically held that the Twenty-first Amendment does not immunize state laws from invalidation under the Commerce Clause when those laws have the practical effect of regulating liquor sales in other States. 476 U.S. at 476 U. S. 585. Here, as in Brown-Forman, our finding of unconstitutional extraterritorial effects disposes of the Twenty-first Amendment issue. Appellants' reliance on Seagram is similarly foreclosed by Brown-Forman. While our decision in Brown-Forman did not overrule Seagram, it strictly limited the scope of that decision to retrospective affirmation statutes.BMore important, Brown-Forman removed the legal underpinnings of Seagram's Commerce Clause analysis. 476 U.S. at 476 U. S. 581-584, and n. 6. Seagram rested on the following reasoning: the Twenty-first Amendment gives States wide latitude in the field of liquor regulation; although such state regulation might violate the Commerce Clause in some extreme instances, in particular where a State's regulations controlled liquor commerce outside the State's boundaries, the extraterritorial effects of New York's retrospective affirmation statute were too conjectural to support such a claim. 384 U.S. at 384 U. S. 42-43. Brown-Forman, however, holds unequivocally that to the extent that an affirmation statute has the practical effect of regulating out-of-state liquor prices, it cannot stand under the Commerce Clause, irrespective of the Twenty-first Amendment. 476 U.S. at 476 U. S. 585. In striking down the statute at issue, the Court in Brown-Forman found, in light of 20 years of experience with the affirmation laws that proliferated after Seagram, that prospective affirmation statutes have such extraterritorial effects. Indeed, Brown-Forman leaves Seagram intact only to the extent that the Court in the former case felt no compulsion, in a case not directly raising the question, to address whether Page 491 U. S. 343 retrospective affirmation shared the extraterritorial effects of prospective affirmation laws. 476 U.S. at 476 U. S. 584, n. 6.In the interest of removing any lingering uncertainty about the constitutional validity of affirmation statutes and of avoiding further litigation on the subject of liquor price affirmation, we recognize today what was all but determined in Brown-Forman: to the extent that Seagram holds that retrospective affirmation statutes do not facially violate the Commerce Clause, it is no longer good law. Retrospective affirmation statutes, like other affirmation statutes, have the inherent practical extraterritorial effect of regulating liquor prices in other States. By tying maximum future prices in one State to the lowest prices in other States as determined at a specified time in the past, retrospective affirmation laws control pricing decisions in nonaffirmation States by requiring that those decisions reflect not only local market conditions, but also market conditions in the affirmation States -- market conditions that would be irrelevant absent the binding force of the affirmation statutes. Every pricing decision made in a nonaffirmation State will reflect the certain knowledge that the price chosen will become in the future the maximum permissible price in the States requiring affirmation. [Footnote 15] For the reasons noted today and in Brown-Forman, this extraterritorial effect violates the Commerce Clause.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtHealy v. Beer Institute, Inc., 491 U.S. 324 (1989)Healy v. Beer Institute, Inc.No. 88-449Argued March 28, 1989Decided June 19, 1989491 U.S. 324SyllabusA Connecticut statute requires out-of-state shippers of beer to affirm that their posted prices for products sold to Connecticut wholesalers are, as of the moment of posting, no higher than the prices at which those products are sold in the bordering States of Massachusetts, New York, and Rhode Island. Appellees, a brewers' trade association and major producers and importers of beer, filed suit against state officials in the District Court challenging the statute under the Commerce Clause. The court upheld the statute on the basis of Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35. The Court of Appeals reversed, holding that the statute violated the Commerce Clause by controlling the prices at which out-of-state shippers could sell beer in other States, and that appellants' argument that the statute was a proper exercise of the State's regulatory authority under the Twenty-first Amendment was foreclosed by Brown-Forman. Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573.Held: Connecticut's beer price affirmation statute violates the Commerce Clause. 491 U. S. 335-343.(a) The statute has the impermissible practical effect of controlling commercial activity wholly outside Connecticut. By virtue of its interaction with the regulatory schemes of the border States, the statute requires out-of-state shippers to take account of their Connecticut prices in setting their border-state prices and restricts their ability to offer promotional and volume discounts in the border States, thereby depriving them of whatever competitive advantages they may possess based on the local market conditions in those States. Moreover, the short-circuiting of normal pricing decisions based on local conditions would be carried to a national scale if and when a significant group of States enacted contemporaneous affirmation statutes similar to Connecticut's that linked instate prices to the lowest price in any State in the country. It is precisely such results that the Commerce Clause was meant to preclude. Brown-Forman, 476 U.S. at 476 U. S. 579, 476 U. S. 581-583; cf. CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 481 U. S. 88-89. Pp. 491 U. S. 335-340. Page 491 U. S. 325(b) The statute, on its face, also violates the Commerce Clause by discriminating against interstate commerce, since it applies only to brewers and shippers engaged in interstate commerce, and not to those engaged solely in Connecticut sales, and since it is not justified by a valid purpose unrelated to economic protectionism. Pp. 491 U. S. 340-341.(c) Appellants' reliance on the Twenty-first Amendment as authorizing the statute regardless of its effect on interstate commerce is foreclosed by Brown-Forman, 476 U.S. at 476 U. S. 585, which explicitly held that that Amendment does not immunize state laws from Commerce Clause attack where, as here, their practical effect is to regulate liquor sales in other States. Pp. 491 U. S. 341-342.(d) Appellants' reliance on Seagram, supra, to validate the statute is also foreclosed by Brown-Forman, 476 U.S. at 476 U. S. 581-584, and n. 6, which strictly limited Seagram's scope and removed the underpinnings of its Commerce Clause analysis. To the extent that it held that retrospective affirmation statutes do not facially violate the Commerce Clause, Seagram is no longer good law, since such statutes, like other affirmation statutes, have the inherent practical extraterritorial effect of regulating liquor prices in other States. Pp. 491 U. S. 342-343.849 F.2d 753, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and KENNEDY, JJ., joined, and in Parts I and IV of which SCALIA, J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 491 U. S. 344. REHNQUIST, C.J., filed a dissenting opinion, in which STEVENS and O'CONNOR, JJ., joined, post, p. 491 U. S. 345. Page 491 U. S. 326

1988_87-1848

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner city of Dallas adopted an ordinance restricting admission to certain dancehalls to persons between the ages of 14 and 18. Respondent, the owner of one of these "teenage" dancehalls, sued to contest the constitutional validity of the ordinance. The Texas Court of Appeals held that the ordinance violated the First Amendment right of persons between the ages of 14 and 18 to associate with persons outside Page 490 U. S. 21 that age group. We now reverse, holding that the First Amendment secures no such right.In 1985, in response to requests for dancehalls open only to teenagers, the city of Dallas authorized the licensing of "Class E" dancehalls. [Footnote 1] The purpose of the ordinance was to provide a place where teenagers could socialize with each other, but not be subject to the potentially detrimental influences of older teenagers and young adults. The provision of the ordinance at issue here, Dallas City Code § 14-8.1 (1985), restricts the ages of admission to Class E dancehalls to persons between the ages of 14 and 18. [Footnote 2] This provision, as Page 490 U. S. 22 enacted, restricted admission to those between 14 and 17, but it was subsequently amended to include 18-year-olds. Parents, guardians, law enforcement, and dance-hall personnel are excepted from the ordinance's age restriction. The ordinance also limits the hours of operation of Class E dancehalls to between 1 p.m. and midnight daily when school is not in session. § 14-5(d)(2).Respondent operates the Twilight Skating Rink in Dallas, and obtained a license for a Class E dancehall. He divided the floor of his rollerskating rink into two sections with moveable plastic cones or pylons. On one side of the pylons, persons between the ages of 14 and 18 dance, while, on the other side, persons of all ages skate to the same music -- usually soul and "funk" music played by a disc jockey. No age or hour restrictions are applicable to the skating rink. Respondent does not serve alcohol on the premises, and security personnel are present. The Twilight does not have a selective admissions policy. It charges between $3.50 and $5.00 per person for admission to the dancehall, and between $2.50 and $5.00 per person for admission to the skating rink. Most of the patrons are strangers to each other, and the establishment serves as many as 1,000 customers per night.Respondent sued in the District Court of Dallas County to enjoin enforcement of the age and hour restrictions of the ordinance. He contended that the ordinance violated substantive due process and equal protection under the United States and Texas Constitutions, and that it unconstitutionally infringed the rights of persons between the ages of 14 and 17 (now 18) to associate with persons outside that age bracket. [Footnote 3] The trial court upheld the ordinance, finding that it was rationally Page 490 U. S. 23 related to the city's legitimate interest in ensuring the safety and welfare of children.The Texas Court of Appeals upheld the ordinance's time restriction, but it struck down the age restriction. 744 S.W.2d 165 (1987). The Court of Appeals held that the age restriction violated the First Amendment associational rights of minors. To support a restriction on the fundamental right of "social association," the court said that "the legislative body must show a compelling interest," and the regulation "must be accomplished by the least restrictive means." Id. at 168. The court recognized the city's interest in "protect[ing] minors from detrimental, corrupting influences," ibid., but held that the "City's stated purposes . . . may be achieved in ways that are less intrusive on minors' freedom to associate," id. at 169. The Court of Appeals stated that"[a] child's right of association may not be abridged simply on the premise that he 'might' associate with those who would persuade him into bad habits,"and that"neither the activity of dancing per se, nor association of children aged fourteen through eighteen with persons of other ages in the context of dancing renders such children peculiarly vulnerable to the evils that defendant City seeks to prevent."Ibid. We granted certiorari, 488 U.S. 815 (1988), and now reverse.The dispositive question in this case is the level of judicial "scrutiny" to be applied to the city's ordinance. Unless laws "create suspect classifications or impinge upon constitutionally protected rights," San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 411 U. S. 40 (1973), it need only be shown that they bear "some rational relationship to a legitimate state purpose," id. at 411 U. S. 44. Respondent does not contend that dance-hall patrons are a "suspect classification," but he does urge that the ordinance in question interferes with associational rights of such patrons guaranteed by the First Amendment.While the First Amendment does not in terms protect a "right of association," our cases have recognized that it embraces Page 490 U. S. 24 such a right in certain circumstances. In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we noted two different sorts of "freedom of association" that are protected by the United States Constitution:"Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment -- speech, assembly, petition for the redress of grievances, and the exercise of religion."Id. at 468 U. S. 617-618.It is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of "intimate human relationships" referred to in Roberts. The Texas Court of Appeals, however, thought that such patrons were engaged in a form of expressive activity that was protected by the First Amendment. We disagree.The Dallas ordinance restricts attendance at Class E dancehalls to minors between the ages of 14 and 18 and certain excepted adults. It thus limits the minors' ability to dance with adults who may not attend, and it limits the opportunity of such adults to dance with minors. These opportunities might be described as "associational" in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect. The hundreds of teenagers who congregate each night at this particular dancehall are not members of any organized association; they are patrons of the same business establishment. Page 490 U. S. 25 Most are strangers to one another, and the dancehall admits all who are willing to pay the admission fee. There is no suggestion that these patrons "take positions on public questions" or perform any of the other similar activities described in Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U. S. 537, 481 U. S. 548 (1987).The cases cited in Roberts recognize that "freedom of speech" means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes -- for example, walking down the street or meeting one's friends at a shopping mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons -- coming together to engage in recreational dancing -- is not protected by the First Amendment. Thus this activity qualifies neither as a form of "intimate association" nor as a form of "expressive association" as those terms were described in Roberts.Unlike the Court of Appeals, we do not think the Constitution recognizes a generalized right of "social association" that includes chance encounters in dancehalls. The Texas Court of Appeals relied, mistakenly we think, on a statement from our opinion in Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 483 (1965), that"[t]he right to freely associate is not limited to 'political' assemblies, but includes those that 'pertain to the social, legal, and economic benefit' of our citizens."744 S.W.2d at 168, quoting Griswold v. Connecticut, supra, at 381 U. S. 483. But the quoted language from Griswold recognizes nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics.The Dallas ordinance, therefore, implicates no suspect class and impinges on no constitutionally protected right. The question remaining is whether the classification engaged in by the city survives "rational basis" scrutiny under the Equal Protection Clause. The city has chosen to impose a Page 490 U. S. 26 rule that separates 14- to 18-year-olds from what may be the corrupting influences of older teenagers and young adults. Ray Couch, an urban planner for the city's Department of Planning and Development, testified:"[O]lder kids [whom the ordinance prohibits from entering Class E dancehalls] can access drugs and alcohol, and they have more mature sexual attitudes, more liberal sexual attitudes in general. . . . And we're concerned about mixing up these [older] individuals with youngsters that [sic] have not fully matured."744 S.W.2d at 168, n. 3. A Dallas police officer, Wesley Michael, testified that the age restriction was intended to discourage juvenile crime.Respondent claims that this restriction "has no real connection with the City's stated interests and objectives." Brief for Respondent 13. Except for saloons and teenage dancehalls, respondent argues, teenagers and adults in Dallas may associate with each other, including at the skating area of the Twilight Skating Rink. Id. at 14. Respondent also states, as did the court below, that the city can achieve its objectives through increased supervision, education, and prosecution of those who corrupt minors. Id. at 15.We think respondent's arguments misapprehend the nature of rational basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. In Dandridge v. Williams, 397 U. S. 471 (1970), in rejecting the claim that Maryland welfare legislation violated the Equal Protection Clause, the Court said:"[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because, in practice, it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 220 U. S. 78. "Page 490 U. S. 27"'The problems of government are practical ones, and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 228 U. S. 69-70. . . ."". . . [The rational basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy."Id. at 397 U. S. 485-486 (footnote omitted).We think that similar considerations support the age restriction at issue here. As we said in New Orleans v. Dukes, 427 U. S. 297, 427 U. S. 303-304 (1976):"[I]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment."See also United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 449 U. S. 177 (1980). The city could reasonably conclude, as Couch stated, that teenagers might be susceptible to corrupting influences if permitted, unaccompanied by their parents, to frequent a dancehall with older persons. See 7 E. McQuillin, Law of Municipal Corporations § 24.210 (3d ed.1981) ("Public dancehalls have been regarded as being in that category of businesses and vocations having potential evil consequences"). The city could properly conclude that limiting dancehall contacts between juveniles and adults would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, and promiscuous sex. [Footnote 4] It is true that the city allows teenagers Page 490 U. S. 28 and adults to rollerskate together, but skating involves less physical contact than dancing. The differences between the two activities may not be striking, but differentiation need not be striking in order to survive rational basis scrutiny.We hold that the Dallas ordinance does not infringe on any constitutionally protected right of association, and that a rational relationship exists between the age restriction for Class E dancehalls and the city's interest in promoting the welfare of teenagers. The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtCity of Dallas v. Stanglin, 490 U.S. 19 (1989)City of Dallas v. StanglinNo. 87-1848Argued March 1, 1989Decided April 3, 1989490 U.S. 19SyllabusFor the express purpose of providing a place where teenagers can socialize with each other but not be subject to the potentially detrimental influences of older teenagers and adults, a Dallas ordinance authorizes the licensing of "Class E" dancehalls, restricting admission thereto to persons between the ages of 14 and 18 and limiting their hours of operation. Respondent, whose rollerskating rink and Class E dancehall share a divided floor space, filed suit in state court to enjoin the ordinance's age and hour restrictions, contending, inter alia, that they violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The trial court upheld the ordinance, but the Texas Court of Appeals struck down the ordinance's age restriction, holding that it violated the First Amendment associational rights of minors.Held:1. The ordinance does not infringe on the First Amendment right of association. Respondent's patrons, who may number as many as 1,000 per night, are not engaged in a form of "intimate association." Nor do the opportunities of adults and minors to dance with one another, which might be described as "associational" in common parlance, involve the sort of "expressive association" that the First Amendment has been held to protect. The teenagers who congregate are not members of any organized association, and most are strangers to one another. The dancehall admits all who pay the admission fee, and there is no suggestion that the patrons take positions on public questions or perform other similar activities. Moreover, the Constitution does not recognize a generalized right of "social association" that includes chance encounters in dancehalls. Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 483, distinguished. Pp. 490 U. S. 23-25.2. The ordinance does not violate the Equal Protection Clause because there is a rational relationship between the age restriction for Class E dancehalls and the city's interest in promoting the welfare of teenagers. Respondent's claims -- that the ordinance does not meet the city's objectives because adults and teenagers can still associate with one another in places such as his skating rink and that there are other, less intrusive, alternatives to achieve the objectives -- misapprehend the nature of Page 490 U. S. 20 rational basis scrutiny, the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. Under this standard, a classification that has some reasonable basis does not offend the Constitution because it is imperfect. Here, the city could reasonably conclude that teenagers might be more susceptible to corrupting influences if permitted to frequent dancehalls with older persons or that limiting dance-hall contacts between adults and teenagers would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, or promiscuous sex. While the city permits teenagers and adults to rollerskate together, skating involves less physical contact than dancing, a differentiation that need not be striking to survive rational-basis scrutiny. Pp. 490 U. S. 25-28.744 S.W.2d 165, reversed and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined,, post, p. 490 U. S. 28.

1960_42

MR. JUSTICE BLACK delivered the opinion of the Court.The Small Business Act of 1953 [Footnote 1] created the Small Business Administration to"aid, counsel, assist, and protect insofar as is possible the interests of small business concerns in order to preserve free competitive enterprise . . . and to maintain and strengthen the overall economy of the Nation. [Footnote 2]"The Administration was given extraordinarily broad powers to accomplish these important objectives, including that of lending money to small businesses whenever they could not get necessary loans on reasonable terms from private lenders. [Footnote 3] When a part, but not all, of a necessary loan can be obtained from a bank or other private lender, the Administration is empowered to join that private lender in making the loan. [Footnote 4] The basic question this case presents is whether, when the Administration has joined a private bank in a loan and the borrower becomes a bankrupt, the Administration's interest in the unpaid balance of the loan is entitled to the priority provided for "debts due to the United States" in R.S. § 3466 and § 64 of the Bankruptcy Act, [Footnote 5] even though the Administration has agreed to share any money collected on the loan with the private bank.That question arises out of a joint bank-Administration loan of $20,000 to a small business, $5,000 of the loan having come from the funds of the bank and $15,000 from the Government Treasury. Nine months later, an involuntary petition in bankruptcy was filed against the borrower Page 364 U. S. 448 by other creditors. The Administration appeared in the proceedings upon that petition, filed a claim for $16,355.69, the amount then due on the loan, including interest, and asserted priority for its claim to the extent of $12,266.75, its 75 per cent interest in the debt. After a hearing, the referee in bankruptcy denied priority on the ground that the Administration is a "legal entity," and therefore not entitled to the "privileges and immunities of the United States." The District Court, on review, rejected the ground upon which the referee had relied, but concluded that, since the bankrupt's note evidencing the loan was not assigned by the bank to the Administration until after the commencement of bankruptcy proceedings, the debt is not entitled to priority. [Footnote 6] The Court of Appeals affirmed on a third ground -- that the Administration, having contracted to pay the participating private bank one-fourth of any distribution received, could not assert its priority and thus permit a private party to benefit from a priority which, under R.S. § 3466 and the Bankruptcy Act, belongs to the Government alone. [Footnote 7] We granted certiorari to consider the Government's contention that the denial of priority to the Small Business Administration handicaps that agency in the effective performance of the duties imposed upon it by Congress. [Footnote 8]First. It is contended that the referee was correct in holding that the Small Business Administration is a separate legal entity, and therefore not entitled to governmental priority in a bankruptcy proceeding. The contention rests upon a supposed analogy between this case and Sloan Shipyards Corp. v. United States Shipping Board Emergency Fleet Corporation [Footnote 9] and Reconstruction Finance Corp. v. J. G. Menihan Page 364 U. S. 449 Corp., [Footnote 10] in which cases this Court refused to treat the corporate governmental agencies involved as the United States. Neither of those cases, however, is controlling here. The agency involved in Sloan Shipyards, the Fleet Corporation, was organized under the laws of the District of Columbia pursuant to authority of an Act of Congress which "contemplated a corporation in which private persons might be stockholders." [Footnote 11] This fact alone is enough to distinguish the Fleet Corporation from the Small Business Administration, which, as was contemplated from the beginning, gets all of its money from the Government Treasury. Our decision in the Reconstruction Finance Corp. case is equally inapplicable, for that case involved only the question of whether the Reconstruction Finance Corporation, having been endowed by Congress with the capacity to sue and be sued, could be assessed costs in connection with a suit it brought. The holding that such costs could be assessed would not support a holding that the Small Business Administration is not the United States for the purpose of bankruptcy priority. [Footnote 12] Page 364 U. S. 450 Thus, neither of these cases requires us to hold that the Small Business Administration, an agency created to lend the money of the United States, is not entitled to all the priority that must be accorded to the United States when the time comes to collect that money. Under like circumstances, we refused to deny priority for debts due to the Farm Credit Administration in United States v. Remund. [Footnote 13] As was said there of the Farm Credit Administration, the Small Business Administration is "an integral part of the governmental mechanism" [Footnote 14] created to accomplish what Congress deemed to be of national importance. And it, like the Farm Credit Administration, is entitled to the priority of the United States in collecting loans made by it out of government funds.Second. Respondent contends, as the District Court held, that the Small Business Administration's assertion of priority is precluded by our holding in United States v. Marxen [Footnote 15] that priority attaches only to those debts owing to the United States on the date of the commencement of bankruptcy proceedings, and not to debts that come into existence after that date. But this requirement of the Marxen case is fully met here by virtue of the fact that the debt due the Administration arises out of the loan made jointly by the bank and the United States nine months prior to the petition in bankruptcy. Since beneficial ownership of the three-fourths of the debt for which priority is asserted belonged to the Administration from the date of the loan, it is immaterial that formal assignment of the note evidencing the debt was not made by the bank until after the filing of the petition. Page 364 U. S. 451Third. The Court of Appeals held, and the contention is reiterated here, that the Administration forfeited any right it might otherwise have had to priority by agreeing to turn over to the bank one-fourth of any distribution obtained because of its priority. By this arrangement, it is urged, the Administration is attempting "to give priority to a claim which the United States is collecting for the benefit of a private party," contrary to the principles announced by this Court in Nathanson v. Labor Board. [Footnote 16] But the Nathanson case involved a significantly different situation. There, the National Labor Relations Board sought to obtain governmental priority for backpay claims belonging to employees based upon their loss of pay as a result of allegedly discriminatory discharges by the bankrupt. This Court's denial of priority in that case, involving claims in which the United States had no financial interest, would not justify a denial here where the money was loaned by, and the debt sought to be collected is due to, the United States. The fact that the Administration has contracted to pay the participating private bank one-fourth of any money it later collects on its loan does not mean the Government must lose its priority. Respondent's argument to the contrary seems to rest upon the assumption that the Government is deprived of its priority by making a contract to pay a part of its funds to another creditor of the bankrupt who has no priority. This argument finds no support whatever in § 3466, in § 64 of the Bankruptcy Act, or in the Small Business Act. Section 3466 declares in unequivocal language that the United States is entitled to priority "[w]henever any person indebted to the United States is insolvent," and § 64 recognizes that priority in bankruptcy proceedings. The purpose of these sections is simply to protect the Page 364 U. S. 452 interest of the Government in collecting money due to it. [Footnote 17] Once that money is collected and placed in the Government Treasury, the end sought to be achieved by § 3466 and § 64 of the Bankruptcy Act is completely satisfied. At that point, there is no difference between the money so received and money received from any other source, and, like other money, it may be disbursed in any way the Government sees fit, including the satisfaction of obligations already incurred, so long as the purpose is lawful. The Small Business Administration is authorized to enter into contracts calculated to induce private banks to make loans to small businesses. [Footnote 18] The contract involved in this case, by providing additional security to the private bank at the Government's expense, is well adapted to that end. Indeed, in many cases, such a contract may be the only way the Administration could induce private bank participation in a necessary loan. In those cases, acceptance of respondent's argument would make it more difficult for the Administration to perform its statutory duties. Clearly Congress did not intend, by the very act of imposing duties upon the Administration, to take away a privilege necessary to the effective performance of those duties.Respondent's argument from the policy of equality of distribution for similar creditors expressed in the Bankruptcy Act [Footnote 19] is no more convincing. It is true that the allowance of the priority asserted here will place the bank, a private unsecured creditor, in a better position than other private unsecured creditors. But this position is a result not of any inequality of distribution on the part Page 364 U. S. 453 of the bankruptcy court, but of the bank's valid contract with the Small Business Administration.Fourth. Respondent's last contention, urged throughout these proceedings, is that governmental priority is inconsistent with the basic purposes and provisions of the Small Business Act. The contention rests upon the fact that having a creditor with governmental priority tends to make it more difficult for a small businessman to borrow money from other persons, and, in this respect, handicaps, rather than aids, borrowers, thus conflicting with the Act's basic policy. In United States v. Emory, we rejected this same argument, with reference to priority for Federal Housing Administration debts, stating that "[o]nly the plainest inconsistency would warrant our finding an implied exception to . . . so clear a command as that of § 3466." [Footnote 20] The same conclusion must be reached here.It was error for the courts below to refuse the Government's claim for priority.Reversed

U.S. Supreme CourtSmall Business Administration v. McClellan, 364 U.S. 446 (1960)Small Business Administration v. McClellanNo. 42Argued November 9-10, 1960Decided December 5, 1960364 U.S. 446SyllabusWhen the Small Business Administration, created by the Small Business Act of 1953, with authority, inter alia, to lend government funds to small businesses, has joined a private bank in making a loan and the borrower becomes a bankrupt, the Administration's interest in the unpaid balance of the loan is entitled to the priority provided for "debts due to the United States" under R.S. § 3466 and § 64 of the Bankruptcy Act -- even though the Administration has agreed to share with the bank any money collected on the loan. Pp. 364 U. S. 447-453.(a) The Small Business Administration is an integral part of the governmental mechanism -- not a separate legal entity -- and it is entitled to the priority of the United States in collecting loans made by it out of government funds. Sloan Shipyards Corp. v. United States Fleet Corp., 258 U. S. 549, and Reconstruction Finance Corp. v. Menihan Corp., 312 U. S. 81, distinguished. United States v. Remund, 330 U. S. 539, followed. Pp. 364 U. S. 448-450.(b) Since the Administration participated in making the loan and acquired a beneficial interest in it prior to the petition in bankruptcy, it is immaterial that formal assignment to the Administration of the note evidencing the debt was not made by the bank until after the filing of the petition. P. 364 U. S. 450.(c) The Administration did not forfeit its right to priority by agreeing to turn over to the bank part of any distribution obtained because of its priority. Pp. 364 U. S. 451-453.(d) Governmental priority in bankruptcy proceedings is not inconsistent with the basic purposes and provisions of the Small Business Act. P. 453.272 F.2d 143, reversed. Page 364 U. S. 447

1995_94-8729

Bennis and his wife, petitioner Tina B. Bennis, to have the car declared a public nuisance and abated as such under §§ 600.38012 and 600.38253 of Michigan's Compiled Laws.Petitioner defended against the abatement of her interest in the car on the ground that, when she entrusted her husband to use the car, she did not know that he would use it to violate Michigan's indecency law. The Wayne County Circuit Court rejected this argument, declared the car a public nuisance, and ordered the car's abatement. In reaching this disposition, the trial court judge recognized the remedial discretion he had under Michigan's case law. App. 21. He2 Section 600.3801 states in pertinent part:"Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, ... is declared a nuisance, ... and all ... nuisances shall be enjoined and abated as provided in this act and as provided in the court rules. Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance." Mich. Compo Laws Ann. § 600.3801 (West Supp. 1995).3 Section 600.3825 states in pertinent part:"(1) Order of abatement. If the existence of the nuisance is established in an action as provided in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all furniture, fixtures and contents therein and shall direct the sale thereof in the manner provided for the sale of chattels under execution ...."(2) Vehicles, sale. Any vehicle, boat, or aircraft found by the court to be a nuisance within the meaning of this chapter, is subject to the same order and judgment as any furniture, fixtures and contents as herein provided."(3) Sale of personalty, costs, liens, balance to state treasurer. Upon the sale of any furniture, fixtures, contents, vehicle, boat or aircraft as provided in this section, the officer executing the order of the court shall, after deducting the expenses of keeping such property and costs of such sale, pay all liens according to their priorities ... , and shall pay the balance to the state treasurer to be credited to the general fund of the state .... " Mich. Compo Laws § 600.3825 (1979).445took into account the couple's ownership of "another automobile," so they would not be left "without transportation." Id., at 25. He also mentioned his authority to order the payment of one-half of the sale proceeds, after the deduction of costs, to "the innocent co-title holder." Id., at 21. He declined to order such a division of sale proceeds in this case because of the age and value of the car (an ll-year-old Pontiac sedan recently purchased by John and Tina Bennis for $600); he commented in this regard: "[T]here's practically nothing left minus costs in a situation such as this." Id., at 25.The Michigan Court of Appeals reversed, holding that regardless of the language of Michigan Compiled Law § 600.3815(2),4 Michigan Supreme Court precedent interpreting this section prevented the State from abating petitioner's interest absent proof that she knew to what end the car would be used. Alternatively, the intermediate appellate court ruled that the conduct in question did not qualify as a public nuisance because only one occurrence was shown and there was no evidence of payment for the sexual act. 200 Mich. App. 670, 504 N. W. 2d 731 (1993).The Michigan Supreme Court reversed the Court of Appeals and reinstated the abatement in its entirety. 447 Mich. 719, 527 N. W. 2d 483 (1994). It concluded as a matter of state law that the episode in the Bennis vehicle was an abatable nuisance. Rejecting the Court of Appeals' interpretation of § 600.3815(2), the court then announced that, in order to abate an owner's interest in a vehicle, Michigan does not need to prove that the owner knew or agreed that her vehicle would be used in a manner proscribed by § 600.3801 when she entrusted it to another user. Id., at 737, 527 N. W. 2d, at 492. The court next addressed petitioner's4 "Proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required." Mich. Compo Laws § 600.3815(2) (1979).446federal constitutional challenges to the State's abatement scheme: The court assumed that petitioner did not know of or consent to the misuse of the Bennis car, and concluded in light of our decisions in Van Oster v. Kansas, 272 U. S. 465 (1926), and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), that Michigan's failure to provide an innocent-owner defense was "without constitutional consequence." 447 Mich., at 740-741, 527 N. W. 2d, at 493-494. The Michigan Supreme Court specifically noted that, in its view, an owner's interest may not be abated when "a vehicle is used without the owner's consent." Id., at 742, n. 36, 527 N. W. 2d, at 495, n. 36. Furthermore, the court confirmed the trial court's description of the nuisance abatement proceeding as an "equitable action," and considered it "critical" that the trial judge so comprehended the statute. Id., at 742, 527 N. W. 2d, at 495.We granted certiorari in order to determine whether Michigan's abatement scheme has deprived petitioner of her interest in the forfeited car without due process, in violation of the Fourteenth Amendment, or has taken her interest for public use without compensation, in violation of the Fifth Amendment as incorporated by the Fourteenth Amendment. 515 U. S. 1121 (1995). We affirm.The gravamen of petitioner's due process claim is not that she was denied notice or an opportunity to contest the abatement of her car; she was accorded both. Cf. United States v. James Daniel Good Real Property, 510 U. S. 43 (1993). Rather, she claims she was entitled to contest the abatement by showing she did not know her husband would use it to violate Michigan's indecency law. But a long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use.Our earliest opinion to this effect is Justice Story's opinion for the Court in The Palmyra, 12 Wheat. 1 (1827). The Pal-447myra, which had been commissioned as a privateer by the King of Spain and had attacked a United States vessel, was captured by a United States warship and brought into Charleston, South Carolina, for adjudication. Id., at 8. On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining:"The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing." Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings "the acts of the master and crew ... bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added).In Dobbins's Distillery v. United States, 96 U. S. 395, 401 (1878), this Court upheld the forfeiture of property used by a lessee in fraudulently avoiding federal alcohol taxes, observing: "Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care, and custody, even when the owner is otherwise without fault ... and it has always been held ... that the acts of [the possessors] bind the interest of the owner ... whether he be innocent or guilty."In Van Oster v. Kansas, 272 U. S. 465 (1926), this Court upheld the forfeiture of a purchaser's interest in a car misused by the seller. Van Oster purchased an automobile from a dealer but agreed that the dealer might retain possession for use in its business. The dealer allowed an associate to use the automobile, and the associate used it for the illegal transportation of intoxicating liquor. Id., at 465-466. The State brought a forfeiture action pursuant to a Kansas stat-448ute, and Van Oster defended on the ground that the transportation of the liquor in the car was without her knowledge or authority. This Court rejected Van Oster's claim:"I t is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples .... They suggest that certain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril. ..."It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment." Id., at 467-468.The Van Oster Court relied on J. W Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 (1921), in which the Court upheld the forfeiture of a seller's interest in a car misused by the purchaser. The automobile was forfeited after the purchaser transported bootleg distilled spirits in it, and the selling dealership lost the title retained as security for unpaid purchase money. Id., at 508-509. The Court discussed the arguments for and against allowing the forfeiture of the interest of an owner who was "without guilt," id., at 510, and concluded that "whether the reason for [the challenged forfeiture scheme] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced," id., at 511.55 In Austin v. United States, 509 U. S. 602, 617 (1993), the Court observed that J. W Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 (1921), "expressly reserved the question whether the [guilty-property]449In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), the most recent decision on point, the Court reviewed the same cases discussed above, and concluded that "the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense." Id., at 683. Petitioner is in the same position as the various owners involved in the forfeiture cases beginning with The Palmyra in 1827. She did not know that her car would be used in an illegal activity that would subject it to forfeiture. But under these cases the Due Process Clause of the Fourteenth Amendment does not protect her interest against forfeiture by the government.Petitioner relies on a passage from Calero-Toledo, that "it would be difficult to reject the constitutional claim of ... an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had donefiction could be employed to forfeit the property of a truly innocent owner." This observation is quite mistaken. The Goldsmith-Grant Court expressly reserved opinion "as to whether the section can be extended to property stolen from the owner or otherwise taken from him without his privity or consent." Id., at 512 (emphases added). In other words, the Goldsmith-Grant Court drew the very same distinction made by the Michigan Supreme Court in this case: "the distinction between the situation in which a vehicle is used without the owner's consent," and one in which, "although the owner consented to [another person's] use, [the vehicle] is used in a manner to which the owner did not consent." 447 Mich., at 742, n. 36, 527 N. W. 2d, at 495, n. 36. Because John Bennis co-owned the car at issue, petitioner cannot claim she was in the former situation.The dissent, post, at 466-468, and n. 12, quoting Peisch v. Ware, 4 Cranch 347,364 (1808), seeks to enlarge the reservation in Goldsmith-Grant into a general principle that "'a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.'" But Peisch was dealing with the same question reserved in Goldsmith-Grant, not any broader proposition: "If, by private theft, or open robbery, without any fault on his part, [an owner's] property should be invaded, ... the law cannot be understood to punish him with the forfeiture of that property." 4 Cranch, at 364.450all that reasonably could be expected to prevent the proscribed use of his property." 416 U. S., at 689. But she concedes that this comment was obiter dictum, and "[i]t is to the holdings of our cases, rather than their dicta, that we must attend." Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 379 (1994). And the holding of Calero-Toledo on this point was that the interest of a yacht rental company in one of its leased yachts could be forfeited because of its use for transportation of controlled substances, even though the company was" 'in no way ... involved in the criminal enterprise carried on by [the] lessee' and 'had no knowledge that its property was being used in connection with or in violation of [Puerto Rican Law].'" 416 U. S., at 668. Petitioner has made no showing beyond that here.JUSTICE STEVENS' dissent argues that our cases treat contraband differently from instrumentalities used to convey contraband, like cars: Objects in the former class are forfeitable "however blameless or unknowing their owners may be," post, at 459, but with respect to an instrumentality in the latter class, an owner's innocence is no defense only to the "principal use being made of that property," post, at 461. However, this Court's precedent has never made the due process inquiry depend on whether the use for which the instrumentality was forfeited was the principal use. If it had, perhaps cases like Calero-Toledo, in which Justice Douglas noted in dissent that there was no showing that the "yacht had been notoriously used in smuggling drugs ... and so far as we know only one marihuana cigarette was found on the yacht," 416 U. S., at 693 (opinion dissenting in part), might have been decided differently.The dissent also suggests that The Palmyra line of cases "would justify the confiscation of an ocean liner just because one of its passengers sinned while on board." Post, at 462. None of our cases have held that an ocean liner may be confiscated because of the activities of one passenger. We said in Goldsmith-Grant, and we repeat here, that "[w]hen such451application shall be made it will be time enough to pronounce upon it." 254 U. S., at 512.Notwithstanding this well-established authority rejecting the innocent-owner defense, petitioner argues that we should in effect overrule it by importing a culpability requirement from cases having at best a tangential relation to the "innocent owner" doctrine in forfeiture cases. She cites Foucha v. Louisiana, 504 U. S. 71 (1992), for the proposition that a criminal defendant may not be punished for a crime if he is found to be not guilty. She also argues that our holding in Austin v. United States, 509 U. S. 602 (1993), that the Excessive Fines Clause 6 limits the scope of civil forfeiture judgments, "would be difficult to reconcile with any rule allowing truly innocent persons to be punished by civil forfeiture." Brief for Petitioner 18-19, n. 12.In Foucha the Court held that a defendant found not guilty by reason of insanity in a criminal trial could not be thereafter confined indefinitely by the State without a showing that he was either dangerous or mentally ill. Petitioner argues that our statement that in those circumstances a State has no "punitive interest" which would justify continued detention, 504 U. S., at 80, requires that Michigan demonstrate a punitive interest in depriving her of her interest in the forfeited car. But, putting aside the extent to which a forfeiture proceeding is "punishment" in the first place, Foucha did not purport to discuss, let alone overrule, The Palmyra line of cases.In Austin, the Court held that because "forfeiture serves, at least in part, to punish the owner," forfeiture proceedings are subject to the limitations of the Eighth Amendment's prohibition against excessive fines. 509 U. S., at 618. There was no occasion in that case to deal with the validity of the "innocent-owner defense," other than to point out that if a forfeiture statute allows such a defense, the defense is6 U. S. Const., Arndt. 8.452additional evidence that the statute itself is "punitive" in motive. Id., at 617-618. In this case, however, Michigan's Supreme Court emphasized with respect to the forfeiture proceeding at issue: "It is not contested that this is an equitable action," in which the trial judge has discretion to consider "alternatives [to] abating the entire interest in the vehicle." 447 Mich., at 742, 527 N. W. 2d, at 495.In any event, for the reasons pointed out in Calero-Toledo and Van Oster, forfeiture also serves a deterrent purpose distinct from any punitive purpose. Forfeiture of property prevents illegal uses "both by preventing further illicit use of the [property] and by imposing an economic penalty, thereby rendering illegal behavior unprofitable." CaleroToledo, supra, at 687. This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner's consent to use it, petitioner was also potentially liable for her husband's use of the car in violation of Michigan negligence law. Mich. Compo Laws § 257.401 (1979). "The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner." Van Oster, 272 U. S., at 467-468.Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. United States v. Fuller,453409 U. S. 488, 492 (1973); see United States v. Rands, 389 U. S. 121, 125 (1967).At bottom, petitioner's claims depend on an argument that the Michigan forfeiture statute is unfair because it relieves prosecutors from the burden of separating co-owners who are complicit in the wrongful use of property from innocent co-owners. This argument, in the abstract, has considerable appeal, as we acknowledged in Goldsmith-Grant, 254 U. S., at 510. Its force is reduced in the instant case, however, by the Michigan Supreme Court's confirmation of the trial court's remedial discretion, see supra, at 446, and petitioner's recognition that Michigan may forfeit her and her husband's car whether or not she is entitled to an offset for her interest in it, Tr. of Oral Arg. 7, 9.We conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." Goldsmith-Grant, supra, at 511. The State here sought to deter illegal activity that contributes to neighborhood deterioration and unsafe streets. The Bennis automobile, it is conceded, facilitated and was used in criminal activity. Both the trial court and the Michigan Supreme Court followed our longstanding practice, and the judgment of the Supreme Court of Michigan is thereforeAffirmed

OCTOBER TERM, 1995SyllabusBENNIS v. MICHIGANCERTIORARI TO THE SUPREME COURT OF MICHIGANNo. 94-8729. Argued November 29, 1995-Decided March 4,1996Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. In declaring the automobile forfeit as a public nuisance under Michigan's statutory abatement scheme, the trial court permitted no offset for petitioner's interest, notwithstanding her lack of knowledge of her husband's activity. The Michigan Court of Appeals reversed, but was in turn reversed by the State Supreme Court, which concluded, inter alia, that Michigan's failure to provide an innocent-owner defense was without federal constitutional consequence under this Court's decisions.Held: The forfeiture order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment. Pp. 446-453.(a) Michigan's abatement scheme has not deprived petitioner of her interest in the forfeited car without due process. Her claim that she was entitled to contest the abatement by showing that she did not know that her husband would use the car to violate state law is defeated by a long and unbroken line of cases in which this Court has held that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use. See, e. g., Van Oster v. Kansas, 272 U. S. 465,467-468, and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 668, 683; Foucha v. Louisiana, 504 U. S. 71, 80, and Austin v. United States, 509 U. S. 602, 617-618, distinguished. These cases are too firmly fixed in the country's punitive and remedial jurisprudence to be now displaced. Cf. J. W Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 511. pp.446-452.(b) Michigan's abatement scheme has not taken petitioner's property for public use without compensation. Because the forfeiture proceeding did not violate the Fourteenth Amendment, her property in the automobile was transferred by virtue of that proceeding to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. See, e. g., United States v. Fuller, 409 U. S. 488, 492. Pp. 452-453.447 Mich. 719, 527 N. W. 2d 483, affirmed.443REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., post, p. 453, and GINSBURG, J., post, p. 457, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER and BREYER, JJ., joined, post, p. 458. KENNEDY, J., filed a dissenting opinion, post, p. 472.Stefan B. Herpel argued the cause and filed briefs for petitioner.Larry L. Roberts argued the cause for respondent. With him on the brief were John D. O'Hair and George E. Ward.Richard H. Seamon argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.*CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. A Michigan court ordered the automobile forfeited as a public nuisance, with no offset for her interest, notwithstanding her lack of knowledge of her husband's activity. We hold that the Michigan court order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment.Detroit police arrested John Bennis after observing him engaged in a sexual act with a prostitute in the automobile while it was parked on a Detroit city street. Bennis was convicted of gross indecency.l The State then sued both*Briefs of amici curiae urging reversal were filed for the American Bankers Association by John J. Gill III and Michael F. Crotty; for the Institute for Justice by William H. Mellor III and Clint Bolick; and for the National Association of Criminal Defense Lawyers by E. E. Edwards III and Richard J. Troberman.Richard K. Willard and Robert Teir filed a brief of amicus curiae for the American Alliance for Rights and Responsibilities et al.1 Mich. Compo Laws § 750.338b (1979).444Full Text of Opinion

1989_88-512

Chief Justice REHNQUIST delivered the opinion of the Court.In Michigan v. Jackson, 475 U. S. 625 (1986), the Court established a prophylactic rule that once a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right -- even if voluntary, knowing, and intelligent under traditional standards -- is presumed invalid if secured pursuant to police-initiated conversation. We held that statements obtained in violation of that rule may not be admitted as substantive evidence in the prosecution's case-in-chief. The question presented in this case is whether the Page 494 U. S. 346 prosecution may use a statement taken in violation of the Jackson prophylactic rule to impeach a defendant's false or inconsistent testimony. We hold that it may do so.Respondent Tyris Lemont Harvey was convicted of two counts of first degree criminal sexual conduct in connection with the rape of Audrey Sharp on June 11, 1986. Harvey was taken into custody on July 2, 1986, and on that date, he made a statement to an investigating officer. He was arraigned later on July 2, and counsel was appointed for him. More than two months later, Harvey told another police officer that he wanted to make a second statement, but did not know whether he should talk to his lawyer. Although the entire context of the discussion is not clear from the record, the officer told respondent that he did not need to speak with his attorney, because "his lawyer was going to get a copy of the statement anyway." App. 3233 (stipulation of prosecution). Respondent then signed a constitutional rights waiver form, on which he initialed the portions advising him of his right to remain silent, his right to have a lawyer present before and during questioning, and his right to have a lawyer appointed for him prior to any questioning. App. to Pet. for Cert. 3a-4a. [Footnote 1] Asked whether he understood his constitutional rights, respondent answered affirmatively. He then gave a statement detailing his version of the events of June 11.At a bench trial, Sharp testified that Harvey visited her home at 2:30 a.m. on the date in question and asked to use the telephone. After placing a call, Harvey confronted Sharp with a barbecue fork, and a struggle ensued. According to Sharp, respondent struck her in the face, threatened her with the fork and a pair of garden shears, and eventually threw her to the floor of her kitchen. When she ran to the living room to escape, Harvey pursued her with the weapons, Page 494 U. S. 347 demanded that she take off her clothes, and forced her to engage in sexual acts.Harvey testified in his own defense and presented a conflicting account of the night's events. He claimed that he had gone to Sharp's home at 9 p.m. and invited her to smoke some crack cocaine, which he offered to supply in return for sexual favors. She agreed, but after smoking the cocaine, she refused to perform the favors. When respondent would not leave her house, Sharp allegedly grabbed the barbecue fork and threatened him, triggering a brief fight during which he grabbed the fork and threw it to the ground. The two then moved to the living room, where, according to Harvey, Sharp voluntarily removed her clothes. He testified, however, that the two never engaged in sexual intercourse, and that he left shortly thereafter.On cross-examination, the prosecutor used Harvey's second statement to police to impeach his testimony. Before doing so, the prosecutor stipulated that the statement "was not subject to proper Miranda," App. 32, and therefore could not have been used in the case-in-chief. But because the statement was voluntary, the prosecutor argued that it could be used for impeachment under our decision in Harris v. New York, 401 U. S. 222 (1971). Defense counsel did not object, App. 34; App. to Pet. for Cert. 5a, and the trial court permitted the questioning. The prosecutor then impeached certain of Harvey's statements, including his claim that he had thrown the barbecue fork to the floor, by showing that he had omitted that information from his statement to the police. App. 36-45. [Footnote 2] The trial judge believed the victim's testimony, and found respondent guilty as charged. Page 494 U. S. 348The Michigan Court of Appeals reversed the conviction. The court noted that, if the second statement had been taken only in violation of the rules announced in Miranda v. Arizona, 384 U. S. 436 (1966), it could have been used to impeach Harvey's testimony. It held, however, that the statement was inadmissible even for impeachment purposes, because it was taken "in violation of defendant's Sixth Amendment right to counsel. See e.g., Michigan v. Jackson, 475 U. S. 625 (1986)." App. to Pet. for Cert. 6a-7a. Because the trial "involved a credibility contest between defendant and the victim," the court concluded that the impeachment was not harmless beyond a reasonable doubt. Id. at 7a. The Michigan Supreme Court denied leave to appeal, three justices dissenting, and we granted certiorari. 489 U.S. 1010 (1989). We now reverse.To understand this case, it is necessary first to review briefly the Court's jurisprudence surrounding the Sixth Amendment. The text of the Amendment provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The essence of this right, we recognized in Powell v. Alabama, 287 U. S. 45 (1932), is the opportunity for a defendant to consult with an attorney, and to have him investigate the case and prepare a defense for trial. Id. at 287 U. S. 58, 287 U. S. 71. More recently, in a line of cases beginning with Massiah v. United States, 377 U. S. 201 (1964), and extending through Maine v. Moulton, 474 U. S. 159 (1985), the Court has held that, once formal criminal proceedings begin, the Sixth Amendment renders inadmissible in the prosecution's case-in-chief statements "deliberately elicited" from a defendant without an express waiver of the right to counsel. See also United States v. Henry, 447 U. S. 264 (1980); Brewer v. Williams, 430 U. S. 387 (1977). For the fruits of postindictment interrogations to be admissible in a prosecution's case-in-chief, the State must prove a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment Page 494 U. S. 349 right to counsel. Patterson v. Illinois, 487 U. S. 285, 487 U. S. 292, and n. 4 (1988); Brewer, supra, 430 U.S. at 430 U. S. 404. We have recently held that when a suspect waives his right to counsel after receiving warnings equivalent to those prescribed by Miranda v. Arizona, supra, that will generally suffice to establish a knowing and intelligent waiver of the Sixth Amendment right to counsel for purposes of postindictment questioning. Patterson v. Illinois, supra.In Michigan v. Jackson, 475 U. S. 625 (1986), the Court created a bright-line rule for deciding whether an accused who has "asserted" his Sixth Amendment right to counsel has subsequently waived that right. Transposing the reasoning of Edwards v. Arizona, 451 U. S. 477 (1981), which had announced an identical "prophylactic rule" in the Fifth Amendment context, see Solem v. Stumes, 465 U. S. 638, 465 U. S. 644 (1984), we decided that, after a defendant requests assistance of counsel, any waiver of Sixth Amendment rights given in a discussion initiated by police is presumed invalid, and evidence obtained pursuant to such a waiver is inadmissible in the prosecution's case-in-chief. Jackson, supra, 475 U.S. at 475 U. S. 636. Thus, to help guarantee that waivers are truly voluntary, Jackson established a presumption which renders invalid some waivers that would be considered voluntary, knowing, and intelligent under the traditional case-by-case inquiry called for by Brewer v. Williams.There is no dispute in this case that respondent had a Sixth Amendment right to counsel at the time he gave the statement at issue. The State further concedes that the police transgressed the Jackson rule, because the colloquy between respondent and the investigating officer "cannot be viewed as defendant-initiated interrogation." Tr. of Oral Arg. 52. The question, then, is whether a statement to police taken in violation of Jackson can be admitted to impeach a defendant's inconsistent trial testimony.Michigan v. Jackson is based on the Sixth Amendment, but its roots lie in this Court's decisions in Miranda v. Arizona, Page 494 U. S. 350 supra, and succeeding cases. Miranda, of course, required police interrogators to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments and set forth a now-familiar set of suggested instructions for that purpose. Although recognizing that the Miranda rules would result in the exclusion of some voluntary and reliable statements, the Court imposed these "prophylactic standards" on the States, see Michigan v. Tucker, 417 U. S. 433, 417 U. S. 446 (1974), to safeguard the Fifth Amendment privilege against self-incrimination. Edwards v. Arizona added a second layer of protection to the Miranda rules, holding that"when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights."451 U.S. at 451 U. S. 484. Edwards thus established another prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. See Oregon v. Bradshaw, 462 U. S. 1039, 462 U. S. 1044 (1983) (plurality opinion).Jackson simply superimposed the Fifth Amendment analysis of Edwards onto the Sixth Amendment. Reasoning that "the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation," Jackson, supra, 475 U.S. at 475 U. S. 632, the Court in Jackson concluded that the Edwards protections should apply when a suspect charged with a crime requests counsel outside the context of interrogation. This rule, like Edwards, is based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interrogations.We have already decided that although statements taken in violation of only the prophylactic Miranda rules may not be used in the prosecution's case-in-chief, they are admissible to impeach conflicting testimony by the defendant. Harris v. Page 494 U. S. 351 New York, 401 U. S. 222 (1971); Oregon v. Hass, 420 U. S. 714 (1975). The prosecution must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially-created protections. But use of statements so obtained for impeachment purposes is a different matter. If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal "obligation to speak truthfully and accurately," Harris, supra, 401 U.S. at 401 U. S. 225, and we have consistently rejected arguments that would allow a defendant to"'turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.'"Id. at 401 U. S. 224 (quoting Walder v. United States, 347 U. S. 62, 347 U. S. 65 (1954)). See also Hass, supra, 420 U.S. at 420 U. S. 722; United States v. Havens, 446 U. S. 620, 446 U. S. 626 (1980).There is no reason for a different result in a Jackson case, where the prophylactic rule is designed to ensure voluntary, knowing, and intelligent waivers of the Sixth Amendment right to counsel rather than the Fifth Amendment privilege against self-incrimination or "right to counsel." We have mandated the exclusion of reliable and probative evidence for all purposes only when it is derived from involuntary statements. New Jersey v. Portash, 440 U. S. 450, 440 U. S. 459 (1979) (compelled incriminating statements inadmissible for impeachment purposes); Mincey v. Arizona, 437 U. S. 385, 437 U. S. 398 (1978) (same). We have never prevented use by the prosecution of relevant voluntary statements by a defendant, particularly when the violations alleged by a defendant relate only to procedural safeguards that are "not themselves rights protected by the Constitution," Tucker, supra, 417 U.S. at 417 U. S. 444 (Miranda rules), but are instead measures designed to ensure that constitutional rights are protected. In such cases, we have decided that the "search for truth in a criminal case" outweighs the "speculative possibility" that exclusion of evidence might deter future violations of rules not compelled directly Page 494 U. S. 352 by the Constitution in the first place. Hass, supra, 420 U.S. at 420 U. S. 722-723; Havens, supra, 446 U.S. at 446 U. S. 627 (reaffirming Hass). Hass was decided 15 years ago, and no new information has come to our attention which should lead us to think otherwise now.Respondent argues that there should be a different exclusionary rule for Jackson violations than for transgressions of Edwards and Miranda. The distinction, he suggests, is that the adversarial process has commenced at the time of a Jackson violation, and the postarraignment interrogations thus implicate the constitutional guarantee of the Sixth Amendment itself. But nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney. We have already held that a defendant whose Sixth Amendment right to counsel has attached by virtue of an indictment may execute a knowing and intelligent waiver of that right in the course of a police-initiated interrogation. Patterson v. Illinois, 487 U. S. 285 (1988). To be sure, once a defendant obtains or even requests counsel as respondent had here, analysis of the waiver issue changes. But that change is due to the protective rule we created in Jackson based on the apparent inconsistency between a request for counsel and a later voluntary decision to proceed without assistance. See 487 U.S. at 487 U. S. 290, n. 3; cf. Michigan v. Mosley, 423 U. S. 96, 423 U. S. 110, n. 2 (1975) (WHITE, J., concurring in result).In other cases, we have explicitly declined to hold that a defendant who has obtained counsel cannot himself waive his right to counsel. See Brewer, 430 U.S. at 430 U. S. 405-406 ("The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not") (emphasis in original); Estelle v. Smith, 451 U. S. 454, 451 U. S. 471-472, n. 16 (1981) ("We do not hold that respondent was precluded from waiving this constitutional right [to counsel]. . . . Page 494 U. S. 353 No such waiver has been shown, or even alleged, here"). A defendant's right to rely on counsel as a "medium" between the defendant and the State attaches upon the initiation of formal charges, Moulton, 474 U.S. at 474 U. S. 176, and respondent's contention that a defendant cannot execute a valid waiver of the right to counsel without first speaking to an attorney is foreclosed by our decision in Patterson. Moreover, respondent's view would render the prophylactic rule adopted in Jackson wholly unnecessary, because even waivers given during defendant-initiated conversations would be per se involuntary or otherwise invalid, unless counsel were first notified.Although a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will. To hold that a defendant is inherently incapable of relinquishing his right to counsel once it is invoked would be "to imprison a man in his privileges and call it the Constitution." Adams v. United States ex rel. McCann, 317 U. S. 269, 317 U. S. 280 (1942). This we decline to do. Both Jackson and Edwards establish prophylactic rules that render some otherwise valid waivers of constitutional rights invalid when they result from police-initiated interrogation, and in neither case should"the shield provided by [the prophylactic rule] be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances."Harris, 401 U.S. at 401 U. S. 226.Respondent and amicus assert, alternatively, that the conduct of the police officer who took Harvey's second statement violated the "core value" of the Sixth Amendment's constitutional guarantee, and under those circumstances, the second statement may not be used even for impeachment purposes. They contend that respondent was affirmatively misled as to his need for counsel, and his purported waiver is therefore invalid. But on the record before us, it is not possible to determine whether Harvey's waiver was knowing and voluntary. Page 494 U. S. 354 The state courts developed no record on that issue, and the Michigan Court of Appeals did not rest its holding on any such determination. There was no testimony on this point before the trial court. The only statement in the trial record concerning the issue of waiver is the prosecutor's concession that the second statement was taken in violation of respondent's Miranda rights. But that concession is consistent with the Michigan Court of Appeals' finding that the police violated Jackson, which is, after all, only a Sixth Amendment analogue to the Miranda and Edwards decisions. The Michigan court made no independent inquiry into whether there had been an otherwise valid waiver of the right to counsel, and respondent's counsel himself conceded that, putting aside the prosecutor's concession, the record is insufficient to determine whether there was a voluntary waiver of Sixth Amendment rights. Tr. of Oral Arg. 31-32. In short, the issue was never litigated in this case.Because respondent's counsel did not object at trial to the use of his second statement for impeachment purposes, the State had no occasion to offer evidence to establish that Harvey gave a knowing and voluntary waiver of his right to counsel under traditional standards. On remand, the Michigan courts are free to conduct a hearing on that question. It is the State's burden to show that a waiver is knowing and voluntary, Brewer v. Williams, supra, 430 U.S. at 430 U. S. 404, and if all the circumstances in a particular case show that the police have engaged in a course of conduct which would render the waiver involuntary, the burden will not be satisfied. Those facts are not before us, however, and we need not consider the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel.The judgment of the Michigan Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMichigan v. Harvey, 494 U.S. 344 (1990)Michigan v. HarveyNo. 88-512Argued Oct. 11, 1989Decided March 5, 1990494 U.S. 344SyllabusFollowing respondent Harvey's arraignment on rape charges and the appointment of counsel for him, he told a police officer that he wanted to make a statement, but did not know whether he should talk to his lawyer. Although the record is unclear as to the entire context of the discussion, the officer told Harvey that he did not need to speak with his attorney, because "his lawyer was going to get a copy of the statement anyway." Harvey then signed a constitutional rights waiver form and made a statement detailing his version of the events on the night in question. When his testimony at his state court bench trial conflicted with his statement to the police, the court allowed the State to use the statement to impeach his testimony. He was convicted of first-degree criminal sexual conduct, but the Michigan Court of Appeals reversed. That court ruled that the statement was inadmissible even for impeachment purposes, because it was taken in violation of Harvey's Sixth Amendment right to counsel, citing Michigan v. Jackson, 475 U. S. 625. The State concedes that the police transgressed the rule of Jackson, which held that, once a defendant invokes his Sixth Amendment right to counsel, any waiver of that right -- even if voluntary, knowing, and intelligent under traditional standards -- is presumed invalid if given in a police-initiated discussion, and that evidence obtained pursuant to that waiver is inadmissible in the prosecution's case-in-chief.Held: A statement to police taken in violation of Jackson may be used to impeach a defendant's testimony. The Jackson rule is based on the identical "prophylactic rule" announced in Edwards v. Arizona, 451 U. S. 477, in the context of the Fifth Amendment privilege against self-incrimination during custodial interrogation. Moreover, Harris v. New York, 401 U. S. 222, and subsequent cases have held that voluntary statements taken in violation of Fifth Amendment prophylactic rules, while inadmissible in the prosecution's case-in-chief, may nevertheless be used to impeach the defendant's conflicting testimony. There is no reason for a different result in a Jackson case. Harvey's argument for distinguishing such cases from Fifth Amendment cases -- that, because the adversarial process is commenced at the time of a Jackson violation, postarraignment interrogations implicate the constitutional guarantee of the Sixth Amendment itself, whereas prearraignment Fifth Amendment violations relate only to procedural safeguards that are not themselves constitutionally protected rights -- is without merit. Nothing in the Page 494 U. S. 345 Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney. Cf. Patterson v. Illinois, 487 U. S. 285. Moreover, Harvey's view would render the Jackson rule wholly unnecessary, because even waivers given during defendant-initiated conversations would be per se involuntary or otherwise invalid, unless counsel were first notified. Harvey's alternative assertion -- that the police officer who took his statement affirmatively mislead him as to his need for counsel and therefore violated the "core value" of the Sixth Amendment's constitutional guarantee, such that his purported waiver is invalid and the statement may not be used even for impeachment purposes -- is also unavailing, since the present record is insufficient to determine whether there was a knowing and voluntary waiver of Sixth Amendment rights. Pp. 494 U. S. 348-354.Reversed and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 494 U. S. 355.

1977_76-1184

MR. JUSTICE WHITE delivered the opinion of the Court.A Minnesota statute, the Private Pension Benefits Protection Act, Minn.Stat. § 181B.01 et seq. (1976) (Pension Act), passed in April, 1974, established minimum standards for the funding and vesting of employee pensions. The question in this case is whether this statute, which, since January 1, 1975, has been preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA), [Footnote 1] was preempted prior to that time by federal labor policy insofar as it purported to override or control the terms of collective bargaining agreements negotiated under the National Labor Relations Act (NLRA). A Federal District Court held that it was not, 412 F. Supp. 372 (Minn.1976), but the Court of Appeals for the Eighth Circuit disagreed, and held the Pension Act invalid. 545 F.2d 599 (1976). Because the case fell within our mandatory appellate jurisdiction pursuant to 28 U.S.C. § 1254(2), we noted probable jurisdiction. 434 U.S. 813. We reverse.IIn 1963, White Motor Corp. and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), Page 435 U. S. 500 purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn. (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining.Under the 1971 collective bargaining contract, the Pension Plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 Plan provided that "[p]ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund." App. 155. [Footnote 2] The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability -- the excess of accrued liability over the present value of the assets of the Fund -- was to be met through contributions by the employer from its continuing operations. [Footnote 3] Page 435 U. S. 501Section 10.02 of the Plan provided that "[t]he Company shall have the sole right at any time to terminate the entire plan." During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan. [Footnote 4] By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund.Appellee exercised its contractual right to terminate the Pension Plan on May l, 1974. [Footnote 5] A few weeks before, however, the Pension Act had been enacted. This statute imposed "a pension funding charge" directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had "vested" within the terms of Page 435 U. S. 502 the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years' service full payment of their accrued pension benefits.Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Pension Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court.Appellee's complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA, [Footnote 6] as amended, 29 U.S.C. § 151 et seq., because it"interferes with the right of Plaintiffs to free collective bargaining under federal law and . . . vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume."App. A-9 - A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the preemption claim.Distinguishing Teamsters v. Oliver, 358 U. S. 283 (1959), and relying on evidence of congressional intent contained in Page 435 U. S. 503 the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), 72 Stat. 997, as amended, 76 Stat. 35, 29 U.S.C. § 301 et seq., the District Court held that the Pension Act was not preempted by federal law. 412 F. Supp. 372 (Minn.1976). On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was preempted by federal labor law, and reversed the District Court. 545 F.2d 599 (1976). The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: it granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for post-termination payments to the pension fund beyond those specifically guaranteed. This, the court ruled, the State could not do; for if, under Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 (1976),"states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining."545 F.2d at 606. Further, as the court understood the opinion in Oliver, supra, "a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement." 545 F.2d at 608. Finally, the Court of Appeals found that the preemption disclaimer in the Disclosure Act relied on by the District Court related only"to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements."Id. at 609. Page 435 U. S. 504IIIt is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. "The purpose of Congress is the ultimate touchstone." Retail Clerks v. Schermerhorn, 375 U. S. 96, 375 U. S. 103 (1963). Often Congress does not clearly state in its legislation whether it intends to preempt state laws, and, in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante at 435 U. S. 157-158; Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525, 430 U. S. 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947)."We cannot declare preempted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States."Motor Coach Employees v. Lockridge, 403 U. S. 274, 403 U. S. 289 (1971). The Pension Act"leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible."Garner v. Teamsters, 346 U. S. 485, 346 U. S. 488 (1953). Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective bargaining process.There is little doubt that, under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions, and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension Page 435 U. S. 505 plans, that may be the subject of collective bargaining. If the Pension Act is preempted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should not be made here, and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plans is to be found in § 10 of the Disclosure Act. Section 10(b) provided:"The provisions of this Act, except subsection (a) of this section and section 13 and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law."Also, § 10(a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected:"Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan."Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here. [Footnote 7] Page 435 U. S. 506Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that"Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries. [Footnote 8]"In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded:"The most serious single weakness in this private social insurance complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them."S.Rep. No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S.Rep.). As a first step toward protection of the workers' interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor Page 435 U. S. 507 Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia,"the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan . . . ,"as well as a valuation of the assets of the fund.The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained:"[T]he legislation proposed is not a regulatory statute. It is a disclosure statute, and, by design, endeavors to leave regulatory responsibility to the States."S.Rep. 18. This objective was reflected in §§ 10(a) and 10(b), quoted above. As the Senate Report explained, the statute was designed "to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations." S.Rep. 19. There was"no desire to get the Federal Government involved in the regulation of these plans, but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions."Id. at 18.There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers "covered by collective bargaining agreements." The problems that Congress had identified were characteristic of bargained-for plans, as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established Page 435 U. S. 508 through the collective bargaining process. S.Rep. 8; H.R.Rep. No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H R. Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collective bargaining agreement. S.Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans "whether or not they have been brought into existence through collective bargaining." 104 Cong.Rec. 16420 (1958) (remarks of Cong. Lane); id. at 16425 (remarks of Cong. Wolverton); see id. at 7049-7052 (remarks of Sen. Kennedy). Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would"require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining."S.Rep. 34 (minority view of Sen. Allott); accord, H.R.Rep. 25 (minority views). [Footnote 9] Yet neither the bill as enacted nor its Page 435 U. S. 509 legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States.Appellee argues that the Disclosure Act's allocation of regulatory responsibility to the States is irrelevant here, because the Disclosure Act was "enacted to deal with corruption and mismanagement of funds." Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age.The Senate Report specifically stated:"Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans."S.Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. Ibid. The Senate Committee also observed: "Trusteed pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust." Id. at 15. As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. Page 435 U. S. 510 Ibid. [Footnote 10] The Senate Report also showed an awareness of the problems posed by vesting requirements, [Footnote 11] and expressed concern that"employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination."Id. at 8. Thus, Congress was concerned with many of the same issues as are involved in this case -- unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws "affecting the operation or administration of employee welfare or pension benefit plans," 72 Stat. 1003, Congress indicated that the States had and were to have authority to deal with these problems.Moreover, it should be emphasized that § 10 of the Disclosure Act referred specifically to the "future," as well as Page 435 U. S. 511 "present" laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans. [Footnote 12] The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought "to provide adequate information in disclosure legislation for possible later State . . . regulatory laws." H.R.Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues:"The objective of the bill is to provide more adequate protection for the employee beneficiaries of these plans through a uniform Federal disclosure act which will . . . make the facts available not only to the participants and the Federal Government, but to the States, in order that any desired State regulation can be more effectively accomplished."104 Cong.Rec. 7050 (1958). See also S.Rep. 18. Senator Kennedy had "no doubt that this [was] an area in which the States [were] going to begin to move." 104 Cong.Rec. 7053 (1958).The aim of the Disclosure Act was perhaps best summarized by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated:"It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and Page 435 U. S. 512 prospective income of the programs are sufficient to guarantee the benefits which have been promised to them.""This present bill provides for far more than anti-corruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. . . .""This policy could very well lead to the establishment of mandatory standards by which these plans must be governed."Id. at 7517. It is also clear that Congress contemplated that the primary responsibility for developing such "mandatory standards" would lie with the States.Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly preempted by the collective bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that the assets and prospective income of the plan are sufficient to guarantee the benefits promised -- exactly the kind of problems which the 85th Congress hoped that the States would solve.This conclusion is consistent with the Court's decision in Teamsters v. Oliver, 358 U. S. 283 (1959,), which concerned a claimed conflict between a state antitrust law and the terms of a collective bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental Page 435 U. S. 513 for the use of their vehicles. An Ohio court had invalidated this portion of the collective bargaining agreement under Ohio antitrust law. This Court reversed, noting that"[t]he application [of the Ohio law] would frustrate the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here."Id. at 358 U. S. 296.The Oliver opinion contains broad language affirming the independence of the collective bargaining process from state interference:"Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty . . . , and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide. . . . We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties' agreement can provide to the problems of wages and working conditions."Ibid. (citations omitted). The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result:"The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301, 336 U. S. 307-312."Ibid. [Footnote 13] Page 435 U. S. 514As we understand the 1958 Disclosure Act and its legislative history, the collective bargaining provisions at issue here dealt with precisely the sort of subject matter "which Congress . . . indicated may be left to [regulation] by the several states." Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from Oliver in sustaining the Minnesota statute.IIIInsofar as the Supremacy Clause issue is concerned, no different, conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp. agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee's argument, they are not material to the resolution of the preemption issue, since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted. [Footnote 14]Our decision in this case is, of course, limited to appellee's claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee's other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due Page 435 U. S. 515 process in violation of the United States Constitution. Without intimating any views on the merits of those questions, [Footnote 15] we note that appellee's claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal preemption of the Minnesota Pension Act should be, and hereby is,Reversed

U.S. Supreme CourtMalone v. White Motor Corp., 435 U.S. 497 (1978)Malone v. White Motor Corp.No. 76-1184Argued January 10, 1978Decided April 3, 1978435 U.S. 497SyllabusThe 1971 version of a pension plan negotiated by appellee company and the union representing its employees provided that pensions were to be payable only from a fund established under the plan. Funding of the pension plan was in part to be on a deferred basis; the excess of accrued liability of the fund's assets was to be met through contributions from the employer's continuing operations. Though the company had the right to terminate the plan, it guaranteed to pay benefits amounting to $7 million above the fund's assets. A few weeks before appellee, on May 1, 1974, exercised its termination right, Minnesota's Private Pension Benefits Protection Act (Pension Act) was enacted, which imposed "a pension funding charge" directly against any employer who ceased to operate a place of employment or a pension plan. After appellant state official had certified that appellee, by application of the Pension Act, owed a pension funding charge of over $19 million, appellee brought this suit in District Court, challenging the constitutionality of the Pension Act, inter alia, on the ground that it interfered with the process of collective bargaining sanctioned by the National Labor Relations Act (NLRA), and therefore was preempted by the NLRA. Section 10(b) of the federal Welfare and Pension Plans Disclosure Act (Disclosure Act) provided that the Disclosure Act shall not exempt any person from liability provided by any present or future federal or state law affecting the operation of pension plans. Section 10(a) provided that the Disclosure Act shall not be construed to prevent any State from obtaining additional information relating to a pension plan "or from otherwise regulating such plan." The District Court, having taken note of the § 10(b) disclaimer, found sufficient evidence of congressional intent that the Pension Act was not preempted by federal law, and ruled in favor of appellant. The Court of Appeals reversed, holding that, by purporting to override the existing pension plan in several respects, the Pension Act encroached upon subjects that Congress had committed for determination to the collective bargaining process. The court also concluded that § 10(b) of the Disclosure Act related only to state Page 435 U. S. 498 statutes governing those obligations of trust undertaken by persons managing employment benefit funds, the violation of which gives rise to criminal or civil penalties, and that therefore there was no basis for construing the Disclosure Act as leaving a State with power to change the substantive terms of pension plan agreements.Held:1. The NLRA neither expressly nor by implication forecloses state regulatory power over pension plans that may be the subject of collective bargaining. Sections 10(b) and 10(a) of the Disclosure Act, together with the legislative history of that statute, indicate Congress' intention to preserve state regulatory authority over pension plans, including those resulting from collective bargaining. Congress was concerned not only with corrupt pension plans, but also with the possibility that those that were honestly managed would be prematurely terminated by the employer, leaving employees without funded pensions at retirement age; and the Disclosure Act clearly anticipated a broad regulatory role for the States. Pp. 435 U. S. 504-514.2. That the Pension Act applies to preexisting collective bargaining agreements does not render it preempted, since it does not render it more or less consistent with congressional policy. Appellee's claim of unfair retroactive impact may be considered in the context of appellee's due process and impairment of contract claims, which are not before the Court and which the District Court will consider on remand. Pp. 435 U. S. 514-515.545 F.2d 599, reversed.WHITE, J., delivered the opinion of the Court, in which MARSHALL, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., post, p. 435 U. S. 515, and POWELL, J., post, p. 435 U. S. 516, filed dissenting opinions, in which BURGER, C.J., joined. BRENNAN and BLACKMUN, JJ., took no part in the consideration or decision of the case. Page 435 U. S. 499

1982_81-1203

JUSTICE BRENNAN delivered the opinion of the Court.This case, commenced as a petition for an order to compel arbitration under § 4 of the United States Arbitration Act of 1925 (Arbitration Act or Act), 9 U.S.C. § 4, presents the question whether, in light of the policies of the Act and of our decisions in Colorado River Water Conservation District v. United States, 424 U. S. 800 (1976), and Will v. Calvert Fire Insurance Co., 437 U. S. 655 (1978), the District Court for the Middle District of North Carolina properly stayed this diversity action pending resolution of a concurrent state court suit. The Court of Appeals for the Fourth Circuit reversed the stay. 656 F.2d 933, rehearing denied, 664 F.2d 936 (1981). We granted certiorari. 455 U.S. 937 (1982). We affirm.IPetitioner Moses H. Cone Memorial Hospital (Hospital) is located in Greensboro, N.C. Respondent Mercury Construction Corp. (Mercury), a construction contractor, has its principal place of business in Alabama. In July, 1975, Mercury and the Hospital entered into a contract for the construction of additions to the Hospital building. The contract, drafted by representatives of the Hospital, included provisions for resolving disputes arising out of the contract or its breach. All disputes involving interpretation of the contract or performance of the construction work were to be referred in the first instance to J. N. Pease Associates (Architect), an independent architectural firm hired by the Hospital to design and oversee the construction project. With certain Page 460 U. S. 5 stated exceptions, [Footnote 1] any dispute decided by the Architect (or not decided by it within a stated time) could be submitted by either party to binding arbitration under a broad arbitration clause in the contract:"All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof."App. 29-30. The contract also specified the time limits for arbitration demands. [Footnote 2]Construction on the project began in July, 1975. Performance was to be completed by October, 1979. [Footnote 3] In fact, construction was substantially completed in February, 1979, and final inspections were made that June. Page 460 U. S. 6At a meeting in October, 1977 (during construction), attended by representatives of Mercury, the Hospital, and the Architect, Mercury agreed, at the Architect's request, to withhold its claims for delay and impact costs (i.e., claims for extended overhead or increase in construction costs due to delay or inaction by the Hospital) until the work was substantially completed. On this record, the Hospital does not contest the existence of this agreement, although it asserts that the Architect lacked authority to agree to a delay in presentation of claims or to entertain claims after the contract work was completed.In January, 1980, Mercury submitted to the Architect its claims for delay and impact costs. Mercury and the Architect discussed the claims over several months, substantially reducing the amount of the claims. According to the Hospital, it first learned of the existence of Mercury's claims in April, 1980; its lawyers assumed active participation in the claim procedure in May. The parties differ in their characterizations of the events of the next few months -- whether there were "ongoing negotiations," or merely an "investigation" by the Hospital. In any event, it appears from the record that lawyers for the Hospital requested additional information concerning Mercury's claims. As a result, on August 12, 1980, Mercury gave a detailed presentation of its claims at a meeting attended by Mercury's representatives and lawyers, the Hospital's representatives and lawyers, and representatives of the Architect. Mercury agreed to send copies of its files to an expert hired by the Hospital, and the parties agreed to meet again on October 13.On October 6, Mercury's counsel telephoned the Hospital's counsel to confirm that the scheduled meeting would go forward. The Hospital's counsel said he would call back the next day. When he did, he informed Mercury's counsel that the Hospital would pay nothing on Mercury's claim. He also said that the Hospital intended to file a declaratory judgment action in North Carolina state court. Page 460 U. S. 7True to its word, the Hospital filed an action on the morning of October 8 in the Superior Court of Guilford County, N.C., naming Mercury and the Architect as defendants. The complaint alleged that Mercury's claim was without factual or legal basis, and that it was barred by the statute of limitations. It alleged that Mercury had lost any right to arbitration under the contract due to waiver, laches, estoppel, and failure to make a timely demand for arbitration. The complaint also alleged various delinquencies on the part of the Architect. As relief, the Hospital sought a declaration that there was no right to arbitration; a stay of arbitration; a declaration that the Hospital bore no liability to Mercury; and a declaration that, if the Hospital should be found liable in any respect to Mercury, it would be entitled to indemnity from the Architect. The complaint was served on Mercury on October 9. On that same day, Mercury's counsel mailed a demand for arbitration.On October 15, without notice to Mercury, the Hospital obtained an ex parte injunction from the state court forbidding Mercury to take any steps directed toward arbitration. Mercury objected, and the stay was dissolved on October 27. As soon as the stay was lifted, Mercury filed the present action in the District Court, seeking an order compelling arbitration under § 4 of the Arbitration Act, 9 U.S.C. § 4. [Footnote 4] Jurisdiction was based on diversity of citizenship. On the Hospital's motion, the District Court stayed Mercury's federal court suit pending resolution of the state court suit because the two suits involved the identical issue of the arbitrability of Mercury's claims. App. to Pet. for Cert. A-38. Page 460 U. S. 8Mercury sought review of the District Court's stay by both a notice of appeal and a petition for mandamus. A panel of the Court of Appeals for the Fourth Circuit heard argument in the case, but before the panel issued any decision, the court informed the parties that it would consider the case en banc. After reargument, the en banc court held that it had appellate jurisdiction over the case under 28 U.S.C. § 1291. It reversed the District Court's stay order and remanded the case to the District Court with instructions for entry of an order to arbitrate.IIBefore we address the propriety of the District Judge's stay order, we must first decide whether that order was appealable to the Court of Appeals under 28 U.S.C. § 1291. [Footnote 5]Mercury sought appellate review through two alternative routes -- a notice of appeal under § 1291 and a petition for mandamus under the All Writs Act, 28 U.S.C. § 1651. [Footnote 6] Mercury expressly stated that its appeal was based only on § 1291, and not on 28 U.S.C. § 1292 (relating to interlocutory appeals). The Hospital contends that the order appealed from was not a "final decisio[n]" within § 1291. We Page 460 U. S. 9 disagree, and hold that the stay order was final for purposes of appellate jurisdiction.Idlewild Liquor Corp. v. Epstein, 370 U. S. 713 (1962), is instructive in this regard. There the plaintiff brought a federal suit challenging the constitutionality of a state statute. The District Judge declined to convene a three-judge court and stayed the federal suit under the Pullman abstention doctrine. [Footnote 7] We held that the District Court's action was final, and therefore reviewable by the Court of Appeals, stating:"The Court of Appeals properly rejected the argument that the order of the District Court 'was not final, and hence unappealable under 28 U.S.C. §§ 1291, 1292,' pointing out that '[a]ppellant was effectively out of court.'"370 U.S. at 370 U. S. 715, n. 2. [Footnote 8] Page 460 U. S. 10Here, the argument for finality of the District Court's order is even clearer. A district court stay pursuant to Pullman abstention is entered with the expectation that the federal litigation will resume in the event that the plaintiff does not obtain relief in state court on state law grounds. [Footnote 9] Here, by contrast, the District Court predicated its stay order on its conclusion that the federal and state actions involved "the identical issue of arbitrability of the claims of Mercury Construction Corp. against the Moses H. Cone Memorial Hospital." App. to Pet. for Cert. A-38. That issue of arbitrability was the only substantive issue present in the federal suit. Hence, a stay of the federal suit pending resolution of the state suit meant that there would be no further litigation in the federal forum; the state court's judgment on the issue would be res judicata. [Footnote 10] Thus, here, even more surely than in Idlewild, Mercury was "effectively out of court." Hence, as the Court of Appeals held, this stay order amounts to a dismissal of the suit. [Footnote 11] Page 460 U. S. 11In any event, if the District Court order were not final for appealability purposes, it would nevertheless be appealable within the exception to the finality rule under Cohen v. Beneficial Loan Corp., 337 U. S. 541 (1949). The factors required to show finality under this exception have been summarized as follows:"To come within the 'small class' of decisions excepted from the final judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal Page 460 U. S. 12 from a final judgment."Coopers & Lybrand v. Livesay, 437 U. S. 463, 437 U. S. 468 (1978) (footnote omitted). [Footnote 12]There can be no dispute that this order meets the second and third of these criteria. An order that amounts to a refusal to adjudicate the merits plainly presents an important issue separate from the merits. [Footnote 13] For the same reason, this order would be entirely unreviewable if not appealed now. Once the state court decided the issue of arbitrability, the federal court would be bound to honor that determination as res judicata.The Hospital contends nevertheless that the District Court's stay order did not meet the first of the criteria, namely that it "conclusively determine the disputed question." But this is true only in the technical sense that every order short of a final decree is subject to reopening at the discretion of the district judge. [Footnote 14] In this case, however, there is Page 460 U. S. 13 no basis to suppose that the District Judge contemplated any reconsideration of his decision to defer to the parallel state court suit. He surely would not have made that decision in the first instance unless he had expected the state court to resolve all relevant issues adequately. See ___ Part IV-E, infra. It is not clear why the judge chose to stay the case, rather than to dismiss it outright; for all that the record shows, there was no reason other than the form of the Hospital's motion. Whatever the reason, however, the practical effect of his order was entirely the same for present purposes, and the order was appealable.IIIWe turn now to the principal issue to be addressed, namely, the propriety of the District Court's decision to stay this federal suit out of deference to the parallel litigation brought in state court. Colorado River Water Conservation District v. United States, 424 U. S. 800 (1976), provides persuasive guidance in deciding this question.AColorado River involved the effect of the McCarran Amendment, 66 Stat. 560, 43 U.S.C. § 666, on the existence and exercise of federal court jurisdiction to adjudicate federal water rights, 28 U.S.C. § 1345. The Amendment waives the Government's sovereign immunity to permit the joinder of the United States in some state court suits for the adjudication of water rights. In Colorado River, however, the Government proceeded in Federal District Court, bringing suit against some 1,000 nonfederal water users, seeking a declaration of the water rights of certain federal entities and Indian tribes. Shortly thereafter, a defendant in that suit Page 460 U. S. 14 sought to join the United States in a state court proceeding for the comprehensive adjudication and administration of all water rights within the river system that was the subject of the federal court suit. The District Court dismissed the federal suit, holding that the abstention doctrine required deference to the state court proceedings. The Court of Appeals for the Tenth Circuit reversed, holding that the suit of the United States was within the District Court's jurisdiction under 28 U.S.C. § 1345, and that abstention was inappropriate. We reversed the judgment of the Court of Appeals and affirmed the judgment of the District Court dismissing the complaint.We began our analysis by examining the abstention doctrine in its various forms. We noted:"Abstention from the exercise of federal jurisdiction is the exception, not the rule.""The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest. [Footnote 15]"After canvassing the three categories of abstention, we concluded that none of them applied to the case at hand. 424 U.S. at 424 U. S. 813-817. [Footnote 16]Nevertheless, we held that the District Court's dismissal was proper on another ground -- one resting not on considerations of state-federal comity or on avoidance of constitutional Page 460 U. S. 15 decisions, as does abstention, but on "considerations of [w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" [Footnote 17] We noted that "`the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction,'" and that the federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." [Footnote 18] We continued:"Given this obligation, and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist."Id. at 424 U. S. 818. We declined to prescribe a hard-and-fast rule for dismissals of this type, but instead described some of the factors relevant to the decision."It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts. . . . In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums. No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction Page 460 U. S. 16 and the combination of factors counseling against that exercise is required. Only the clearest of justifications will warrant dismissal."Id. at 424 U. S. 818-819 (emphasis added; citations omitted).As this passage makes clear, the decision whether to dismiss a federal action because of parallel state court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case. Colorado River itself illustrates this principle in operation. B y far the most important factor in our decision to approve the dismissal there was the "clear federal policy . . . [of] avoidance of piecemeal adjudication of water rights in a river system," id. at 424 U. S. 819, as evinced in the McCarran Amendment. We recognized that the Amendment represents Congress' judgment that the field of water rights is one peculiarly appropriate for comprehensive treatment in the forums having the greatest experience and expertise, assisted by state administrative officers acting under the state courts. Id. at 424 U. S. 819-820. In addition, we noted that other factors in the case tended to support dismissal -- the absence of any substantial progress in the federal court litigation; the presence in the suit of extensive rights governed by state law; the geographical inconvenience of the federal forum; and the Government's previous willingness to litigate similar suits in state court. Id. at 424 U. S. 820.BBefore discussing the application of Colorado River exceptional circumstances test, we must address the Hospital's argument that that test was undermined by our subsequent decision in Will v. Calvert Fire Insurance Co., 437 U. S. 655 (1978). We find no merit in this argument for at least two reasons. Page 460 U. S. 17The Hospital relies on the opinion of JUSTICE REHNQUIST, announcing the judgment of the Court. The Hospital argues that JUSTICE REHNQUIST's opinion, if not expressly overruling Colorado River, at least modifies its holding substantially. But it is clear that a majority of the Court reaffirmed the Colorado River test in Calvert. JUSTICE REHNQUIST's opinion commanded only four votes. It was opposed by the dissenting opinion, in which four Justices concluded that the Calvert District Court's stay was impermissible under Colorado River. 437 U.S. at 437 U. S. 668-669, 437 U. S. 672-674 (BRENNAN, J., joined by BURGER, C.J., and MARSHALL and POWELL, JJ., dissenting). JUSTICE BLACKMUN, although concurring in the judgment, agreed with the dissent that Colorado River's exceptional circumstances test was controlling; he voted to remand to permit the District Court to apply the Colorado River factors in the first instance. [Footnote 19]. 437 U.S. at 437 U. S. 667-668. On remand, the Court of Appeals correctly recognized that the four dissenting Justices and JUSTICE BLACKMUN formed a majority to require application of the Colorado River test. Calvert Fire Insurance Co. v. Will, 586 F.2d 12 (CA7 1978). [Footnote 20] Page 460 U. S. 18Even on the basis of JUSTICE REHNQUIST's opinion, however, there is an obvious distinction between Calvert and this case. The key to Calvert was the standard for issuance of a writ of mandamus under 28 U.S.C. § 1651. [Footnote 21] As JUSTICE REHNQUIST stressed, such extraordinary writs are used in aid of appellate jurisdiction only to confine an inferior court to a lawful exercise of its prescribed authority, or to compel it to exercise its authority when it is its duty to do so. The movant must show that his right to the writ is clear and indisputable. 437 U.S. at 437 U. S. 661-662, 437 U. S. 664, 437 U. S. 665-666 (opinion of REHNQUIST, J.). JUSTICE REHNQUIST concluded that the movant in Calvert had failed to meet this burden. At the same time, he noted that the movant might have succeeded on a proper appeal. Id. at 437 U. S. 665. In this case, we have held that the Court of Appeals did have appellate jurisdiction; it properly exercised that jurisdiction to find that the District Court's stay was impermissible under Colorado River.The Hospital further contends that Calvert requires reversal here because the opinions of JUSTICE REHNQUIST and Page 460 U. S. 19 JUSTICE BLACKMUN require greater deference to the discretion of the District Court than was given by the Court of Appeals in this case. Under both Calvert and Colorado River, of course, the decision whether to defer to the state courts is necessarily left to the discretion of the district court in the first instance. Yet to say that the district court has discretion is not to say that its decision is unreviewable; such discretion must be exercised under the relevant standard prescribed by this Court. In this case, the relevant standard is Colorado River's exceptional circumstances test, as elucidated by the factors discussed in that case. As we shall now explain, we agree with the Court of Appeals that the District Court in this case abused its discretion in granting the stay.IVApplying the Colorado River factors to this case, it is clear that there was no showing of the requisite exceptional circumstances to justify the District Court's stay.The Hospital concedes that the first two factors mentioned in Colorado River are not present here. There was no assumption by either court of jurisdiction over any res or property, nor is there any contention that the federal forum was any less convenient to the parties than the state forum. The remaining factors -- avoidance of piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forums -- far from supporting the stay, actually counsel against it.AThere is no force here to the consideration that was paramount in Colorado River itself -- the danger of piecemeal litigation.The Hospital points out that it has two substantive disputes here -- one with Mercury, concerning Mercury's claim for delay and impact costs, and the other with the Architect, concerning the hospital's claim for indemnity for any liability it may have to Mercury. The latter dispute cannot be sent Page 460 U. S. 20 to arbitration without the Architect's consent, since there is no arbitration agreement between the Hospital and the Architect. It is true, therefore, that, if Mercury obtains an arbitration order for its dispute, the Hospital will be forced to resolve these related disputes in different forums. That misfortune, however, is not the result of any choice between the federal and state courts; it occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement. [Footnote 22] Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement. [Footnote 23] If the dispute between Mercury and the Hospital is arbitrable under the Act, then the Hospital's two disputes will be resolved separately -- one in arbitration, and the other (if at all) in state court litigation. Conversely, if the dispute between Mercury and the Hospital is not arbitrable, then both disputes will be resolved in state court. But neither of those two outcomes depends at all on which court decides the question of arbitrability. Hence, a decision to allow that issue to be decided in federal, rather than state, court does not cause piecemeal resolution of the parties' underlying disputes. Although Page 460 U. S. 21 the Hospital will have to litigate the arbitrability issue in federal, rather than state, court, that dispute is easily severable from the merits of the underlying disputes.BThe order in which the concurrent tribunals obtained and exercised jurisdiction cuts against, not for, the District Court's stay in this case. The Hospital argues that the stay was proper because the state court suit was filed some 19 days before the federal suit. In the first place, this argument disregards the obvious reason for the Hospital's priority in filing. An indispensable element of Mercury's cause of action under § 4 for an arbitration order is the Hospital's refusal to arbitrate. See n 27, infra. That refusal did not occur until less than a day before the Hospital filed its state suit. Hence, Mercury simply had no reasonable opportunity to file its § 4 petition first. Moreover, the Hospital succeeded in obtaining an ex parte injunction from the state court forbidding Mercury to take any steps to secure arbitration. [Footnote 24] Mercury filed its § 4 petition the same day that the injunction was dissolved. [Footnote 25]That aside, the Hospital's priority argument gives too mechanical a reading to the "priority" element of the Colorado River balance. This factor, as with the other Colorado River factors, is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand. Thus, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions. Colorado River illustrates Page 460 U. S. 22 this point well. There, the federal suit was actually filed first. Nevertheless, we pointed out as a factor favoring dismissal "the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss." 424 U.S. at 424 U. S. 820. Here, the opposite was true. It was the state court suit in which no substantial proceedings (excepting only the abortive temporary injunction) had taken place at the time of the decision to stay. In the federal suit, by contrast, the parties had taken most of the steps necessary to a resolution of the arbitrability issue. [Footnote 26] In realistic terms, the federal suit was running well ahead of the state suit at the very time that the District Court decided to refuse to adjudicate the case.This refusal to proceed was plainly erroneous in view of Congress' clear intent, in the Arbitration Act, to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible. The Act provides two parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, 9 U.S.C. § 3, and an affirmative order to engage in arbitration, § 4. Both of these sections call for an expeditious and summary hearing, with only restricted inquiry into factual issues. [Footnote 27] Assuming that the state court would Page 460 U. S. 23 have granted prompt relief to Mercury under the Act, [Footnote 28] there still would have been an inevitable delay as a result of the District Court's stay. The stay thus frustrated the statutory policy of rapid and unobstructed enforcement of arbitration agreements.CBesides the four factors expressly discussed in Colorado River, there is another that emerges from Calvert -- the fact that federal law provides the rule of decision on the merits. The state-versus-federal law factor was of ambiguous relevance in Colorado River. [Footnote 29] In Calvert, however, both the four-vote dissenting opinion and JUSTICE BLACKMUN's opinion concurring in the judgment pointed out that the case involved issues of federal law. 437 U.S. at 437 U. S. 667 (BLACKMUN, J., concurring in judgment); id. at 437 U. S. 668-677 (BRENNAN, J., Page 460 U. S. 24 dissenting). See also Colorado River, 424 U.S. at 424 U. S. 815, n. 21. It is equally apparent that this case involves federal issues.The basic issue presented in Mercury's federal suit was the arbitrability of the dispute between Mercury and the Hospital. Federal law in the terms of the Arbitration Act governs that issue in either state or federal court. Section 2 is the primary substantive provision of the Act, declaring that a written agreement to arbitrate"in any maritime transaction or a contract evidencing a transaction involving commerce . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."9 U.S.C. § 2. [Footnote 30] 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. In Prima Paint Corp. v. Flood & Conklin Mfg. Corp., 388 U. S. 395 (1967), for example, the parties had signed a contract containing an arbitration clause, but one party alleged that there had been fraud in the inducement of the entire contract (although the alleged fraud did not go to the arbitration clause in particular). The issue before us was whether the issue of fraud in the inducement was itself an arbitrable controversy. We held that the language and policies of the Act required the conclusion that the fraud issue was arbitrable. Id. at 388 U. S. 402-404. Although our holding in Prima Paint extended only to the specific issue presented, the Courts of Appeals have since consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues Page 460 U. S. 25 should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. [Footnote 31]To be sure, the source-of-law factor has less significance here than in Calvert, since the federal courts' jurisdiction to enforce the Arbitration Act is concurrent with that of the state courts. [Footnote 32] But we emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist "exceptional" circumstances, the "clearest of justifications," that can suffice under Colorado Page 460 U. S. 26 River to justify the surrender of that jurisdiction. Although in some rare circumstances the presence of state law issues may weigh in favor of that surrender, see n 29, supra, the presence of federal law issues must always be a major consideration weighing against surrender. [Footnote 33]DFinally, in this case, an important reason against allowing a stay is the probable inadequacy of the state court proceeding to protect Mercury's rights. We are not to be understood to impeach the competence or procedures of the North Carolina courts. Moreover, state courts, as much as federal courts, are obliged to grant stays of litigation under § 3 of the Arbitration Act. [Footnote 34] It is less clear, however, whether the same is true of an order to compel arbitration under § 4 of the Act. [Footnote 35] We need not resolve that question here; it suffices to say that there was, at a minimum, substantial room for doubt that Mercury could obtain from the state court an order compelling Page 460 U. S. 27 the Hospital to arbitrate. [Footnote 36] In many cases, no doubt, a § 3 stay is quite adequate to protect the right to arbitration. But in a case such as this, where the party opposing arbitration is the one from whom payment or performance is sought, a stay of litigation alone is not enough. It leaves the recalcitrant party free to sit and do nothing -- neither to litigate nor to arbitrate. If the state court stayed litigation pending arbitration but declined to compel the Hospital to arbitrate, Mercury would have no sure way to proceed with its claims except to return to federal court to obtain a § 4 order -- a pointless and wasteful burden on the supposedly summary and speedy procedures prescribed by the Arbitration Act.EThe Hospital argues that the Colorado River test is somehow inapplicable because, in this case, the District Court merely stayed the federal litigation, rather than dismissing the suit outright, as in Colorado River. It contends that Mercury remains free to seek to reopen the federal suit on a showing that the state suit has failed to adjudicate its rights, and that a stay is less onerous than a dismissal. We have already rejected this distinction, for purposes of this case, in discussing appellate jurisdiction. Supra at 460 U. S. 12-13. We reject it in this context for the same reasons. Page 460 U. S. 28We have no occasion in this case to decide whether a dismissal or a stay should ordinarily be the preferred course of action when a district court properly finds that Colorado River counsels in favor of deferring to a parallel state court suit. [Footnote 37] We can say, however, that a stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. See 460 U. S. supra; McNeese v. Board of Education, 373 U. S. 668, 373 U. S. 674-676 (1963). Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4247, pp. 517-519 (1978).Moreover, assuming that, for some unexpected reason, the state forum does turn out to be inadequate in some respect, the Hospital's argument fails to make out any genuine difference between a stay and a dismissal. It is true that Mercury could seek to return to federal court if it proved necessary; but that would be equally true if the District Court had dismissed the case. It is highly questionable whether this Court would have approved a dismissal of a federal suit in Colorado River (or in any of the abstention cases, see supra at 460 U. S. 14) if the federal courts did not remain open to a dismissed plaintiff who later demonstrated the inadequacy of the state forum. Page 460 U. S. 29VIn addition to reversing the District Court's stay, the Court of Appeals decided that the underlying contractual dispute between Mercury and the Hospital is arbitrable under the Arbitration Act and the terms of the parties' arbitration agreement. It reversed the District Court's judgment and remanded the case "with directions to proceed in conformity herewith." 656 F.2d at 946. In effect, the Court of Appeals directed the District Court to enter a § 4 order to arbitrate.In this Court, the Hospital does not contest the substantive correctness of the Court of Appeals' holding on arbitrability. It does raise several objections to the procedures the Court of Appeals used in considering and deciding this case. In particular, it points out that the only issue formally appealed to the Court of Appeals was the propriety of the District Court's stay order. Ordinarily, we would not expect the Court of Appeals to pass on issues not decided in the District Court. In the present case, however, we are not disposed to disturb the court's discretion in its handling of the case in view of the special interests at stake and the apparent lack of any prejudice to the parties. Title 28 U.S.C. § 2106 gives a court of appeals some latitude in entering an order to achieve justice in the circumstances. The Arbitration Act calls for a summary and speedy disposition of motions or petitions to enforce arbitration clauses. The Court of Appeals had in the record full briefs and evidentiary submissions from both parties on the merits of arbitrability, and held that there were no disputed issues of fact requiring a jury trial before a § 4 order could issue. Under these circumstances, the court acted within its authority in deciding the legal issues presented in order to facilitate the prompt arbitration that Congress envisaged.Affirmed

U.S. Supreme CourtCone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)Moses H. Cone Memorial Hospital v. Mercury Construction Corp.No. 81-1203Argued November 2, 1982Decided February 23, 1983460 U.S. 1SyllabusPetitioner, a hospital located in North Carolina, entered into a contract with respondent contractor, an Alabama corporation, for construction of additions to the hospital building. Contract disputes were to be initially referred to the architect who was hired to design and oversee the construction project. Disputes decided by the architect or not decided within a specified time could be submitted to binding arbitration under an arbitration clause in the contract. Subsequently, during construction, respondent submitted claims to the architect for extended overhead or increase in construction costs due to petitioner's delay or inaction. But the claims were not resolved, and petitioner refused to pay them. Petitioner then filed an action in a North Carolina state court against respondent and the architect, seeking a declaratory judgment that there was no right to arbitration, that petitioner was not liable to respondent, and that, if it was liable it would be entitled to indemnity from the architect. A few days later, petitioner obtained an ex parte injunction from the state court forbidding respondent to take any steps toward arbitration, but when respondent objected, the stay was dissolved. Respondent then filed a diversity of citizenship action in Federal District Court, seeking an order compelling arbitration under § 4 of the United States Arbitration Act. The District Court stayed the action pending resolution of the state court suit because the two suits involved the identical issue of the arbitrability of respondent's claims. The Court of Appeals, holding that it had jurisdiction under 28 U.S.C. § 1291, reversed the Page 460 U. S. 2 District Court's stay order, and remanded the case with instructions to enter an order to arbitrate.Held:1. The District Court's stay order was appealable as a "final decision" to the Court of Appeals under 28 U.S.C. § 1291. Since the order was based on the conclusion that the federal and state actions involved the identical issue of arbitrability, and this issue was the only substantive issue present in the federal action, a stay of the federal action pending resolution of the state action meant that there would be no further litigation in the federal court. Thus, respondent was "effectively out of court," so that the stay order amounted to a dismissal of the federal action. Moreover, even if the stay order was not final for appealability purposes, it was nevertheless appealable within the finality rule exception that applies where an order conclusively determines the disputed question, resolves an important issue completely separate from the merits, and is effectively unreviewable on appeal from a final judgment. Cohen v. Beneficial Loan Corp., 337 U. S. 541. Pp. 460 U. S. 8-13.2. The District Court abused its discretion in granting the stay. Pp. 460 U. S. 13-28.(a) A federal district court may decline to exercise its jurisdiction because of parallel state court litigation only in exceptional circumstances; only the clearest of justifications will warrant dismissal. Colorado River Water Conservation District v. United States, 424 U. S. 800, 424 U. S. 818-819. The decision whether to stay or dismiss a federal action on grounds of wise judicial administration does not rest on a mechanical checklist, but on a careful balancing of the important factors (which court first assumed jurisdiction over property involved in the litigation, inconvenience of the federal forum, avoidance of piecemeal litigation, and the order in which the concurrent forums obtained jurisdiction) relevant to the decision as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. Ibid. Pp. 460 U. S. 13-16.(b) The exceptional circumstances test set forth in Colorado River, supra, was not undermined by Will v. Calvert Fire Insurance Co., 437 U. S. 655. Pp. 460 U. S. 16-19.(c) There was no showing of the requisite exceptional circumstances to justify the District Court's stay order. Concededly, there was no assumption by either court of jurisdiction over any res or property, or any contention that the federal court was any less convenient to the parties than the state court. The other factors -- avoidance of piecemeal litigation and the order in which the current forums obtained jurisdiction -- rather than supporting the stay, counsel against it. The fact that, if respondent obtains an arbitration order, petitioner will be forced to resolve Page 460 U. S. 3 the dispute with respondent and the related dispute with the architect in different forums is not the result of any choice between federal and state courts, but occurs because the relevant federal law, the Arbitration Act, requires piecemeal resolution when necessary to give effect to an arbitration agreement. Hence, a decision to allow the issue of arbitrability to be decided in federal, rather than state, court does not cause piecemeal resolution of the parties' underlying disputes. And the fact that the state court suit was filed before the federal suit is not sufficient reason to justify the stay order where, because petitioner's refusal to arbitrate did not occur until less than a day before it filed its state suit, respondent had no reasonable opportunity to file its federal suit first. Moreover, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions. Here, no substantial proceedings had taken place in the state suit at the time of the District Court's stay order, whereas, in the federal suit, the parties had taken most of the steps necessary to a resolution of the arbitrability issue. The stay order thus frustrated the Arbitration Act's policy of rapid and unobstructed enforcement of arbitration agreements. Pp. 460 U. S. 19-23.(d) The fact that federal law in the terms of the Arbitration Act governs the issue of the arbitrability of the dispute between petitioner and respondent in either the state or the federal court is another factor militating against the District Court's stay order. See Calvert, supra. Pp. 460 U. S. 23-26.(e) Finally, an important reason against allowing a stay is the probable inadequacy of the state suit to protect respondent's rights, since it is doubtful that respondent could obtain from the state court an order compelling petitioner to arbitrate. Pp. 460 U. S. 26-27.(f) The fact that the District Court stayed the federal action, rather than dismissing it outright, does not render the Colorado River exceptional circumstances test inapplicable. Pp. 460 U. S. 27-28.3. The Court of Appeals acted within its authority in deciding that the contractual dispute was arbitrable under the Arbitration Act and the contract, where the court had briefs and evidentiary submissions from both parties on the merits of arbitrability. P. 460 U. S. 29.656 F.2d 933, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and O'CONNOR, J., joined, post, p. 460 U. S. 30. Page 460 U. S. 4

1978_77-952

MR. JUSTICE STEWART delivered the opinion of the Court.The respondents, 18 owners of independent pharmacies in San Antonio, Tex., brought an antitrust action in a Federal District Court against the petitioners, Group Life and Health Insurance Co., known as Blue Shield of Texas (Blue Shield), and three pharmacies also doing business in San Antonio. The complaint alleged that the petitioners had violated § 1 of the Sherman Act, 15 U.S.C. § 1, by entering agreements to fix the retail prices of drugs and pharmaceuticals, and that the activities of the petitioners had caused Blue Shield's policyholders not to deal with certain of the respondents, thereby constituting an unlawful group boycott. The trial court granted summary judgment to the petitioners on the ground that the challenged agreements are exempt from the antitrust laws under § 2(b) of the McCarran-Ferguson Act, 59 Stat. 34, as amended, 61 Stat. 448, 15 U.S.C. § 1012(b), because the agreements are the "business of insurance," are "regulated by [Texas] law," and are not "boycott" within the meaning of § 3(b) of the Act, 59 Stat. 34, 15 U.S.C. Page 440 U. S. 208 § 1013(b). [Footnote 1] 415 F. Supp. 343 (WD Tex.). The Court of Appeals for the Fifth Circuit reversed the judgment. Holding that the agreements in question are not the "business of insurance" within the meaning of § 2(b), the appellate court did not reach the other questions decided by the trial court. 556 F.2d 1375. We granted certiorari because of inter-circuit conflicts as to the meaning of the phrase "business of insurance" in § 2(b) of the Act. [Footnote 2] 435 U.S. 903. Page 440 U. S. 209IBlue Shield offers insurance policies which entitle the policyholders to obtain prescription drugs. If the pharmacy selected by the insured has entered into a "Pharmacy Agreement" with Blue Shield, and is therefore a participating pharmacy, the insured is required to pay only $2 for every prescription drug. The remainder of the cost is paid directly by Blue Shield to the participating pharmacy. If, on the other hand, the insured selects a pharmacy which has not entered into a Pharmacy Agreement, and is therefore a nonparticipating pharmacy, he is required to pay the full price charged by the pharmacy. The insured may then obtain reimbursement from Blue Shield for 75% of the difference between that price and $2.Blue Shield offered to enter into a Pharmacy Agreement with each licensed pharmacy in Texas. Under the Agreement, a participating pharmacy agrees to furnish prescription drugs to Blue Shield's policyholders at $2 for each prescription, and Blue Shield agrees to reimburse the pharmacy for the pharmacy's cost of acquiring the amount of the drug prescribed. Thus, only pharmacies that can afford to distribute prescription drugs for less than this $2 markup can profitably participate in the plan. [Footnote 3] Page 440 U. S. 210The only issue before us is whether the Court of Appeals as correct in concluding that these Pharmacy Agreements are not the "business of insurance" within the meaning of 2(b) of the McCarran-Ferguson Act. If that conclusion is correct, then the Agreements are not exempt from examination under the antitrust laws. [Footnote 4] Whether the Agreements are illegal under the antitrust laws is an entirely separate question, not now before us. [Footnote 5]IIAAs the Court stated last Term in St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531, 438 U. S. 541, [Footnote 6] the starting point in a case involving construction of the McCarran-Ferguson Act, like the starting point in any case involving the meaning of a statute, is the language of the statute itself. See also Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 756 (POWELL, J., concurring). It is important, therefore, to observe at the outset that the statutory language in question Page 440 U. S. 211 here does not exempt the business of insurance companies from the scope of the antitrust laws. The exemption is for the "business of insurance," not the "business of insurers":"The statute did not purport to make the States supreme in regulating all the activities of insurance companies; its language refers not to the persons or companies who are subject to state regulation, but to laws 'regulating the business of insurance.' Insurance companies may do many things which are subject to paramount federal regulation; only when they are engaged in the 'business of insurance' does the statute apply."SEC v. National Securities, Inc., 393 U. S. 453, 393 U. S. 459-460. (Emphasis in original.) Since the law does not define the "business of insurance," the question for decision is whether the Pharmacy Agreements fall within the ordinary understanding of that phrase, illumined by any light to be found in the structure of the Act and its legislative history. Cf. Ernst & Ernst v. Hochfelder, 425 U. S. 185, 425 U. S. 199, and n.19.BThe primary elements of an insurance contract are the spreading and underwriting of a policyholder's risk."It is characteristic of insurance that a number of risks are accepted, some of which involve losses, and that such losses are spread over all the risks so as to enable the insurer to accept each risk at a slight fraction of the possible liability upon it."1 G. Couch, Cyclopedia of Insurance Law § 1:3 (2d ed.1959). See also R. Keeton, Insurance Law § 1.2(a) (1971) ("Insurance is an arrangement for transferring and distributing risk"); 1 G. Richards, The Law of Insurance § 2 (W. Freedman 5th ed.1952). [Footnote 7] Page 440 U. S. 212The significance of underwriting or spreading of risk as an indispensable characteristic of insurance was recognized by this Court in SEC v. Variable Annuity Life Ins. Co., 359 U. S. 65. That case involved several corporations, representing themselves as "life insurance" companies, that offered variable annuity contracts for sale in interstate commerce. The companies were regulated by the insurance commissioners of several States. Purchasers of the contracts were not entitled to any fixed return, but only to a pro rata participation in the investment portfolios of the companies. Thus, a policyholder could receive substantial sums if investment decisions were successful, but very little if they were not. One of the questions presented was whether these variable annuity contracts were the "business of insurance" under § 2(b) of the McCarran-Ferguson Act. [Footnote 8] The Court held that the annuity contracts were not insurance, even though they were regulated as such under state law and involved actuarial prognostications of mortality. Central to the Court's holding was the premise that "the concept of 'insurance' involves some investment risk-taking on the part of the company." 359 U.S. at 359 U. S. 71. Since the variable annuity contracts offered no guarantee of fixed income, they placed all the investment risk on the annuitant, and none on the company. Ibid. The Court concluded, therefore, that the annuities involved "no true underwriting of risks, the one earmark of insurance as it has commonly been conceived of in popular understanding and usage." Id. at 359 U. S. 73 (footnote omitted). Cf. German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 233 U. S. 412 ("The effect of insurance -- indeed, Page 440 U. S. 213 it has been said to be its fundamental object -- is to distribute the loss over as wide an area as possible").The petitioners do not really dispute that the underwriting or spreading of risk is a critical determinant in identifying insurance. Rather, they argue that the Pharmacy Agreements do involve the underwriting of risks. As they state in their brief:"In Securities and Exchange Commission v. Variable Annuity Life Insurance Co., 359 U. S. 65, 359 U. S. 73 (1959), the 'earmark' of insurance was described as the 'underwriting of risks' in exchange for a premium. Here, the risk insured against is the possibility that, during the term of the policy, the insured may suffer a financial loss arising from the purchase of prescription drugs, or that he may be financially unable to purchase such drugs. In consideration of the premium, Blue Shield assumes this risk by agreeing with its insureds to contract with Participating Pharmacies to furnish the needed drugs and to reimburse the Pharmacies for each prescription filled for the insured. In short, each of the fundamental elements of insurance is present here -- the payment of a premium in exchange for a promise to indemnify the insured against losses upon the happening of a specified contingency."The fallacy of the petitioners' position is that they confuse the obligations of Blue Shield under its insurance policies, which insure against the risk that policyholders will be unable to pay for prescription drugs during the period of coverage, and the agreements between Blue Shield and the participating pharmacies, which serve only to minimize the costs Blue Shield incurs in fulfilling its underwriting obligations. [Footnote 9] The Page 440 U. S. 214 benefit promised to Blue Shield policyholders is that their premiums will cover the cost of prescription drugs except for a $2 charge for each prescription. [Footnote 10] So long as that promise is kept, policyholders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies. [Footnote 11]The Pharmacy Agreements thus do not involve any underwriting or spreading of risk, but are merely arrangements for the purchase of goods and services by Blue Shield. By agreeing with pharmacies on the maximum prices it will pay for drugs, Blue Shield effectively reduces the total amount it must pay to its policyholders. The Agreements thus enable Blue Shield to minimize costs and maximize profits. Such cost-savings arrangements may well be sound business practice, and may well inure ultimately to the benefit of policyholders in the form of lower premiums, but they are not the "business of insurance." [Footnote 12] Page 440 U. S. 215The Pharmacy Agreements are thus legally indistinguishable from countless other business arrangements that may be made by insurance companies to keep their costs low, and thereby also keep low the level of premiums charged to their policyholders. Suppose, for example, that an insurance company entered into a contract with a large retail drug chain whereby its policyholders could obtain drugs under their policies only from stores operated by this chain. The justification for such an agreement would be administrative and bulk purchase savings resulting from obtaining all of the company's drug needs from a single dealer. Even though these cost savings might ultimately be reflected in lower premiums to policyholders, would such a contract be the "business of insurance"? Or suppose that the insurance company should decide to acquire the chain of drug stores in order to lower still further its costs of meeting its obligations to its policyholders. Such an acquisition would surely not be the "business of insurance." SEC v. National Securities, Inc., 393 U. S. 453. [Footnote 13]CAnother commonly understood aspect of the business of insurance relates to the contract between the insurer and the insured. In enacting the McCarran-Ferguson Act, Congress was concerned with:"The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, Page 440 U. S. 216 and enforcement -- these were the core of the 'business of insurance.' Undoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class. But whatever the exact scope of the statutory term, it is clear where the focus was -- it was on the relationship between the insurance company and the policyholder."SEC v. National Securities, Inc., supra at 393 U. S. 460.The Pharmacy Agreements are not "between insurer and insured." They are separate contractual arrangements between Blue Shield and pharmacies engaged in the sale and distribution of goods and services other than insurance.The petitioners argue that, nonetheless, the Pharmacy Agreements so closely affect the "reliability, interpretation, and enforcement" of the insurance contract, and "relate so closely to their status as reliable insurers," as to fall within the exempted area. [Footnote 14] This argument, however, proves too much.At the most, the petitioners have demonstrated that the Pharmacy Agreements result in cost savings to Blue Shield which may be reflected in lower premiums if the cost savings are passed on to policyholders. But, in that sense, every business decision made by an insurance company has some impact on its reliability, its ratemaking, and its status as a Page 440 U. S. 217 reliable insurer. The manager of an insurance company is no different from the manager of any enterprise with the responsibility to minimize costs and maximize profits. If terms such as "reliability" and "status as a reliable insurer" were to be interpreted in the broad sense urged by the petitioners, almost every business decision of an insurance company could be included in the "business of insurance." Such a result would be plainly contrary to the statutory language, which exempts the "business of insurance," and not the "business of insurance companies."IIIAThe conclusion that the Pharmacy Agreements are not the "business of insurance" is fully confirmed by the legislative history of the McCarran-Ferguson Act. The law was enacted in 1945 in response to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U. S. 533. The indictment in that case charged that the defendants had conspired to fix insurance rates and commissions, and had conspired to boycott and coerce noncooperating insurers, agents, and insureds. In the District Court, the defendants had successfully demurred to the indictment on the ground that the insurance industry was not a part of interstate commerce subject to regulation under the Commerce Clause. [Footnote 15] On direct appeal, this Court reversed the judgment, holding that the business of insurance is interstate commerce, and that the Congress which enacted the Sherman Act had not intended to exempt the insurance industry from its coverage.BThe primary concern of Congress in the wake of that decision was in enacting legislation that would ensure that Page 440 U. S. 218 the States would continue to have the ability to tax and regulate the business of insurance. [Footnote 16] This concern is reflected in §§ 1 and 2(a) of the Act, [Footnote 17] neither of which is involved in this case. A secondary concern was the applicability of the antitrust laws to the insurance industry. [Footnote 18] Months before Page 440 U. S. 219 this Court's decision in South-Eastern Underwrites was announced, proposed legislation to totally exempt the insurance industry from the Sherman and Clayton Acts had been introduced in Congress. [Footnote 19] Less than three weeks after the actual decision, the House of Representatives passed a bill which would also have provided the insurance industry with a blanket exemption from the antitrust laws, thus restoring the state of law that had existed before the decision in South-Eastern Underwriters. [Footnote 20]Congress, however, rejected this approach. [Footnote 21] Instead of a total exemption, Congress provided in § 2(b) that the antitrust laws "shall be applicable" unless the activities of insurance companies are the business of insurance and regulated by state law. Moreover, under § 3(b), the Sherman Act was made applicable in any event to acts of boycott, coercion, or intimidation. To allow the States time to adjust to the applicability of the antitrust laws to the insurance industry, Page 440 U. S. 220 Congress impose a 3-year moratorium. [Footnote 22] After the expiration of the moratorium on July 1, 1948, however, Congress clearly provided that the antitrust laws would be applicable to the business of insurance "to the extent that such business is not regulated by State law." [Footnote 23]By making the antitrust laws applicable to the insurance industry except as to conduct that is the business of insurance, regulated by state law, and not a boycott, Congress did not intend to and did not overrule the South-Eastern Underwriters case. [Footnote 24] While the power of the States to tax and regulate insurance companies was reaffirmed, the McCarran-Ferguson Act also established that the insurance industry would no longer have a blanket exemption from the antitrust laws. It is true that § 2(b) of the Act does create a partial exemption from those laws. Perhaps more significantly, however, that section, and the Act as a whole, embody a legislative rejection of the concept that the insurance industry is outside the scope of the antitrust laws -- a concept that had prevailed before the South-Eastern Underwriters decision.CReferences to the meaning of the "business of insurance" in the legislative history of the McCarran-Ferguson Act Page 440 U. S. 221 strongly suggest that Congress understood the business of insurance to be the underwriting and spreading of risk. Thus, one of the early House Reports stated:"The theory of insurance is the distribution of risk according to hazard, experience, and the laws of averages. These factors are not within the control of insuring companies in the sense that the producer or manufacturer may control cost factors."H.R.Rep. No. 873, 78th Cong., 1st Sess., 9 (1943). [Footnote 25] See also S.Rep. No. 1112, 78th Cong., 2d Sess., 6 (1944); 90 Cong.Rec. 6526 (1944) (remarks of Rep. Hancock).Because of the widespread view that it is very difficult to underwrite risks in an informed and responsible way without intra-industry cooperation, the primary concern of both representatives of the insurance industry and the Congress was that cooperative ratemaking efforts be exempt from the antitrust laws. The passage of the McCarran-Ferguson Act was preceded by the introduction in the Senate Committee of a report and a bill submitted by the National Association of Insurance Commissioners on November 16, 1944. [Footnote 26] The views of the NAIC are particularly significant, because the Act ultimately passed was based in large part on the NAIC bill. [Footnote 27] The report emphasized that the concern of the insurance commissioners was that smaller enterprises and insurers other than life insurance companies were unable to underwrite risks accurately, and it therefore concluded:"For these and other reasons, this subcommittee believes it would be a mistake to permit or require the unrestricted competition contemplated by the antitrust laws to apply to the insurance business. To prohibit combined Page 440 U. S. 222 efforts for statistical and ratemaking purposes would be a backward step in the development of a progressive business. We do not regard it as necessary to labor this point any further, because Congress itself recently recognized the necessity for concert of action in the collection of statistical data and rate making when it enacted the District of Columbia Fire Insurance Rating Act."Id. at A4405 (emphasis added).The bill proposed by the NAIC enumerated seven specific practices to which the Sherman Act was not to apply. [Footnote 28] Each of the specific practices involved intra-industry cooperative or concerted activities. None involved contractual arrangements that insurance companies might make with providers of goods or services to reduce the costs to the companies of meeting their underwriting obligations to their policyholders. [Footnote 29] Page 440 U. S. 223The floor debates also focused simply on whether cooperative ratemaking should be exempt. Thus, Senator Ferguson, in explaining the purpose of the bill, stated:"This bill would permit -- and I think it is fair to say that it is intended to permit -- rating bureaus, because, in the last session, we passed a bill for the District of Columbia allowing rating. What we saw as wrong was the fixing of rates without statutory authority in the States; but we believe that State rights should permit a State to say that it believes in a rating bureau. I think the insurance companies have convinced many members of the legislature that we cannot have open competition in fixing rates on insurance. If we do, we shall have chaos. There will be failures, and failures always follow losses."91 Cong.Rec. 1481 (1945). The consistent theme of the remarks of other Senators also indicated a primary concern that cooperative ratemaking would be protected from the antitrust laws. Id. at 1444 and 1485 (remarks of Sen. O'Mahoney); 485 (remarks of Sen. Taft). [Footnote 30] President Roosevelt, in signing the bill, also emphasized Page 440 U. S. 224 that the bill would allow cooperative rate regulation. He stated that"Congress did not intend to permit private rate fixing, which the Antitrust Act forbids, but was willing to permit actual regulation of rates by affirmative action of the States."S. Rosenman, The Public Papers and Addresses of Franklin D. Roosevelt, 1944-1945 Vol., p. 587 (1950). [Footnote 31] There is not the slightest suggestion in the legislative history that Congress in any way contemplated that arrangements such as the Pharmacy Agreements in this case, which involve the mass purchase of goods and services from entities outside the insurance industry, are the "business of insurance." [Footnote 32] Page 440 U. S. 225DAt the time of the enactment of the McCarran-Ferguson Act, corporations organized for the purpose of providing their Page 440 U. S. 226 members with medical services and hospitalization were not considered to be engaged in the insurance business at all, and thus were not subject to state insurance laws. E.g., Jordan v. Group Health Assn., 71 App.D.C. 38, 107 F.2d 239 (1939); California Physicians' Service v. Garrison, 155 P.2d 885 (Cal.App. 1945), aff'd., 28 Cal. 2d 790, 172 P.2d 4 (1946); Commissioner of Banking Insurance v. Community Health Service, 129 N.J.L. 427, 30 A.2d 44 (1943); State ex rel. Fishback v. Universal Service Agency, 87 Wash. 413, 151 P. 768 (1915). [Footnote 33] Similarly, States which regulated prepaid health service plans at the time the Act was enacted either exempted them from the requirements of the state insurance code or provided that they "shall not be construed as being engaged in the business of insurance" under state law. Rorem, Enabling Legislation for Non-Profit Hospital Service Plans, 6 Law & Contemp.Prob. 528, 534 (1939). [Footnote 34] Since the legislative Page 440 U. S. 227 history makes clear that Congress certainly did not intend the definition of the "business of insurance" to be broader than its commonly understood meaning, the contemporary perception that health care organizations were not engaged in providing insurance is highly significant in ascertaining congressional intent.The Jordan v. Group Health Assn. case, supra, is illustrative of the contemporary view of health care plans. Group Health was organized as a nonprofit corporation to provide various medical services and supplies to members who paid a fixed annual premium. To implement the plan, Group Health contracted with physicians, hospitals, and others, to provide medical services. These groups were compensated exclusively by Group Health. By contracting with the various medical groups directly, Group Health was able to obtain Page 440 U. S. 228 services at a lower cost than if each member contracted separately. The plan, therefore, was somewhat similar to the Pharmacy Agreements in this case. The court in Group Health held that this type of arrangement was not insurance:"Whether the contract is one of insurance or of indemnity, there must be a risk of loss to which one party may be subjected by contingent or future events and an assumption of it by legally binding arrangement by another. Even the most loosely stated conceptions of insurance . . . require these elements. Hazard is essential, and equally so a shifting of its incidence.""* * * *" "Although Group Health's activities may be considered in one aspect as creating security against loss from illness or accident, more truly they constitute the quantity purchase of well-rounded, continuous medical service by its members. Group Health is, in fact and in function, a consumer cooperative. The functions of such an organization are not identical with those of insurance or indemnity companies. The latter are concerned primarily, if not exclusively, with risk. . . . On the other hand, the cooperative is concerned principally with getting service rendered to its members and doing so at lower prices made possible by quantity purchasing and economies in operation."71 App.D.C. at 44, 46, 107 F.2d at 245, 247. (Emphasis supplied in part; footnotes omitted.) [Footnote 35] Page 440 U. S. 229Indeed, Blue Cross and Blue Shield organizations themselves have historically taken the position that they are not insurance companies in seeking to avoid state regulation and taxation. [Footnote 36] It is thus difficult to assume that, contrary to this historical position and a majority of court decisions, Congress in 1945 understood that advance-payment medical Page 440 U. S. 230 benefits plans are the "business of insurance." [Footnote 37] It is next to impossible to assume that Congress could have thought that agreements (even by insurance companies) which provide for the purchase of goods and services from third parties at a set price are within the meaning of that phrase. [Footnote 38] Page 440 U. S. 231IVIt is well settled that exemptions from the antitrust laws are to be narrowly construed. E.g., Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U. S. 1; Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616; FMC v. Seatrain Lines, Inc., 411 U. S. 726; United States v. McKesson & Robbins, Inc., 351 U. S. 305. This doctrine is not limited to implicit exemptions from the antitrust laws, but applies with equal force to express statutory exemptions. E.g., Abbott Laboratories v. Portland Retail Druggists Assn., Inc., supra at 425 U. S. 11-12 (the Nonprofit Institutions Act); FMC v. Seatrain Lines, Inc., supra at 411 U. S. 733 (§ 15 of the Shipping Act); United States v. McKesson Robbins, supra at 351 U. S. 316 (the Miller-Tydings and McGuire Acts).Application of this principle is particularly appropriate in this case because the Pharmacy Agreements involve parties wholly outside the insurance industry. In analogous contexts, the Court has held that an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties. The Court has held, for example, that an exempt agricultural cooperative under the Capper-Volstead Act loses its exemption if it conspires with nonexempt parties. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384; United States v. Borden Co., 308 U. S. 188. Similarly, the Court has consistently stated that a union forfeits its exemption from the antitrust laws if it agrees with one set of employers to impose a wage scale on other bargaining units. Ramsey v. Mine Workers, Page 440 U. S. 232 401 U. S. 302, 401 U. S. 313; Mine Workers v. Pennington, 381 U. S. 657, 381 U. S. 665-666. [Footnote 39]If agreements between an insurer and retail pharmacists are the "business of insurance" because they reduce the insurer's costs, then so are all other agreements insurers may make to keep their costs under control -- whether with automobile body repair shops or landlords. [Footnote 40] Such agreements Page 440 U. S. 233 would be exempt from the antitrust laws if Congress had extended the coverage of the McCarran-Ferguson Act to the "business of insurance companies." [Footnote 41] But that is precisely what Congress did not do.For all these reasons, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtGroup Life & Health Ins. Co. v. Royal Drug Co., Inc., 440 U.S. 205 (1979)Group Life & Health Insurance Co. v. Royal Drug Co., Inc.No. 77-952Argued October 11, 1978Decided February 27, 1979440 U.S. 205SyllabusPetitioner Blue Shield, a Texas insurance company, offers policies that entitle the insured to obtain prescription drugs. The insured may obtain the drugs from a pharmacy participating in a "Pharmacy Agreement" with Blue Shield (in which case the insured must pay only $2 for every prescription drug, with the remainder of the cost being paid directly by Blue Shield to the participating pharmacy) or from a nonparticipating pharmacy (in which case the insured pays the full price and may be reimbursed by Blue Shield for 75% of the difference between that price and $2.) Blue Shield offered to enter into a Pharmacy Agreement with each licensed pharmacy in Texas, the participating pharmacy to agree to furnish Blue Shield policyholders prescription drugs at $2 each, with Blue Shield to agree to reimburse the pharmacy for its cost in acquiring the drug. Respondents, nonparticipating pharmacies, brought this antitrust action alleging that Blue Shield and three participating pharmacies, also petitioners, had violated § 1 of the Sherman Act by entering into agreements fixing the retail prices of drugs and that petitioners' activities had caused Blue Shield policyholders to boycott certain respondents. The trial court granted petitioners summary judgment on the ground that the agreements are exempt from the antitrust laws under § 2(b) of the McCarran-Ferguson Act (Act), because the agreements are the "business of insurance," are regulated by Texas, and are not boycotts within the meaning of the Act. The Court of Appeals reversed.Held: The Pharmacy Agreements are not the "business of insurance" within the meaning of § 2(b). Pp. 440 U. S. 211-233.(a) Section 2(b) exempts the "business of insurance," not the "business of insurers." Pp. 440 U. S. 210-211.(b) A primary element of an insurance contract is the underwriting or spreading of risk, SEC v. Variable Annuity Life Ins. Co., 359 U. S. 65, but that element is not involved in the Pharmacy Agreements, which are merely arrangements for the purchase of goods and services by Blue Shield, enabling it to effect cost savings. Pp. 440 U. S. 211-215. Page 440 U. S. 206(e) The Pharmacy Agreements involve contractual arrangements between Blue Shield and the pharmacies, not its policyholders. Pp. 440 U. S. 215-217.(d) The legislative history of the Act confirms the conclusion that the "business of insurance" was understood by Congress to involve the underwriting of risk and the relationship and transactions between insurance companies and their policyholders, and no legislative intention is disclosed to exempt agreements or transactions between insurance companies and entities outside the insurance industry. Moreover, at the time of the Act's enactment, health care plans such as those of Blue Shield were not considered to constitute insurance at all, and it is difficult to assume that Congress, contrary to that contemporary view, could have considered such plans to be the "business of insurance" within the meaning of the Act. Even if Congress did consider certain aspects of such plans to be the "business of insurance," however, it still does not follow that the Pharmacy Agreements in this case are within the meaning of that phrase. Pp. 440 U. S. 217-230.(e) This result is consistent with the principle that exemptions from the antitrust laws are to be construed narrowly. Pp. 440 U. S. 231-233.556 F.2d 1375, affirmed.STEWART, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which BURGER, C.J., and MARSHALL and POWELL, JJ., joined, post, p. 440 U. S. 233. Page 440 U. S. 207

1966_53

MR. JUSTICE STEWART delivered the opinion of the Court.The respondent employer was brought before the National Labor Relations Board to answer a complaint that its inauguration of a premium pay plan during the term of a collective agreement, without prior consultation with the union representing its employees, violated the duties imposed by § 8(a)(5) and (1) of the National Labor Relations Act. [Footnote 1] The Board issued a cease-and-desist order, rejecting the claim that the respondent's action was authorized by the collective agreement. [Footnote 2] The Court of Appeals for the Ninth Circuit refused, however, to enforce the Board's order. It reasoned that a provision in the agreement between the union and the employer, which "arguably" allowed the employer to institute the premium pay plan, divested the Board of jurisdiction to entertain the union's unfair labor practice charge. 351 F.2d 224. We granted certiorari to consider a substantial question of federal labor law. 384 U.S. 903.In August, 1962, the Plywood, Lumber, and Saw Mill Workers Local No. 2405 was certified as the bargaining representative of the respondent's production and maintenance employees. The agreement which resulted from collective bargaining contained the following provision:"Article XVII" "WAGES" "A. A classified wage scale has been agreed upon by the Employer and Union, and has been signed by the parties and thereby made a part of the Page 385 U. S. 423 written agreement. The Employer reserves the right to pay a premium rate over and above the contractual classified wage rate to reward any particular employee for some special fitness, skill, aptitude or the like. The payment of such a premium rate shall not be considered a permanent increase in the rate of that position and may at sole option of the Employer, be reduced to the contractual rate. . . ."The agreement also stipulated that wages should be "closed" during the period it was effective, [Footnote 3] and that neither party should be obligated to bargain collectively with respect to any matter not specifically referred to in the contract. [Footnote 4] Grievance machinery was established, but no ultimate arbitration of grievances or other disputes was provided.Less than three weeks after this agreement was signed, the respondent posted a notice that all members of the Page 385 U. S. 424 "glue spreader" crews would be paid $2.50 per hour if their crews met specified biweekly (and later weekly) production standards, although under the "classified wage scale" referred to in the above quoted Art. XVII of the agreement, the members of these crews were to be paid hourly wages ranging from $2.15 to $2.29, depending upon their function within the crew. [Footnote 5] When the union learned of this premium pay plan through one of its members, it immediately asked for a conference with the respondent. During the meetings between the parties which followed this request, the employer indicated a willingness to discuss the terms of the plan, but refused to rescind it pending those discussions.It was this refusal which prompted the union to charge the respondent with an unfair labor practice in violation of §§ 8(a)(5) and (1). The trial examiner found that the respondent had instituted the premium pay program in good faith reliance upon the right reserved to it in the collective agreement. He therefore dismissed the complaint. The Board reversed. Giving consideration to the history of negotiations between the parties, [Footnote 6] as well as the express provisions of the collective Page 385 U. S. 425 agreement, the Board ruled the union had not ceded power to the employer unilaterally to change the wage system as it had. For while the agreement specified different hourly pay for different members of the glue spreader crews and allowed for merit increases for "particular employee[s]," the employer had placed all the members of these crews on the same wage scale, and had made it a function of the production output of the crew as a whole.In refusing to enforce the Board's order, the Court of Appeals did not decide that the premium pay provision of the labor agreement had been misinterpreted by the Board. Instead, it held the Board did not have jurisdiction to find the respondent had violated § 8(a) of the Labor Act, because the"existence . . . of an unfair labor practice [did] not turn entirely upon the provisions of the Act, but arguably upon a good faith dispute as to the correct meaning of the provisions of the collective bargaining agreement. . . ."351 F.2d at 228.The respondent does not question the proposition that an employer may not unilaterally institute merit increases during the term of a collective agreement unless some provision of the contract authorizes him to do so. See Labor Board v. J. H. Allison & Co., 165 F.2d 766 (C.A.6th Cir.), cert. denied, 335 U.S. 814. Cf. Beacon Piece Dyeing Co., 121 N.L.R.B. 953 (1958). [Footnote 7] The argument is, rather, that, since the contract contained a provision which might have allowed the respondent to institute the wage plan in question, the Board was powerless to determine whether that provision did authorize Page 385 U. S. 426 the respondent's action, because the question was one for a state or federal court under § 301 of the Act. [Footnote 8]In evaluating this contention, it is important first to point out that the collective bargaining agreement contained no arbitration clause. [Footnote 9] The contract did provide grievance procedures, but the end result of those procedures, if differences between the parties remained unresolved, was economic warfare, not "the therapy of arbitration." Carey v. Westinghouse Electric Corp., 375 U. S. 261, 375 U. S. 272. Thus, the Board's action in this case was in no way inconsistent with its previous recognition of arbitration as "an instrument of national labor policy for composing contractual differences." International Harvester Co., 138 N.L.R.B. 923, 926 (1962), aff'd sub nom. Ramsey v. Labor Board, 327 F.2d 784 (C.A.7th Cir.), cert. denied, 377 U.S. 1003. [Footnote 10]The respondent's argument rests primarily upon the legislative history of the 1947 amendments to the National Page 385 U. S. 427 Labor Relations Act. It is said that the rejection by Congress of a bill which would have given the Board unfair labor practice jurisdiction over all breaches of collective bargaining agreements shows that the Board is without power to decide any case involving the interpretation of a labor contract. We do not draw that inference from this legislative history.When Congress determined that the Board should not have general jurisdiction over all alleged violations of collective bargaining agreements, [Footnote 11] and that such matters should be placed within the jurisdiction of the courts, [Footnote 12] it was acting upon a principle which this Court had already recognized:"The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them."Terminal Railroad Ass'n v. Brotherhood of Railroad Trainmen, 318 U. S. 1, 318 U. S. 6. To have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements. We view Page 385 U. S. 428 Congress' decision not to give the Board that broad power as a refusal to take this step. [Footnote 13]But, in this case, the Board has not construed a labor agreement to determine the extent of the contractual rights which were given the union by the employer. It has not imposed its own view of what the terms and conditions of the labor agreement should be. It has done no more than merely enforce a statutory right which Congress considered necessary to allow labor and management to get on with the process of reaching fair terms and conditions of employment -- "to provide a means by which agreement may be reached." The Board's interpretation went only so far as was necessary to determine that the union did not agree to give up these statutory safeguards. Thus, the Board, in necessarily construing a labor agreement to decide this unfair labor practice case, has not exceeded the jurisdiction laid out for it by Congress.This conclusion is reinforced by previous judicial recognition that a contractual defense does not divest the Labor Board of jurisdiction. For example, in Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, the legality of an employer's refusal to reinstate strikers was based upon the Board's construction of a "no strike" clause in the labor agreement, which the employer contended allowed it to refuse to take back workers who had walked out in protest over its unfair labor practice. The strikers applied to the Board for reinstatement and backpay. Page 385 U. S. 429 In giving the requested relief, the Board was forced to construe the scope of the "no strike" clause. This Court, in affirming, stressed that the whole case turned "upon the proper interpretation of the particular contract. . . ." 350 U.S. at 350 U. S. 279. Thus, Mastro Plastics stands squarely against the respondent's theory as to the Board's lack of power in the present case. [Footnote 14]If the Board, in a case like this, had no jurisdiction to consider a collective agreement prior to an authoritative construction by the courts, labor organizations would face inordinate delays in obtaining vindication of their statutory rights. Where, as here, the parties have not provided for arbitration, the union would have to institute a court action to determine the applicability of the premium pay provision of the collective bargaining agreement. [Footnote 15] If it succeeded in court, the union would then Page 385 U. S. 430 have to go back to the Labor Board to begin an unfair labor practice proceeding. It is not unlikely that this would add years to the already lengthy period required to gain relief from the Board. [Footnote 16] Congress cannot have intended to place such obstacles in the way of the Board's effective enforcement of statutory duties. For, in the labor field as in few others, time is crucially important in obtaining relief. Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 348 U. S. 526 (dissenting opinion).The legislative history of the Labor Act, the precedents interpreting it, and the interest of its efficient administration thus all lead to the conclusion that the Board had jurisdiction to deal with the unfair labor practice charge in this case. We hold that the Court of Appeals was in error in deciding to the contrary.The remaining question, not reached by the Court of Appeals, is whether the Board was wrong in concluding that the contested provision in the collective agreement gave the respondent no unilateral right to institute its premium pay plan. In reaching this conclusion, the Board relied upon its experience with labor relations and the Act's clear emphasis upon the protection of free of collective bargaining. We cannot disapprove of the Board's approach. For the law of labor agreements cannot be based upon abstract definitions unrelated to the context in which the parties bargained and the basic regulatory scheme underlying the context. See Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich.L.Rev. 1 (1958). Nor can we say that the Board was Page 385 U. S. 431 wrong in holding that the union had not forgone its statutory right to bargain about the pay plan inaugurated by the respondent. For the disputed contract provision referred to increases for "particular employee[s]," not groups of workers. And there was nothing in it to suggest that the carefully worked out wage differentials for various members of the glue spreader crew could be invalidated by the respondent's decision to pay all members of the crew the same wage. [Footnote 17]The judgment is accordingly reversed, and the case is remanded to the Court of Appeals with directions to enforce the Board's order.Reversed

U.S. Supreme CourtNLRB v. C & C Plywood Corp., 385 U.S. 421 (1967)Labor Board v. C & C Plywood Corp.No. 53Argued November 15, 1966Decided January 9, 1967385 U.S. 421SyllabusRespondent, employer, was charged with an unfair labor practice for inaugurating a premium pay plan during the term of a collective bargaining agreement without prior consultation with the union representing its employees, in violation of §§ 8(a)(5) and (1) of the National Labor Relations Act. The NLRB issued a cease-and-desist order, rejecting respondent's claim that its action was authorized by a provision of the agreement. The agreement provided for grievance machinery, but not for arbitration. The Court of Appeals refused to enforce the order, reasoning that a contract provision which "arguably" allowed respondent to institute the premium pay plan divested the NLRB of jurisdiction to entertain the unfair labor practice charge.Held:1. The NLRB was not without jurisdiction to adjudicate the unfair labor practice charge merely because its decision required the interpretation of a provision of the collective bargaining agreement relied on as a defense by the employer. Pp. 385 U. S. 425-430.2. The NLRB's conclusions that the agreement gave respondent no unilateral right to institute the premium pay plan and that the union had not forgone its statutory right to bargain about the plan, reached in the light of its experience with labor relations and the Act's clear emphasis on the protection of free collective bargaining, were not erroneous. Pp. 385 U. S. 430-431.351 F.2d 224, reversed and remanded. Page 385 U. S. 422

1973_72-6902

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner in this case presents a claim that evidence offered against him at his trial should have been suppressed because it was seized at night-time in violation of governing statutory provisions. The search which led to the seizure was conducted by officers of the District of Columbia Metropolitan Police Department at approximately 9:30 p.m. within the District of Columbia. Page 416 U. S. 432 Armed with a search warrant, the officers entered petitioner's apartment for the purpose of discovering violations of a federal narcotics statute, and seized a substantial amount of contraband narcotics. The parties urge upon us differing theories concerning which federal or District of Columbia statute bears on the legality of this search, and we must therefore interpret and reconcile several recent congressional enactments dealing with night-time searches which seem to embody somewhat inconsistent views. [Footnote 1]The Court of Appeals agreed with the District Court's description of this congeries of statutes as a "bramblebush of uncertainties and contradictions,'" [Footnote 2] and a mere summary of the statutes attests to the accuracy of that observation:District of Columbia Statutes: The older of the two conceivably relevant District of Columbia statutes, D.C.Code § 33-414 (1973), [Footnote 3] was enacted in 1956, and authorizes Page 416 U. S. 433 search warrants for violations of the District of Columbia narcotics laws. This section does not limit the time during which searches may be made, stating plainly that "[t]he judge or commissioner shall insert a direction in the warrant that it may be served at any time in the day or night." This liberal time provision is in direct contrast to the more restrictive provisions of the second Page 416 U. S. 434 District of Columbia statute to be considered, D.C.Code 23-521(f)(5), [Footnote 4] which specifically requires that search warrants be served in the daytime unless certain conditions Page 416 U. S. 435 set forth in § 23-522(c)(1) are met. These conditions essentially require a showing of special need to search at night, and concededly have not been satisfied in this case. Page 416 U. S. 436Federal Statutes and Rules: The general provision governing federal search warrants is found in Fed.Rule Crim.Proc. 41. [Footnote 5] At the time the search in this case Page 416 U. S. 437 took place, Rule 41(c) provided that warrants must be served in the daytime except where "the affidavits are positive that the property is on the person or in the place to be searched." [Footnote 6] In such event, the warrant Page 416 U. S. 438 could direct "that it be served at any time." This provision was incorporated in the Rules in 1948 as a replacement for language previously contained in the Espionage Act of 1917. [Footnote 7] A second federal statute relating only to searches for "controlled substances" is found in 21 U.S.C. § 879(a), [Footnote 8] which was enacted in Page 416 U. S. 439 1970. That section provides that a warrant may be served "at any time of the day or night" so long as the issuing authority "is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time." This provision, in turn, is the successor to a provision in 18 U.S.C. § 1405 (1964 ed.), [Footnote 9] enacted in 1956 to relax the "positivity" test of Rule 41 in cases involving certain narcotic drugs. [Footnote 10] Congress had passed this statute in response to the complaints of law enforcement officers that the positivity requirement gave commercial narcotics dealers a definite advantage over federal agents. Rule 41 is therefore not applicable to searches governed by the more specific narcotic search statutes. [Footnote 11] Page 416 U. S. 440The facts of this case must be understood in the context of these statutes. On February 11, 1971, an Assistant United States Attorney applied to a United States Magistrate sitting in the District of Columbia for a warrant authorizing a search of petitioner's apartment for evidence of illegal narcotics. The application included the brief notation: "Violation: U.S.C.; Title 26. Sections: 4704a." In connection with the application, an officer of the Metropolitan Police Department vice squad appeared before the Magistrate and swore that he had reason to believe petitioner was concealing property held in violation of that same code provision. [Footnote 12] Page 416 U. S. 4441 The officer supplemented his personal testimony with a written affidavit, outlining the basis for the application in more detail and alleging specifically that "illegal drugs are sold and possessed in violation of the United States Code, Title 26, Section 4704a." [Footnote 13] The affidavit concluded with the language: "I am positive that Lonnie Gooding is secreting narcotics inside his apartment at 1419 Chapin Street NW in violation of the US Code."The Magistrate then issued a warrant directing the Chief of Police or "any member of MPDC" to search petitioner's apartment. [Footnote 14] The warrant specifically noted Page 416 U. S. 442 that facts had been set forth in an affidavit alleging a violation of 26 U.S.C. § 4704(a) (1964 ed.) and that those facts established probable cause to make the search. The warrant also stated that the search could be made "at any time in the day or night." This phrase was accompanied by a footnote reference to Fed.Rule Crim.Proc. 41(c), presumably because the police officer had asserted he was "positive" the drugs were in petitioner's apartment. One of the briefs filed in this case suggests that the warrant form was preprinted, and contemplated application of Rule 41 standards. [Footnote 15]The search warrant was executed on February 12, 1971, at 9:30 p.m. [Footnote 16] The officers engaged in the search were Page 416 U. S. 443 all members of the District of Columbia Metropolitan Police Department, and the search uncovered a substantial quantity of contraband narcotic materials. They were seized and formed the basis for charging petitioner with violations of 26 U.S.C. § 4704(a) (1964 ed.) [Footnote 17] and 21 U.S.C. § 174 (1964 ed.). [Footnote 18] Following his indictment in the United States District Court for the District of Columbia on April 6, 1971, petitioner filed a motion to suppress the evidence discovered in the February 12 search.Several grounds were asserted in support of the motion, particularly that"[t]he search warrant was executed at night, but the application for the warrant did not comply with the D.C.Code provisions for night-time search Page 416 U. S. 444 warrants. . . . [Footnote 19]"Although no provisions of the D.C.Code were explicitly referred to, petitioner's argument apparently was that Title 23 of the D.C.Code, requiring that a special showing of need be made to justify a search at night, governed this search, and that its requirements had not been met. The District Court found this reasoning persuasive and granted the motion to suppress. Rejecting the Government's argument that the warrant was not issued under Title 23, but rather under 21 U.S.C. § 879(a), the court stated:"Whatever be the standards generally for issuance of a night-time search warrant in federal narcotics cases in other parts of the country, however, the Court finds that the existence of 21 U.S.C. § 879(a) does not remove such cases from the explicit requirements for search warrants in the District of Columbia under the newly enacted Title 23, D.C.Code. [Footnote 20]"Having decided that District of Columbia law applied, the District Court admitted to some uncertainty about the status of D.C.Code § 33-414, the provision dealing specifically with violations of local drug laws. The court noted with some puzzlement that no mention of this provision was found in the legislative history of Title 23, and that some language in the legislative history suggested that the provision had simply been overlooked. [Footnote 21] Nevertheless, the court determined that"[p]ending prompt review of this determination Page 416 U. S. 445 or congressional action, and pending interpretation of 33 D.C.Code § 414(h) in light of the new Title 23 provisions, search warrants which are to be executed in the night-time should comply in all respects with 23 D.C.Code § 523(b). [Footnote 22]"Concededly the warrant issued in this case did not comply with the requirements of Title 23.The Court of Appeals for the District of Columbia Circuit reversed the District Court, [Footnote 23] although none of the three judges who composed the panel completely agreed with any other on the proper rationale. All three agreed, however, that 21 U.S.C. § 879(a), rather than any provision of the District of Columbia Code, was the provision which determined the legality of this search. All three likewise agreed that the affidavit submitted by the District of Columbia police officer satisfied the requirements of that section. Judge Wilkey and Judge Fahy found that no greater showing for a night-time search was required by § 879(a) than was required by its predecessor statute governing federal narcotics searches, 18 U.S.C. § 1405 (1964 ed.), and that the affidavit need establish only probable cause to believe that the property would be on the premises at the time of the search. [Footnote 24] Judge Robinson believed that § 879(a) Page 416 U. S. 446 did require an additional showing for a night-time search, but concluded that such a showing had been made in this case. [Footnote 25]Petitioner urges that we reverse the Court of Appeals on either or both of two alternative grounds. First, petitioner repeats his assertion, sustained by the District Court, that Title 23 of the D.C.Code is the statute applicable to the search in this case and that, as the Government has conceded, the requirements of that title have not been satisfied. Second, petitioner argues that, if 21 U.S.C. § 879(a) is considered to be the applicable provision, a special showing for night-time searches must be made. We agree with the Court of Appeals that 21 U.S.C. § 879(a) is the statute applicable to this case, and that its provisions have been satisfied here. [Footnote 26]IThe unique situation of the District of Columbia, for which Congress legislates both specially and as a part Page 416 U. S. 447 of the Nation, gives rise to the principal difficulties in this case. For we deal here not with statutory schemes enacted by independent legislative bodies, but with possibly overlapping schemes enacted by a single body. Despite the potential overlap, however, we think that the operative facts surrounding this search strongly indicate that the standards for issuance of a warrant should be governed by the nationwide federal legislation enacted by Congress -- that is, 21 U.S.C. § 879(a) [Footnote 27] -- rather than by the local D.C. laws. To begin with, an Assistant United States Attorney, who had discretion to proceed either under federal or under local law, filed the application for the search warrant alleging a violation of the United States Code. Application was made to a United States Magistrate located in the United States District Court building, and neither the application nor the supporting affidavits contained any mention of the local narcotics laws. After the materials were seized, petitioner was indicted for violations of federal law.Petitioner contends, however, that Title 23 of the D.C.Code should apply to this case because the executing officers, as well as the officer swearing to the affidavit presented to the Magistrate, were not federal officers, but officers of the District of Columbia Metropolitan Police Department. He argues that the provisions of 21 U.S.C. § 879(a) were intended to apply solely to agents of the Bureau of Narcotics and Dangerous Drugs, none of whom were involved here, whereas Title 23 of the D.C.Code was intended to provide comprehensive regulation of District of Columbia police officers investigating both local and federal offenses. Petitioner reinforces his argument by noting that the former federal statute Page 416 U. S. 448 regulating drug searches specifically provided that"a search warrant may be directed to any officer of the Metropolitan Police of the District of Columbia authorized to enforce or assist in enforcing a violation of any of such provisions, [Footnote 28]"while no such section appears in 21 U.S.C. § 879. Therefore, says petitioner, the District of Columbia police were no longer to be considered federal agents for the purpose of enforcing federal drug laws.Although petitioner's arguments cannot be dismissed lightly, we find them ultimately unpersuasive. Concededly there are hints in the statutory framework and legislative history of the Controlled Substances Act, 84 Stat. 1242, that indicate the policing function under those provisions would be the primary responsibility of the Bureau of Narcotics and Dangerous Drugs. [Footnote 29] But this focus on the Bureau's role seems entirely natural in view of one of the Act's stated purposes to"collect the diverse drug Page 416 U. S. 449 control and enforcement laws under one piece of legislation to facilitate law enforcement, drug research, educational and related control facilities. [Footnote 30]"In providing a comprehensive federal scheme for the control of drug abuse, Congress could be expected to pay special attention to the federal agency set up to enforce the laws. But this attention does not mean that Congress at the same time wished to dispense with the aid of other enforcement personnel who had previously given assistance.The failure of Congress to include a special provision authorizing District of Columbia police officers to obtain search warrants for investigating federal offenses cannot be taken as a deliberate exclusion in view of the overall statutory framework. The provision included in the previous federal statute may well have seemed unnecessary, both in light of the history of cooperation between the District of Columbia police and federal officers and in view of the provisions of D.C.Code § 138, providing that"[a]ny warrant for search or arrest, issued by any magistrate of the District, may be executed in any part of the District by any member of the police force. . . . [Footnote 31]"Thus, both custom and statute already assured the availability of District of Columbia police. Furthermore, the legislative history relating to § 879(a) stresses the need for stronger enforcement of the federal narcotics laws, a goal hardly advanced by reducing the forces available to execute those laws. In fact, the provision Page 416 U. S. 450 which is now § 879(b), permitting "no-knock" searches under certain conditions, was one of the most controversial sections of the entire bill, and was defended primarily by the pressing need for added enforcement weapons to combat the increased drug traffic. [Footnote 32]Finally, the interpretation urged by petitioner would leave District of Columbia officers able to execute general federal search warrants under amended Fed.Rule Crim.Proc. 41, but would deny them that authority under the federal drug search statute. Rule 41 now provides that "a federal law enforcement officer" -- defined in the Rule to include "any category of officers authorized by the Attorney General to request the issuance of a search warrant" -- may make applications under the Rule. The Attorney General has since listed the Metropolitan Police Department among those agencies Page 416 U. S. 451 which are so authorized. [Footnote 33] If petitioner's contention were accepted, it would seemingly mean that the general search warrant statute applicable to the District of Columbia would govern District of Columbia police officers investigating federal drug cases, but would not govern them when investigating other federal crimes. This result would obtain despite the fact that District of Columbia police officers historically played a prominent role in the enforcement of federal drug laws under 18 U.S.C. § 1405 (1964 ed.).There is little indication that Title 23 of the D.C.Code was intended to serve the sweeping purpose which petitioner attributes to it. [Footnote 34] The search warrant provisions upon which petitioner relies were part of the Court Reform and Criminal Procedure Act, which substantially reorganized the District of Columbia court system, providing for a new local court of general jurisdiction and relieving the United States District Court for the District of Columbia of much of its local burden. [Footnote 35] Prior to that time, all local felonies had been tried in the United States District Court, and the Federal Rules of Criminal Procedure, by their terms, had applied. The creation of the new Superior Court created the need for a new set of procedural Page 416 U. S. 452 rules, and, though some important changes were made, the new rules quite closely tracked the Federal Rules. It does not seem unreasonable, therefore, to suggest that the general provision relating to search warrants, found in D.C.Code § 2521 et seq. and then incorporated in similar form into the rules [Footnote 36] promulgated Page 416 U. S. 453 Feb. 1, 1971, for the new Superior Court, was intended to be a counterpart to Fed.Rule Crim.Proc. 41. The Federal Rule, as discussed infra did not apply to narcotics cases in the federal courts, since more specific provisions, first those of 18 U.S.C. § 1405 (1964 ed.) and then those of 21 U.S.C. § 879(a) controlled. [Footnote 37]This conclusion is reinforced by the fact that Federal Rule 41 has been subsequently modified to more closely resemble the District of Columbia statute and rule. The new Federal Rule, though less specific than the local rule, provides that a search warrant must be served in the daytime,"unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime,"and abandons the old, cumbersome positivity standard. The concern for individual privacy revealed in the provisions of the District of Columbia search statute may thus be found in the new Federal Rule as well, but Congress, as it had in the earlier version of the Rule, Page 416 U. S. 454 nevertheless showed its clear intention to leave intact other special search warrant provisions, including, of course, the provisions relating to searches for controlled substances. [Footnote 38] In those limited cases, Congress has considered the need for privacy to be counterbalanced by the public need for more effective law enforcement. We do not believe that Congress, by enacting a general search warrant provision for the District of Columbia, has struck a different balance in federal drug cases simply because District of Columbia police officers are involved.We therefore conclude, as did all the judges of the Court of Appeals, that the statute applicable to this case is 21 U.S.C. § 879(a). Our remaining task is to determine whether the requirements of that section have been met.II"A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time."21 U.S.C. § 879(a).Only the last seven words of the statute are really in controversy here. Petitioner contends that this language, not found in the predecessor statute, 18 U.S.C. § 1405 (1964 ed.), was intended to require some special showing of need for searches conducted at night, rather than during the day. His contention was adopted, at least in part, by Judge Robinson in the Court of Appeals. The Government, on the other hand, contends that it must show only probable cause to believe that the Page 416 U. S. 455 sought-after property will be on the premises at the time of the search, and that, if there is probable cause to believe the property will be on the premises at night, such a showing sufficiently meets the requirement imposed by the last seven words of § 879(a).The language of the statute by itself is not crystal clear on this issue. Petitioner insists that the last phrase requires with unmistakable clarity a separate finding of probable cause to justify a night-time search. Thus, according to petitioner, the issuing magistrate would have to satisfy himself that there was not only probable cause for the search, but also probable cause for believing that the search should be conducted at night-time, rather than during the daytime. While this is a possible meaning, it is by no means the only possible meaning attributable to the words.Petitioner's interpretation really assumes that the statute reads: "There is probable cause to believe that grounds exist for the warrant and, if served at night, for its service at such time." But the statute does not include the italicized four words; it makes no distinction whatever between day and night, and, literally read, would apparently require that a special showing be made for a daytime search as well. The idea that a particularized showing must be made for searches in the daytime is completely novel, and lacks even a single counterpart in other search statutes enacted by Congress.Petitioner suggests that, since Congress was concerned about the greater intrusion resulting from night-time searches, it would be logical to apply the language, "probable cause . . . for its service at such time," only to night-time searches. But even this interpretation, which is by no means a literal reading of the language, is not wholly convincing. The traditional limitation placed on night-time searches, as evident from the earlier Page 416 U. S. 456 language of Rule 41, is to require not that there be probable cause for searching at night, but that the affiant be positive that the property is, in fact, located on the property to be searched. Thus, Congress' very choice of the words "probable cause" would indicate that the earlier limitation of "positivity" was not to apply, while offering no other immediately ascertainable standard for what should constitute "probable cause" for executing a search warrant during the night.This roundabout way of limiting night-time searches, if that were, in fact, the statute's intent, would sharply contrast with the manner in which Congress has required special showings for night-time searches in other statutes. For example, Title 23 of the D.C.Code, discussed supra, specifies that the warrant "be executed during the hours of daylight" (emphasis added) unless certain itemized conditions are met. Federal Rule Crim.Proc. 41, as amended in 1972, states:"The warrant shall be served in the daytime unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime."(Emphasis added.) The fact that Congress, when it has intended to require such special showings for night-time searches, has done so in language largely free from ambiguity militates against petitioner's assertion that the language of § 879(a), on its face, supports his position.The legislative history lends no support to petitioner's interpretation, but, in fact, cuts the other way. Both the House and the Senate Committee Reports on the bill incorporated a summary prepared by the Department of Justice, where much of the bill's drafting had taken place, which stated:"Section 702(a) [now § 879(a)] incorporates 18 U.S.C. [§] 1405 and authorizes service of a search Page 416 U. S. 457 warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U.S. magistrate issuing the warrant. [Footnote 39]"As previously noted, § 1405 provided that a search warrant could be served at any time of the day or night so long as the issuing officer was "satisfied that there is probable cause to believe that the grounds for the application exist. . . ." Case law had uniformly interpreted the language to mean that probable cause for the warrant itself was all that was necessary for a night-time search. [Footnote 40] The officers or agents simply had to establish probable cause for believing that the sought-after property would be found in the place to be searched.There is no suggestion in any of the hearings or debates before Congress that a change from the prior law in this area was intended. The provision itself went unmentioned in the debates and hearings on the bill, a surprising omission if the bill effected the cutback petitioner says it did. Of like import is the fact that, in the long and heated discussions over § 702(b), the so-called "no-knock" provision of the bill, no defender of the bill saw fit to argue that any greater intrusion caused by the no-knock provision would be partially offset by the greater difficulty in obtaining warrants executable at night. [Footnote 41] While congressional silence as to a particular provision of a bill during debates which give extensive consideration to neighboring provisions is not easy to interpret, it would be unusual for such a significant Page 416 U. S. 458 change as that proposed by petitioner to have entirely escaped notice.Finally, it is important to note that the Department of Justice itself submitted this bill to Congress for enactment, including § 879(a) in its present form. Since the hearings and debates stress that a major purpose of the bill was to supply more effective enforcement tools to combat the increasing use of narcotic drugs, it seems totally illogical to suggest that the Department of Justice would submit a bill making it substantially more difficult to control the traffic in hard drugs. Petitioner suggests that this surrender was necessary to convince Congress to bring additional drugs within the Controlled Substances Act, but that theory rests entirely on speculation. There is absolutely no indication in the legislative history that any price had to be paid for what was thought to be a much-desired reorganization and expansion of the drug laws, much less the substantial price that petitioner argues had to be paid here.We therefore conclude that 21 U.S.C. § 879(a) requires no special showing for a night-time search, other than a showing that the contraband is likely to be on the property or person to be searched at that time. [Footnote 42] We believe that the showing was met in this case. The affidavit submitted by the District of Columbia police officer suggested that there was a continuing traffic of drugs from petitioner's apartment, and a prior purchase through an informer had confirmed that drugs were available. This was sufficient to satisfy 21 U.S.C. § 879(a). The judgment of the Court of Appeals for the District of Columbia Circuit isAffirmed

U.S. Supreme CourtGooding v. United States, 416 U.S. 430 (1974)Gooding v. United StatesNo. 72-6902Argued February 25, 1974Decided April 29, 1974416 U.S. 430SyllabusPetitioner, charged with illegal possession of drugs, made a motion to suppress the physical evidence seized in petitioner's apartment on February 12, 1971, at 9:30 p.m. by District of Columbia police officers pursuant to a magistrate's search warrant. Although no provisions of the D.C.Code were explicitly referred to, petitioner apparently contended, inter alia, that the warrant was executed in the night-time in violation of D.C.Code § 23-521(f)(5), which specifically requires that search warrants be served in the daytime unless certain statutory conditions are met, none of which was satisfied here. The District Court granted petitioner's motion, rejecting the Government's contention that the warrant was issued under 21 U.S.C. § 879(a), which relates only to searches for "controlled substances" and provides that a warrant may be served "at any time of the day or night" as long as the issuing authority is satisfied that probable cause exists to believe that there are grounds for the warrant "and for its service at such time." The Court of Appeals reversed on the ground that 21 U.S.C. § 879(a) was the applicable statute, and that its terms had been satisfied.Held:1. Title 21 U.S.C. § 879(a), which is part of a comprehensive federal scheme for the control of drug abuse, applies to this case. Pp. 416 U. S. 446-454.(a) The standards for issuance of the warrant should be governed by nationwide federal legislation, rather than by local D.C. laws. An Assistant United States Attorney filed the application for the warrant with a Federal Magistrate, alleging violations of the United States Code for which petitioner was indicted. P. 416 U. S. 447.(b) Though the affiant officer and the officers executing the warrant were D.C. police, rather than federal officers, and the legislative history of § 879(a) stressed federal enforcement, Congress manifested no purpose to dispense with the aid of other enforcement personnel in dealing with the narcotics problem. Pp. 416 U. S. 447-450. Page 416 U. S. 431(c) If petitioner's contention were to prevail, the general search warrant statute applicable to the District of Columbia would govern D.C. police officers when investigating federal drug violations but not other federal crimes, despite the fact that D.C. police officers historically played a prominent role in federal drug enforcement under 18 U.S.C. § 1405 (194 ed.), the predecessor statute of 21 U.S.C. § 879(a). Pp. 416 U. S. 450-454.2. Title 21 U.S.C. § 879(a), as was true of its predecessor statute, requires no special showing for a night-time search, other than a showing, such as was made here, that the contraband is likely to be on the property or person to be searched at that time. Pp. 416 U. S. 454-458.155 U.S.App.D.C. 259, 477 F.2d 428, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 416 U. S. 459. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 416 U. S. 461.

1985_85-619

JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether the incorporation of a federal standard in a state law private action, when Congress has intended that there not be a federal private action for violations of that federal standard, makes the action one "arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331.IThe Thompson respondents are residents of Canada, and the MacTavishes reside in Scotland. They filed virtually identical complaints against petitioner, a corporation, that manufactures and distributes the drug Bendectin. The complaints were filed in the Court of Common Pleas in Hamilton County, Ohio. Each complaint alleged that a child was born with multiple deformities as a result of the mother's ingestion of Bendectin during pregnancy. In five of the six counts, the recovery of substantial damages was requested on common law theories of negligence, breach of warranty, strict liability, fraud, and gross negligence. In Count IV, respondents alleged that the drug Bendectin was "misbranded" in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. (1982 ed. and Supp. III), because its labeling did not provide adequate Page 478 U. S. 806 warning that its use was potentially dangerous. Paragraph 26 alleged that the violation of the FDCA "in the promotion" of Bendectin "constitutes a rebuttable presumption of negligence." Paragraph 27 alleged that the "violation of said federal statutes directly and proximately caused the injuries suffered" by the two infants. App. 22, 32.Petitioner filed a timely petition for removal from the state court to the Federal District Court, alleging that the action was "founded, in part, on an alleged claim arising under the laws of the United States." [Footnote 1] After removal, the two cases were consolidated. Respondents filed a motion to remand to the state forum on the ground that the federal court lacked subject matter jurisdiction. Relying on our decision in Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), the District Court held that Count IV of the complaint alleged a cause of action arising under federal law, and denied the motion to remand. It then granted petitioner's motion to dismiss on forum non conveniens grounds.The Court of Appeals for the Sixth Circuit reversed. 766 F.2d 1005 (1985). After quoting one sentence from the concluding paragraph in our recent opinion in Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1 (1983), [Footnote 2] and noting "that the FDCA does not create or imply Page 478 U. S. 807 a private right of action for individuals injured as a result of violations of the Act," it explained:"Federal question jurisdiction would, thus, exist only if plaintiffs' right to relief depended necessarily on a substantial question of federal law. Plaintiffs' causes of action referred to the FDCA merely as one available criterion for determining whether Merrell Dow was negligent. Because the jury could find negligence on the part of Merrell Dow without finding a violation of the FDCA, the plaintiffs' causes of action did not depend necessarily upon a question of federal law. Consequently, the causes of action did not arise under federal law and, therefore, were improperly removed to federal court."766 F.2d at 1006.We granted certiorari, 474 U.S. 1004 (1985), and we now affirm.IIArticle III of the Constitution gives the federal courts power to hear cases "arising under" federal statutes. [Footnote 3] That grant of power, however, is not self-executing, and it was not until the Judiciary Act of 1875 that Congress gave the federal courts general federal question jurisdiction. [Footnote 4] Although the constitutional meaning of "arising under" may extend to all cases in which a federal question is "an ingredient" of the action, Osborn v. Bank of the United States, 9 Wheat. 738, 22 U. S. 823 (1824), we have long construed the statutory grant of federal question Jurisdiction as conferring a more limited power. Page 478 U. S. 808 Verlinden B.V. v. Central Bank of Nigeria, 461 U. S. 480, 461 U. S. 494-495 (1983); Romero v. International Terminal Operating Co., 358 U. S. 354, 358 U. S. 379 (1959).Under our longstanding interpretation of the current statutory scheme, the question whether a claim "arises under" federal law must be determined by reference to the "well-pleaded complaint." Franchise Tax Board, 463 U.S. at 463 U. S. 9-10. A defense that raises a federal question is inadequate to confer federal jurisdiction. Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908). Since a defendant may remove a case only if the claim could have been brought in federal court, 28 U.S.C. § 1441(b), moreover, the question for removal jurisdiction must also be determined by reference to the "well-pleaded complaint."As was true in Franchise Tax Board, supra, the propriety of the removal in this case thus turns on whether the case falls within the original "federal question" jurisdiction of the federal courts. There is no "single, precise definition" of that concept; rather,"the phrase 'arising under' masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system."Id. at 463 U. S. 8.This much, however, is clear. The "vast majority" of cases that come within this grant of jurisdiction are covered by Justice Holmes' statement that a "suit arises under the law that creates the cause of action.'" Id. at 463 U. S. 8-9, quoting American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 241 U. S. 260 (1916). Thus, the vast majority of cases brought under the general federal question jurisdiction of the federal courts are those in which federal law creates the cause of action.We have, however, also noted that a case may arise under federal law "where the vindication of a right under state law necessarily turned on some construction of federal law." Page 478 U. S. 809 Franchise Tax Board, 463 U.S. at 463 U. S. 9. [Footnote 5] Our actual holding in Franchise Tax Board demonstrates that this statement must be read with caution; the central issue presented in that case turned on the meaning of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1982 ed. and Supp. III), but we nevertheless concluded that federal jurisdiction was lacking.This case does not pose a federal question of the first kind; respondents do not allege that federal law creates any of the causes of action that they have asserted. [Footnote 6] This case thus poses what Justice Frankfurter called the "litigation-provoking problem," Textile Workers v. Lincoln Mills, 353 Page 478 U. S. 810 U.S. 448, 353 U. S. 470 (1957) (dissenting opinion) -- the presence of a federal issue in a state-created cause of action.In undertaking this inquiry into whether jurisdiction may lie for the presence of a federal issue in a nonfederal cause of action, it is, of course, appropriate to begin by referring to our understanding of the statute conferring federal question jurisdiction. We have consistently emphasized that, in exploring the outer reaches of § 1331, determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system."If the history of the interpretation of judiciary legislation teaches us anything, it teaches the duty to reject treating such statutes as a wooden set of self-sufficient words. The Act of 1875 is broadly phrased, but it has been continuously construed and limited in the light of the history that produced it, the demands of reason and coherence, and the dictates of sound judicial policy which have emerged from the Act's function as a provision in the mosaic of federal judiciary legislation."Romero v. International Terminal Operating Co., 358 U.S. at 358 U. S. 379. In Franchise Tax Board, we forcefully reiterated this need for prudence and restraint in the jurisdictional inquiry:"We have always interpreted what Skelly Oil [Co. v. Phillips Petroleum Co., 339 U. S. 667, 339 U. S. 673 (1950)] called 'the current of jurisdictional legislation since the Act of March 3, 1875' . . . with an eye to practicality and necessity."463 U.S. at 463 U. S. 20.In this case, both parties agree with the Court of Appeals' conclusion that there is no federal cause of action for FDCA violations. For purposes of our decision, we assume that this is a correct interpretation of the FDCA. Thus, as the case comes to us, it is appropriate to assume that, under the settled framework for evaluating whether a federal cause of action lies, some combination of the following factors is present: (1) the plaintiffs are not part of the class for whose special benefit the statute was passed; (2) the indicia of legislative Page 478 U. S. 811 intent reveal no congressional purpose to provide a private cause of action; (3) a federal cause of action would not further the underlying purposes of the legislative scheme; and (4) the respondents' cause of action is a subject traditionally relegated to state law. [Footnote 7] In short, Congress did not intend a private federal remedy for violations of the statute that it enacted.This is the first case in which we have reviewed this type of jurisdictional claim in light of these factors. That this is so is not surprising. The development of our framework for determining whether a private cause of action exists has proceeded only in the last 11 years, and its inception represented a significant change in our approach to congressional silence on the provision of federal remedies. [Footnote 8]The recent character of that development does not, however, diminish its importance. Indeed, the very reasons for the development of the modern implied remedy doctrine -- the "increased complexity of federal legislation and the increased volume of federal litigation," as well as "the desirability of a more careful scrutiny of legislative intent," Merrell Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 456 U. S. 377 (1982) (footnote omitted) -- are precisely the kind of considerations that should inform the concern for "practicality and necessity" that Franchise Tax Board advised for the construction of § 1331 when jurisdiction is asserted Page 478 U. S. 812 because of the presence of a federal issue in a state cause of action.The significance of the necessary assumption that there is no federal private cause of action thus cannot be overstated. For the ultimate import of such a conclusion, as we have repeatedly emphasized, is that it would flout congressional intent to provide a private federal remedy for the violation of the federal statute. [Footnote 9] We think it would similarly flout, or at least undermine, congressional intent to conclude that the federal courts might nevertheless exercise federal question jurisdiction and provide remedies for violations of that federal statute solely because the violation of the federal statute is said to be a "rebuttable presumption" or a "proximate cause" under state law, rather than a federal action under federal law. [Footnote 10] Page 478 U. S. 813IIIPetitioner advances three arguments to support its position that, even in the face of this congressional preclusion of a federal cause of action for a violation of the federal statute, federal question jurisdiction may lie for the violation of the federal statute as an element of a state cause of action.First, petitioner contends that the case represents a straightforward application of the statement in Franchise Tax Board that federal question jurisdiction is appropriate when "it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims." 463 U.S. at 463 U. S. 13. Franchise Tax Board, however, did not purport to disturb the long-settled understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction. [Footnote 11] Indeed, in determining that federal question jurisdiction was not appropriate in the case before us, we stressed Justice Cardozo's emphasis on principled, pragmatic distinctions:"'What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of causation . . . , a selective process which picks the substantial causes out of the web Page 478 U. S. 814 and lays the other ones aside.'"Id. at 463 U. S. 20-21 (quoting Gully v. First National Bank, 299 U. S. 109, 299 U. S. 117-118 (1936)).Far from creating some kind of automatic test, Franchise Tax Board thus candidly recognized the need for careful judgments about the exercise of federal judicial power in an area of uncertain jurisdiction. Given the significance of the assumed congressional determination to preclude federal private remedies, the presence of the federal issue as an element of the state tort is not the kind of adjudication for which jurisdiction would serve congressional purposes and the federal system. This conclusion is fully consistent with the very sentence relied on so heavily by petitioner. We simply conclude that the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal question jurisdiction. [Footnote 12] Page 478 U. S. 815Second, petitioner contends that there is a powerful federal interest in seeing that the federal statute is given uniform interpretations, and that federal review is the best way of insuring such uniformity. In addition to the significance of the congressional decision to preclude a federal remedy, we do Page 478 U. S. 816 not agree with petitioner's characterization of the federal interest and its implications for federal question jurisdiction. To the extent that petitioner is arguing that state use and interpretation of the FDCA pose a threat to the order and stability of the FDCA regime, petitioner should be arguing not that federal courts should be able to review and enforce state FDCA-based causes of action as an aspect of federal question jurisdiction, but that the FDCA preempts state court jurisdiction over the issue in dispute. [Footnote 13] Petitioner's concern about the uniformity of interpretation, moreover, is considerably mitigated by the fact that, even if there is no original district court jurisdiction for these kinds of action, this Court retains power to review the decision of a federal issue in a state cause of action. [Footnote 14]Finally, petitioner argues that, whatever the general rule, there are special circumstances that justify federal question jurisdiction in this case. Petitioner emphasizes that it is unclear whether the FDCA applies to sales in Canada and Scotland; there is, therefore, a special reason for having a federal Page 478 U. S. 817 court answer the novel federal question relating to the extraterritorial meaning of the Act. We reject this argument. We do not believe the question whether a particular claim arises under federal law depends on the novelty of the federal issue. Although it is true that federal jurisdiction cannot be based on a frivolous or insubstantial federal question, "the interrelation of federal and state authority and the proper management of the federal judicial system," Franchise Tax Board, 463 U.S. at 463 U. S. 8, would be ill-served by a rule that made the existence of federal question jurisdiction depend on the district court's case-by-case appraisal of the novelty of the federal question asserted as an element of the state tort. The novelty of an FDCA issue is not sufficient to give it status as a federal cause of action; nor should it be sufficient to give a state-based FDCA claim status as a jurisdiction-triggering federal question. [Footnote 15]IVWe conclude that a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtMerrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804 (1986)Merrell Dow Pharmaceuticals, Inc. v. ThompsonNo. 85-619Argued April 28, 1986Decided July 7, 1986478 U.S. 804SyllabusRespondent residents of Canada and respondent residents of Scotland filed separate complaints in an Ohio state court against petitioner Ohio corporation, the manufacturer and distributor of the drug Bendectin, alleging that children were born with deformities as a result of their mothers' ingestion of the drug during pregnancy. Damages were sought on common law theories of negligence, breach of warranty, strict liability, fraud, and gross negligence, and also on the ground that the alleged "misbranding" of the drug in violation of the Federal Food, Drug, and Cosmetic Act (FDCA) represented a "rebuttable presumption" of negligence and the "proximate cause" of the injuries. Petitioner filed a petition for removal of the actions to Federal District Court, alleging that they were founded, in part, on a claim "arising under the laws of the United States." After removal, the cases were consolidated, and the Federal District Court denied respondents' motion to remand to the state court and granted petitioner's motion to dismiss on forum non conveniens grounds. The Court of Appeals reversed. Noting that the FDCA does not create or imply a private right of action, the court held that the causes of action did not arise under federal law, and therefore were improperly removed to federal court.Held: A violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private federal cause of action for the violation, does not state a claim "arising under the Constitution, laws, or treaties of the United States" within the meaning of 28 U.S.C. § 1331. Thus, here, determining the question of removal jurisdiction by reference to the "well-pleaded complaint," and assuming that there is no federal cause of action for FDCA violations, the cases were improperly removed to the Federal District Court. The assumed congressional determination to preclude federal private remedies for violations of the FDCA is tantamount to a congressional conclusion that a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal question jurisdiction. The asserted federal interest in federal review and the novelty of the question whether the FDCA applies to sales in Canada Page 478 U. S. 805 and Scotland are not sufficient to give a state-based FDCA claim status as a jurisdiction-triggering federal question. 766 F.2d 1005, affirmed. Pp. 478 U. S. 807-817.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post, p. 478 U. S. 818.

1996_96-667

in which respondent agreed to plead guilty to four of the counts. In exchange, the Government agreed to move to dismiss the remaining four counts and not to bring further charges against respondent for other allegedly fraudulent conduct.That afternoon, the parties appeared again before the District Court and submitted the plea agreement to the court, along with respondent's "application for permission to enter [a] plea of guilty." After placing respondent under oath, the court questioned him extensively to ensure that his plea was knowing and voluntary, and that he understood the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years. The court asked respondent what he had done, and respondent admitted committing the crimes set out in the four counts. The court then asked the Government to set out what it was prepared to prove, and the Government did so. The court asked respondent whether he was pleading guilty because he was in fact guilty of the crimes set out in the four counts. Respondent said that he was. Finally, the court asked respondent how he pleaded to each count, and respondent stated "guilty."The District Court concluded that respondent was pleading guilty knowingly, voluntarily, and intelligently, and that there was a factual basis for the plea. The court therefore stated that it was accepting respondent's guilty plea. It also stated that it was deferring decision on whether to accept the plea agreement, pending completion of the presentence report.One month later, before sentencing and the District Court's decision about whether to accept the plea agreement, respondent filed a motion to withdraw his guilty plea. His motion alleged that he had pleaded guilty under duress from the Government and that his admissions to the District Court had in fact been false. After holding an evidentiary hearing, the court concluded that there was no evidence to support respondent's claim of duress, and that respondent673had not provided a "fair and just reason" for withdrawing his guilty plea, as required by Rule 32(e). The court therefore refused to let respondent withdraw his guilty plea. The court then accepted the plea agreement, entered judgment against respondent on the first four counts, dismissed the indictment's remaining four counts on the Government's motion, and sentenced respondent to a prison term of 2lf2 years.The Court of Appeals for the Ninth Circuit reversed, holding that respondent had an absolute right to withdraw his guilty plea before the District Court accepted the plea agreement. 92 F.3d 779, 781 (1996). The court reasoned as follows: First, before a district court has accepted a defendant's guilty plea, the defendant has an absolute right to withdraw that plea. Id., at 780 (citing United States v. Washman, 66 F. 3d 210, 212-213 (CA9 1995)). Second, the guilty plea and the plea agreement are" 'inextricably bound up together,'" such that the court's deferral of the decision whether to accept the plea agreement also constitutes an automatic deferral of its decision whether to accept the guilty plea, even if the court explicitly states that it is accepting the guilty plea. 92 F. 3d, at 780 (quoting United States v. Cordova-Perez, 65 F. 3d 1552, 1556 (CA9 1995)). Combining these two propositions, the Court of Appeals held that "[i]f the court defers acceptance of the plea or of the plea agreement, the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement." 92 F. 3d, at 781.The Courts of Appeals for the Fourth and Seventh Circuits have reached the opposite conclusion on this issue. United States v. Ewing, 957 F.2d 115, 118-119 (CA4 1992); United States v. Ellison, 798 F.2d 1102, 1106 (CA7 1986). We granted certiorari to resolve the conflict, 519 U. S. 1086 (1997), and now reverse.To understand why we hold that Rule 32(e) governs here, we must go back to Rule 11, the principal provision in the Federal Rules of Criminal Procedure dealing with the sub-674ject of guilty pleas and plea agreements. The Court of Appeals equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea. Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.The prerequisites to accepting a guilty plea are set out in subdivisions (c) and (d) of Rule 11. Subdivision (c) says:"Before accepting a plea of guilty ... , the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands," numerous consequences of pleading guilty. For example, the court must ensure the defendant understands the maximum possible penalty that he may face by pleading guilty, Rule l1(c)(l), and the important constitutional rights he is waiving, including the right to a trial, Rules 11(c)(3), (4). Subdivision (d) says: "The court shall not accept a plea of guilty ... without first, by addressing the defendant personally in open court, determining that the plea is voluntary." 1 The opening words of these two subdivisions are important: Together, they speak of steps a district court must take "[b]efore accepting a plea of guilty," and without which it "shall not accept a plea of guilty." Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant's guilty plea. The Court of Appeals would read an additional prerequisite into this list: A district court shall not accept a plea of guilty without first accepting the plea agreement. But that "prerequisite" is absent from the list set out in subdivisions (c) and (d), strongly suggesting that no such addition is warranted.1 See also Fed. Rule Crim. Proc. 11(f) (court should not enter judgment on an accepted guilty plea without confirming that the plea has a factual basis).675Subdivision (e), which covers plea agreements, also contradicts the Court of Appeals' holding. That subdivision divides plea agreements into three types, based on what the Government agrees to do: In type A agreements, the Government agrees to move for dismissal of other charges; in type B, it agrees to recommend (or not oppose the defendant's request for) a particular sentence; and in type C, it agrees that the defendant should receive a specific sentence. As to type A and type C agreements, the Rule states that "the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report." 2 Rule 11(e)(2). The plea agreement in this case is a type A agreement: The Government agreed to move to dismiss four counts, did not agree to recommend a particular sentence, and did not agree that a specific sentence was the appropriate disposition. The District Court deferred its decision about whether to accept or reject the agreement.If the court had decided to reject the plea agreement, it would have turned to subdivision (e)(4) of Rule 11. That subdivision, a critical one for our purposes, provides:"If the court rejects the plea agreement, the court shall ... advise the defendant personally ... that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea ... the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement." Rule 11(e)(4) (emphasis added).2 Under the Sentencing Guidelines, a district court is required to defer its decision about whether to accept a type A or type C agreement until after it has reviewed the presentence report, unless the court believes that a presentence report is not required. United States Sentencing Commission, Guidelines Manual § 6Bl.l(c) (Nov. 1995) (USSG).676Thus, if the court rejects the agreement, the defendant can "then" withdraw his plea for any reason and does not have to comply with Rule 32(e)'s "fair and just reason" requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction.Under the Court of Appeals' holding, however, the defendant can withdraw his plea "for any reason or for no reason" even if the district court does not reject the plea agreement, but merely defers decision on it. Thus, for the Court of Appeals, the rejection of the plea agreement has no significance:Before rejection, the defendant is free to withdraw his plea; after rejection, the same is true. But the text of Rule 11(e)(4) gives the rejection of the agreement a great deal of significance. Only "then" is the defendant granted "the opportunity" to withdraw his plea. The necessary implication of this provision is that if the court has neither rejected nor accepted the agreement, the defendant is not granted "the opportunity to then withdraw" his plea. The Court of Appeals' holding contradicts this implication, and thus strips subdivision (e)(4) of any meaning.Not only is the Court of Appeals' holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his plea. After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the "fair and just reason" standard to Rule 32(e) in 1983, explained why this cannot be so:"Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely 'tentative,' subject to withdrawal be-677fore sentence whenever the government cannot establish prejudice. 'Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a "grave and solemn act," which is "accepted only with care and discernment."'" Advisory Committee's Notes on Fed. Rule Crim. Proc. 32, 18 U. S. C. App., p. 794 (quoting United States v. Barker, 514 F.2d 208, 221 (CADC 1975), in turn quoting Brady v. United States, 397 U. S. 742, 748 (1970)).We think the Court of Appeals' holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess.The basis for the Court of Appeals' decision was its prior statement in Cordova-Perez that "[t]he plea agreement and the [guilty] plea are inextricably bound up together." 65 F. 3d, at 1556 (internal quotation marks omitted). This statement, on its own, is not necessarily incorrect. The guilty plea and the plea agreement are "bound up together" in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty. See Rule 11(e)(4). And since the guilty plea is but one side of the plea agreement, the plea is obviously not wholly independent of the agreement.But the Rules nowhere state that the guilty plea and the plea agreement must be treated identically. Instead, they explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side (here, the motion to dismiss four counts). If the court accepts the agreement and thus the Government's promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Gov-678ernment's promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. See J. Calamari & J. Perillo, Law of Contracts § 11-7, p. 441 (3d ed. 1987); 3A A. Corbin, Corbin on Contracts § 628, p. 17 (1960).3If the Court of Appeals' holding were correct, it would also be difficult to see what purpose Rule 32(e) would serve. Since 1983, that Rule has provided: "If a motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Under the Court of Appeals' holding, the "fair and just reason" standard would only be applicable between the time that the plea agreement is accepted and the sentence is imposed. Since the decision whether to accept the plea agreement will often be deferred until the sentencing hearing, see Rule 11(e)(2); USSG § 6B1.1(c), at which time the presentence report will have been submitted to the parties, objected to, revised, and filed with the court, see Fed. Rule Crim. Proc. 32(b)(6), the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced. This leaves little, if any, time in which the "fair and just3 Respondent argues that it is unfair to bind the defendant to the terms of the plea agreement before the Government is so bound. He therefore argues that, as a policy matter, an interpretation of the Rules that results in such a differential treatment should be rejected. Even if respondent were correct in arguing that the defendant is bound before the Government is bound (a point we do not decide), the fact remains that our task here is not to act as policymaker, deciding how to make the Rules as fair as possible, but rather to determine what the Rules actually provide. Cf. Carlisle v. United States, 517 U. S. 416, 444-445 (1996) (district court may not use "inherent supervisory power" to correct perceived unfairness in application of Fed. Rule Crim. Proc. 29(a)'s 7-day time limit for filing motions for judgment of acquittal, if use of the power would "circumvent or conflict with the Federal Rules of Criminal Procedure").679reason" standard would actually apply. We see no indication in the Rules to suggest that Rule 32(e) can be eviscerated in this manner, and the Court of Appeals did not point to one.Respondent defends this cramped understanding of Rule 32(e) by arguing that the "fair and just reason" standard was meant to apply only to "fully accepted" guilty pleas, as opposed to "conditionally accepted" pleas-i. e., pleas that are accepted but later withdrawn under Rule 11(e)(4) if the plea agreement is rejected. He points out that the "fair and just reason" standard was derived from dictum in our pre-Rules opinion in Kercheval v. United States, 274 U. S. 220, 224 (1927), see Advisory Committee's Notes on Rule 32, 18 U. S. C. App., p. 794, and that Kercheval spoke of a guilty plea as a final, not a conditional, act, see 274 U. S., at 223 ("A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence"). He then argues that since the Rule 32(e) standard was derived from Kercheval, the Rule must also have incorporated the Kercheval view that a guilty plea is a final, unconditional act. Thus, since his guilty plea was conditioned on the District Court accepting the plea agreement, the Rule simply does not apply.We reject this somewhat tortuous argument. When the "fair and just reason" standard was added in 1983, the Rules already provided that the district court could defer decision on whether to accept the plea agreement, that it could then reject the agreement, and that the defendant would then be able to withdraw his guilty plea. Guilty pleas made pursuant to plea agreements were thus already subject to this sort of condition subsequent. Yet neither the new Rule 32(e) nor the Advisory Committee's Notes accompanying it attempted to draw a distinction between "fully accepted" and "conditionally accepted" guilty pleas. Instead, the Rule simply680says that the standard applies to motions to withdraw a guilty plea "made before sentence is imposed." Respondent's speculation that the Advisory Committee, this Court, and Congress had the Kercheval view of a guilty plea in mind when Rule 32(e) was amended in 1983 is thus contradicted by the Rules themselves.Respondent's only other substantial argument in defense of the Court of Appeals' holding relies on an interpretation of the Advisory Committee's Notes to Rule 32(b)(3). That Rule, concerning presentence reports, provides: "The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty." This Rule obviously does not deal at all with motions to withdraw guilty pleas, and any comments in the Advisory Committee's Notes to this Rule dealing with plea withdrawal could not alter the meaning of Rules 11 and 32(e) as we have construed them.The judgment of the Court of Appeals is thereforeReversed

OCTOBER TERM, 1996SyllabusUNITED STATES v. HYDECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 96-667. Argued April 15, 1997-Decided May 27,1997Respondent pleaded guilty to several federal fraud counts, pursuant to a plea agreement in which the Government agreed to move for dismissal of other charges. The District Court accepted the plea but deferred decision on whether to accept the plea agreement, pending completion of the presentence report. Before sentencing and the court's decision on the plea agreement, respondent sought to withdraw his plea. Finding that he had not provided a "fair and just reason" for withdrawing the plea before sentencing, as required by Federal Rule of Criminal Procedure 32(e), the court denied respondent's request. The court then accepted the plea agreement, entered judgment, and sentenced respondent. The Court of Appeals reversed, holding that if a court defers acceptance of a plea or of a plea agreement, a defendant may withdraw his plea for any or no reason, until the court accepts both the plea and the agreement.Held: In the circumstances presented here, a defendant may not withdraw his plea unless he shows a "fair and just reason" under Rule 32(e). Nothing in the text of Rule 11, which sets out the prerequisites to accepting a guilty plea and plea agreement, supports the Court of Appeals' holding. That text shows that guilty pleas can be accepted while plea agreements are deferred and the acceptance of the two can be separated in time. The Court of Appeals' requirement that a district court shall not accept a guilty plea without accepting the plea agreement is absent from the list of prerequisites to accepting a plea set out in Rules l1(c) and (d). If a court decides to reject a plea agreement such as the one here, the defendant is given "the opportunity to then withdraw the plea," Rule 11(e)(4), and he does not have to comply with Rule 32(e)'s "fair and just reason" requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction, and its necessary implication is that if the court has neither rejected nor accepted the agreement, the defendant is not granted the "opportunity" to automatically withdraw his plea. The Court of Appeals' holding contradicts this implication and thus strips Rule 11(e)(4) of any meaning. It also debases the judicial proceeding at which a defendant pleads and the court accepts his plea by allowing him to withdraw his plea simply on a lark.671In addition, the holding would allow little, if any, time for the "fair and just reason" standard to apply, for a court's decision to accept a plea agreement is often made at the sentencing hearing. Respondent's arguments-that the "fair and just reason" standard was not meant to apply to guilty pleas conditioned on acceptance of the plea agreement, and that the Advisory Committee's Notes to Rule 32(b)(3) support the Court of Appeals' holding-are rejected. Pp. 673-680.92 F.3d 779, reversed.REHNQUIST, C. J., delivered the opinion for a unanimous Court.James A. Feldman argued the cause for the United States.With him on the briefs were Acting Solicitor General Dellinger, Acting Assistant Attorney General Richard, Deputy Solicitor General Dreeben, and Patty Merkamp Stemler.Jonathan D. Soglin, by appointment of the Court, 519 U. S. 1106, argued the cause and filed a brief for respondent. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced "if the defendant shows any fair and just reason." After the defendant in this case pleaded guilty, pursuant to a plea agreement, the District Court accepted his plea but deferred decision on whether to accept the plea agreement. The defendant then sought to withdraw his plea. We hold that in such circumstances a defendant may not withdraw his plea unless he shows a "fair and just reason" under Rule 32(e).A federal grand jury indicted respondent Robert Hyde on eight counts of mail fraud, wire fraud, and other fraudrelated crimes. On the morning of his trial, respondent indicated his desire to enter plea negotiations with the Government. Those negotiations produced a plea agreement* Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.672Full Text of Opinion

1990_89-1817

JUSTICE O'CONNOR delivered the opinion of the Court.In Gerstein v. Pugh, 420 U. S. 103 (1975), this Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. This case requires us to define what is "prompt" under Gerstein.IThis is a class action brought under 42 U.S.C. § 1983 challenging the manner in which the County of Riverside, California (County), provides probable cause determinations to persons arrested without a warrant. At issue is the County's policy of combining probable cause determinations with its arraignment procedures. Under County policy, which tracks closely the provisions of Cal.Penal Code Ann. § 825 (West 1985), arraignments must be conducted without unnecessary delay and, in any event, within two days of arrest. This two-day requirement excludes from computation weekends and holidays. Thus, an individual arrested without a warrant late in the week may, in some cases, be held for as long as five days before receiving a probable cause determination. Over the Thanksgiving holiday, a 7-day delay is possible.The parties dispute whether the combined probable cause/arraignment procedure is available to all warrantless arrestees. Testimony by Riverside County District Attorney Grover Trask suggests that individuals arrested without Page 500 U. S. 48 warrants for felonies do not receive a probable cause determination until the preliminary hearing, which may not occur until 10 days after arraignment. 2 App. 298-299. Before this Court, however, the County represents that its policy is to provide probable cause determinations at arraignment for all persons arrested without a warrant, regardless of the nature of the charges against them. Ibid. See also Tr. of Oral Arg. 13. We need not resolve the factual inconsistency here. For present purposes, we accept the County's representation.In August, 1987, Donald Lee McLaughlin filed a complaint in the United States District Court for the Central District of California, seeking injunctive and declaratory relief on behalf of himself and "all others similarly situated.'" The complaint alleged that McLaughlin was then currently incarcerated in the Riverside County Jail, and had not received a probable cause determination. He requested"'an order and judgment requiring that the defendants and the County of Riverside provide in-custody arrestees, arrested without warrants, prompt probable cause, bail and arraignment hearings.'"Pet. for Cert. 6. Shortly thereafter, McLaughlin moved for class certification. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because he had failed to show, as required by Los Angeles v. Lyons, 461 U. S. 95 (1983), that he would again be subject to the allegedly unconstitutional conduct -- i.e., a warrantless detention without a probable cause determination.In light of the pending motion to dismiss, the District Court continued the hearing on the motion to certify the class. Various papers were submitted; then, in July, 1988, the District Court accepted for filing a second amended complaint, which is the operative pleading here. From the record it appears that the District Court never explicitly ruled on defendants' motion to dismiss, but rather took it off the court's calendar in August, 1988. Page 500 U. S. 49The second amended complaint named three additional plaintiffs -- Johnny E. James, Diana Ray Simon, and Michael Scott Hyde -- individually and as class representatives. The amended complaint alleged that each of the named plaintiffs had been arrested without a warrant, had received neither prompt probable cause nor bail hearings, and was still in custody. 1 App. 3. In November, 1988, the District Court certified a class comprising"all present and future prisoners in the Riverside County Jail, including those pretrial detainees arrested without warrants and held in the Riverside County Jail from August 1, 1987 to the present, and all such future detainees who have been or may be denied prompt probable cause, bail or arraignment hearings."1 App. 7.In March, 1989, plaintiffs asked the District Court to issue a preliminary injunction requiring the County to provide all persons arrested without a warrant a judicial determination of probable cause within 36 hours of arrest. 1 App. 21. The District Court issued the injunction, holding that the County's existing practice violated this Court's decision in Gerstein. Without discussion, the District Court adopted a rule that the County provide probable cause determinations within 36 hours of arrest, except in exigent circumstances. The court "retained jurisdiction indefinitely" to ensure that the County established new procedures that complied with the injunction. 2 App. 333-334.The United States Court of Appeals for the Ninth Circuit consolidated this case with another challenging an identical preliminary injunction issued against the County of San Bernardino. See McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (1989).On November 8, 1989, the Court of Appeals affirmed the order granting the preliminary injunction against Riverside County. One aspect of the injunction against San Bernardino County was reversed by the Court of Appeals; that determination is not before us. Page 500 U. S. 50The Court of Appeals rejected Riverside County's Lyons-based standing argument, holding that the named plaintiffs had Article III standing to bring the class action for injunctive relief. 888 F.2d at 1277. It reasoned that, at the time plaintiffs filed their complaint, they were in custody and suffering injury as a result of the defendants' allegedly unconstitutional action. The court then proceeded to the merits and determined that the County's policy of providing probable cause determinations at arraignment within 48 hours was "not in accord with Gerstein's requirement of a determination promptly after arrest,'" because no more than 36 hours were needed "to complete the administrative steps incident to arrest." Id. at 1278.The Ninth Circuit thus joined the Fourth and Seventh Circuits in interpreting Gerstein as requiring a probable cause determination immediately following completion of the administrative procedures incident to arrest. Llaguno v. Mingey, 763 F.2d 1560, 1567-1568 (CA7 1985) (en banc); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1139-1141 (CA4 1982). By contrast, the Second Circuit understands Gerstein to "stres[s] the need for flexibility" and to permit States to combine probable cause determinations with other pretrial proceedings. Williams v. Ward, 845 F.2d 374, 386 (1988), cert. denied, 488 U. S. 1020 (1989). We granted certiorari to resolve this conflict among the Circuits as to what constitutes a "prompt" probable cause determination under Gerstein.IIAs an initial matter, the County renews its claim that plaintiffs lack standing. It explains that the main thrust of plaintiffs' suit is that they are entitled to "prompt" probable cause determinations, and insists that this is, by definition, a time-limited violation. Once sufficient time has passed, the County argues, the constitutional violation is complete, because a probable cause determination made after that point Page 500 U. S. 51 would no longer be "prompt." Thus, at least as to the named plaintiffs, there is no standing, because it is too late for them to receive a prompt hearing and, under Lyons, they cannot show that they are likely to be subjected again to the unconstitutional conduct.We reject the County's argument. At the core of the standing doctrine is the requirement that a plaintiff "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U. S. 737, 468 U. S. 751 (1984), citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 454 U. S. 472 (1982). The County does not dispute that, at the time the second amended complaint was filed, plaintiffs James, Simon, and Hyde had been arrested without warrants and were being held in custody without having received a probable cause determination, prompt or otherwise. Plaintiffs alleged in their complaint that they were suffering a direct and current injury as a result of this detention, and would continue to suffer that injury until they received the probable cause determination to which they were entitled. Plainly, plaintiffs' injury was at that moment capable of being redressed through injunctive relief. The County's argument that the constitutional violation had already been "completed" relies on a crabbed reading of the complaint. This case is easily distinguished from Lyons, in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint.It is true, of course, that the claims of the named plaintiffs have since been rendered moot; eventually, they either received probable cause determinations or were released. Our cases leave no doubt, however, that, by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. In factually similar cases, we have held that "the termination of a class representative's claim does not moot the claims of the unnamed members of the class." See, e.g., Page 500 U. S. 52 Gerstein, 420 U.S. at 420 U. S. 110-111, n. 11, citing Sosna v. Iowa, 419 U. S. 393 (1975); Schall v. Martin, 467 U. S. 253, 467 U. S. 256, n. 3 (1984). That the class was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that"[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires."United States Parole Comm'n v. Geraghty, 445 U. S. 388, 445 U. S. 399 (1980), citing Gerstein, supra, 420 U.S. at 420 U. S. 110, n. 11. In such cases, the "relation back" doctrine is properly invoked to preserve the merits of the case for judicial resolution. See Swisher v. Brady, 438 U. S. 204, 438 U. S. 213-214, n. 11 (1978); Sosna, supra, 419 U.S. at 419 U. S. 402, n. 11. Accordingly, we proceed to the merits.IIIAIn Gerstein, this Court held unconstitutional Florida procedures under which persons arrested without a warrant could remain in police custody for 30 days or more without a judicial determination of probable cause. In reaching this conclusion, we attempted to reconcile important competing interests. On the one hand, States have a strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity, even where there has been no opportunity for a prior judicial determination of probable cause. 420 U.S. at 420 U. S. 112. On the other hand, prolonged detention based on incorrect or unfounded suspicion may unjustly "imperil [a] suspect's job, interrupt his source of income, and impair his family relationships." Id. at 420 U. S. 114. We sought to balance these competing concerns by holding that States"must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest."Id. at 420 U. S. 125 (emphasis added). Page 500 U. S. 53The Court thus established a "practical compromise" between the rights of individuals and the realities of law enforcement. Id. at 420 U. S. 113. Under Gerstein, warrantless arrests are permitted, but persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause. Id. at 420 U. S. 114. Significantly, the Court stopped short of holding that jurisdictions were constitutionally compelled to provide a probable cause hearing immediately upon taking a suspect into custody and completing booking procedures. We acknowledged the burden that proliferation of pretrial proceedings places on the criminal justice system, and recognized that the interests of everyone involved, including those persons who are arrested, might be disserved by introducing further procedural complexity into an already intricate system. Id. at 420 U. S. 119-123. Accordingly, we left it to the individual States to integrate prompt probable cause determinations into their differing systems of pretrial procedures. Id. at 420 U. S. 123-124.In so doing, we gave proper deference to the demands of federalism. We recognized that "state systems of criminal procedure vary widely" in the nature and number of pretrial procedures they provide, and we noted that there is no single "preferred" approach. Id. at 420 U. S. 123. We explained further that "flexibility and experimentation by the States" with respect to integrating probable cause determinations was desirable, and that each State should settle upon an approach "to accord with [the] State's pretrial procedure viewed as a whole." Ibid. Our purpose in Gerstein was to make clear that the Fourth Amendment requires every State to provide prompt determinations of probable cause, but that the Constitution does not impose on the States a rigid procedural framework. Rather, individual States may choose to comply in different ways.Inherent in Gerstein's invitation to the States to experiment and adapt was the recognition that the Fourth Amendment does not compel an immediate determination of probable Page 500 U. S. 54 cause upon completing the administrative steps incident to arrest. Plainly, if a probable cause hearing is constitutionally compelled the moment a suspect is finished being "booked," there is no room whatsoever for "flexibility and experimentation by the States." Ibid. Incorporating probable cause determinations "into the procedure for setting bail or fixing other conditions of pretrial release" -- which Gerstein explicitly contemplated, id. at 420 U. S. 124 -- would be impossible. Waiting even a few hours so that a bail hearing or arraignment could take place at the same time as the probable cause determination would amount to a constitutional violation. Clearly, Gerstein is not that inflexible.Notwithstanding Gerstein's discussion of flexibility, the Ninth Circuit Court of Appeals held that no flexibility was permitted. It construed Gerstein as"requir[ing] a probable cause determination to be made as soon as the administrative steps incident to arrest were completed, and that such steps should require only a brief period."888 F.2d at 1278 (emphasis added) (internal quotations omitted). This same reading is advanced by the dissent. See post at 500 U. S. 59 (opinion of MARSHALL, J.); post at 500 U.S. 61-63, 500 U. S. 65 (opinion of SCALIA, J.). The foregoing discussion readily demonstrates the error of this approach. Gerstein held that probable cause determinations must be prompt -- not immediate. The Court explained that "flexibility and experimentation" were "desirab[le]"; that "[t]here is no single preferred pretrial procedure"; and that "the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole." 420 U.S. at 420 U. S. 123. The Court of Appeals and the dissent disregard these statements, relying instead on selective quotations from the Court's opinion. As we have explained, Gerstein struck a balance between competing interests; a proper understanding of the decision is possible only if one takes into account both sides of the equation.JUSTICE SCALIA claims to find support for its approach in the common law. It points to several statements from the Page 500 U. S. 55 early 1800's to the effect that an arresting officer must bring a person arrested without a warrant before a judicial officer "as soon as he reasonably can.'" Post at 500 U.S. 61 (emphasis in original). This vague admonition offers no more support for the dissent's inflexible standard than does Gerstein's statement that a hearing follow "promptly after arrest." 420 U.S. at 420 U. S. 125. As mentioned at the outset, the question before us today is what is "prompt" under Gerstein. We answer that question by recognizing that Gerstein struck a balance between competing interests.BGiven that Gerstein permits jurisdictions to incorporate probable cause determinations into other pretrial procedures, some delays are inevitable. For example, where, as in Riverside County, the probable cause determination is combined with arraignment, there will be delays caused by paperwork and logistical problems. Records will have to be reviewed, charging documents drafted, appearance of counsel arranged, and appropriate bail determined. On weekends, when the number of arrests is often higher and available resources tend to be limited, arraignments may get pushed back even further. In our view, the Fourth Amendment permits a reasonable postponement of a probable cause determination while the police cope with the everyday problems of processing suspects through an overly burdened criminal justice system.But flexibility has its limits; Gerstein is not a blank check. A State has no legitimate interest in detaining for extended periods individuals who have been arrested without probable cause. The Court recognized in Gerstein that a person arrested without a warrant is entitled to a fair and reliable determination of probable cause, and that this determination must be made promptly.Unfortunately, as lower court decisions applying Gerstein have demonstrated, it is not enough to say that probable Page 500 U. S. 56 cause determinations must be "prompt." This vague standard simply has not provided sufficient guidance. Instead, it has led to a flurry of systemic challenges to city and county practices, putting federal judges in the role of making legislative judgments and overseeing local jailhouse operations. See, e.g., McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (CA9 1989); Scott v. Gates, Civ. No. 84-8647 (CD Cal.Oct. 3, 1988); see also Bernard v. Palo Alto, 699 F.2d 1023 (CA9 1983); Sanders v. Houston, 543 F. Supp. 694 (SD Tex.1982), affirmance order, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F. Supp. 1000 (DC 1978).Our task in this case is to articulate more clearly the boundaries of what is permissible under the Fourth Amendment. Although we hesitate to announce that the Constitution compels a specific time limit, it is important to provide some degree of certainty so that States and counties may establish procedures with confidence that they fall within constitutional bounds. Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay's sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the Page 500 U. S. 57 often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that, in a particular case, it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.JUSTICE SCALIA urges that 24 hours is a more appropriate outer boundary for providing probable cause determinations. See post at 500 U. S. 68. In arguing that any delay in probable cause hearings beyond completing the administrative steps incident to arrest and arranging for a magistrate is unconstitutional, JUSTICE SCALIA, in effect, adopts the view of the Court of Appeals. Yet the dissent ignores entirely the Court of Appeals' determination of the time required to complete those procedures. That court, better situated than this one, concluded that it takes 36 hours to process arrested persons in Riverside County. 888 F.2d at 1278. In advocating a 24-hour rule, JUSTICE SCALIA would compel Riverside County -- and countless others across the Nation -- to speed up its criminal justice mechanisms substantially, presumably by allotting local tax dollars to hire additional police officers and magistrates. There may be times when the Constitution compels such direct interference with local control, but this is not one. As we have explained, Gerstein clearly contemplated a reasonable Page 500 U. S. 58 accommodation between legitimate competing concerns. We do no more than recognize that such accommodation can take place without running afoul of the Fourth Amendment.Everyone agrees that the police should make every attempt to minimize the time a presumptively innocent individual spends in jail. One way to do so is to provide a judicial determination of probable cause immediately upon completing the administrative steps incident to arrest -- i.e., as soon as the suspect has been booked, photographed, and fingerprinted. As JUSTICE SCALIA explains, several States, laudably, have adopted this approach. The Constitution does not compel so rigid a schedule, however. Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. This necessarily means that only certain proceedings are candidates for combination. Only those proceedings that arise very early in the pretrial process -- such as bail hearings and arraignments -- may be chosen. Even then, every effort must be made to expedite the combined proceedings. See 420 U.S. at 420 U. S. 124.IVFor the reasons we have articulated, we conclude that Riverside County is entitled to combine probable cause determinations with arraignments. The record indicates, however, that the County's current policy and practice do not comport fully with the principles we have outlined. The County's current policy is to offer combined proceedings within two days, exclusive of Saturdays, Sundays, or holidays. As a result, persons arrested on Thursdays may have to wait until the following Monday before they receive a probable cause determination. The delay is even longer if there is an intervening holiday. Thus, the County's regular practice exceeds the 48-hour period we deem constitutionally Page 500 U. S. 59 permissible, meaning that the County is not immune from systemic challenges, such as this class action.As to arrests that occur early in the week, the County's practice is that "arraignment[s] usually tak[e] place on the last day" possible. 1 App. 82. There may well be legitimate reasons for this practice; alternatively, this may constitute delay for delay's sake. We leave it to the Court of Appeals and the District Court, on remand, to make this determination.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 CourtCounty of Riverside v. McLaughlin, 500 U.S. 44 (1991)County of Riverside v. McLaughlinNo. 89-1817Argued Jan. 7, 1991Decided May 13, 1991500 U.S. 44SyllabusRespondent McLaughlin brought a class action seeking injunctive and declaratory relief under 42 U.S.C. § 1983, alleging that petitioner County of Riverside (County) violated the holding of Gerstein v. Pugh, 420 U. S. 103, by failing to provide "prompt" judicial determinations of probable cause to persons who, like himself, were arrested without a warrant. The County combines such determinations with arraignment procedures which, under County policy, must be conducted within two days of arrest, excluding weekends and holidays. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because the time for providing him a "prompt" probable cause determination had already passed and he had failed to show, as required by Los Angeles v. Lyons, 461 U. S. 95, that he would again be subject to the allegedly unconstitutional conduct. The District Court never explicitly ruled on the motion to dismiss, but accepted for filing a second amended complaint -- the operative pleading here -- which named respondents James, Simon, and Hyde as additional individual plaintiffs and class representatives, and alleged that each of them had been arrested without a warrant, had not received a prompt probable cause hearing, and was still in custody. The court granted class certification and subsequently issued a preliminary injunction requiring that all persons arrested by the County without a warrant be provided probable cause determinations within 36 hours of arrest, except in exigent circumstances.The Court of Appeals affirmed, rejecting the County's Lyons-based standing argument and ruling on the merits that the County's practice was not in accord with Gerstein's promptness requirement because no more than 36 hours were needed to complete the administrative steps incident to arrest.Held:1. Plaintiffs have Article III standing. At the time the second amended complaint was filed, James, Simon, and Hyde satisfied the standing doctrine's core requirement that they allege personal injury fairly traceable to the County's allegedly unlawful conduct and likely to be redressed by the requested injunction. See, e.g., Allen v. Wright, 468 U. S. 737, 468 U. S. 751. Lyons, supra, distinguished. Although the named Page 500 U. S. 45 plaintiffs' claims were subsequently rendered moot by their receipt of probable cause hearings or their release from custody, they preserved the merits of the controversy for this Court's review by obtaining class certification. See, e.g., Gerstein, 420 U.S. at 420 U. S. 110-111, n. 11. This Court is not deprived of jurisdiction by the fact that the class was not certified until after the named plaintiffs' claims became moot. Such claims are so inherently transitory, see, e.g., id. at 420 U. S. 110, n. 11, that the "relation back" doctrine is properly invoked to preserve the case's merits for judicial resolution, see, e.g., Swisher v. Brady, 438 U. S. 204, 438 U. S. 213-214, n. 11. Pp. 500 U. S. 50-52.2. The County's current policy and practice do not comport fully with Gerstein's requirement of a "prompt" probable cause determination. Pp. 500 U. S. 52-59.(a) Contrary to the Court of Appeals' construction, Gerstein implicitly recognized that the Fourth Amendment does not compel an immediate determination of probable cause upon completion of the administrative steps incident to arrest. In requiring that persons arrested without a warrant "promptly" be brought before a neutral magistrate for such a determination, 420 U.S. at 420 U. S. 114, 420 U. S. 125, Gerstein struck a balance between the rights of individuals and the realities of law enforcement. Id. at 420 U. S. 113. Gerstein makes clear that the Constitution does not impose on individual jurisdictions a rigid procedural framework for making the required determination, but allows them to choose to comply in different ways. Id. at 420 U. S. 123. In contrast, the Court of Appeals' approach permits no flexibility, and is in error. Pp. 500 U. S. 52-55.(b) In order to satisfy Gerstein's promptness requirement, a jurisdiction that chooses to combine probable cause determinations with other pretrial proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Providing a probable cause determination within that time frame will, as a general matter, immunize such a jurisdiction from systemic challenges. Although a hearing within 48 hours may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably, courts evaluating the reasonableness of a delay must allow a substantial degree of flexibility, taking into account the practical realities of pretrial procedures. Where an arrested individual does not receive a probable cause determination within 48 hours, the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, which cannot include intervening weekends or the fact that, in a particular case, it may take longer to consolidate pretrial proceedings. Pp. 500 U. S. 55-58.(c) Although the County is entitled to combine probable cause determinations with arraignments, it is not immune from systemic challenges Page 500 U. S. 46 such as this class action. Its regular practice exceeds the constitutionally permissible 48-hour period because persons arrested on Thursdays may have to wait until the following Monday before receiving a probable cause determination, and the delay is even longer if there is an intervening holiday. Moreover, the lower courts, on remand, must determine whether the County's practice as to arrests that occur early in the week -- whereby arraignments usually take place on the last day possible -- is supported by legitimate reasons or constitutes delay for delay's sake. P. 500 U. S. 58-59.888 F.2d 1276 (CA 9, 1989), vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 500 U. S. 59. SCALIA, J., filed a dissenting opinion, post, p. 500 U. S. 59 Page 500 U. S. 47

1962_414

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The petitioner brought an action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, in the Federal District Court for the Western District of Pennsylvania to recover for injuries caused by the alleged negligence of the respondent Baltimore & Ohio Railroad (B&O) and the Pittsburgh & Lake Erie Railroad (P&LE). At the close of the evidence, the District Court directed a verdict in favor of the P&LE on the ground that the evidence failed to establish that the petitioner was an employee of that company, as required by § 1 of the Act (45 U.S.C. § 51). The case against the B&O, however, was submitted to the jury, which returned a verdict of $40,000 for the petitioner. The District Court denied a Page 374 U. S. 3 motion for judgment n.o.v. and entered judgment as found by the jury. On appeal, the Third Circuit Court of Appeals, one judge dissenting, reversed, holding that the petitioner failed to establish negligence on the part of the B&O. 303 F.2d 596. A rehearing en banc was denied. We granted certiorari, 371 U.S. 908.The petitioner was employed by the B&O at its Mahoningtown station in New Castle, Pennsylvania. The railroad complex at Mahoningtown consisted of four sets of tracks, two owned and operated by the B&O and two by the P&LE. On the B& O side, the B&O maintained a station and station facilities. Although the P&LE maintained a station, it kept no employees, all necessary services for the two stations being provided by B&O employees. The B&O ticket agent issued tickets in the B&O station for the P&LE trains. The petitioner provided janitor work for both stations, and assisted the loading and unloading of mail cars for the trains of both railroads. The petitioner was paid by the B&O, and was under the sole supervision of the B&O ticket agent.On the date of the accident, October 15, 1956, the petitioner handled the mail for the P&LE train scheduled to depart Mahoningtown at 12:25 a.m. The petitioner loaded 20 to 25 bags of mail on a B&O wagon at the B&O station. He crossed the B&O and P&LE tracks to the P&LE platform and, when the P&LE train pulled up, brought the wagon alongside the mail car door. On this occasion, in spite of the efforts of the petitioner and the P&LE baggageman, one Beck, the sliding door on the P&LE car would not open more than 18 or 20 inches. According to the petitioner, Beck commented that he had reported the defective door to the P&LE, which had yet to fix it, and that they would have to get the mail on and off as best they could. The petitioner, standing on the wagon, had no difficulty throwing the smaller bags in the restricted opening. The larger ones, however, weighing Page 374 U. S. 4 from 80 to 100 pounds, required the petitioner "to twist around," and "to keep pushing and forcing them" to get them in the opening. In the process of this unusual exertion, the petitioner felt something snap in his back. He reported the injury immediately to the B&O ticket agent. Treatment of the injury eventually required the removal of a ruptured intervertebral disc and resulted in the petitioner's permanent disability. On the basis of this evidence, the jury found for the petitioner.Before considering the merits of the decision below, the petitioner raises a procedural point, claiming that he was denied a rehearing en banc in the Third Circuit Court of Appeals in violation of his rights under 28 U.S.C. § 46(c). At the time the petitioner filed his motion for rehearing en banc, there were eight active judges serving on the Third Circuit. Four judges voted to grant the rehearing, two voted to deny, and two abstained. The rehearing was denied. The petitioner claims that, to grant a rehearing en banc, the statute requires only a majority of those present. The Third Circuit requires an absolute majority of the active members of the court. Section 46(c) provides:"Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit."The Court had occasion to consider this section at length in Western Pac. R. Corp. v. Western Pac. R. Co., 345 U. S. 247. It there said:"In our view, § 46(c) is not addressed to litigants. It is addressed to the Court of Appeals. It is a grant of power. It vests in the court the power to order Page 374 U. S. 5 hearings en banc. It goes no further. It neither forbids nor requires each active member of a Court of Appeals to entertain each petition for a hearing or rehearing en banc. The court is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing."Id. at 345 U. S. 250. The Court went on to say that the rights of the litigant go no further than the right to know the administrative machinery that will be followed and the right to suggest that the en banc procedure be set in motion in his case. The practice of the Third Circuit has been fully revealed by Judge Maris in Hearing And Rehearing Cases In Banc, 14 F.R.D. 91, which was referred to with approval by this Court in United States v. American-Foreign S.S. Corp., 363 U. S. 685, 363 U. S. 688, n. 5. Although every petition for rehearing is submitted to every member of the court, a judge is not required to enter a formal vote on the petition. Such a procedure is clearly within the scope of the court's discretion as we spoke of it in Western Pacific. For this Court to hold otherwise would involve it unnecessarily in the internal administration of the Courts of Appeals.Turning to the merits, there can be no question that the petitioner is an employee of the B&O, as required by § 1 of the FELA. Although the B&O suggests that the petitioner may have been the employee of the P&LE within the meaning of the common law loaned servant doctrine, Standard Oil Co. v. Anderson, 212 U. S. 215; Linstead v. Chesapeake & Ohio R. Co., 276 U. S. 28, 276 U. S. 32-34, there is no evidence in the record to support such a conclusion. In describing the loaned servant doctrine, the Court in Anderson stated that, when the nominal employer furnishes a third party"with men to do the work and places them under his exclusive control in the performance of it, [then] those men become pro hac vice Page 374 U. S. 6 the servants of him to whom they are furnished."212 U.S. at 212 U. S. 221. The Court concluded that, under the common law loaned servant doctrine, immediate control and supervision is critical in determining for whom the servants are performing services. In the present case, the undisputed facts show that the petitioner was at all times paid by the B&O and under the sole supervision of B&O employees. [Footnote 1] The intimations of the B&O that the petitioner might have been given directions by the P&LE baggageman is, at most, an example of the minimum cooperation necessary to carry out a coordinated undertaking, and, as noted in Anderson, cannot amount to control or supervision. 212 U.S. at 212 U. S. 226. The whole tenor of the services the B&O provides for the P&LE speaks of an agreement by the B&O to manage and operate the P&LE station at Mahoningtown. On such evidence, the petitioner is clearly an employee of the B&O even under the common law loaned servant doctrine, and we therefore need not consider the extent to which that doctrine Page 374 U. S. 7 applies to cases under the FELA. See Linstead v. Chesapeake & Ohio R. Co., supra; compare Sinkler v. Missouri Pac. R. Co., 356 U. S. 326, 356 U. S. 329-330.The only remaining issue is the negligence, if any, of the respondent B&O. The trial judge instructed the jury that". . . a railroad is under a duty to exercise ordinary prudence, caution and care to inspect and to furnish its employees with cars on which they work equipped with reasonably safe doors, even though the cars are owned by another railroad. A failure of the B&O Railroad to do so is negligence, providing that the railroad can foresee that one of its employees may be injured in performing his work in connection with that car and its equipment which are not reasonably safe."No exception was taken to this charge. In his opinion denying the B&O's motion for judgment n.o.v., the trial judge relied on a series of court of appeals decisions standing for the more broad proposition that a railroad has the nondelegable duty to provide its employees with a safe place to work even when they are required to go onto the premises of a third party over which the railroad has no control. See Kooker v. Pittsburgh & Lake Erie R. Co., 258 F.2d 876; Chicago Great Western R. Co. v. Casura, 234 F.2d 441; Beattie v. Elgin, J. & E. R. Co., 217 F.2d 863. These decisions are in accord with the opinions of this Court in Bailey v. Central Vermont R. Co., 319 U. S. 350; Ellis v. Union Pac. R. Co., 329 U. S. 649; Harris v. Pennsylvania R. Co., 361 U. S. 15, reversing 168 Ohio St. 582, 156 N.E.2d 822. The present case has been argued to us on the basis of these same decisions and the "safe place to work" doctrine. The respondent admits the general statements of the doctrine in these cases. It bases its defense solely on the proposition that, because the P&LE train had just pulled into the station, the B&O Page 374 U. S. 8 did not have sufficient opportunity to obtain actual or constructive notice of the defective mail car door. The respondent relies on two lower court cases holding that, where the defect in the premises of the third party arose within minutes or hours of the accident, there was insufficient time as a matter of law for the railroad to be held to have notice. Kaminski v. Chicago River & Indiana R. Co., 200 F.2d 1; Wetherbee v. Elgin, J. & E. R. Co., 191 F.2d 302, subsequent appeal reported in 204 F.2d 755, cert. denied, 346 U.S. 867.Whatever the validity of these last two cases, they do not have relevance here. We hold that the B&O had a duty to inspect P&LE cars before permitting its employees to work with them. The standard of care applicable to the use of cars belonging to a foreign railroad was settled long before the accident in this case. In Baltimore & Potomac R. Co. v. Mackey, 157 U. S. 72, an employee of the Baltimore & Potomac was killed when a defective brake did not hold on a freight car hauled by the Baltimore & Potomac, but belonging to another railroad. Relying on the language of an earlier New York decision, Gottlieb v. New York, L.E. & W. R. Co., 100 N.Y. 462, 467, 3 N.E. 344, 345, the Court concluded that a railroad". . . is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master. . . . When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defect or refuse to take such cars -- so much at least, is due from it to its employees."157 U.S. at p. 157 U. S. 90. The Court did not have to look far for the "second reason and public policy" behind this principle. Relying on the language of the lower court, the Court said:"It would be most unreasonable and cruel to declare, that, while the faithful workman may obtain compensation Page 374 U. S. 9 from a company for defective arrangement of its own cars, he would be without redress against the same company if the damaged car that occasioned the injury happened to belong to another company."157 U.S. at p. 157 U. S. 89. This decision was reaffirmed and extended a short time later in Texas & Pac. R. Co. v. Archibald, 170 U. S. 665. In that case, the Texas & Pacific accepted a car of the Cotton Belt Railway for loading at a cottonseed oil mill on a spur off the Texas & Pacific track. In the process of switching, an employee of the Texas & Pacific was seriously injured due to a defective coupling on the foreign car. The Texas & Pacific attempted to distinguish the Baltimore & Potomac case on the ground that the duty to inspect did not apply when a railroad accepted a foreign car only for loading, rather than for hauling over its line in one of its trains. The Court dismissed the argument summarily:"The argument wants foundation in reason, and is unsupported by any authority. In reason, because, as the duty of the company to use reasonable diligence to furnish safe appliances is ever present, and applies to its entire business, it is beyond reason to attempt by a purely arbitrary distinction to take a particular part of the business of the company out of the operation of the general rule, and thereby to exempt it, as to the business so separated, from any obligation to observe reasonable precautions to furnish appliances which are in good condition."170 U.S. at p. 170 U. S. 670. [Footnote 2] Page 374 U. S. 10 See generally Annotation, 41 L.R.A. 101. The rules adopted in these two cases are unavoidably applicable to the present case. The B&O required the petitioner to work with cars belonging to the P&LE, taking no precautions whatsoever to protect him from possible defects in these cars, defects for which it would be liable should they appear in its own cars. As Texas & Pacific makes abundantly clear, there is no de minimis rule called into play on account of the brevity of the sojourn of the P&LE train in Mahoningtown station, since the length of the sojourn is irrelevant to the duty owed to the employee working with the car. Nor is it an answer to claim that the B&O lacked control or supervision over the P&LE car. Such arguments have never supported an exception to the employer's duty to provide a safe place to work, Chicago Great Western R. Co. v. Casura, supra, p. 447; Beattie v. Elgin, J. & E. R. Co., supra, p. 865; Terminal R. Ass'n of St. Louis v. Fitzjohn, 165 F.2d 473, 476-477, and have no greater relevance here with respect to the duty to provide reasonably safe cars, see Annotation, 41 L.R.A. 101. The B&O may adequately protect itself by refusing to permit its employees to service the car. Since the instructions to the jury adequately reflect the holdings in these cases, and since the B&O's failure to inspect is uncontested, the jury verdict should have been affirmed.Although recovery in this case is supported by the common law, it is also required by any reasonable construction of the Federal Employers' Liability Act itself. As we stated in Sinkler v. Missouri Pac. R. Co., 356 U.S. Page 374 U. S. 11 326, 356 U. S. 330:"it was the conception of this legislation that the railroad was a unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any other member engaged in the common endeavor."If recovery were denied in this case, the railroads, by the simple expedient of doing each other's work, could tie their employees up in legal technicalities over the proper railroad to sue for injuries, and perhaps remove from coverage of the Act a significant area of railroad activity. It would subject the employee once more to the stricter negligence standards of the common law and such debilitating doctrines as assumption of risk. Cf. Texas & Pac. R. Co. v. Archibald, 170 U. S. 665, 170 U. S. 673.In our opinion, the case was submitted to the jury under proper instructions, and there was a reasonable basis in the evidence for the verdict which the jury returned.Reversed

U.S. Supreme CourtShenker v. Baltimore & Ohio R. Co., 374 U.S. 1 (1963)Shenker v. Baltimore & Ohio Railroad Co.No. 414Argued April 17, 1963Decided June 10, 1963374 U.S. 1Syllabus1. The Federal District Court awarded petitioner a judgment for damages. The Court of Appeals for the Third Circuit reversed. Petitioner moved for a rehearing en banc under 28 U.S.C. § 46(c). There were then eight active judges on the Court of Appeals. Four voted to grant the rehearing, two voted to deny it, two abstained, and a rehearing was denied. Under the uniform practice of that Court, every petition for rehearing is submitted to every active member of the Court, a judge is not required to enter a formal vote on the petition, and a rehearing is not granted unless a majority of the active members of the Court vote for it.Held: Such a procedure is clearly within the scope of the discretion of the Court of Appeals under 28 U.S.C. § 46(c), as interpreted in Western Pac. R. Corp. v. Western Pac. R. Co., 345 U. S. 247. Pp. 374 U. S. 4-5.2. Petitioner, an employee of respondent railroad, who was paid by it and acted solely under the supervision of its employees, sued respondent under the Federal Employers' Liability Act to recover damages for injuries sustained while loading mail onto a mail car of another railroad at a station of the latter which was managed and operated solely by respondent. The injury resulted from a defective door on the mail car in a train of the other railroad which had just arrived at the station. Under instructions that it was respondent's duty to exercise ordinary care to furnish its employees with cars on which they work equipped with reasonably safe doors, even if the cars are owned by another railroad, the Page 374 U. S. 2 jury awarded damages to petitioner. The District Court denied a motion for a judgment notwithstanding the verdict and entered judgment for petitioner.Held: the case was submitted to the jury under proper instructions; there was reasonable basis in the evidence for the jury's verdict; and the judgment for petitioner should have been sustained. Pp. 374 U. S. 5-11.(a) On the evidence, petitioner was clearly an employee of respondent, even under the common law loaned servant doctrine, and it is not necessary to consider the extent to which that doctrine applies to cases under the Federal Employers' Liability Act. Pp. 374 U. S. 5-7.(b) Although the mail car with the defective door was on a train of the other railroad which had just arrived at the station, it was respondent's duty to inspect the car before permitting its employees to work with it. Pp. 374 U. S. 7-11.303 F.2d 596, reversed.

1972_71-749

MR. JUSTICE BLACKMUN delivered the opinion of the Court.The Bankruptcy Act and one of this Court's complementary Orders in Bankruptcy impose fees and make the payment of those fees a condition to a discharge in voluntary bankruptcy.Appellee Kras, an indigent petitioner in bankruptcy, challenged the fees on Fifth Amendment grounds. Upon receiving notice of the constitutional issue in the District Court, the Government moved to intervene as of right under 28 U.S.C. § 2403 and Rule 24 (a) of the Federal Rules of Civil Procedure. Leave to intervene was granted. The District Court held the fee provisions to be unconstitutional as applied to Kras. 331 F. Supp. 1207 (EDNY 1971). It reached this conclusion in the face of an earlier contrary holding by a unanimous First Circuit. In re Garland, 428 F.2d 1185 (1970), cert. denied, 402 U.S. 966 (1971). Pursuant to 28 U.S.C. § 1252, the Government appealed. We noted probable jurisdiction. 405 U.S. 915 (1972).ISection 14 (b)(2) of the Bankruptcy Act, 11 U.S.C. § 32(b)(2), provides that, upon the expiration of the time fixed by the court for filing of objections,"the court shall discharge the bankrupt if no objection has been filed and if the filing fees required to be paid by this title have been paid in full."Section 14(c), 11 U.S.C. § 32(c), similarly provides that the court"shall grant the discharge unless satisfied that the bankrupt . . . (8) has failed to pay the filing fees required to be paid by this title in full."Section 59(g), 11 U.S.C. § 95(g), relates to the dismissal of a petition in bankruptcy and states that, "in the case of a dismissal for failure to pay the costs," notice to creditors shall not be required. Three separate sections of the Page 409 U. S. 436 Act thus contemplate the imposition of fees and condition a discharge upon payment of those fees.Three charges are imposed: $37 for the referee's salary and expense fund, $10 for compensation of the trustee, [Footnote 1] and $3 for the clerk's services. §§ 40(c)(l), 48(c), and 52(a), 11 U.S.C. §§ 68(c)(1), 76(c), and 80(a). These total $50. [Footnote 2] The fees are payable upon the filing of the petition. Section 40(c)(1), however, contains a proviso that, in cases of voluntary bankruptcy, all the fees "may be paid in installments, if so authorized by General Order of the Supreme Court of the United States."The Court's General Order in Bankruptcy No. 35(4), as amended June 23, 1947, 331 U.S. 873, 876-877, 11 U.S.C.App., p. 2210, complements § 40(c)(1) and provides that, upon a proper showing by the bankrupt, the fees may be paid in installments within a six-month period, which may be extended not to exceed three months. [Footnote 3] Page 409 U. S. 437IIRobert William Kras presented his voluntary petition in bankruptcy to the United States District Court for the Eastern District of New York on May 28, 1971. The petition was accompanied by Kras' motion for leave to file and proceed in bankruptcy without payment of any of the filing fees as a condition precedent to discharge. The motion was supported by Kras' affidavit containing the following allegations that have not been controverted by the Government:1. Kras resides in a 2 1/2-room apartment with his wife, two children, ages 5 years and 8 months, his mother, and his mother's 6-year-old daughter. His younger child suffers from cystic fibrosis, and is undergoing treatment in a medical center.2. Kras has been unemployed since May, 1969, except for odd jobs producing about $300 in 1969 and a like amount in 1970. His last steady job was as an insurance agent with Metropolitan Life Insurance Company. He was discharged by Metropolitan in 1969 when premiums he had collected were stolen from his home and he was unable to make up the amount to his employer. Metropolitan's claim against him has increased to over $1,000, and is one of the debts listed in his bankruptcy petition. He has diligently sought steady employment in New York City, but, because of unfavorable references from Metropolitan, he has been unsuccessful. Mrs. Kras was employed until March, 1970, when she was Page 409 U. S. 438 forced to stop because of pregnancy. All her attention now will be devoted to caring for the younger child who is coming out of the hospital soon.3. The Kras household subsists entirely on $210 per month public assistance received for Kras' own family and $156 per month public assistance received for his mother and her daughter. These benefits are all expended for rent and day-to-day necessities. The rent is $102 per month. Kras owns no automobile and no asset that is non-exempt under the bankruptcy law. He receives no unemployment or disability benefit. His sole assets are wearing apparel and $50 worth of essential household goods that are exempt under § 6 of the Act, 11 U.S.C. § 24, and under New York Civil Practice Laws and Rules § 5205 (1963). He has a couch of negligible value in storage on which a $6 payment is due monthly.4. Because of his poverty, Kras is wholly unable to pay or promise to pay the bankruptcy fees, even in small installments. He has been unable to borrow money. The New York City Department of Social Services refuses to allot money for payment of the fees. He has no prospect of immediate employment.5. Kras seeks a discharge in bankruptcy of $6,428.69 in total indebtedness in order to relieve himself and his family of the distress of financial insolvency and creditor harassment and in order to make a new start in life. It is especially important that he obtain a discharge of his debt to Metropolitan soon,"because, until that is cleared up, Metropolitan will continue to falsely charge me with fraud and give me bad references which prevent my getting employment."The District Court's opinion contains an order, 331 F. Supp. at 1215, granting Kras' motion for leave to file his petition in bankruptcy without prepayment of fees. He was adjudged a bankrupt on September 13, Page 409 U. S. 439 1971. Later, the referee, upon consent of the parties, entered an order allowing Kras to conduct all necessary proceedings in bankruptcy up to but not including discharge. The referee stayed the discharge pending disposition of this appeal.IIIIn the District Court, Kras first presented a statutory argument -- and, alternatively, one based in common law -- that he was entitled to relief from payment of the bankruptcy charges because of the provisions of 28 U.S.C. § 1915(a). [Footnote 4] This is the in forma pauperis statute that has its origin in the Act of July 20, 1892, c. 209, 27 Stat. 252. See also 28 U.S.C. §§ 832-836 (1940 ed.).The District Court rejected the argument despite the seeming facial application of § 1915(a) to a bankruptcy proceeding as well as to any other. It reached this result by noting that § 51(2) of the Bankruptcy Act, as originally adopted in 1898, 30 Stat. 58, had provided for a waiver of fees upon the filing of an affidavit of inability to pay; that, by the passage of the Referees' Salary Bill in 1946, 60 Stat. 326, bankruptcy petitions in forma pauperis were abolished, H.R.Rep. No. 1037, 79th Cong.. 1st Sess., 6 (1945); S.Rep. No. 959, 79th Cong., 2d Sess., 7 (1946); and that the 1946 statute, being later and having a positive and specific provision for postponement of fees in cases of indigency, overrode the earlier general provisions of § 1915(a). 331 F. Supp. at 1209-1210. To the same effect are Page 409 U. S. 440 In re Garland, 428 F.2d at 1186-1187, and In re Smith, 323 F. Supp. 1082, 1084-1085 (Colo. 1971), the reasoning of which the District Court adopted. So also is In re Smith, 341 F. Supp. 1297, 1298 (ND Ill. 1972).The appellee may well have abandoned the argument on this appeal. Tr. of Oral Arg. 44-45. In any event, we agree, for the reasons stated by the District Court and by the courts in Garland and in the two Smith cases, supra, that § 1915(a) is not now available in bankruptcy. See 2 W. Collier, Bankruptcy � 51.01, pp. 1873-1874 (14th ed. 1971). Neither do we perceive any common law right to proceed without payment of fees. Congress, of course, sometime might conclude that § 1915(a) should be made applicable to bankruptcy, and legislate accordingly.The District Court went on to hold, however, 331 F. Supp. at 1210-1215, that the prescribed fees, payment of which was required as a condition precedent to discharge, served to deny Kras "his Fifth Amendment right of due process, including equal protection." Id. at 1212. It held that a discharge in bankruptcy was a "fundamental interest" that could be denied only when a "compelling government interest" was demonstrated. It noted, id. at 1213, that provision should be made by the referee for the survival, beyond bankruptcy, of the bankrupt's obligation to pay the fees. The court rested its decision primarily upon Boddie v. Connecticut, 401 U. S. 371 (1971), which came down after the First Circuit's decision in Garland, supra. A number of other district courts and bankruptcy referees have reached the same result. [Footnote 5] Page 409 U. S. 441Kras contends that his case falls squarely within Boddie. The Government, on the other hand, stresses the differences between divorce (with which Boddie was concerned) and bankruptcy, and claims that Boddie is not controlling, and that the fee requirements constitute a reasonable exercise of Congress' plenary power over bankruptcy.IVBoddie was a challenge by welfare recipients to certain Connecticut procedures, including the payment of court fees and costs, that allegedly restricted their access to the courts for divorce. The plaintiffs, simply by reason of their indigency, were unable to bring their actions. The Court reversed a district court judgment that a State could limit access to its courts by fees "which effectively bar persons on relief from commencing actions therein." 286 F. Supp. 968, 972. Mr. Justice Harlan, writing for the Court, stressed state monopolization of the means for legally dissolving marriage, and identified the would-be indigent divorce plaintiff with any other action's impoverished defendant forced into court by the institution of a lawsuit against him. He declared that "a meaningful opportunity to be heard" was firmly imbedded in our due process jurisprudence, 401 U.S. at 401 U. S. 377, and that this was to be protected against denial by laws that operate to jeopardize it for particular individuals, id. at 401 U. S. 379-380. The Court then concluded that Connecticut's refusal to admit these good-faith divorce plaintiffs to its courts equated with the denial of an opportunity to be heard and, in the absence of a sufficient Page 409 U. S. 442 countervailing justification for the State's action, a denial of due process, id. at 401 U. S. 380-381.But the Court emphasized that "we go no further than necessary to dispose of the case before us." Id. at 401 U. S. 382."We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us, this right is the exclusive precondition to the adjustment of a fundamental human relationship. The requirement that these appellants resort to the judicial process is entirely a state-created matter. Thus, we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, preempt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so."Id. at 401 U. S. 382-383.MR. JUSTICE DOUGLAS, concurring in the result, rested his conclusion on equal protection, rather than due process. "I do not see the length of the road we must follow if we accept my Brother HARLAN's invitation." Id. at 401 U. S. 383, 401 U. S. 385. MR. JUSTICE BRENNAN concurred in part, for he discerned no distinction between divorce and "any other right arising under federal or state law" and he, also, found a denial of equal protection. Id. at 401 U. S. 386, 401 U. S. 387. Mr. Justice Black dissented, id. at 401 U. S. 389, feeling that the Connecticut court costs were barred by neither the Due Process Clause nor the Equal Protection Clause of the Fourteenth Amendment.Just two months after Boddie was decided, the Court denied certiorari in Garland. 402 U.S. 966. MR. JUSTICE Page 409 U. S. 443 BRENNAN was of the opinion that certiorari should have been granted. Mr. Justice Black, in an opinion applicable to Garland and to seven other then-pending cases, 402 U.S. 954, dissented, and would have heard argument in all eight cases "or reverse them outright on the basis of the decision in Boddie." Id. at 955. For him, "the need . . . to file for a discharge in bankruptcy seem[ed] . . . more fundamental' than a person's right to seek a divorce." Id. at 958. And MR. JUSTICE DOUGLAS similarly dissented from the denial of certiorari in Garland and in four other cases because "obtaining a fresh start in life through bankruptcy proceedings . . . seemingly come[s] within the Equal Protection Clause." 402 U.S. 960, 961.Thus, although a denial of certiorari normally carries no implication or inference, Chessman v. Teets, 354 U. S. 156, 354 U. S. 164 n. 13 (1957); Brown v. Allen, 344 U. S. 443 (1953), the pointed dissents of Mr. Justice Black and MR JUSTICE DOUGLAS to the denial in Garland so soon after Boddie, and Mr. Justice Harlan's failure to join the dissenters, surely are not without some significance as to their and the Court's attitude about the application of the Boddie principle to bankruptcy fees.VWe agree with the Government that our decision in Boddie does not control the disposition of this case, and that the District Court's reliance upon Boddie is misplaced.A. Boddie was based on the notion that a State cannot deny access, simply because of one's poverty, to a "judicial proceeding [that is] the only effective means of resolving the dispute at hand." 401 U.S. at 401 U. S. 376. Throughout the opinion, there is constant and recurring reference to Connecticut's exclusive control over the establishment, enforcement, and dissolution of the marital Page 409 U. S. 444 relationship. The Court emphasized that "marriage involves interests of basic importance in our society," ibid., and spoke of "state monopolization of the means for legally dissolving this relationship," id. at 401 U. S. 374. "[R]esort to the state courts [was] the only avenue to dissolution of . . . marriages," id. at 401 U. S. 376, which was "not only the paramount dispute settlement technique, but, in fact, the only available one," id. at 401 U. S. 377. The Court acknowledged that it knew"of no instance where two consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the State's judicial machinery,"id. at 401 U. S. 376. In the light of all this, we concluded that resort to the judicial process was "no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court," and we resolved the case"in light of the principles enunciated in our due process decisions that delimit rights of defendants compelled to litigate their differences in the judicial forum,"id. at 401 U. S. 376-377.B. The appellants in Boddie, on the one hand, and Robert Kras, on the other, stand in materially different postures. The denial of access to the judicial forum in Boddie touched directly, as has been noted, on the marital relationship and on the associational interests that surround the establishment and dissolution of that relationship. On many occasions, we have recognized the fundamental importance of these interests under our Constitution. See, for example, Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535 (1942); Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Meyer v. Nebraska, 262 U. S. 390 (1923). The Boddie appellants' inability to dissolve their marriages seriously impaired their freedom to pursue other protected associational Page 409 U. S. 445 activities. Kras' alleged interest in the elimination of his debt burden, and in obtaining his desired new start in life, although important and so recognized by the enactment of the Bankruptcy Act, does not rise to the same constitutional level. See Dandridge v. Williams, 397 U. S. 471 (1970); Richardson v. Belcher, 404 U. S. 78 (1971). If Kras is not discharged in bankruptcy, his position will not be materially altered in any constitutional sense. Gaining or not gaining a discharge will effect no change with respect to basic necessities. [Footnote 6] We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.C. Nor is the Government's control over the establishment, enforcement, or dissolution of debts nearly so exclusive as Connecticut's control over the marriage relationship in Boddie. In contrast with divorce, bankruptcy is not the only method available to a debtor for the adjustment of his legal relationship with his creditors. The utter exclusiveness of court access and court remedy, as has been noted, was a potent factor in Boddie. But "[w]ithout a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts. . . ." 401 U.S. at 401 U. S. 376.However unrealistic the remedy may be in a particular situation, a debtor, in theory, and often in actuality, may adjust his debts by negotiated agreement with his creditors. At times, the happy passage of the applicable limitation period, or other acceptable creditor arrangement, will provide the answer. Government's role with respect to the private commercial relationship is qualitatively and quantitatively different from its Page 409 U. S. 446 role in the establishment, enforcement, and dissolution of marriage.Resort to the court, therefore, is not Kras' sole path to relief. Boddie's emphasis on exclusivity finds no counterpart in the bankrupt's situation. See Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 337 U. S. 547-555 (1949).D. We are also of the opinion that the filing fee requirement does not deny Kras the equal protection of the laws. Bankruptcy is hardly akin to free speech or marriage or to those other rights, so many of which are imbedded in the First Amendment, that the Court has come to regard as fundamental and that demand the lofty requirement of a compelling governmental interest before they may be significantly regulated. See Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 638 (1969). Neither does it touch upon what have been said to be the suspect criteria of race, nationality, or alienage. Graham v. Richardson, 403 U. S. 365, 403 U. S. 375 (1971). Instead, bankruptcy legislation is in the area of economics and social welfare. See Dandridge v. Williams, 397 U.S. at 397 U. S. 484-485; Richardson v. Belcher, 404 U.S. at 404 U. S. 81; Lindsey v. Normet, 405 U. S. 56, 405 U. S. 74 (1972); Jefferson v. Hackney, 406 U. S. 535, 406 U. S. 546 (1972). This being so, the applicable standard, in measuring the propriety of Congress' classification, is that of rational justification. Flemming v. Nestor, 363 U. S. 603, 363 U. S. 611-612 (1960); Dandridge v. Williams, 397 U.S. at 397 U. S. 485-486; Richardson v. Belcher, 404 U.S. at 404 U. S. 81.E. There is no constitutional right to obtain a discharge of one's debts in bankruptcy. The Constitution, Art. I, § 8, cl. 4, merely authorizes the Congress to "establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." Although the first bankruptcy law in England was enacted in 1542, 34 & 35 Hen. 8, c. 4, and a discharge provision first appeared Page 409 U. S. 447 in 1705, 4 Anne, c. 17, primarily as a reward for cooperating debtors, J. MacLachlan, Bankruptcy 20-21 (1956), voluntary bankruptcy was not known in this country at the adoption of the Constitution. Indeed, for the entire period prior to the present Act of 1898, the Nation was without a federal bankruptcy law except for three short periods aggregating about 151/ years. The first statute was the Act of April 4, 1800, c. 19, 2 Stat. 19, and it was repealed by the Act of December 19, 1803, c. 6, 2 Stat. 248. The second was the Act of August 19, 1841, c. 9, 5 Stat. 440, repealed less than two years later by the Act of March 3, 1843, c. 82, 5 Stat. 614. The third was the Act of March 2, 1867, c. 176, 14 Stat. 517; it was repealed by the Act of June 7, 1878, c. 160, 20 Stat. 99. Voluntary petitions were permitted under the 1841 and 1867 Acts. See 1 W. Collier, Bankruptcy �� 0.03-0.05, pp. 6-9 (14th ed. 1971). Professor MacLachlan has said that the development of the discharge "represents an independent . . . public policy in favor of extricating an insolvent debtor from what would otherwise be a financial impasse." J. MacLachlan, Bankruptcy 88 (footnote omitted). But this obviously is a legislatively created benefit, not a constitutional one, and, as noted, it was a benefit withheld, save for three short periods, during the first 110 years of the Nation's life. The mere fact that Congress has delegated to the District Court supervision over the proceedings by which a petition for discharge is processed does not convert a statutory benefit into a constitutional right of access to a court. Then, too, Congress might have delegated the responsibility to an administrative agency.F. The rational basis for the fee requirement is readily apparent. Congressional power over bankruptcy, of course, is plenary and exclusive. Kalb v. Feuerstein, 308 U. S. 433, 308 U. S. 438-439 (1940). By the 1946 Amendment, 60 Stat. 326, Congress, as has been noted, abolished the Page 409 U. S. 448 theretofore existing practices of the pauper petition and of compensating the referee from the fees he collected. It replaced that system with one for salaried referees and for fixed fees for every petition filed and a specified percentage of distributable assets. It sought to make the system self-sustaining and paid for by those who use it, rather than by tax revenues drawn from the public at large. H.R.Rep. No. 1037, 79th Cong., 1st Sess., 4-6 (1945); S.Rep. No. 959, 79th Cong., 2d Sess. 2, 6 (1946). [Footnote 7] The propriety of the requirement that the fees be paid ultimately has been recognized even by those district courts that have held the payment of the fee as a precondition to a discharge to be unconstitutional, for those courts would make the payments survive the bankruptcy as a continuing obligation of the bankrupt. In re Smith, 323 F. Supp. at 1093; In re Ottman, 336 F. Supp. 746, 748 (ED Wis. 1972). See O'Brien v. Trevethan, 336 F. Supp. 1029, 1034 (Conn. 1972).Further, the reasonableness of the structure Congress produced, and congressional concern for the debtor, are apparent from the provisions permitting the debtor to file his petition without payment of any fee, with consequent freedom of subsequent earnings and of after-acquired assets (with the rare exception specified in § 70(a) of the Act, 11 U.S.C. § 110(a)) from the claims of then-existing obligations. These provisions, coupled with the bankrupt's ability to obtain a stay of all debt enforcement actions pending at the filing of the petition or thereafter Page 409 U. S. 449 commenced, §§ 11(a) and 2(a)(15), 11 U.S.C. §§ 29(a) and 11(a)(15); 1A W. Collier, Bankruptcy � 11.03 (14th ed. 1972); 1 id. � 2.62[4] (14th ed. 1971), enable a bankrupt to terminate his harassment by creditors, to protect his future earnings and property, and to have his new start with a minimum of effort and financial obligation. They serve also, as an incidental effect, to promote and not to defeat the purpose of making the bankruptcy system financially self-sufficient. Cf. Lindsey v. Normet, 405 U.S. at 405 U. S. 78-79.G. If the $50 filing fees are paid in installments over six months as General Order No. 35(4) permits on a proper showing, the required average weekly payment is $1.92. If the payment period is extended for the additional three months as the Order permits, the average weekly payment is lowered to $1.28. [Footnote 8] This is a sum less than the payments Kras makes on his couch of negligible value in storage, and less than the price of a movie and little more than the cost of a pack or two of cigarettes. If, as Kras alleges in his affidavit, a discharge in bankruptcy will afford him that new start he so desires, and the Metropolitan then no longer will charge him with fraud and give him bad references, [Footnote 9] and if he really needs and desires that discharge, this much available revenue should be within his able-bodied reach when the adjudication in bankruptcy has stayed collection and has brought to a halt whatever harassment, if any, he may have sustained from creditors.VIMr. Justice Harlan, in his opinion for the Court in Boddie, meticulously pointed out, as we have noted Page 409 U. S. 450 above, that the Court went "no further than necessary to dispose of the case before us," and did"not decide that access for all individuals to the courts' is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual."401 U.S. at 401 U. S. 382-383. The Court obviously stopped short of an unlimited rule that an indigent at all times and in all cases has the right to relief without the payment of fees.We decline to extend the principle of Boddie to the no-asset bankruptcy proceeding. That relief, if it is to be forthcoming, should originate with Congress. See Shaeffer, Proceedings in Bankruptcy In Forma Pauperis, 69 Col.L.Rev. 1203 (1969).Reversed

U.S. Supreme CourtUnited States v. Kras, 409 U.S. 434 (1973)United States v. KrasNo. 71-749Argued October 18, 1972Decided January 10, 1973409 U.S. 434SyllabusAppellee, an indigent who filed a voluntary petition in bankruptcy, sought discharge without payment of the fees, aggregating no more than $50, that are a precondition to discharge in such a proceeding. The District Court, relying primarily on Boddie v. Connecticut, 401 U. S. 371 (where the Court held that a State could not consistently with due process and equal protection requirements, deny access to divorce courts to indigents unable to pay filing and other fees), held the bankruptcy fee provisions, as applied to appellee, an unconstitutional denial of Fifth Amendment rights of due process, including equal protection.Held: This case is not controlled by Boddie, supra. For here, access to courts is not the only conceivable relief available to bankrupts; the filing-fee requirement does not deny an indigent the equal protection of the laws, since there is no constitutional right to obtain a discharge of one's debts in bankruptcy; the right to a discharge in bankruptcy is not a "fundamental" right demanding a compelling governmental interest as a precondition to regulation; and there is a rational basis for the fee requirement. Pp. 409 U. S. 443-450.331 F. Supp. 1207, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 409 U. S. 450. STEWART, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined, post, p. 409 U. S. 451. DOUGLAS and BRENNAN, JJ., filed a dissenting opinion, post, p. 409 U. S. 457. MARSHALL, J., filed a dissenting opinion, post, p. 409 U. S. 458. Page 409 U. S. 435

1976_75-1181

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case concerns the validity of 45 CFR § 233.100(a)(1) (1976), [Footnote 1] a regulation promulgated by the Secretary of Page 432 U. S. 418 Health, Education, and Welfare (HEW) pursuant to a delegation of rulemaking authority in § 407(a) of the Social Security Act, 42 U.S.C. § 607(a). [Footnote 2] The issue is whether the regulation is a proper exercise of the Secretary's statutory authority.IThe statute is contained in the Social Security Act's Title IV, which has to do primarily with Aid to Families with Dependent Children (AFDC). The AFDC program was established by the Act in 1935 to provide welfare payments where children are needy because of the death, absence, or incapacity of a parent. 42 U.S.C. § 606(a). The original conception of AFDC was to allow widows and divorced mothers to care for their children at home without having to go to work, thus eliminating the practice of removing needy children in situations of that kind to institutions. See Burns v. Alcala, Page 432 U. S. 419 420 U. S. 575, 420 U. S. 581-582 (1975). AFDC was not originally designed to assist children who are needy simply because the family breadwinner is unable to find work; it was contemplated that other programs would alleviate that problem by attacking unemployment directly. See Carleson v. Remillard, 406 U. S. 598, 406 U. S. 603 (1972); King v. Smith, 392 U. S. 309, 392 U. S. 313, 392 U. S. 327-329 (1968). Other parts of the Act encouraged the establishment of state unemployment compensation programs, primarily through tax incentives, but the federal role in these programs is not so great as in AFDC. See Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471 (1977).Title IV was amended in 1961 to add § 407. Pub.L. 87-31, § 1, 75 Stat. 75. This section established an experimental program (AFDC-UF) [Footnote 3] to provide assistance in some cases where the unemployment of a parent causes dependent children to be needy. The States were given broad power to define "unemployment" for purposes of the program and to determine the relationship of this new program to existing state unemployment compensation plans. In 1968, the AFDC-UF program was made permanent, 81 Stat. 882, but the eligibility criteria were modified to withdraw some of the definitional authority delegated to the States. The statute now requires a participating State to provide assistance where a needy child"has been deprived of parental support or care by reason of the unemployment (as determined in accordance with standards prescribed by the Secretary) of his father."42 U.S.C. § 607(a). See Philbrook v. Glodgett, 421 U. S. 707, 421 U. S. 709-711 (1975). [Footnote 4] Page 432 U. S. 420Both AFDC and AFDC-UF are cooperative ventures of the Federal Government and the States. States that elect to participate in these programs administer them under federal standards and HEW supervision. Funding is provided from state and federal revenues on a matching basis. See, e.g., Shea v. Vialpando, 416 U. S. 251, 416 U. S. 253 (1974); King v. Smith, 392 U.S. at 392 U. S. 316. Although every State currently participates in AFDC, only about half the States participate in the AFDC-UF program. Dept. of HEW, Public Assistance Statistics, Oct.1976, table 5, p. 9 (1977).IIThe instant case originated in 1971 as a challenge to Rule 200.X.(A)(2) of the Maryland Department of Employment and Social Services. That Rule denies AFDC-UF benefits to families where the father is out of work for reasons that disqualify him for state unemployment insurance compensation. [Footnote 5] Page 432 U. S. 421 The original plaintiffs represented two classes of families with dependent children who were thereby ineligible for AFDC-UF benefits: one where the father had been discharged for misconduct (excessive absenteeism), and the other where the father was out of work because of a strike. The defendants were Maryland officials having responsibility for the administration of public assistance grants in the State. A three-judge United States District Court was convened to consider the claim that Rule 200.X.(A)(2) violated the Equal Protection Clause of the Fourteenth Amendment. The court sustained the constitutionality of the state regulation, but went on to hold it invalid because it was contrary to the federal regulation prescribing standards for the determination of unemployment under the AFDC-UF program. Francis v. Davidson, 340 F. Supp. 351 (Md.), summarily aff'd, 409 U.S. 904 (1972) (Francis I). Although HEW did not agree that its regulation was inconsistent with Rule 200.X.(A)(2), the Solicitor General, in his memorandum for the United States as amicus curiae, filed in Francis I at this Court's invitation, 408 U.S. 920 (1972), suggested a summary affirmance in that case in light of the then-forthcoming revision of the HEW regulation.The HEW regulation, as amended, expressly authorizes some state discretion in defining unemployment. Generally, it requires the States to consider a person to be unemployed for AFDC-UF purposes if he works less than 100 hours a month, except for intermittent employment, and"except that, at the option of the State, such definition need not include a father whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification Page 432 U. S. 422 for unemployment compensation under the State's unemployment compensation law."45 CFR §233.100(a)(1) (1976). The Secretary had stated that the purpose of this amendment was to nullify the effect of Francis I by making explicit the HEW policy of allowing the States to exclude AFDC-UF participants based on the particular reason that the father was out of work. [Footnote 6] Page 432 U. S. 423After the amended HEW regulation became effective, the defendant Maryland officials moved that the District Court dissolve its earlier injunction issued March 16, 1972, after Francis I had been decided, against enforcement of Rule 200.X.(A)(2). That court recognized that "[t]he conflict between the federal and the Maryland regulation ended after the former was amended," but nevertheless it denied the motion and continued the injunction on the ground that the amended federal regulation now was in conflict with the federal statute. Francis v. Davidson, 379 F. Supp. 78, 81 (Md.1974) (Francis II). First, with regard to the class of fathers discharged for misconduct, the District Court stated that these people are necessarily "unemployed," within the meaning of the statute, and that any contrary regulation is invalid. Second, the court recognized that it is not clear whether the statutory term "unemployed" includes persons involved in a labor dispute. The court held, however, that the HEW regulation was invalid in this regard because it delegated the question of coverage to the States without providing a uniform national standard. Id. at 81-82.After this Court dismissed a direct appeal in Francis II for want of jurisdiction, 419 U.S. 1042 (1974), appeals were taken by the state defendants and by the Chamber of Commerce of the United States, as intervenor, to the United States Court of Appeals for the Fourth Circuit. There the case was consolidated with an appeal in a similar case, Bethea v. Mason, 384 F. Supp. 1274 (Md 1974), where a single District Judge had followed Francis II in holding the same HEW regulation invalid insofar as it authorized the State to deny AFDC-UF benefits to fathers who had voluntarily quit their previous jobs.The Fourth Circuit affirmed the three appeals in an unpublished per curiam adopting the respective opinions of the two District Judges. See 529 F.2d 514 and 515 (1975). The state defendants petitioned for certiorari, contending that the Page 432 U. S. 424 current HEW regulation is authorized by the federal statute and that the injunction against the state regulation therefore should be dissolved. [Footnote 7] The Solicitor General, at the invitation of the Court, 425 U.S. 969 (1976), filed a memorandum for the United States as amicus curiae, supporting the state defendants' position. We granted certiorari. 429 U.S. 939 (1976).IIIThe ultimate question in this case is whether the statutory term "unemployment" may be interpreted to allow the State to exclude the three classes of respondents from receiving AFDC-UF benefits. There can be no doubt that 45 CFR § 233.100(a)(1) (1976) embodies that interpretation. Thus, the actual issue we must decide is not how the statutory term should be interpreted, but whether the Secretary's regulation is proper.Ordinarily, administrative interpretations of statutory terms are given important, but not controlling, significance. This was the Court's approach, for example, when it had under consideration the question whether the term "wages" in Title II of the Social Security Act included a backpay award. Social Security Board v. Nierotko, 327 U. S. 358, 327 U. S. 369 (1946). [Footnote 8] Page 432 U. S. 425Unlike the statutory term in Title II, however, Congress in § 407(a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes "unemployment" for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrust to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the Secretary adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner. American Telephone & Telegraph Co. v. United States, 299 U. S. 232, 299 U. S. 235-237 (1936). [Footnote 9] Page 432 U. S. 426The regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be set aside only if the Secretary exceeded his statutory authority or if the regulation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §§ 706(2)(A), (C). [Footnote 10]IVWe turn now to the grounds on which the District Courts and the Court of Appeals held the regulation invalid, keeping in mind the narrow scope of review that is indicated in this situation.These courts held that the Secretary exceeded his statutory authority to prescribe standards, in the first place, because he permitted the determination of eligibility to turn in part on the reason for the father's unemployment. The language of § 407(a) was thought to make the only relevant consideration that of whether, not why, the father was out of work:"'A man out of work because he was discharged for cause by his employer is unemployed. There can be no two ways about that conclusion.' . . . [N]o combination of federal and state regulations may provide that a father who is unemployed is not unemployed."Francis II, 379 F. Supp. at 81, quoting Francis I, 340 F. Supp. at 366. And in Bethea, the court by like reasoning held that a person who voluntarily quit his job is to be considered unemployed Page 432 U. S. 427 within the meaning of the statute. 384 F. Supp. at 1280-1281.We do not agree that the statutory language is so unambiguous. The term "unemployment" is often used in a specialized context where its meaning is other than simply not having a job. For example, the concept of unemployment is frequently limited to persons who have some connection with the workforce, that is, individuals who desire to work and are capable of working, and who, usually but not always, have held jobs in the past. In addition, the feature of involuntariness is often linked with unemployment. Limitations of this nature are found in the definitions used by the Depart ment of Labor in compiling unemployment statistics. [Footnote 11] State unemployment compensation programs generally confine their benefits in this manner. [Footnote 12] Indeed, the other provisions of Page 432 U. S. 428 § 407 impose similar limitations, indicating that the AFDC-UF program was not intended to provide assistance without regard to the reason a person is out of work. [Footnote 13]Thus, we conclude that the statutory term is capable of more than the tautological definition imposed by the District Judges and the Court of Appeals. Congress itself must have appreciated that the meaning of the statutory term was not self-evident, or it would not have given the Secretary the power to prescribe standards.Respondents argue, however, that Congress intended that the Secretary prescribe an "hours-worked" standard for determining unemployment but did not intend any further additions to the eligibility criteria specified in other provisions of the statute. In fact, a minimum hours-worked standard is part of the regulation at issue in this case, but there is no indication in the statutory language or legislative history that Congress intended to foreclose other factors in the determination of what constitutes unemployment for purposes of the AFDC-UF program.Of course, the Secretary's statutory authority to prescribe standards is not unlimited. He could not, for example, adopt a regulation that bears no relationship to any recognized concept of unemployment or that would defeat the purpose of the AFDC-UF program. But the regulation here at issue does not even approach these limits of the delegated authority. By allowing the States to exclude persons who would be disqualified under the State's unemployment compensation law, the Secretary has incorporated a well known and widely applied standard for "unemployment." Exclusion of individuals who are out of work as a result of their own conduct and thus disqualified from state unemployment compensation Page 432 U. S. 429 is consistent with the goal of AFDC-UF, namely, to aid the families of the involuntarily unemployed. [Footnote 14] On the other hand, state unemployment benefits are ordinarily available only after a waiting period and only for a limited number of weeks or months. By providing benefits during the periods before and after state unemployment compensation is available, AFDC-UF fills a significant gap in social insurance coverage. [Footnote 15] Thus, we cannot say that the Secretary's regulation defeats the purpose of the AFDC-UF program.We therefore hold that the HEW regulation, to the extent it allows the States to determine that persons disqualified under unemployment compensation laws are not "unemployed" under § 407(a), is within the statutory authority delegated to the Secretary, and is reasonable.VThe second stated reason for the District Judges' and Court of Appeals' holding that the Secretary's regulation was invalid was that it permitted the States the option of denying unemployment compensation benefits to participants in a labor dispute. [Footnote 16] Although the holding is not entirely clear to us, it Page 432 U. S. 430 appears that what was regarded as fatal was the Secretary's failure to impose sufficient standards to control the States' decisions under this optional feature. [Footnote 17] Presumably, the same rationale would provide an alternative basis for holding the regulation invalid to the extent it allows States the uncontrolled option of denying benefits to persons who were discharged for cause or had voluntarily quit their jobs.It is clear that a major purpose of the 1968 amendment was to retract some of the authority previously delegated to the States under § 407(a). Philbrook v. Glodgett, 421 U.S. at 421 U. S. 710. We, however, do not think this shift of authority from the States to the Secretary required the Secretary to adopt a regulation that precludes any recognition of local policies. If Congress had intended such a result, it might have changed the statutory language from "unemployment (as defined by the State)" to "unemployment (as defined by the Secretary)." Instead, § 407(a) now reads "unemployment (as determined in accordance with standards prescribed by the Secretary)." The power to "determine" unemployment remains with the States, and we conclude that the power to prescribe "standards" gives the Secretary sufficient flexibility to recognize some local options in determining AFDC-UF eligibility.The legislative history, we acknowledge, is at some variance with the statutory language. The effect of the 1968 amendment Page 432 U. S. 431 is described as to "provide for a uniform definition of unemployment throughout the United States," and as to "authorize a Federal definition of unemployment by the Secretary." S.Rep. No. 744, 90th Cong., 1st Sess., 3-4, 160 (1967). See H.R.Rep. No. 544, 90th Cong., 1st Sess., 3, 17, 108 (1967); 113 Cong.Rec. 32592 (1967) (remarks of Sen. Long). We do not understand these comments to mean, however, that the Secretary is prohibited from allowing the States any options in determining whether or not a person is "unemployed" for purposes of the AFDC-UF program. First, the legislative history cannot be read literally in its claim that the amended statute itself provides a federal definition of unemployment; at best, the statute delegates to the Secretary the power to prescribe such a definition. Second, we have no quarrel with the statements in the legislative history that the Secretary is authorized to adopt such a uniform definition; we simply hold that he is not required to do so.Certainly, the congressional purpose was to promote greater uniformity in the applicability of the AFDC-UF program. But the goal of greater uniformity can be met without imposing identical standards on each State. In one case, for example, a State was permitted to adopt a somewhat more liberal hours-worked test than the minimum required by the Secretary. Macias v. Finch, 324 F. Supp. 1252 (ND Cal.), summarily aff'd, 400 U.S. 913 (1970). We conclude, therefore, that the Secretary's approach in the present case is not contrary to the purpose of the statute.Our conclusion is reinforced by our understanding of the AFDC-UF program as involving the concept of cooperative federalism. The States are free not to participate in the program, and, as we have noted, only about half of them in fact do so. The congressional purpose is not served at all in those States where AFDC-UF is totally unavailable. Accordingly, we should not lightly infer a congressional intention to preclude the Secretary from recognizing legitimate local Page 432 U. S. 432 policies in determining eligibility. See New York Dept. of Soc. Services v. Dublino, 413 U. S. 405, 413 U. S. 413-414, 413 U. S. 421-422 (1973).We therefore hold that 45 CFR § 233.100(a)(1) (1976) adequately promotes the statutory goal of reducing interstate variations in the AFDC-UF program. In this respect, the regulation is both reasonable and within the authority delegated to the Secretary.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtBatterton v. Francis, 432 U.S. 416 (1977)Batterton v. FrancisNo. 76-1181Argued April 19, 1977Decided June 20, 1977432 U.S. 416SyllabusSection 407(a) of the Social Security Act delegates to the Secretary of Health, Education, and Welfare the power to prescribe "standards" for determining what constitutes "unemployment" for purposes of eligibility for benefits under the Aid to Families with Dependent Children-Unemployed Fathers (AFDC-UF) program. Pursuant to § 407(a), the Secretary promulgated a regulation authorizing participating States, within their discretion, to exclude from the definition of an unemployed father one"whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State's unemployment compensation law."In class actions on behalf of families who were denied AFDC-UF benefits under a state rule because the fathers' unemployment resulted from discharges for misconduct, involvement in a strike, or voluntarily quitting their jobs, the courts below held the federal regulation invalid as exceeding the Secretary's statutory authority.Held: The regulation is a proper exercise of the Secretary's statutory authority, and is reasonable. Pp. 432 U. S. 424-432.(a) Since the statute expressly delegated to the Secretary the power to prescribe standards for determining what constitutes "unemployment" for purposes of AFDC-UF eligibility, a reviewing court is not free to set aside the regulation simply because it would have interpreted the statute in a different manner from the Secretary, but only if the Secretary exceeded his statutory authority or the regulation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Pp. 432 U. S. 424-426.(b) By allowing the States to exclude persons who would be disqualified under the State's unemployment compensation law, the Secretary has incorporated a well known and widely applied standard for "unemployment," and exclusion of individuals who are out of work as a result of their own conduct, and thus disqualified from state unemployment compensation is consistent with the goal of Page 432 U. S. 417 AFDC-UF, namely, to aid the families of the involuntarily unemployed. Pp. 432 U. S. 426-429.(c) The power to prescribe "standards" for determining what constitutes "unemployment" gives the Secretary sufficient flexibility to recognize local options in determining AFDC-UF eligibility, including the option of denying unemployment compensation benefits to participants in a labor dispute. While the congressional purpose was to promote greater uniformity in the application of the AFDC-UF program, such goal can be met without imposing identical standards on each State, and hence the Secretary's approach does not defeat the statute's purpose. Pp. 432 U. S. 429-432.529 F.2d 514 and 515, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 432 U. S. 432.

1961_190

MR. JUSTICE CLARK delivered the opinion of the Court.These cases involve the tax consequences of a transfer of appreciated property by Thomas Crawley Davis [Footnote 1] to his former wife pursuant to a property settlement agreement executed prior to divorce, as well as the deductibility of his payment of her legal expenses in connection therewith. The Court of Claims upset the Commissioner's determination that there was taxable gain on the transfer but upheld his ruling that the fees paid the wife's attorney were not deductible. 152 Ct.Cl. 805, 287 F.2d 168. We granted certiorari on a conflict in the Courts of Appeals and the Court of Claims on the taxability of such transfers. [Footnote 2] 368 U. S. 813. We have decided that the taxpayer did have a taxable gain on the transfer, and that the wife's attorney's fees were not deductible.In 1954, the taxpayer and his then wife made a voluntary property settlement and separation agreement calling for support payments to the wife and minor child in addition to the transfer of certain personal property to the wife. Under Delaware law, all the property transferred was that of the taxpayer, subject to certain statutory marital rights of the wife including a right of intestate succession and a right upon divorce to a share of the husband's property. [Footnote 3] Specifically, as a "division in settlement of their property," the taxpayer agreed to transfer to his wife, inter alia, 1,000 shares of stock in the E. I. du Pont de Nemours & Co. The then Mrs. Davis agreed to Page 370 U. S. 67 accept this division"in full settlement and satisfaction of any and all claims and rights against the husband whatsoever (including but not by way of limitation, dower and all rights under the laws of testacy and intestacy). . . ."Pursuant to the above agreement, which had been incorporated into the divorce decree, one-half of this stock was delivered in the tax year involved, 1955, and the balance thereafter. Davis' cost basis for the 1955 transfer was $74,775.37, and the fair market value of the 500 shares there transferred was $82,250. The taxpayer also agreed orally to pay the wife's legal expenses, and, in 1955, he made payments to the wife's attorney, including $2,500 for services concerning tax matters relative to the property settlement.IThe determination of the income tax consequences of the stock transfer described above is basically a two-step analysis: (1) was the transaction a taxable event? (2) if so, how much taxable gain resulted therefrom? Originally, the Tax Court (at that time, the Board of Tax Appeals) held that the accretion to property transferred pursuant to a divorce settlement could not be taxed as capital gain to the transferor, because the amount realized by the satisfaction of the husband's marital obligations was indeterminable and because, even if such benefit were ascertainable, the transaction was a nontaxable division of property. Mesta v. Commissioner, 42 B.T.A. 933 (1940); Halliwell v. Commissioner, 44 B.T.A. 740 (1941). However, upon being reversed in quick succession by the Courts of Appeals of the Third and Second Circuits, Commissioner v. Mesta, 123 F.2d 986 (C.A.3d Cir. 1941); Commissioner v. Halliwell, 131 F.2d 642 (C.A.2d Cir. 1942), the Tax Court accepted the position of these courts and has continued to apply these views in appropriate cases since that time, Hall v. Commissioner, Page 370 U. S. 68 9 T.C. 53 (1947); Patino v. Commissioner, 13 T.C. 816 (1949); Estate of Stouffer v. Commissioner, 30 T.C. 1244 (1958); King v. Commissioner, 31 T.C. 108 (1958); Marshman v. Commissioner, 31 T.C. 269 (1958). In Mesta and Halliwell, the Courts of Appeals reasoned that the accretion to the property was "realized" by the transfer, and that this gain could be measured on the assumption that the relinquished marital rights were equal in value to the property transferred. The matter was considered settled until the Court of Appeals for the Sixth Circuit, in reversing the Tax Court, ruled that, although such a transfer might be a taxable event, the gain realized thereby could not be determined because of the impossibility of evaluating the fair market value of the wife's marital rights. Commissioner v. Marshman, 279 F.2d 27 (1960). In so holding, that court specifically rejected the argument that these rights could be presumed to be equal in value to the property transferred for their release. This is essentially the position taken by the Court of Claims in the instant case.IIWe now turn to the threshold question of whether the transfer in issue was an appropriate occasion for taxing the accretion to the stock. There can be no doubt that Congress, as evidenced by its inclusive definition of income subject to taxation, i.e., "all income from whatever source derived, including . . . [g]ains derived from dealings in property," [Footnote 4] intended that the economic growth of this stock be taxed. The problem confronting us is simply when is such accretion to be taxed. Should the economic gain be presently assessed against taxpayer, or should this assessment await a subsequent transfer of the property by the wife? The controlling Page 370 U. S. 69 statutory language, which provides that gains from dealings in property are to be taxed upon "sale or other disposition," [Footnote 5] is too general to include or exclude conclusively the transaction presently in issue. Recognizing this, the Government and the taxpayer argue by analogy with transactions more easily classified as within or without the ambient of taxable events. The taxpayer asserts that the present disposition is comparable to a nontaxable division of property between two co-owners, [Footnote 6] while the Government contends it more resembles a taxable transfer of property in exchange for the release of an independent legal obligation. Neither disputes the validity of the other's starting point.In support of his analogy, the taxpayer argues that to draw a distinction between a wife's interest in the property of her husband in a common law jurisdiction such as Delaware and the property interest of a wife in a typical community property jurisdiction would commit a double sin; for such differentiation would depend upon "elusive Page 370 U. S. 70 and subtle casuistries which . . . possess no relevance for tax purposes," Helvering v. Hallock, 309 U. S. 106, 309 U. S. 118 (1940), and would create disparities between common law and community property jurisdictions in contradiction to Congress' general policy of equality between the two. The taxpayer's analogy, however, stumbles on its own premise, for the inchoate rights granted a wife in her husband's property by the Delaware law do not even remotely reach the dignity of co-ownership. The wife has no interest -- passive or active -- over the management or disposition of her husband's personal property. Her rights are not descendable, and she must survive him to share in his intestate estate. Upon dissolution of the marriage, she shares in the property only to such extent as the court deems "reasonable." 13 Del.Code Ann. § 1531(a). What is "reasonable" might be ascertained independently of the extent of the husband's property by such criteria as the wife's financial condition, her needs in relation to her accustomed station in life, her age and health, the number of children and their ages, and the earning capacity of the husband. See, e.g., Beres v. Beres, 2 Storey 133, 52 Del. 133, 154 A.2d 384 (1959).This is not to say it would be completely illogical to consider the shearing off of the wife's rights in her husband's property as a division of that property, but we believe the contrary to be the more reasonable construction. Regardless of the tags, Delaware seems only to place a burden on the husband's property, rather than to make the wife a part owner thereof. In the present context, the rights of succession and reasonable share do not differ significantly from the husband's obligations of support and alimony. They all partake more of a personal liability of the husband than a property interest of the wife. The effectuation of these marital rights may ultimately result in the ownership of some of the husband's Page 370 U. S. 71 property as it did here, but certainly this happenstance does not equate the transaction with a division of property by co-owners. Although admittedly such a view may permit different tax treatment among the several States, this Court in the past has not ignored the differing effects on the federal taxing scheme of substantive differences between community property and common law systems. E.g., Poe v. Seaborn, 282 U. S. 101 (1930). To be sure, Congress has seen fit to alleviate this disparity in many areas, e.g., Revenue Act of 1948, 62 Stat. 110, but in other areas the facts of life are still with us.Our interpretation of the general statutory language is fortified by the longstanding administrative practice as sounded and formalized by the settled state of law in the lower courts. The Commissioner's position was adopted in the early 40's by the Second and Third Circuits, and, by 1947, the Tax Court had acquiesced in this view. This settled rule was not disturbed by the Court of Appeals for the Sixth Circuit in 1960 or the Court of Claims in the instant case, for these latter courts, in holding the gain indeterminable, assumed that the transaction was otherwise a taxable event. Such unanimity of views in support of a position representing a reasonable construction of an ambiguous statute will not lightly be put aside. It is quite possible that this notorious construction was relied upon by numerous taxpayers, as well as the Congress itself, which not only refrained from making any changes in the statutory language during more than a score of years, but reenacted this same language in 1954.IIIHaving determined that the transaction was a taxable event, we now turn to the point on which the Court of Claims balked, viz., the measurement of the taxable gain realized by the taxpayer. The Code defines the taxable Page 370 U. S. 72 gain from the sale or disposition of property as being the "excess of the amount realized therefrom over the adjusted basis. . . ." I.R.C. (1954) § 1001(a). The "amount realized" is further defined as "the sum of any money received plus the fair market value of the property (other than money) received." I.R.C. (1954) § 1001(b). In the instant case, the "property received" was the release of the wife's inchoate marital rights. The Court of Claims, following the Court of Appeals for the Sixth Circuit, found that there was no way to compute the fair market value of these marital rights, and that it was thus impossible to determine the taxable gain realized by the taxpayer. We believe this conclusion was erroneous.It must be assumed, we think, that the parties acted at arm's length, and that they judged the marital rights to be equal in value to the property for which they were exchanged. There was no evidence to the contrary here. Absent a readily ascertainable value, it is accepted practice where property is exchanged to hold, as did the Court of Claims in Philadelphia Park Amusement Co. v. United States, 126 F. Supp. 184, 189, 130 Ct.Cl. 166, 172 (1954), that the values "of the two properties exchanged in an arms-length transaction are either equal in fact or are presumed to be equal." Accord, United States v. General Shoe Corp., 282 F.2d 9 (C.A.6th Cir. 1960); International Freighting Corp. v. Commissioner, 135 F.2d 310 (C.A.2d Cir. 1943). To be sure, there is much to be said of the argument that such an assumption is weakened by the emotion, tension, and practical necessities involved in divorce negotiations and the property settlements arising therefrom. However, once it is recognized that the transfer was a taxable event, it is more consistent with the general purpose and scheme of the taxing statutes to make a rough approximation of the gain realized thereby than to ignore altogether its tax Page 370 U. S. 73 consequences. Cf. Helvering v. Safe Deposit & Trust Co., 316 U. S. 56, 316 U. S. 67 (1942).Moreover, if the transaction is to be considered a taxable event as to the husband, the Court of Claims' position leaves up in the air the wife's basis for the property received. In the context of a taxable transfer by the husband, [Footnote 7] all indicia point to a "cost" basis for this property in the hands of the wife. [Footnote 8] Yet, under the Court of Claims' position, her cost for this property, i.e., the value of the marital rights relinquished therefor, would be indeterminable, and, on subsequent disposition of the property, she might suffer inordinately over the Commissioner's assessment which she would have the burden of proving erroneous, Commissioner v. Hansen, 360 U. S. 446, 360 U. S. 468 (1959). Our present holding that the value of these rights is ascertainable eliminates this problem; for the same calculation that determines the amount received by the husband fixes the amount given up by the wife, and this figure, i.e., the market value of the property transferred by the husband, will be taken by her as her tax basis for the property received.Finally, it must be noted that here, as well as in relation to the question of whether the event is taxable, we Page 370 U. S. 74 draw support from the prior administrative practice and judicial approval of that practice. See p. 370 U. S. 71, supra. We therefore conclude that the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown erroneous. [Footnote 9]IVThe attorney fee question is much simpler. It is the customary practice in Delaware for the husband to pay both his own and his wife's legal expenses incurred in the divorce and the property settlement. Here, petitioner paid $5,000 of such fees in the taxable year 1955 earmarked for tax advice in relation to the property settlement. One-half of this sum went to the wife's attorney. The taxpayer claimed that, under § 212(3) of the 1954 Code, which allows a deduction for the "ordinary and necessary expenses paid . . . in connection with the determination, collection, or refund of any tax," he was entitled to deduct the entire $5,000. The Court of Claims allowed the $2,500 paid taxpayer's own attorney, but denied the like amount paid the wife's attorney. The sole question here is the deductibility of the latter fee; the Government did not seek review of the amount taxpayer paid his own attorney, and we intimate no decision on that point. As to the deduction of the wife's fees, we read the statute, if applicable to this type of tax expense, to include only the expenses of the taxpayer himself and not those of his wife. Here, the fees paid her attorney do not appear to be "in connection with the determination, collection, or refund" of any tax of the taxpayer. As the Court of Claims found, the wife's attorney "considered the problems from the standpoint of his client alone. Certainly, Page 370 U. S. 75 then, it cannot be said that . . . [his] advice was directed to plaintiff's tax problems. . . ." 152 Ct.Cl 805, 287 F.2d at 171. We therefore conclude, as did the Court of Claims, that those fees were not a deductible item to the taxpayer.Reversed

U.S. Supreme CourtUnited States v. Davis, 370 U.S. 65 (1962)United States v. DavisNo. 190Argued March 28, 1962Decided June 4, 1962*370 U.S. 65SyllabusPursuant to a property settlement agreement later incorporated in a divorce decree, a taxpayer in Delaware transferred to his former wife, in return for the release of her marital claims, certain shares of stock which had appreciated in market value and which were solely his property subject to certain inchoate marital rights of the wife, including a right of intestate succession and a right upon divorce to a "reasonable" share of the husband's property. He also paid the fees of her attorney for advice given to her about the tax consequences of the property settlement.Held:1. In these circumstances and in view of pertinent provisions of Delaware law, this transfer of stock is to be considered under the Internal Revenue Code of 1954 not a nontaxable division of property between co-owners, but a taxable transfer of property in satisfaction of a legal obligation. Pp. 370 U. S. 68-71.2. On the record in this case, the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown to be erroneous. Pp. 370 U. S. 71-74.3. The amount paid by the husband to his former wife's attorney as a fee for advice given to her about the tax consequences of the property settlement was not deductible by the husband under § 212(3) of the Internal Revenue Code of 1954. Pp. 370 U. S. 74-75.152 Ct.Cl. 805, 287 F.2d 168, affirmed in part and reversed in part. Page 370 U. S. 66

1973_72-1660

MR. JUSTICE STEWART delivered the opinion of the Court.While serving a term of imprisonment in a North Carolina penitentiary, the respondent Perry became involved in an altercation with another inmate. A warrant issued, charging Perry with the misdemeanor of assault with a deadly weapon, N.C.Gen.Stat. 14-33(b)(1) (1969). Under North Carolina law, the District Court Division of the General Court of Justice has exclusive jurisdiction for the trial of misdemeanors. N.C.Gen.Stat. § 7A-272. Following a trial without a jury in the District Court of Northampton County, Perry was convicted of this misdemeanor and given a six-month sentence, to be served after completion of the prison term he was then serving.Perry then filed a notice of appeal to the Northampton County Superior Court. Under North Carolina law, a person convicted in the District Court has a right to a trial de novo in the Superior Court. N.C.Gen. Stat §§ 7A-290, 1177.1. The right to trial de novo is absolute, there being no need for the appellant to allege error in the original proceeding. When an appeal is taken, the statutory scheme provides that the slate is wiped clean; the prior conviction is annulled, and the prosecution and the defense begin anew in the Superior Court. [Footnote 1] Page 417 U. S. 23After the filing of the notice of appeal, but prior to the respondent's appearance for trial de novo in the Superior Court, the prosecutor obtained an indictment from a grand jury, charging Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury, N.C.Gen.Stat. § 132(a) (1969). The indictment covered the same conduct for which Perry had been tried and convicted in the District Court. Perry entered a plea of guilty to the indictment in the Superior Court, and was sentenced to a term of five to seven years in the penitentiary, to be served concurrently with the identical prison sentence he was then serving. [Footnote 2]A number of months later, the respondent filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. He claimed that the indictment on the felony charge in the Superior Court constituted double jeopardy and also deprived him of due process of law. In an unreported opinion, the District Court dismissed the petition for failure to exhaust available state remedies. The United States Court of Appeals for the Fourth Circuit Page 417 U. S. 24 reversed, holding that resort to the state courts would be futile, because the Supreme Court of North Carolina had consistently rejected the constitutional claims presented by Perry in his petition. 453 F.2d 856. [Footnote 3] The case was remanded to the District Court for further proceedings.On remand, the District Court granted the writ. It held that the bringing of the felony charge after the filing of the appeal violated Perry's rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784. The District Court further held that the respondent had not, by his guilty plea in the Superior Court, waived his right to raise his constitutional claims in the federal habeas corpus proceeding. The Court of Appeals affirmed the judgment in a brief per curiam opinion. We granted certiorari, 414 U.S. 908, to consider the seemingly important issues presented by this case.IAs in the District Court, Perry directs two independent constitutional attacks upon the conduct of the Page 417 U. S. 25 State in haling him into court on the felony charge after he took an appeal from the misdemeanor conviction. First, he contends that the felony indictment in the Superior Court placed him in double jeopardy, since he had already been convicted on the lesser included misdemeanor charge in the District Court. Second, he urges that the indictment on the felony charge constituted a penalty for his exercising his statutory right to appeal, and thus contravened the Due Process Clause of the Fourteenth Amendment. [Footnote 4] We find it necessary to reach only the latter claim.Perry's due process arguments are derived substantially from North Carolina v. Pearce, 395 U. S. 711, and its progeny. In Pearce, the Court considered the constitutional problems presented when, following a successful appeal and reconviction, a criminal defendant was subjected to a greater punishment than that imposed at the first trial. While we concluded that such a harsher sentence was not absolutely precluded by either the Double Jeopardy or Due Process Clause, we emphasized that"imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be . . . a violation of due process of law."Id. at 395 U. S. 724. Because"vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives Page 417 U. S. 26 after a new trial,"id. at 395 U. S. 725, we held that an increased sentence could not be imposed upon retrial unless the sentencing judge placed certain specified findings on the record.In Colten v. Kentucky, 407 U. S. 104, the Court was called upon to decide the applicability of the Pearce holding to Kentucky's two-tiered system of criminal adjudication. Kentucky, like North Carolina, allows a misdemeanor defendant convicted in an inferior trial court to seek a trial de novo in a court of general jurisdiction. [Footnote 5] The appellant in Colten claimed that the Constitution prevented the court of general jurisdiction, after trial de novo, from imposing a sentence in excess of that imposed in the court of original trial. This Court rejected the Pearce analogy. Emphasizing that Pearce was directed at insuring the absence of "vindictiveness" against a criminal defendant who attacked his initial conviction on appeal, the Court found such dangers greatly minimized on the facts presented in Colten. In contrast to Pearce, the court that imposed the increased sentence after retrial in Colten was not the one whose original judgment had prompted an appellate reversal; thus, there was little possibility that an increased sentence on trial de novo could have been motivated by personal vindictiveness on the part of the sentencing judge. Hence, the Court thought the prophylactic rule of Pearce unnecessary in the de novo trial and sentencing context of Colten.The Pearce decision was again interpreted by this Court last Term in Chaffin v. Stynchcombe, 412 U. S. 17, in the setting of Georgia's system under which sentencing responsibility is entrusted to the jury. Upon retrial following the reversal of his original conviction, the Page 417 U. S. 27 defendant in Chaffin was reconvicted and sentenced to a greater term than had been imposed by the initial jury. Concentrating again on the issue of vindictiveness, the Court found no violation of the Pearce rule. It was noted that the second jury was completely unaware of the original sentence, and thus could hardly have sought to "punish" Chaffin for his successful appeal. Moreover, the jury, unlike a judge who had been reversed on appeal, could hardly have a stake in the prior conviction or any motivation to discourage criminal defendants from seeking appellate review. Hence, it was concluded that the danger of vindictiveness under the circumstances of the case was "de minimis," id. at 412 U. S. 26, and did not require adoption of the constitutional rule set out in Pearce.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." Unlike the circumstances presented by those cases, however, in the situation here, the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative.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 Page 417 U. S. 28 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.There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that,"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 motivation on the part of the sentencing judge."395 U.S. at 395 U. S. 725. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. [Footnote 6] Cf. United States v. Jackson, 390 U. S. 570.Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond Page 417 U. S. 29 to Perry's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo. [Footnote 7]IIThe remaining question is whether, because of his guilty plea to the felony charge in the Superior Court, Perry is precluded from raising his constitutional claims in this federal habeas corpus proceeding. In contending that such is the case, petitioners rely chiefly on this Court's decision last Term in Tollett v. Henderson, 411 U. S. 258.The precise issue presented in Tollett was"whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habeas corpus by proving only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury."Id. at 411 U. S. 260. The Court answered that question in the negative. Relying primarily on the guilty plea trilogy of Brady v. United States, 397 U. S. 742, McMann v. Richardson, 397 U. S. 759, and Parker v. North Carolina, 397 U. S. 790, the Court characterized the guilty plea as "a break in the chain of events which has preceded it in the criminal process." 411 U.S. at 411 U. S. 267. Accordingly, the Court held that, when a criminal defendant enters a guilty plea,"he may not thereafter raise independent claims relating to the deprivation of constitutional Page 417 U. S. 30 rights that occurred prior to the entry of the guilty plea."Ibid. Rather, a person complaining of such "antecedent constitutional violations," id. at 411 U. S. 266, is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not "within the range of competence demanded of attorneys in criminal cases." See McMann, supra, at 397 U. S. 771.While petitioners' reliance upon the Tollett opinion is understandable, there is a fundamental distinction between this case and that one. Although the underlying claims presented in Tollett and the Brady trilogy were of constitutional dimensions, none went to the very power of the State to bring the defendant into court to answer the charge brought against him. The defendants in McMann v. Richardson, for example, could surely have been brought to trial without the use of the allegedly coerced confessions, and even a tainted indictment of the sort alleged in Tollett could have been "cured" through a new indictment by a properly selected grand jury. In the case at hand, by contrast, the nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge in the District Court; the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of "antecedent constitutional violations" or of a "deprivation of constitutional rights that occurred prior to the entry of the guilty plea." 411 U.S. at 411 U. S. 266, 411 U. S. 267. Rather, the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge. The very initiation of the proceedings against Page 417 U. S. 31 him in the Superior Court thus operated to deny him due process of law.Last Term, in Robinson v. Neil, 409 U. S. 505, in explaining why the Double Jeopardy Clause is distinctive, the Court noted that"its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial."Id. at 409 U. S. 509. While our judgment today is not based upon the Double Jeopardy Clause, we think that the quoted language aptly describes the due process right upon which our judgment s based. The "practical result" dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge. That being so, it follows that his guilty plea did not foreclose him from attacking his conviction in the Superior Court proceedings through a federal writ of habeas corpus. [Footnote 8] Page 417 U. S. 32Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is affirmed.It is so ordered

U.S. Supreme CourtBlackledge v. Perry, 417 U.S. 21 (1974)Blackledge v. PerryNo. 72-1660Argued February 19, 1974Decided May 20, 1974417 U.S. 21SyllabusRespondent, a North Carolina prison inmate, had an altercation with another prisoner, and was charged with the misdemeanor of assault with a deadly weapon, of which he was convicted in the State District Court. While respondent's subsequent appeal was pending in the Superior Court, where he had the right to a trial de novo, the prosecutor obtained an indictment covering the same conduct for the felony offense of assault with a deadly weapon with intent to kill and inflict serious bodily injury, to which respondent pleaded guilty. Thereafter, respondent applied for a writ of habeas corpus in Federal District Court, claiming, inter alia, that the felony indictment deprived him of due process. The District Court granted the writ, and the Court of Appeals affirmed.Held:1. The indictment on the felony charge contravened the Due Process Clause of the Fourteenth Amendment, since a person convicted of a misdemeanor in North Carolina is entitled to pursue his right under state law to a trial de novo without apprehension that the State will retaliate by substituting a more serious charge for the original one and thus subject him to a significantly increased potential period of incarceration. Cf. North Carolina v. Pearce, 395 U. S. 711. Pp. 417 U. S. 24-29.2. Since North Carolina, having chosen originally to proceed against respondent on the misdemeanor charge in the State District Court, was precluded by the Due Process Clause from even prosecuting respondent for the more serious charge in the Superior Court, respondent's guilty plea to the felony charge did not bar him from raising his constitutional claim in the federal habeas corpus proceeding. Tollett v. Henderson, 411 U. S. 258, distinguished. Pp. 417 U. S. 29-31.Affirmed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in Part II of which POWELL, J., joined, post, p. 417 U. S. 32. Page 417 U. S. 22

1960_14

MR. JUSTICE STEWART delivered the opinion of the Court.An Arkansas statute compels every teacher, as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularly contributed within the preceding five years. At issue in these two cases is the validity of that statute under the Fourteenth Amendment to the Constitution. No. 14 is an appeal from the judgment of a three-judge Federal District Court upholding the statute's validity, 174 F. Supp. 351. No. 83 is here on writ of certiorari to the Supreme Court of Arkansas, which also held the statute constitutionally valid. 231 Ark. 641, 331 S.W.2d 701.The statute in question is Act 10 of the Second Extraordinary Session of the Arkansas General Assembly of 1958. The provisions of the Act are summarized in the opinion of the District Court as follows:"Act 10 provides in substance that no person shall be employed or elected to employment as a superintendent, principal or teacher in any public school in Arkansas, or as an instructor, professor or teacher in any public institution of higher learning in that State until such person shall have submitted to the appropriate Page 364 U. S. 481 hiring authority an affidavit listing all organizations to which he at the time belongs and to which he has belonged during the past five years, and also listing all organizations to which he at the time is paying regular dues or is making regular contributions, or to which within the past five years he has paid such dues or made such contributions. The Act further provides, among other things, that any contract entered into with any person who has not filed the prescribed affidavit shall be void; that no public moneys shall be paid to such person as compensation for his services, and that any such funds so paid may be recovered back either from the person receiving such funds or from the board of trustees or other governing body making the payment. The filing of a false affidavit is denounced as perjury, punishable by a fine of not less than five hundred nor more than one thousand dollars, and, in addition, the person filing the false affidavit is to lose his teaching license."174 F. Supp. 353-354. [Footnote 1] Page 364 U. S. 482These provisions must be considered against the existing system of teacher employment required by Arkansas law. Teachers there are hired on a year-to-year basis. They are not covered by a civil service system, and they have no job security beyond the end of each school year. The closest approach to tenure is a statutory provision for the automatic renewal of a teacher's contract if he is not notified within ten days after the end of a school year that the contract has not been renewed. Ark.1947 Stat.Ann. § 80-1304(b) (1960); Wabbaseka School District No. 7 v. Johnson, 225 Ark. 982, 286 S.W.2d 841.The plaintiffs in the Federal District Court (appellants here) were B. T. Shelton, a teacher employed in the Little Rock Public School System, suing for himself and others similarly situated, together with the Arkansas Teachers Association and its Executive Secretary, suing for the benefit of members of the Association. Shelton had been Page 364 U. S. 483 employed in the Little Rock Special School District for twenty-five years. In the spring of 1959, he was notified that, before he could be employed for the 1959-1960 school year, he must file the affidavit required by Act 10, listing all his organizational connections over the previous five years. He declined to file the affidavit, and his contract for the ensuing school year was not renewed. At the trial, the evidence showed that he was not a member of the Communist Party or of any organization advocating the overthrow of the Government by force, and that he was a member of the National Association for the Advancement of Colored People. The court upheld Act 10, finding the information it required was "relevant," and relying on several decisions of this Court, particularly Garner v. Board of Public Works of Los Angeles, 341 U. S. 716; Adler v. Board of Education, 342 U. S. 485; Beilan v. Page 364 U. S. 484 Board of Education, 357 U. S. 399, and Lerner v. Casey, 357 U. S. 468. [Footnote 2]The plaintiffs in the state court proceedings (petitioners here) were Max Carr, an associate professor at the University of Arkansas, and Ernest T. Gephardt, a teacher at Central High School in Little Rock, each suing for himself and others similarly situated. Each refused to execute and file the affidavit required by Act 10. Carr executed an affirmation [Footnote 3] in which he listed his membership in professional organizations, denied ever having been a member of any subversive organization, and offered to answer any questions which the University authorities might constitutionally ask touching upon his qualifications as a teacher. Gephardt filed an affidavit stating that he had never belonged to a subversive organization, disclosing his membership in the Arkansas Education Association and the American Legion, and also offering to answer any questions which the school authorities might constitutionally ask touching upon his qualifications as a teacher. Both were advised that their failure to comply with the requirements of Act 10 would make impossible their reemployment as teachers for the following school year. The Supreme Court of Arkansas upheld the constitutionality of Act 10, on its face and as applied to the petitioners. 231 Ark. 641, 331 S.W.2d 701.IIt is urged here, as it was unsuccessfully urged throughout the proceedings in both the federal and state courts, that Act 10 deprives teachers in Arkansas of their Page 364 U. S. 485 rights to personal, associational, and academic liberty, protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. In considering this contention, we deal with two basic postulates.First. There can be no doubt of the right of a State to investigate the competence and fitness of those whom it hires to teach in its schools, as this Court before now has had occasion to recognize."A teacher works in a sensitive area in a school room. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern."Adler v. Board of Education, 342 U. S. 485, 342 U. S. 493. There is"no requirement in the Federal Constitution that a teacher's classroom conduct be the sole basis for determining his fitness. Fitness for teaching depends on a broad range of factors."Beilan v. Board of Education, 357 U. S. 399, 357 U. S. 406. [Footnote 4]This controversy is thus not of a pattern with such cases as NAACP v. Alabama, 357 U. S. 449, and Bates v. Little Rock, 361 U. S. 516. In those cases, the Court held that there was no substantially relevant correlation between the governmental interest asserted and the State's effort to compel disclosure of the membership lists involved. Here, by contrast, there can be no question of the relevance of a State's inquiry into the fitness and competence of its teachers. [Footnote 5]Second. It is not disputed that to compel a teacher to disclose his every associational tie is to impair Page 364 U. S. 486 that teacher's right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 364; Bates v. Little Rock, supra, at 361 U. S. 2-5522-523. Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made -- those who any year can terminate the teacher's employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain.The statute does not provide that the information it requires be kept confidential. Each school board is left free to deal with the information as it wishes. [Footnote 6] The record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless. [Footnote 7] Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy. Public exposure, bringing with it the possibility of public pressures upon school boards to discharge teachers who belong to unpopular or minority Page 364 U. S. 487 organizations, would simply operate to widen and aggravate the impairment of constitutional liberty.The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers."Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 195 (concurring opinion)."Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate. . . ."Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 250.IIThe question to be decided here is not whether the State of Arkansas can ask certain of its teachers about all their organizational relationships. It is not whether the State can ask all of its teachers about certain of their associational ties. It is not whether teachers can be asked how many organizations they belong to, or how much time they spend in organizational activity. The question is whether the State can ask every one of its teachers to disclose every single organization with which he has Page 364 U. S. 488 been associated over a five-year period. The scope of the inquiry required by Act 10 is completely unlimited. The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie -- social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher's occupational competence or fitness.In a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. [Footnote 8] The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. [Footnote 9]In Lovell v. Griffin, 303 U. S. 444, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Page 364 U. S. 489 Schneider v. State, 308 U. S. 147, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the Court noted that, where legislative abridgment of "fundamental personal rights and liberties" is asserted,"the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions."308 U.S. at 308 U. S. 161. In Cantwell v. Connecticut, 310 U. S. 296, the Court said that"[c]onduct remains subject to regulation for the protection of society,' but pointed out that, in each case, 'the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."310 U.S. at 310 U. S. 304. Illustrations of the same constitutional principle are to be found in many other decisions of the Court, among them Martin v. Struthers, 319 U. S. 141; Saia v. New York, 334 U. S. 558, and Kunz v. New York, 340 U. S. 290.As recently as last Term, we held invalid an ordinance prohibiting the distribution of handbills because the breadth of its application went far beyond what was necessary to achieve a legitimate governmental purpose. Talley v. California, 362 U. S. 60. In that case, the Court noted that it had been"urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited. . . . Therefore we do not pass on the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires."362 U.S. at 362 U. S. 64. Page 364 U. S. 490The unlimited and indiscriminate sweep of the statute now before us brings it within the ban of our prior cases. The statute's comprehensive interference with associational freedom goes far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competency of its teachers. The judgments in both cases must be reversed.It is so ordered

U.S. Supreme CourtShelton v. Tucker, 364 U.S. 479 (1960)Shelton v. TuckerNo. 14Argued November 7, 1960Decided December 12, 1960*364 U.S. 479SyllabusAn Arkansas statute requires every teacher, as a condition of employment in a state supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularly contributed within the preceding five years. Teachers in state supported schools and colleges are not covered by a civil service system, they are hired on a year-to-year basis, and they have no job security beyond the end of each school year. The contracts of the teachers here involved were not renewed, because they refused to file the required affidavits.Held: The statute is invalid, because it deprives teachers of their right of associational freedom protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. Pp. 364 U. S. 480-490.(a) There can be no doubt of the right of a State to investigate the competence and fitness of those whom it hires to teach in its schools. P. 364 U. S. 485.(b) To compel a teacher to disclose his every associational tie is to impair his right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. Pp. 364 U. S. 485-487.(c) The unlimited and indiscriminate sweep of the statute here involved and its comprehensive interference with associational freedom go far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competence of its teachers. Pp. 364 U. S. 487-490.174 F. Supp. 351 and 231 Ark. 641, 331 S.W.2d 701, reversed. Page 364 U. S. 480

1974_73-1231

MR. JUSTICE DOUGLAS delivered the opinion of the Court.These cases present a question expressly reserved in NLRB v. Gissel Packing Co., 395 U. S. 575, 395 U. S. 595, 601 n. 18 (1969).In Linden, respondent union obtained authorization cards from a majority of petitioner's employees and demanded that it be recognized as the collective bargaining representative of those employees. Linden said it doubted the union's claimed majority status, and suggested the union petition the Board for an election. The union filed such a petition with the Board, but later withdrew it when Linden declined to enter a consent election agreement or abide by an election, on the ground that respondent union's organizational campaign had been improperly assisted by company supervisors. Respondent union thereupon renewed its demand for collective bargaining, and again Linden declined, saying that the union's claimed membership had been improperly influenced by supervisors. Thereupon, respondent union struck for recognition as the bargaining representative, and shortly filed a charge of unfair labor practice against Linden based on its refusal to bargain.There is no charge that Linden engaged in an unfair labor practice [Footnote 1] apart from its refusal to bargain. The Page 419 U. S. 303 Board held that Linden should not be guilty of an unfair labor practice [Footnote 2] solely on the basis "of its refusal to accept evidence of majority status other than the results of a Board election." 190 N.L.R.B. 718, 71 (1971).In Wilder, [Footnote 3] there apparently were 30 employees in the plant, and the union, with 11 signed and two unsigned authorization cards, requested recognition as the bargaining agent for the company's production and maintenance employees. Of the 30 employees, 18 were in the production and maintenance unit which the Board found to be appropriate for collective bargaining. No answer was given by the employer, Wilder, and recognitional picketing began. The request was renewed when the two unsigned cards were signed, but Wilder denied recognition. Thereupon, the union filed unfair labor practice charges against Wilder. A series of Board decisions and judicial decisions, not necessary to recapitulate here, consumed about seven years until the present decision by the Court of Appeals. [Footnote 4] The Board made the same ruling as respects Wilder as it did in Linden's case. See 198 N.L.R.B. 998 (1972). On petitions for review, the Court of Appeals reversed. 159 U.S.App.D.C. 228, 487 F.2d 1099 (1973). We revere the Court of Appeals.In Gissel, we held that an employer who engages in "unfair" labor practices "likely to destroy the union's Page 419 U. S. 304 majority and seriously impede the election'" may not insist that, before it bargains, the union get a secret ballot election. 395 U.S. at 395 U. S. 600. There were no such unfair labor practices here, nor had the employer in either case agreed to a voluntary settlement of the dispute and then reneged. As noted, we reserved in Gissel the questions"whether, absent election interference by an employer's unfair labor practices, he may obtain an election only if he petitions for one himself; whether, if he does not, he must bargain with a card majority if the Union chooses not to seek an election; and whether, in the latter situation, he is bound by the Board's ultimate determination of the card results regardless of his earlier good faith doubts, or whether he can still insist on a Union-sought election if he makes an affirmative showing of his positive reasons for believing there is a representation dispute."Id. at 395 U. S. 601 n. 18.We recognized in Gissel that, while the election process had acknowledged superiority in ascertaining whether a union has majority support, cards may "adequately reflect employee sentiment." Id. at 395 U. S. 603.Generalizations are difficult, and it is urged by the unions that only the precise facts should dispose of concrete cases. As we said, however, in Gissel, the Board had largely abandoned its earlier test that the employer's refusal to bargain was warranted, if he had a good faith doubt that the union represented a majority. A different approach was indicated. We said:"[A]n employer is not obligated to accept a card check as proof of majority status, under the Board's current practice, and he is not required to justify his insistence on an election by making his own investigation of employee sentiment and showing affirmative reasons for doubting the majority status. See Aaron Brothers, 158 N.L.R.B. 1077, 1078. If he Page 419 U. S. 305 does make an investigation, the Board's recent cases indicate that reasonable polling in this regard will not always be termed violative of § 8(a)(1) if conducted in accordance with the requirement set out in Struksnes Construction Co., 165 N.L.R.B. [1062], 65 L.R.R.M. 1385 (1967). And even if an employer's limited interrogation is found violative of the Act, it might not be serious enough to call for a bargaining order. See Aaron Brothers, supra; Hammond & Irving, Inc., 154 N.L.R.B. 1071 (1965). As noted above, the Board has emphasized that not""any employer conduct found violative of Section 8(a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding,""Aaron Brothers, supra, at 1079."395 U.S. at 395 U. S. 609-610.In the present cases, the Board found that the employers"should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of [their] refusal to accept evidence of majority status other than the results of a Board election."190 N.L.R.B. at 721; see 198 N.L.R.B. at 998. The question whether the employers had good reasons or poor reasons was not deemed relevant to the inquiry. The Court of Appeals concluded that, if the employer had doubts as to a union's majority status, it could and should test out its doubts by petitioning for an election. It said:"While we have indicated that cards alone, or recognitional strikes and ambiguous utterances of the employer, do not necessarily provide such 'convincing evidence of majority support' so as to require a bargaining order, they certainly create a sufficient probability of majority support as to require an employer asserting a doubt of majority status to resolve the possibility through a petition Page 419 U. S. 306 for an election if he is to avoid both any duty to bargain and any inquiry into the actuality of his doubt."159 U.S.App.D.C. at 240, 487 F.2d at 1111.To take the Board's position is not to say that authorization cards are wholly unreliable as an indication of employee support of the union. An employer concededly may have valid objections to recognizing a union on that basis. His objection to cards may, of course, mask his opposition to unions. On the other hand, he may have rational, good faith grounds for distrusting authorization cards in a given situation. He may be convinced that the fact that a majority of the employees strike and picket does not necessarily establish that they desire the particular union as their representative. Fear may indeed prevent some from crossing a picket line, or sympathy for strikers, not the desire to have the particular union in the saddle, may influence others. These factors make difficult an examination of the employer's motive to ascertain whether it was in good faith. To enter that domain is to reject the approval by Gissel of the retreat which the Board took from its "good faith" inquiries.The union which is faced with an unwilling employer has two alternative remedies under the Board's decision in the instant cases. It can file for an election or it can press unfair labor practice charges against the employer under Gissel. The latter alternative promises to consume much time. In Linden, the time between filing the charge and the Board's ruling was about 4 1/2 years; in Wilder, about 6 1/2 years. The Board's experience indicates that the median time in a contested case is 388 days. Gissel, 395 U.S. at 395 U. S. 611 n. 30. On the other hand the median time between the filing of the petition for an election and the decision of the Regional Page 419 U. S. 307 Director is about 45 days. [Footnote 5] In terms of getting on with the problems of inaugurating regimes of industrial peace, the policy of encouraging secret elections under the Act is favored. The question remains -- should the burden be on the union to ask for an election or should it be the responsibility of the employer?The Court of Appeals concluded that, since Congress in 1947 authorized employers to file their own representation petitions by enacting § 9(c)(1)(B), [Footnote 6] the burden was on them. But the history of that provision indicates it was aimed at eliminating the discrimination against employers which had previously existed under the Board's prior rules, permitting employers to petition for an election only when confronted with claims by two or more unions. [Footnote 7] There is no suggestion that Congress wanted to place the burden of getting a secret election on the employer."Today an employer is faced with this situation. Page 419 U. S. 308 A man comes into his office and says, 'I represent your employees. Sign this agreement, or we strike tomorrow.' Such instances have occurred all over the United States. The employer has no way in which to determine whether this man really does represent his employees or does not. The bill gives him the right to go to the Board under those circumstances, and say, 'I want an election. I want to know who is the bargaining agent for my employees.'"93 Cong.Rec. 3838 (1947) (remarks of Senator Taft).Our problem is not one of picking favorites, but of trying to find the congressional purpose by examining the statutory and administrative interpretations that incline one way or another. Large issues ride on who takes the initiative. A common issue is what should be the representative unit? In Wilder, the employer at first took the position that the unit should be one of 30 employees. If it were 18, as the union claimed (or even 25 as the employer later argued), the union, with its 13 authorization cards (assuming them to be valid), would have a majority. If the unit were 30, the union would be out of business.Section 9(c)(1)(B) visualizes an employer faced with a claim by individuals or unions "to be recognized as the representative defined in § 9(a)." [Footnote 8] That question of representation is raised only by a claim that the applicant represents a majority of employees, "in a unit appropriate Page 419 U. S. 309 for such purposes." § 9(a). If there is a significant discrepancy between the unit which the employer wants and the unit for which the union asked recognition, the Board will dismiss the employer's petition. Aerojet-General Corp., 185 N.L.R.B. 794 (1970); Bowman Bldg. Products Div., 170 N.L.R.B. 312 (1968); Amperex Electronic Corp., 109 N.L.R.B. 353 (1954); Wm. . Wood Bakery, Inc., 97 N.L.R.B. 122 (1951). In that event the union, if it desired the smaller unit, would have to file its own petition, leaving the employer free to contest the appropriateness of that unit. The Court of Appeals thought that, if the employer were required to petition the Board for an election, the litigable issues would be reduced. The recurring conflict over what should be the appropriate bargaining unit, coupled with the fact that, if the employer asks for a unit which the union opposes his election petition is dismissed, is answer enough.The Board has at least some expertise in these matters, and its judgment is that an employer's petition for an election, though permissible, is not the required course. It points out in its brief here that an employer wanting to gain delay can draw a petition to elicit protests by the union, and the thought that an employer petition would obviate litigation over the sufficiency of the union's showing of interest is, in its purview, apparently not well taken. A union petition, to be sure, must be backed by a 30% showing of employee interest. But the sufficiency of such a showing is not litigable by the parties. [Footnote 9]In light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board's decision that the union should go forward and ask for an election on the employer's refusal Page 419 U. S. 310 to recognize the authorization cards was arbitrary and capricious or an abuse of discretion.In sum, we sustain the Board in holding that, unless an employer has engaged in an unfair labor practice that impairs the electoral process, [Footnote 10] a union with authorization cards purporting to represent a majority of the employees, which is refused recognition, has the burden of taking the next step in invoking the Board's election procedure.Reversed

U.S. Supreme CourtLinden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301 (1974)Linden Lumber Division, Summer & Co. v.National Labor Relations BoardNo. 73-1231Argued November 18, 1974Decided December 23, 1974*419 U.S. 301SyllabusAn employer who has not engaged in an unfair labor practice impairing the electoral process does not commit a violation of § 8(a)(5) of the National Labor Relations Act simply because he refuses to accept evidence of the union's majority status other than the results of a Board election. At least in the absence of any agreement to permit majority status to be determined by means other than a Board election, a union that is refused recognition despite authorization cards or other such evidence purporting to show that it represents a majority of the employees has the burden of taking the next step and invoking the Board's election procedure. Pp. 419 U. S. 303-310.159 U.S.App.D.C. 228, 487 li'.2d 1099, reversed.DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, BLACKMUN, and REHNQUIST, JJ., joined. STEWART, J., filed a dissenting opinion, in which WHITE, MARSHALL, and POWELL, JJ., joined, post, p. 419 U. S. 310. Page 419 U. S. 302

1959_391

MR. JUSTICE WHITTAKER delivered the opinion of the Court.Petitioners, nine individuals and two state banking corporations, [Footnote 1] were indicted in 20 counts in the United Page 363 U. S. 372 States District Court for the Southern District of Texas, Houston Division, for mail fraud and conspiracy to commit mail fraud. The first 19 counts charged that petitioners devised, prior to September 1, 1949, and continued to February 20, 1954, a scheme to defraud the Benavides Independent School District ("District") of Duval County, Texas, the State of Texas, and the taxpayers of each, and that they used the mails for the purpose of executing the scheme, in violation of 18 U.S.C. § 1341. [Footnote 2] The twentieth count charged that petitioners conspired to commit the substantive offense charged in the first count, in violation of 18 U.S.C. § 371. [Footnote 3]After their various motions, including one challenging venue and asking transfer of the action to the Corpus Christi Division of the court, and one for a bill of particulars, were denied, petitioners entered pleas of "not guilty" and in due course the case was put to trial before a jury. The jury returned verdicts finding petitioners Page 363 U. S. 373 guilty as charged -- some of them on all counts and others on only some of the counts. After denying timely motions in arrest of judgment and for a new trial, the court entered judgments upon the verdicts, convicting petitioners and sentencing them to imprisonment. [Footnote 4] On appeal, the judgments were affirmed, 265 F.2d 894, and, to determine questions of importance relative to the scope and proper application of § 1341, we granted certiorari. 361 U.S. 912.Petitioners' principal contentions here are: (1) that, although the indictment charged and the evidence tended to show that petitioners devised and practiced a scheme to defraud the District by the local or state crimes of misappropriating and embezzling its money and property, neither the indictment nor the proofs support the judgments, because the indictment did not charge, and the proofs did not show, any use of the mails "for the purpose Page 363 U. S. 374 of executing such scheme" within the meaning of that phrase as used in § 1341, and (2) that the court's charge did not submit to the jury any theory or issue of fact that could constitute use of the mails "for the purpose of executing such scheme." The nature of these contentions requires a detailed examination of the indictment, the evidence adduced, and of the issues of fact actually tried and submitted to the jury, for its resolution, by the court in its charge.We turn first to the indictment. Summarized as briefly as fair statement permits, the first count alleged that the District is a public corporation organized under the laws of Texas to acquire and hold the facilities necessary for, and to operate, the public schools within the District, [Footnote 5] and, for those purposes, to assess and collect taxes; that the laws of Texas vest exclusive control of the property and management of the affairs of the District in its Board of Trustees, consisting of seven members; that, prior to September 1, 1949, petitioners devised, and continued to February 20, 1954, a scheme to defraud the District, the State of Texas, and the taxpayers of each, and to obtain their money and property for themselves and their relatives.It then alleged that, as part of the scheme, petitioners would falsely represent that district checks were issued, and its funds disbursed, only to persons and concerns for services rendered and materials furnished to the District, and that its Annual Reports to the State Commissioner of Education were correct.It next alleged that, as a further part of the scheme, seven of the petitioners would establish and maintain Page 363 U. S. 375 domination and control of the District; [Footnote 6] that three of them would acquire and maintain control of petitioner, the Texas State Bank of Alice, which was the authorized depository of the District's funds, [Footnote 7] and that one of them would acquire and maintain control of petitioner, the San Diego State Bank. [Footnote 8]It then alleged that it was a further part of the scheme that petitioners would sent or cause to be sent letters, tax statements, checks in payment of taxes, and receipted tax statements through the United States mails; that the checks and moneys received by the District from taxpayers and others would be deposited to the credit of the District in the authorized depository bank, against which petitioners would issue district checks payable to fictitious persons, and to existing persons, without consideration (falsifying the District's records to show that such checks were issued in payment for services or materials), and would cash such checks, upon forged endorsements or without endorsements of the payees at the depository bank and convert the proceeds; that they would open accounts and deposit checks received in payment of taxes in unauthorized banks, and that petitioner Chapa would withdraw and convert the funds; that they would convert and cash checks received by the District in payment of taxes and keep the proceeds; that they would obtain merchandise for themselves on the credit and at the expense of the District; that they would prepare, and the Board of Trustees would approve, false Annual Reports of the District and mail them to the State Commissioner of Page 363 U. S. 376 Education at Austin, Texas; that they would conceal their fraudulent misuse of district funds by destroying canceled checks, bank statements and other records of the District and the microfilmed records of the petitioner banks showing the fraudulent checks drawn against and paid out of the District's accounts.The last paragraph of the count -- the only paragraph purporting to charge an offense -- charged that petitioners, on September 29, 1952, for the purpose of executing the scheme, caused to be taken from the post office, in the Houston Division of the court, a letter addressed to Humble Oil & Refining Company, Houston, Texas. [Footnote 9]Each of Counts 2 through 19 adopted by reference all allegations of the first count, except those contained in the last paragraph of that count which charged a specific offense against petitioners, and then proceeded to allege that, on a stated date, the petitioners, for the purpose of executing the scheme, "caused" a particular letter, tax statement, check, tax receipt, or invoice to be placed in or taken from an authorized depository for United States mail in the Houston Division of the court. [Footnote 10] Doubtless Page 363 U. S. 377 the charge in each of these counts was so limited, in the light of Rule 18 of Federal Rules of Criminal Procedure, fixing venue over crimes in the District and division where Page 363 U. S. 378 committed, [Footnote 11] in order to give the Houston Division venue over this action, and consequently the indictment does not count upon petitioners' full uses of the mails, for they were principally made in Duval County in the Corpus Christi Division of the court.The twentieth count charged that, throughout the relevant period, petitioners feloniously conspired and agreed among themselves and with others to commit "the offenses . . . which are fully described and set out in the first count of this indictment," and that, to effect the object of the conspiracy, petitioners committed specified overt acts. [Footnote 12] Page 363 U. S. 379We now look to the evidence. Condensed to pith, the 6,000 pages of evidence disclose that the District, acting through its Board of Trustees of seven members, operated the public schools in the towns of Benavides and Freer, each having slightly more than 1,000 pupils. From time to time, the Board met to appoint (a) an assessor-collector, (b) an independent firm of engineers and accountants to assist the assessor-collector in determining the ownership and valuation of property -- particularly mineral lands and complex fractional interests therein -- in the District, (c) a Board of Equalization, and (d) a depository of the District's funds, and also met (e) to consider and propose to the electorate the authorization and sale of bonds in 1949 ($265,000) and in 1950 ($362,500) to finance the construction of new school facilities.In actual operations, the engineering-accounting firm would annually prepare and submit to the assessor-collector a list showing the ownership and its appraisal of the value of the various properties and mineral interests in the District, from which, after the Board of Equalization and completed its work thereon (in June and July), the assessor-collector would prepare the tax rolls for the current year, and therefrom prepare and send out the tax statements by mail, and, on receipt of checks in payment of taxes (the great majority of which were received in the mails), would -- with exceptions later noted -- deposit them to the credit of the District in the depository bank, and then mail receipts to the taxpayers.Three members of the Board resided in Freer, and the other four resided in Benavides. Aside from the meetings Page 363 U. S. 380 for the purposes above stated, the Trustees rarely met as a board. Each group, rather, independently operated the schools in its town, and the actual costs of operation were about the same in each town. [Footnote 13] But the Benavides members handled generally the day-to-day business of the District, including the staffing and operation of its office, the keeping of its books and records, the making of its contracts, its relations with the assessor-collector, the Annual Report to the State Commissioner of Education (to obtain from the State the amount per pupil prescribed to be paid to such school districts by the Texas law), and the routine disbursement of its funds.Petitioners Saenz, Garza, and Garcia were three of the four Benavides members of the Board. Petitioners Oscar Carrillo, Sr., and O. P. Carrillo were, respectively, the secretary of and the attorney for the Board. Petitioner Chapa was the assessor-collector. Petitioner Parr was the president and principal stockholder of petitioner Texas State Bank -- the authorized depository of the District's funds -- and of petitioner San Diego State Bank, and there was evidence that, although having no official connection with the District, he practically dominated and controlled its affairs, kept its books and records in his office, outside the District, until July 1951, and countersigned all its checks after June 1950. Petitioner Donald was the cashier and administrative manager of the Texas Page 363 U. S. 381 State Bank, and petitioner Oliveira was a director of that bank.There was evidence that, throughout the relevant period, the District's funds, in large amounts, were misappropriated, converted, embezzled, and stolen by petitioners. It tended to show that four devices were used for such purposes:(1) At least once each month, numerous district checks were issued against both its building and maintenance accounts in the depository bank payable to fictitious persons, and were presented in bundles, totaling from $3,000 to $12,000, to the depository bank, and, under the supervision of petitioner Donald, were cashed by it, without endorsements, and the currency was placed and sealed in an envelope and handed to the presenting person for delivery to petitioner Parr. The evidence tended to show that no less than $120,000 of the District's funds were misappropriated in this way. However, no one of these acts is charged as an offense by the indictment.(2) At least once each month, large numbers of district checks were issued to petitioners, other than Donald and the two banks, often in assumed names or in the names of members of their families, purporting to be in payment for services rendered or materials furnished to the District, but which were not rendered or furnished, which checks were presented to the depository bank and, under the supervision of petitioner Donald, were cashed by it, often without or upon forged endorsements. [Footnote 14] The Page 363 U. S. 382 evidence tended to show that no less than $65,000 of the District's funds were misappropriated in this way. But again, no one of these acts is charged as an offense by the indictment.(3) Petitioner Chapa converted district checks received by mail in payment of taxes, cashed the same -- some at a local bank and some at the depository bank -- upon unauthorized endorsements, and misappropriated the proceeds. [Footnote 15](4) Petitioners Oscar Carrillo, Sr., and Garza obtained gasoline and oil for themselves upon the credit card and at the expense of the District. [Footnote 16] Use of the mails by "causing" the oil company to place its invoices for these goods in the mails and to take the District's check in payment from the mails in Houston, constitutes the basis of Counts 17, 18 and 19 of the indictment. [Footnote 17]The letters, checks, and invoices which Counts 1 through 19 of the indictment charge were "caused" by petitioners to be placed in or taken from the mails in Houston, were all offered and received in evidence. Having fully stated the substance of them in notes 9 and | 9 and S. 370fn10|>10, we do not repeat it here. The evidence also tended to prove the overt acts alleged in the twentieth count of the indictment. [Footnote 18] � 9 and S. 383�We now proceed to examine the court's charge to determine what theories and issues of fact were predicated by the court and submitted for resolution by the jury. Relative to Counts 1 through 19 of the indictment, the court, after reminding the jury that the indictment had been read to them at the beginning of the trial and that they would have it with them for study during their deliberations in the jury room, read aloud § 1341, defined numerous words and phrases, cautioned on many scores, including the weight to be given to the testimony of "accomplices," stressed the Government's burden of proof, and then proceeded to give the one verdict-directing charge covering those counts which, in pertinent part, was as follows:"Applying the law to the first 19 counts of the indictment, if you believe beyond a reasonable doubt that the defendant George B. Parr and the other defendants charged and triable in Count One of the indictment, considering each separately, did the things that it is alleged that he did do in the first count of the indictment, and, at the time that it occurred, there existed a scheme to defraud, and that, as a result of such scheme, the mails were used necessarily or incidentally to the carrying out of that scheme, and, as a result thereof, . . . he did cause the defrauding or obtaining of property by false pretenses and representations in any of the particulars set forth therein . . . , and that he used the United States Mails as set forth in Count One, . . . then it becomes your duty . . . to find such defendant or defendants guilty as charged in the first count of the indictment and so find by your verdict. . . . The same reasoning and instructions apply to each of the first nineteen counts of the indictment and as to each of the defendants charged and triable in each of the first nineteen counts of the indictment. "Page 363 U. S. 384Relative to the twentieth count, the court, after reading to the jury § 371, telling them that the essence of the charge "is an agreement to use the mails to defraud," defining "conspiracy," commenting on "circumstantial evidence," and stressing the Government's burden of proof, proceeded to give the one verdict-directing charge covering that count which, in pertinent part, was as follows:"Therefore, with reference to the 20th count, if you believe as to any of the alleged conspirators that that person, together with at least one other, did the things charged against him in such count . . . to effect the objects of the alleged conspiracy, and thereafter there was done one or more of the overt acts set forth in such count . . . , then it becomes your duty under the law as to such defendant or defendants that you so believe as to such 20th count were guilty, to so say by your verdict. . . . [Footnote 19] "Page 363 U. S. 385In the light of this review of the indictment, the evidence adduced and the court's charge to the jury, we return to the questions presented by petitioners. There can be no doubt that the indictment charged and the evidence tended strongly to show that petitioners devised and practiced a brazen scheme to defraud by misappropriating, converting and embezzling the District's moneys and property. Counsel for petitioners concede that this is so. But, as they correctly say, these were essentially state crimes and could become federal ones, under the mail fraud statute, only if the mails were used "for the purpose of executing such scheme." [Footnote 20] Hence, the question is whether the uses of the mails that were charged in the indictment and shown by the evidence properly may be said to have been "for the purpose of executing such scheme," in violation of § 1341. Petitioners say "no." The Government says "yes."Specifically, petitioners' position is that the School Board was required by law to assess and collect taxes for the acquisition of facilities for, and to maintain and operate, the District's schools; that the taxes, assessed in obedience to that duty and for those purposes, were not charged in the indictment or shown by the evidence to have been in any way illegal, and must therefore be assumed to have been entirely lawful; that, to perform its duty to assess and collect such taxes, the Board was both legally authorized and compelled to cause the mailing of the letters and their enclosures (tax statements, checks and receipts) complained of in the indictment, and hence those mailings may not be said to have been "for the purpose of executing such scheme," in violation of § 1341.The Government, on the other hand, contends, first, that it was not necessary to charge or prove that the taxes were unlawful, for it is its view that once the scheme to Page 363 U. S. 386 defraud was shown to exist, the subsequent mailings of the letters and their enclosures, even though legally compelled to be made, constituted essential steps in the scheme and, in contemplation of § 1341, were made "for the purpose of executing such scheme"; but it asserts that, in fact, it was impliedly charged in the indictment and shown by the evidence that the taxes were illegal in that they were assessed, collected and accumulated in excess of the District's needs in order to provide a fund for misappropriation, and, second, that the indictment charged and the evidence showed that the mailings impliedly pretended and falsely represented that the tax moneys would be used only for lawful purposes, and, hence, those mailings were caused for the purpose of obtaining money by false pretenses and misrepresentations, in violation of § 1341.After asserting complete novelty of the Government's position, and that no reported case supports it, counsel for petitioners point to what they think would be the "explosively expanded" and incongruous results from adoption of the Government's theory, e.g., making federal mail fraud cases out of the conduct of a doctor's secretary or a business concern's billing clerk or cashier in mailing out, in the course of duty, the employer's lawful statements with the design, eventually executed, of misappropriating part of the receipts -- the aptness of which supposed analogies, happily, we are not called on to determine. But petitioners' counsel concede that, if such secretary, clerk or cashier -- and similarly a member of a School Board -- improperly "pads" or increases the amounts of the statements and causes them to be mailed to bring in a fund to be looted, such mailings, not being those of the employer (or School Board), would not be duty bound or legally compelled, and would constitute an essential step "for the purpose of executing [a] scheme" to defraud, in violation of § 1341. They then repeat and stress their Page 363 U. S. 387 claim that here the indictment did not allege, and there was no evidence tending to show, that the taxes assessed and collected were excessive, "padded," or in any way illegal, that the court did not submit any such issue to the jury, and that such was not the Government's theory.It is clear and undisputed that the School Board was under an express constitutional mandate to levy and collect taxes for the acquisition of facilities for, and to maintain and operate the schools of the District, Constitution of Texas, Art. 7, § 3, Vernon's Ann.St.Const., [Footnote 21] and was required by statute to issue statements for such taxes and to deliver receipts upon payment. [Footnote 22]The Texas laws leave to the discretion of such school boards the valuation of properties and the fixing of the tax rate, within a prescribed limit, in the making of their assessments, [Footnote 23] and their determinations, made within the prescribed limit as here, are not judicially reviewable, Madeley v. Trustees of Conroe Ind. School Dist., 130 S.W.2d 929, 934 (Tex.Civ.App.), except enforcement may be enjoined for fraud. [Footnote 24] But the question whether the amount of such an assessment might be collaterally attacked, even for fraud, in a federal mail fraud case is not presented here, for, after a most careful examination, we are compelled to say that the indictment did not expressly or impliedly charge, and there was no evidence tending to show, that the taxes assessed were excessive, "padded," or in any way illegal. Nor did the court submit any such issue to the jury. Indeed, the court refused a charge proffered by counsel for petitioners Page 363 U. S. 388 that would have submitted that issue to the jury. [Footnote 25] Such was not the Government's theory. In fact, the Government took the position at the trial, and argued to the jury, that the taxes assessed and collected were needed by the District for a new "science hall," "office building," "plumbing facilities [and] all sorts of things," and that petitioners' misappropriations not only deprived the District of those needed things, but left it "two and one-half years in debt" -- a sum several times greater than that said to have been misappropriated by petitioners.The theory that it was impliedly charged and shown that the taxes were illegal in that they were assessed, collected, and accumulated in excess of the District's needs in order to provide a fund for misappropriation was first injected into the case by the Court of Appeals. That court rested its judgment largely upon its conclusion that the assessments were designed to bring in not only "enough money . . . to provide for the legitimate operation of the schools, [but also] enough additional . . . to provide the funds to be looted." 265 F.2d at 897. We think that theory and conclusion is not supported by the record. As stated, no such fact or theory was charged in the indictment, shown by the evidence, or submitted to the jury, and, moreover, the Government negatived any such possible implication by taking the position at the trial that the assessed taxes were needed for new school facilities and improvements, and that the misappropriations deprived the District of those needed things and left it "two and one-half years in debt."Nor does the Government question that the Board, to collect the District's taxes (largely from nonresident property owners), was required by the state law to use the mails. Indeed, it took the position at the trial, and argued to the jury, that the Board could not"collect these taxes Page 363 U. S. 389 from Houston, from the Humble, from The Texas Oil Company, and from the taxpayers all over the State of Texas without the use of the United States mails."The Court of Appeals thought that such legal compulsion placed petitioners "on the horns of a dilemma," because they could not at once contend that the law compelled them to cause the mailings and deny that they did cause them. 265 F.2d at 898.The crucial question respecting Counts 1 through 16 of the indictment then comes down to whether the legally compelled mailings of the lawful -- or, more properly, what are not charged or shown to have been unlawful -- letters, tax statements, checks, and receipts complained of in those counts properly may be said to have been for the purpose of executing a scheme to defraud because those legally compelled to cause and causing those mailings planned to steal an indefinite part of the receipts.The fact that a scheme may violate state laws does not exclude it from the proscriptions of the federal mail fraud statute, for Congress"may forbid any . . . [mailings] in furtherance of a scheme that it regards as contrary to public policy whether it can forbid the scheme or not."Badders v. United States, 240 U. S. 391, 240 U. S. 393. In exercise of that power, Congress enacted § 1341, forbidding and making criminal any use of the mails "for the purpose of executing [a] scheme" to defraud or to obtain money by false representations -- leaving generally the matter of what conduct may constitute such a scheme for determination under other laws. Its purpose was "to prevent the post office from being used to carry [such schemes] into effect. . . ." Durland v. United States, 161 U. S. 306, 161 U. S. 314. Thus, as its terms and purpose make clear,"[t]he federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate Page 363 U. S. 390 state law."Kann v. United States, 323 U. S. 88, 323 U. S. 95. Therefore, only if the mailings were "a part of the execution of the fraud," or, as we said in Pereira v. United States, 347 U. S. 1, 347 U. S. 8, were "incident to an essential part of the scheme," do they fall within the ban of the federal mail fraud statute.The Government, with the support of the cases, soundly argues that immunization from the ban of the statute is not effected by the fact that those causing the mailings were public officials, [Footnote 26] or by the fact that the things they caused to be mailed were "innocent in themselves" if their mailing was "a step in a plot." Badders v. United States, supra, 240 U.S. at 240 U. S. 394. [Footnote 27] It then argues that the jury properly could find that the mailings, complained of in the first 16 counts -- namely, the letter notice of a modification in assessed valuation, two letters giving notice of hearings before the Board of Equalization to determine taxable value of property, one letter complying with a property owner's request for an "auxiliary tax notice," and 12 checks of taxpayers and their letters of transmittal [Footnote 28] -- were, even if innocent in themselves, each "a step in a plot" or scheme to defraud, and that they were caused to be made "for the purpose of executing such scheme" in violation of § 1341. But it cites no case holding that the mailing of a thing which the law required to be mailed may be regarded as mailed for the purpose of executing a plot or scheme to defraud. Instead, it frankly concedes Page 363 U. S. 391 that there is no such case. It says that "there is no reported case exactly like this," but expresses its view that this case rests on a factually "unique situation."We agree that the factual situation is inique, and, of course, agree, too, that the fact there is no reported decision involving similar factual circumstances or legal theories is not determinative. But, in the light of the particular circumstances of this case, and especially of the facts (1) that the School Board was legally required to assess and collect taxes, (2) that the indictment did not charge nor the proofs show that the taxes assessed and collected were in excess of the District's needs, or that they were "padded," or in any way unlawful, (3) that no such issue was submitted to, nor, hence, determined by, the jury, (4) that the Board was compelled to collect and receipt for the taxes by state law, which, in the circumstances here, compelled it to use and cause (here, principally by permitting) the use of the mails for those purposes, we must conclude that the legally compelled mailings, complained of in the first 16 counts of the indictment, were not shown to have been unlawful "step[s] in a plot," Badders v. United States, supra, 240 U.S. at 240 U. S. 394, "part[s] of the execution of the fraud," Kann v. United States, supra, 323 U.S. at 323 U. S. 95, "incident to an essential part of the scheme," Pereira v. United States, supra, 347 U.S. at 347 U. S. 8, or to have been made "for the purpose of executing such scheme," within the meaning of § 1341, for we think it cannot be said that mailings made or caused to be made under the imperative command of duty imposed by state law are criminal under the federal mail fraud statute, even though some of those who are so required to do the mailing for the District plan to steal, when or after received, some indefinite part of its moneys.Nor, in the light of the facts in this record, can it be said that the mailings complained of in the first 16 counts of the indictment constituted false pretenses and Page 363 U. S. 392 misrepresentations to obtain money. Surely the letters giving notice of the modification of an assessed valuation and of valuation hearings to be conducted by the Board of Equalization, constituting the basis of Counts 1, 2 and 5, contained no false pretense or misrepresentation. We fail to see how the letter complying with a property owner's request for an "auxiliary tax notice," constituting the basis of Count 7, could be said to be a misrepresentation. And the mailings complained of in the remaining counts, even though "caused" by petitioners, certainly carried no misrepresentations by petitioners for they were checks (and covering letters) of taxpayers in payment of taxes which, so far as this record shows, were in all respects lawful obligations. On this phase of the case, the Government has principally relied on the fact that the Annual Reports of the Board and the depository bank to the State Commissioner of Education, apparently necessary to obtain the amount per pupil allowed by the State to such districts, contained false entries. But the fact is those mailings were not charged as offenses in the indictment, doubtless because they were, as shown, between Benavides and Austin, Texas, and therefore not within the Division, nor hence the venue, of the court. [Footnote 29]Counts 17, 18 and 19 of the indictment relate to a different subject. They charged, and there was evidence tending to show, that petitioners Oscar Carrillo, Sr., and Garza fraudulently obtained gasoline and other filling station products and services for themselves upon the credit card and at the expense of the District knowing, or charged with knowledge, that the oil company would use the mails in billing the District for those things. The mailings complained of in those counts were two invoices, said to contain amounts for items so procured by Carrillo and Garza, mailed by the oil company at Houston, to Page 363 U. S. 393 the District at Benavides, and the District's check mailed to the oil company at Houston, in payment of the latter invoice. We think these counts are ruled by Kann v. United States, supra. Here, as in Kann, "[t]he scheme in each case had reached fruition" when Carrillo and Garza received the goods and services complained of."The persons intended to receive the [goods and services] had received [them] irrevocably. It was immaterial to them, or to any consummation of the scheme, how the [oil company] . . . would collect from the [District]. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires."323 U.S. at 323 U. S. 94.Inasmuch as the twentieth count charged petitioners with conspiring to commit the offense complained of in Count 1, and inasmuch as, on the facts of this record, that count cannot be sustained, it follows that petitioners' convictions upon the twentieth count cannot stand.In view of our stated conclusions, it is unnecessary to discuss other contentions made by petitioners.The strongest element in the Government's case is that petitioners' behavior was shown to have been so bad and brazen, which, coupled with the inability or at least the failure of the state authorities to bring them to justice, [Footnote 30] doubtless persuaded the Government to undertake this prosecution. But the showing, however convincing, that state crimes of misappropriation, conversion, embezzlement Page 363 U. S. 394 and theft were committed does not establish the federal crime of using the mails to defraud, and, under our vaunted legal system, no man, however bad his behavior, may be convicted of a crime of which he was not charged, proven and found guilty in accordance with due process.Reversed

U.S. Supreme CourtParr v. United States, 363 U.S. 370 (1960)Parr v. United StatesNo. 391Argued April 28, 1960Decided June 13, 1960363 U.S. 370SyllabusPetitioners were indicted on 20 counts in a Federal District Court for using the mails to defraud, in violation of 18 U.S.C. § 1341, and conspiring to do so, in violation of 18 U.S.C. § 371. The indictment charged that together they controlled a School District and its depository bank, the assessment and collection of school taxes, and the expenditure of school funds, and that they entered into and carried out a scheme to defraud the School District, the State, and the taxpayers of each by misappropriating and embezzling funds and property of the School District. The specific offense charged in each of the first 19 counts was that, for the purpose of executing the scheme, petitioners caused a particular letter, check, tax statement, tax receipt, or invoice to be placed in, or received from, an authorized depository for United States mail. Count 20 charged that petitioners conspired to commit the offense set out in the first count and committed specific overt acts to that end. They were convicted, and the convictions were sustained by the Court of Appeals.Held: although the indictment charged, and the evidence tended to show, that petitioners devised and practiced a scheme to defraud the School District by misappropriating and embezzling its money and property, neither the indictment nor the evidence supports the judgments, because the indictment did not charge, and the evidence did not show, any use of the mails "for the purpose of executing such scheme," within the meaning of 18 U.S.C. § 1341.Pp. 363 U. S. 371-394.(a) The indictment did not expressly or impliedly charge, and there was no evidence tending to show, that the taxes assessed were excessive, "padded" or in any way illegal; nor did the Court submit any such issue to the jury. Pp. 363 U. S. 385-388.(b) In the light of the particular circumstances of this case, and especially of the facts that (1) the School Board was legally required to collect and assess taxes, (2) the indictment did not charge, nor the proofs show, that the taxes assessed and collected were excessive, "padded" or in any way unlawful, (3) no such issue was submitted to, or determined by, the jury, (4) the Board was compelled by state law to collect and receipt for the taxes, and Page 363 U. S. 371 (5) it was legally compelled to use the mails in doing so, it must be concluded that the legally compelled mailings complained of in the first 16 counts of the indictment were not shown to have been made "for the purpose of executing such scheme,"within the meaning of § 1341. Pp. 363 U. S. 388-391.(c) On the record in this case, it cannot be said that the mailings complained of in the first 16 counts of the indictment constituted false pretenses and misrepresentations to obtain money. Pp. 363 U. S. 391-392.(d) As to the charges in Counts 17, 18, and 19 that two of the petitioners fraudulently obtained gasoline and other filling station products and services for themselves upon the credit card and at the expense of the School District, knowing that the oil company would use the mails in billing the School District for these things, it cannot be said that the mailings in question were "for the purpose of executing" the scheme to defraud, since the scheme had reached fruition when these two petitioners received the goods and services complained of and before the mailings occurred. Pp. 363 U. S. 392-393.(e) Inasmuch as Count 20 charged petitioners with conspiring to commit the offense complained of in Count 1, and inasmuch as, on this record, that count cannot be sustained, it follows that petitioners' convictions upon Count 20 cannot stand. P. 363 U. S. 393.265 F.2d 894, reversed.

1986_85-701

JUSTICE BRENNAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, and III-C, and an opinion with respect to Part III-A, in which JUSTICE MARSHALL, JUSTICE POWELL, and JUSTICE SCALIA join.The questions for decision here arise under § 316 of the Federal Election Campaign Act (FECA or Act), 90 Stat. 490, as renumbered and amended, 2 U.S.C. § 441b. The first question is whether appellee Massachusetts Citizens for Life, Inc. (MCFL), a nonprofit, nonstock corporation, by financing certain activity with its treasury funds, has violated the restriction on independent spending contained in § 441b. That section prohibits corporations from using treasury funds to make an expenditure "in connection with" any federal election, and requires that any expenditure for such purpose be financed by voluntary contributions to a separate segregated fund. If appellee has violated § 441b, the next question is whether application of that section to MCFL's conduct is constitutional. We hold that the appellee's use of its treasury funds is prohibited by § 441b, but that § 441b is unconstitutional as applied to the activity of which the Federal Election Commission (FEC or Commission) complains.IAMCFL was incorporated in January, 1973, as a nonprofit, nonstock corporation under Massachusetts law. Its corporate purpose, as stated in its articles of incorporation, is:"To foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political and other forms of activities and in Page 479 U. S. 242 addition to engage in any other lawful act or activity for which corporations may be organized . . . ."App. 84. MCFL does not accept contributions from business corporations or unions. Its resources come from voluntary donations from "members," and from various fundraising activities such as garage sales, bake sales, dances, raffles, and picnics. The corporation considers its "members" those persons who have either contributed to the organization in the past or indicated support for its activities. [Footnote 1]Appellee has engaged in diverse educational and legislative activities designed to further its agenda. It has organized an ecumenical prayer service for the unborn in front of the Massachusetts Statehouse; sponsored a regional conference to discuss the issues of abortion and euthanasia; provided speakers for discussion groups, debates, lectures, and media programs; and sponsored an annual March for Life. In addition, it has drafted and submitted legislation, some of which has become law in Massachusetts; sponsored testimony on proposed legislation; and has urged its members to contact their elected representatives to express their opinion on legislative proposals.MCFL began publishing a newsletter in January, 1973. It was distributed as a matter of course to contributors, and, when funds permitted, to noncontributors who had expressed support for the organization. The total distribution of any one issue has never exceeded 6,000. The newsletter was published irregularly from 1973 through 1978: three times in 1973, five times in 1974, eight times in 1975, eight times in 1976, five times in 1977, and four times in 1978. Id. at 88. Page 479 U. S. 243 Each of the newsletters bore a masthead identifying it as the "Massachusetts Citizens for Life Newsletter," as well as a volume and issue number. The publication typically contained appeals for volunteers and contributions and information on MCFL activities, as well as on matters such as the results of hearings on bills and constitutional amendments, the status of particular legislation, and the outcome of referenda, court decisions, and administrative hearings. Newsletter recipients were usually urged to contact the relevant decisionmakers and express their opinion.BIn September, 1978, MCFL prepared and distributed a "Special Edition" prior to the September, 1978, primary elections. While the May, 1978, newsletter had been mailed to 2,109 people, and the October, 1978, newsletter to 3,119 people, more than 100,000 copies of the "Special Edition" were printed for distribution. The front page of the publication was headlined "EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE," and readers were admonished that "[n]o pro-life candidate can win in November without your vote in September." "VOTE PRO-LIFE" was printed in large bold-faced letters on the back page, and a coupon was provided to be clipped and taken to the polls to remind voters of the name of the "pro-life" candidates. Next to the exhortation to vote "pro-life" was a disclaimer: "This special election edition does not represent an endorsement of any particular candidate." Id. at 101.To aid the reader in selecting candidates, the flyer listed the candidates for each state and federal office in every voting district in Massachusetts, and identified each one as either supporting or opposing what MCFL regarded as the correct position on three issues. A "y" indicated that a candidate supported the MCFL view on a particular issue, and an "n" indicated that the candidate opposed it. An asterisk was placed next to the names of those incumbents who had made Page 479 U. S. 244 a"special contribution to the unborn in maintaining a 100% pro-life voting record in the state house by actively supporting MCFL legislation."While some 400 candidates were running for office in the primary, the "Special Edition" featured the photographs of only 13. These 13 had received a triple "y" rating, or were identified either as having a 100% favorable voting record or as having stated a position consistent with that of MCFL. No candidate whose photograph was featured had received even one "n" rating.The "Special Edition" was edited by an officer of MCFL who was not part of the staff that prepared the MCFL newsletters. The "Special Edition" was mailed free of charge and without request to 5,986 contributors, and to 50,674 others whom MCFL regarded as sympathetic to the organization's purposes. The Commission asserts that the remainder of the 100,000 issues were placed in public areas for general distribution, but MCFL insists that no copies were made available to the general public. [Footnote 2] The "Special Edition" was not identified on its masthead as a special edition of the regular newsletter, although the MCFL logotype did appear at its top. The words "Volume 5, No. 3, 1978" were apparently handwritten on the Edition submitted to the FEC, but the record indicates that the actual Volume 5, No. 3, was distributed in May and June, 1977. The corporation spent $9,812.76 to publish and circulate the "Special Edition," all of which was taken from its general treasury funds.A complaint was filed with the Commission alleging that the "Special Edition" was a violation of § 441b. The complaint maintained that the Edition represented an expenditure of funds from a corporate treasury to distribute to the general public a campaign flyer on behalf of certain political candidates. The FEC found reason to believe that such a Page 479 U. S. 245 violation had occurred, initiated an investigation, and determined that probable cause existed to believe that MCFL had violated the Act. After conciliation efforts failed, the Commission filed a complaint in the District Court under § 437g(a)(6)(A), seeking a civil penalty and other appropriate relief.Both parties moved for summary judgment. The District Court granted MCFL's motion, holding that: (1) the election publications could not be regarded as "expenditures" under § 441b(b)(2); (2) the "Special Edition" was exempt from the statutory prohibition by virtue of § 431(9)(B)(i), which in general exempts news commentary distributed by a periodical publication unaffiliated with any candidate or political party; and (3) if the statute applied to MCFL, it was unconstitutional as a violation of the First Amendment. 589 F. Supp. 646, 649 (Mass. 1984).On appeal, the Court of Appeals for the First Circuit held that the statute was applicable to MCFL, but affirmed the District Court's holding that the statute, as so applied, was unconstitutional. 769 F.2d 13 (1985). We granted certiorari, 474 U.S. 1049 (1986), and now affirm.IIWe agree with the Court of Appeals that the "Special Edition" is not outside the reach of § 441b. First, we find no merit in appellee's contention that preparation and distribution of the "Special Edition" does not fall within that section's definition of "expenditure." Section 441b(b)(2) defines "contribution or expenditure" as the provision of various things of value "to any candidate, campaign committee, or political party or organization, in connection with any election . . ." (emphasis added). MCFL contends that, since it supplied nothing to any candidate or organization, the publication is not within § 441b. However, the general definitions section of the Act contains a broader definition of "expenditure," including within that term the provision of anything of value Page 479 U. S. 246 made "for the purpose of influencing any election for Federal office. . . ." 2 U.S.C. § 431(9)(A)(i) (emphasis added). Since the language of the statute does not alone resolve the issue, we must look to the legislative history of § 441b to determine the scope of the term "expenditure." [Footnote 3]That history clearly confirms that § 441b was meant to proscribe expenditures in connection with an election. We have exhaustively recounted the legislative history of the predecessors of this section in prior decisions. See Pipefitters v. United States, 407 U. S. 385, 407 U. S. 402-409 (1972); United States v. Automobile Workers, 352 U. S. 567, 352 U. S. 570-587 (1957). This history makes clear that Congress has long regarded it as insufficient merely to restrict payments made directly to candidates or campaign organizations. The first explicit expression of this came in 1947, when Congress passed the Taft-Hartley Act, ch. 120, § 304, 61 Stat. 136, 159, as amended, 18 U.S.C. § 610 (1970 ed.), the criminal statute prohibiting corporate contributions and expenditures to candidates. The statute, as amended, forbade any corporation or labor organization to make a "contribution or expenditure in connection with any election . . ." for federal office. The 1946 Report of the House Special Committee to Investigate Campaign Page 479 U. S. 247 Expenditures explained the rationale for the amendment, noting that it would undermine the basic objective of § 610"if it were assumed that the term 'making any contribution' related only to the donating of money directly to a candidate, and excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of what avail would a law be to prohibit the contributing direct to a candidate, and yet permit the expenditure of large sums in his behalf?"H. R. Rep. No. 2739, 79th Cong., 2d Sess., 40, quoted in Automobile Workers, supra, at 352 U. S. 581.During the legislative debate on the bill, Senator Taft was asked whether § 610 permitted a newspaper published by a railway union to put out a special edition in support of a political candidate, or whether such activity would be considered a political expenditure. The Senator replied:"If it were supported by union funds contributed by union members as union dues, it would be a violation of the law, yes. It is exactly as if a railroad itself, using its stockholders' funds, published such an advertisement in the newspaper supporting one candidate as against another. . . ."93 Cong.Rec. 6436-6437 (1947).United States v. CIO, 335 U. S. 106 (1948), narrowed the scope of this prohibition by permitting the use of union funds to publish a special edition of the weekly CIO News distributed to union members and purchasers of the issue. In Automobile Workers, supra, however, we held that a union was subject to indictment for using union dues to sponsor political advertisements on commercial television. Distinguishing CIO, we stated that the concern of the statute "is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party." 352 U.S. at 352 U. S. 589.The Federal Election Campaign Act enacted the prohibition now found in § 441b. This portion of the Act simply ratified the existing understanding of the scope of § 610. See Page 479 U. S. 248 Pipefitters, supra, at 407 U. S. 410-411. Representative Hansen, the sponsor of the provision, declared:"The effect of this language is to carry out the basic intent of section 610, which is to prohibit the use of union or corporate funds for active electioneering directed at the general public on behalf of a candidate in a Federal election."117 Cong.Rec. 43379 (1971). The Representative concluded:"The net effect of the amendment, therefore, is to tighten and clarify the provisions of section 610 of title 18, United States Code, and to codify the case law."Ibid. [Footnote 4] Thus, the fact that § 441b uses the phrase "to any candidate . . . in connection with any election," while § 610 provided "in connection with any primary election," is not evidence that Congress abandoned its restriction, in force since 1947, on expenditures on behalf of candidates. We therefore find no merit in MCFL's argument that only payments to a candidate or organization fall within the scope of § 441b.Appellee next argues that the definition of an expenditure under § 441b necessarily incorporates the requirement that a communication "expressly advocate" the election of candidates, and that its "Special Edition" does not constitute express advocacy. The argument relies on the portion of Buckley v. Valeo, 424 U. S. 1 (1976), that upheld the disclosure requirement for expenditures by individuals other than candidates and by groups other than political committees. See 2 U.S.C. § 434(c). There, in order to avoid problems of overbreadth, the Court held that the term "expenditure" encompassed "only funds used for communications that expressly advocate the election or defeat of a clearly identified Page 479 U. S. 249 candidate." 424 U.S. at 424 U. S. 80 (footnote omitted). The rationale for this holding was:"[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various issues, but campaigns themselves generate issues of public interest."Id. at 424 U. S. 42 (footnote omitted).We agree with appellee that this rationale requires a similar construction of the more intrusive provision that directly regulates independent spending. We therefore hold that an expenditure must constitute "express advocacy" in order to be subject to the prohibition of § 441b. We also hold, however, that the publication of the "Special Edition" constitutes "express advocacy."Buckley adopted the "express advocacy" requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons. We therefore concluded in that case that a finding of "express advocacy" depended upon the use of language such as "vote for," "elect," "support," etc., Buckley, supra, at 424 U. S. 44, n. 52. Just such an exhortation appears in the "Special Edition." The publication not only urges voters to vote for "pro-life" candidates, but also identifies and provides photographs of specific candidates fitting that description. The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides, in effect, an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than "Vote for Smith" does not change its essential nature. The Edition goes beyond issue discussion to express electoral advocacy. The disclaimer of endorsement cannot negate this fact. The "Special Edition" thus falls Page 479 U. S. 250 squarely within § 441b, for it represents express advocacy of the election of particular candidates distributed to members of the general public.Finally, MCFL argues that it is entitled to the press exemption under 2 U.S.C. § 431(9)(B)(i) reserved for"any news story, commentary, or editorial distributed through the facilities of any . . . newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate."MCFL maintains that its regular newsletter is a "periodical publication" within this definition, and that the "Special Edition" should be regarded as just another issue in the continuing newsletter series. The legislative history on the press exemption is sparse; the House of Representatives' Report on this section states merely that the exemption was designed to"make it plain that it is not the intent of Congress in the present legislation to limit or burden in any way the first amendment freedoms of the press or of association. [The exemption] assures the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns."H.R.Rep. No. 93-1239, p. 4 (1974). We need not decide whether the regular MCFL newsletter is exempt under this provision, because, even assuming that it is, the "Special Edition" cannot be considered comparable to any single issue of the newsletter. It was not published through the facilities of the regular newsletter, but by a staff which prepared no previous or subsequent newsletters. It was not distributed to the newsletter's regular audience, but to a group 20 times the size of that audience, most of whom were members of the public who had never received the newsletter. No characteristic of the Edition associated it in any way with the normal MCFL publication. The MCFL Page 479 U. S. 251 masthead did not appear on the flyer, and, despite an apparent belated attempt to make it appear otherwise, the Edition contained no volume and issue number identifying it as one in a continuing series of issues.MCFL protests that determining the scope of the press exemption by reference to such factors inappropriately focuses on superficial considerations of form. However, it is precisely such factors that, in combination, permit the distinction of campaign flyers from regular publications. We regard such an inquiry as essential, since we cannot accept the notion that the distribution of such flyers by entities that happen to publish newsletters automatically entitles such organizations to the press exemption. A contrary position would open the door for those corporations and unions with in-house publications to engage in unlimited spending directly from their treasuries to distribute campaign material to the general public, thereby eviscerating § 441b's prohibition. [Footnote 5]In sum, we hold that MCFL's publication and distribution of the "Special Edition" is in violation of § 441b. We therefore turn to the constitutionality of that provision as applied to appellee.IIIIndependent expenditures constitute expression "at the core of our electoral process and of the First Amendment freedoms.'" Buckley, 424 U.S. at 424 U. S. 39 (quoting Williams v. Rhodes, 393 U. S. 23, 393 U. S. 32 (1968)). See also FEC v. National Conservative Political Action Committee, 470 U. S. 480, 470 U. S. 493 (1985) (NCPAC) (independent expenditures "produce speech at the core of the First Amendment"). We must therefore Page 479 U. S. 252 determine whether the prohibition of § 441b burdens political speech, and, if so, whether such a burden is justified by a compelling state interest. Buckley, supra, at 424 U. S. 44-45.The FEC minimizes the impact of the legislation upon MCFL's First Amendment rights by emphasizing that the corporation remains free to establish a separate segregated fund, composed of contributions earmarked for that purpose by the donors, that may be used for unlimited campaign spending. However, the corporation is not free to use its general funds for campaign advocacy purposes. While that is not an absolute restriction on speech, it is a substantial one. Moreover, even to speak through a segregated fund, MCFL must make very significant efforts.If it were not incorporated, MCFL's obligations under the Act would be those specified by § 434(c), the section that prescribes the duties of "[e]very person (other than a political committee)." [Footnote 6] Section 434(c) provides that any such person that during a year makes independent expenditures exceeding $250 must: (1) identify all contributors who contribute in a given year over $200 in the aggregate in funds to influence elections, § 434(c)(1); (2) disclose the name and address of recipients of independent expenditures exceeding $200 in the aggregate, along with an indication of whether the money was used to support or oppose a particular candidate, § 434(c)(2)(A); and (3) identify any persons who make contributions over $200 that are earmarked for the purpose of furthering independent expenditures, § 434(c)(2)(C). All unincorporated organizations whose major purpose is not campaign advocacy, but who occasionally make independent expenditures on behalf of candidates, are subject only to these regulations. Page 479 U. S. 253Because it is incorporated, however, MCFL must establish a "separate segregated fund" if it wishes to engage in any independent spending whatsoever. §§ 441b(a),(b)(2)(C). Since such a fund is considered a "political committee" under the Act, § 431(4)(B), all MCFL independent expenditure activity is, as a result, regulated as though the organization's major purpose is to further the election of candidates. This means that MCFL must comply with several requirements in addition to those mentioned. Under § 432, it must appoint a treasurer, § 432(a); ensure that contributions are forwarded to the treasurer within 10 or 30 days of receipt, depending on the amount of contribution, § 432(b)(2); see that its treasurer keeps an account of every contribution regardless of amount, the name and address of any person who makes a contribution in excess of $50, all contributions received from political committees, and the name and address of any person to whom a disbursement is made regardless of amount, § 432(c); and preserve receipts for all disbursements over $200 and all records for three years, §§ 432(c),(d). Under § 433, MCFL must file a statement of organization containing its name, address, the name of its custodian of records, and its banks, safety deposit boxes, or other depositories, §§ 433(a),(b); must report any change in the above information within 10 days, § 433(c); and may dissolve only upon filing a written statement that it will no longer receive any contributions nor make disbursements, and that it has no outstanding debts or obligations, § 433(d)(1).Under § 434, MCFL must file either monthly reports with the FEC or reports on the following schedule: quarterly reports during election years, a preelection report no later than the 12th day before an election, a post-election report within 30 days after an election, and reports every 6 months during nonelection years, §§ 434(a)(4)(A),(B). These reports must contain information regarding the amount of cash on Page 479 U. S. 254 hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate's authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation. § 434(b). In addition, MCFL may solicit contributions for its separate segregated fund only from its "members," §§ 441b(b)(4)(A), (C), which does not include those persons who have merely contributed to or indicated support for the organization in the past. See FEC v. National Right to Work Committee, 459 U. S. 197, 459 U. S. 204 (1982).It is evident from this survey that MCFL is subject to more extensive requirements and more stringent restrictions than it would be if it were not incorporated. These additional regulations may create a disincentive for such organizations to engage in political speech. Detailed recordkeeping and disclosure obligations, along with the duty to appoint a treasurer and custodian of the records, impose administrative costs that many small entities may be unable to bear. [Footnote 7] Furthermore, such duties require a far more complex Page 479 U. S. 255 and formalized organization than many small groups could manage. Restriction of solicitation of contributions to "members" vastly reduces the sources of funding for organizations with either few or no formal members, directly limiting the ability of such organizations to engage in core political speech. It is not unreasonable to suppose that, as in this case, an incorporated group of like-minded persons might seek donations to support the dissemination of their political ideas and their occasional endorsement of political candidates, by means of garage sales, bake sales, and raffles. Such persons might well be turned away by the prospect of complying with all the requirements imposed by the Act. Faced with the need to assume a more sophisticated organizational form, to adopt specific accounting procedures, to file periodic detailed reports, and to monitor garage sales lest nonmembers take a fancy to the merchandise on display, it would not be surprising if at least some groups decided that the contemplated political activity was simply not worth it. [Footnote 8]Thus, while § 441b does not remove all opportunities for independent spending by organizations such as MCFL, the avenue it leaves open is more burdensome than the one it forecloses. The fact that the statute's practical effect may be to discourage protected speech is sufficient to characterize § 441b as an infringement on First Amendment activities. In Freedman v. Maryland, 380 U. S. 51 (1965), for instance, we held that the absence of certain procedural safeguards rendered unconstitutional a State's film censorship program. Such procedures were necessary, we said, because, as a practical matter, without them "it may prove too burdensome to seek review of the censor's determination." Id. at 380 U. S. 59. Page 479 U. S. 256 Speiser v. Randall, 357 U. S. 513 (1958), reviewed a state program under which taxpayers applying for a certain tax exemption bore the burden of proving that they did not advocate the overthrow of the United States, and would not support a foreign government against this country. We noted:"In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free."Id. at 357 U. S. 526. The same may be said of § 441b, for its practical effect on MCFL in this case is to make engaging in protected speech a severely demanding task. [Footnote 9]BWhen a statutory provision burdens First Amendment rights, it must be justified by a compelling state interest. Williams v. Rhodes, 393 U.S. at 393 U. S. 31; NAACP v. Button, 371 U. S. 415, 371 U. S. 438 (1963). The FEC first insists that justification for § 441b's expenditure restriction is provided by this Court's acknowledgment that "the special characteristics of the corporate structure require particularly careful regulation." National Right to Work Committee, supra, at 459 U. S. 209-210. The Commission thus relies on the long history of regulation of corporate political activity as support for the application of § 441b to MCFL. Evaluation of the Commission's Page 479 U. S. 257 argument requires close examination of the underlying rationale for this long-standing regulation.We have described that rationale in recent opinions as the need to restrict "the influence of political war chests funneled through the corporate form," NCPAC, 470 U.S. at 470 U. S. 501; to "eliminate the effect of aggregated wealth on federal elections," Pipefitters, 407 U.S. at 407 U. S. 416; to curb the political influence of "those who exercise control over large aggregations of capital," Automobile Workers, 352 U.S. at 352 U. S. 585; and to regulate the "substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization," National Right to Work Committee, 459 U.S. at 459 U. S. 207.This concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas. It acknowledges the wisdom of Justice Holmes' observation that"the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . ."Abrams v. United States, 250 U. S. 616, 250 U. S. 630 (1919) (Holmes, J., joined by Brandeis, J., dissenting). [Footnote 10]Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace. Political "free trade" does not necessarily require that all who participate in the political marketplace do so with exactly equal resources. See NCPAC, supra, (invalidating Page 479 U. S. 258 limits on independent spending by political committees); Buckley, 424 U.S. at 424 U. S. 39-51 (striking down expenditure limits in 1971 Campaign Act). Relative availability of funds is, after all, a rough barometer of public support. The resources in the treasury of a business corporation, however, are not an indication of popular support for the corporation's political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.By requiring that corporate independent expenditures be financed through a political committee expressly established to engage in campaign spending, § 441b seeks to prevent this threat to the political marketplace. The resources available to this fund, as opposed to the corporate treasury, in fact reflect popular support for the political positions of the committee. Pipefitters, supra, acknowledged this objective of § 441b in noting the statement of Representative Hansen, its sponsor, that the "underlying theory'" of this regulation "`is that substantial general purpose treasuries should not be diverted to political purposes,'" and that requiring funding by voluntary contributions would ensure that"'the money collected is that intended by those who contribute to be used for political purposes, and not money diverted from another source.'"407 U.S. at 407 U. S. 423-424 (quoting 117 Cong.Rec. 43381 (1971)). [Footnote 11] See also Automobile Workers, supra, at 352 U. S. 582 Page 479 U. S. 259 (Congress added proscription on expenditures to Corrupt Practices Act "to protect the political process from what it deemed to be the corroding effect of money employed in elections by aggregated power"). The expenditure restrictions of § 441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.Regulation of corporate political activity thus has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes. [Footnote 12] Groups such as MCFL, however, do not pose that danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace. While MCFL may derive some advantages from its corporate form, those are advantages that redound to its benefit as a political organization, not as a profit-making enterprise. In short, MCFL is not the type of "traditional corporatio[n] organized for economic gain," NCPAC, supra, at 470 U. S. 500, that has been the focus of regulation of corporate political activity.National Right to Work Committee does not support the inclusion of MCFL within § 441b's restriction on direct independent spending. That case upheld the application to a nonprofit corporation of a different provision of § 441b: the limitation on who can be solicited for contributions to a political committee. However, the political activity at issue in that case was contributions, as the committee had been established for the purpose of making direct contributions to political candidates. 459 U.S. at 459 U. S. 200. We have consistently held that restrictions on contributions require less compelling Page 479 U. S. 260 justification than restrictions on independent spending. NCPAC, 470 U. S. 480 (1985); California Medical Assn. v. FEC, 453 U. S. 182, 453 U. S. 194, 453 U. S. 196-197 (1981); Buckley, supra, at 424 U. S. 20-22.In light of the historical role of contributions in the corruption of the electoral process, the need for a broad prophylactic rule was thus sufficient in National Right to Work Committee to support a limitation on the ability of a committee to raise money for direct contributions to candidates. The limitation on solicitation in this case, however, means that nonmember corporations can hardly raise any funds at all to engage in political speech warranting the highest constitutional protection. Regulation that would produce such a result demands far more precision than § 441b provides. Therefore, the desirability of a broad prophylactic rule cannot justify treating alike business corporations and appellee in the regulation of independent spending.The Commission next argues in support of § 441b that it prevents an organization from using an individual's money for purposes that the individual may not support. We acknowledged the legitimacy of this concern as to the dissenting stockholder and union member in National Right to Work Committee, 459 U.S. at 459 U. S. 208, and in Pipefitters, 407 U.S. at 407 U. S. 414-415. But such persons, as noted, contribute investment funds or union dues for economic gain, and do not necessarily authorize the use of their money for political ends. Furthermore, because such individuals depend on the organization for income or for a job, it is not enough to tell them that any unhappiness with the use of their money can be redressed simply by leaving the corporation or the union. It was thus wholly reasonable for Congress to require the establishment of a separate political fund to which persons can make voluntary contributions.This rationale for regulation is not compelling with respect to independent expenditures by appellee. Individuals who contribute to appellee are fully aware of its political purposes, and in fact contribute precisely because they support Page 479 U. S. 261 those purposes. It is true that a contributor may not be aware of the exact use to which his or her money ultimately may be put, or the specific candidate that it may be used to support. However, individuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction. Any contribution therefore necessarily involves at least some degree of delegation of authority to use such funds in a manner that best serves the shared political purposes of the organization and contributor. In addition, an individual desiring more direct control over the use of his or her money can simply earmark the contribution for a specific purpose, an option whose availability does not depend on the applicability of § 441b. Cf. § 434(c)(2)(C) (entities other than political committees must disclose names of those persons making earmarked contributions over $200). Finally, a contributor dissatisfied with how funds are used can simply stop contributing.The Commission maintains that, even if contributors may be aware that a contribution to appellee will be used for political purposes in general, they may not wish such money to be used for electoral campaigns in particular. That is, persons may desire that an organization use their contributions to further a certain cause, but may not want the organization to use their money to urge support for or opposition to political candidates solely on the basis of that cause. This concern can be met, however, by means far more narrowly tailored and less burdensome than § 441b's restriction on direct expenditures: simply requiring that contributors be informed that their money may be used for such a purpose.It is true that National Right to Work Committee, supra, held that the goal of protecting minority interests justified solicitation restrictions on a nonprofit corporation operating a political committee established to make direct contributions to candidates. As we have noted above, however, the Government enjoys greater latitude in limiting contributions Page 479 U. S. 262 than in regulating independent expenditures. Supra at 479 U. S. 259-260. Given a contributor's awareness of the political activity of appellee, as well as the readily available remedy of refusing further donations, the interest protecting contributors is simply insufficient to support § 441b's restriction on the independent spending of MCFL.Finally, the FEC maintains that the inapplicability of § 441b to MCFL would open the door to massive undisclosed political spending by similar entities, and to their use as conduits for undisclosed spending by business corporations and unions. We see no such danger. Even if § 441b is inapplicable, an independent expenditure of as little as $250 by MCFL will trigger the disclosure provisions of § 434(c). As a result, MCFL will be required to identify all contributors who annually provide in the aggregate $200 in funds intended to influence elections, will have to specify all recipients of independent spending amounting to more than $200, and will be bound to identify all persons making contributions over $200 who request that the money be used for independent expenditures. These reporting obligations provide precisely the information necessary to monitor MCFL's independent spending activity and its receipt of contributions. The state interest in disclosure therefore can be met in a manner less restrictive than imposing the full panoply of regulations that accompany status as a political committee under the Act.Furthermore, should MCFL's independent spending become so extensive that the organization's major purpose may be regarded as campaign activity, the corporation would be classified as a political committee. See Buckley, 424 U.S. at 424 U. S. 79. As such, it would automatically be subject to the obligations and restrictions applicable to those groups whose primary objective is to influence political campaigns. In sum, there is no need for the sake of disclosure to treat MCFL any differently than other organizations that only occasionally engage in independent spending on behalf of candidates. Page 479 U. S. 263Thus, the concerns underlying the regulation of corporate political activity are simply absent with regard to MCFL. The dissent is surely correct in maintaining that we should not second-guess a decision to sweep within a broad prohibition activities that differ in degree, but not kind. Post at 479 U. S. 269-269. It is not the case, however, that MCFL merely poses less of a threat of the danger that has prompted regulation. Rather, it does not pose such a threat at all. Voluntary political associations do not suddenly present the specter of corruption merely by assuming the corporate form. Given this fact, the rationale for restricting core political speech in this case is simply the desire for a bright-line rule. This hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom. While the burden on MCFL's speech is not insurmountable, we cannot permit it to be imposed without a constitutionally adequate justification. In so holding, we do not assume a legislative role, but fulfill our judicial duty -- to enforce the demands of the Constitution.COur conclusion is that § 441b's Page 479 U. S. 264 restriction of independent spending is unconstitutional as applied to MCFL, for it infringes protected speech without a compelling justification for such infringement. We acknowledge the legitimacy of Congress' concern that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace.Regardless of whether that concern is adequate to support application of § 441b to commercial enterprises, a question not before us, that justification does not extend uniformly to all corporations. Some corporations have features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of their incorporated status.In particular, MCFL has three features essential to our holding that it may not constitutionally be bound by § 441b's restriction on independent spending. First, it was formed for the express purpose of promoting political ideas, and cannot engage in business activities. If political fundraising events are expressly denominated as requests for contributions that will be used for political purposes, including direct expenditures, these events cannot be considered business activities. This ensures that political resources reflect political support. Second, it has no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity. [Footnote 13] Third, MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace.It may be that the class of organizations affected by our holding today will be small. That prospect, however, does not diminish the significance of the rights at stake. Freedom of speech plays a fundamental role in a democracy; as this Court has said, freedom of thought and speech "is the matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, 302 U. S. 319, 302 U. S. 327 (1937). Our pursuit of other governmental ends, however, may tempt us to accept in small increments a loss that would Page 479 U. S. 265 be unthinkable if inflicted all at once. For this reason, we must be as vigilant against the modest diminution of speech as we are against its sweeping restriction. Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation. In enacting the provision at issue in this case, Congress has chosen too blunt an instrument for such a delicate task.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtFEC v. Mass. Cit. for Life, 479 U.S. 238 (1986)Federal Election Commission v.Massachusetts Citizens for Life, Inc.No. 85-701Argued October 7, 1986Decided December 15, 1986479 U.S. 238SyllabusSection 316 of the Federal Election Campaign Act (FECA) prohibits corporations from using treasury funds to make an expenditure "in connection with" any federal election, and requires that any expenditure for such purpose be financed by voluntary contributions to a separate segregated fund. Appellee is a nonprofit, nonstock corporation, whose purpose is to foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political, and other forms of activities. To further this purpose, it has published a newsletter that has been distributed to contributors and to noncontributors who have expressed support for the organization. In September, 1978, appellee prepared and distributed a "Special Edition" exhorting readers to vote "pro-life" in the upcoming primary elections in Massachusetts, listing the candidates for each state and federal office in every voting district in the State, and identifying each one as either supporting or opposing appellee's views. While some 400 candidates were listed, the photographs of only 13 were featured, all of whom were identified as favoring appellee's views. The publication was prepared by a staff that had prepared no regular newsletter, was distributed to a much larger audience than that of the regular newsletter, most of whom were members of the general public, and was financed by money taken from appellee's general treasury funds. A complaint was filed with appellant Federal Election Commission (FEC) alleging that the "Special Edition" violated § 316 as representing an expenditure of funds from a corporate treasury to distribute to the general public a campaign flyer on behalf of certain political candidates. After the FEC determined that there was probable cause to believe that appellee had violated the statute, the FEC filed a complaint in Federal District Court, seeking a civil penalty and other relief. The District Court granted appellee's motion for summary judgment, holding that § 316 did not apply to appellee, but that, if it did it, was unconstitutional as a violation of the First Amendment. The Court of Appeals held that the statute applied to appellee and, as so applied, was unconstitutional. Page 479 U. S. 239Held: The judgment is affirmed.769 F.2d 13, affirmed.JUSTICE BRENNAN delivered the opinion of the Court as to Parts I, II, III-B, and III-C, concluding that:1. Appellee's publication and distribution of the "Special Edition" violated § 316. Pp. 479 U. S. 245-251.(a) There is no merit to appellee's contention that preparation and distribution of the "Special Edition" does not fall within § 316's definition of "expenditure" as the provision of various things of value "to any candidate, campaign committee, or political party or organization, in connection with any election," especially since the general definitions section of the FECA broadly defines "expenditure" as including provision of anything of value made "for the purpose of influencing any election for Federal office." Moreover, the legislative history clearly confirms that § 316 was meant to proscribe expenditures in connection with an election. That history makes clear that Congress has long regarded it as insufficient merely to restrict payments made directly to candidates or campaign organizations. Pp. 479 U. S. 245-248.(b) An expenditure must constitute "express advocacy" in order to be subject to § 316's prohibition. Here, the publication of the "Special Edition" constituted "express advocacy," since it represented express advocacy of the election of particular candidates distributed to members of the general public. Pp. 479 U. S. 248-250.(c) Appellee is not entitled to the press exemption under the FECA reserved for any news story, commentary, or editorial distributed through any "periodical publication," since even assuming that appellee's regular newsletter is exempt under this provision, the "Special Edition" cannot be considered comparable to any single issue of the newsletter, in view of the method by which it was prepared and distributed. Pp. 479 U. S. 250-251.2. Section 316's restriction of independent spending is unconstitutional as applied to appellee, for it infringes protected speech without a compelling justification for such infringement. The concern underlying the regulation of corporate political activity -- that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace -- is absent with regard to appellee. Appellee was formed to disseminate political ideas, not to amass capital. It has no shareholders or other persons having a claim on its assets or earnings, but obtains its funds from persons who make contributions to further the organization's political purposes. It was not established by a business corporation or a labor union, and its policy is not to accept contributions from such entities. Pp. 479 U. S. 256-265. Page 479 U. S. 240JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE POWELL, and JUSTICE SCALIA, concluded in Part III-A that the practical effect of applying § 316 to appellee of discouraging protected speech is sufficient to characterize § 316 as an infringement on First Amendment activities. As a corporation, appellee is subject to more extensive requirements and more stringent restrictions under the FECA than it would be if was not incorporated. These include detailed recordkeeping and disclosure obligations, the requirement of a complex and formalized organization, and a limitation on whom can be solicited for contributions, all of which create a disincentive for such an organization to engage in political speech. Pp. 479 U. S. 251-256.JUSTICE O'CONNOR, agreeing that § 316 is unconstitutional as applied to appellee's conduct at issue, concluded that the significant burden on appellee comes not from the statute's disclosure requirements that appellee must satisfy, but from the additional organizational restraints imposed upon it by the statute. These restraints do not further the Government's informational interest in campaign disclosure, and cannot be justified by any of the other interests identified by the FEC. Pp. 479 U. S. 265-266.BRENNAN, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, an opinion of the Court with respect to Parts III-B and III-C, in which MARSHALL, POWELL, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Part III-A, in which MARSHALL, POWELL, and SCALIA, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 479 U. S. 265. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which WHITE, BLACKMUN, and STEVENS, JJ., joined, post, p. 479 U. S. 266. WHITE, J., filed a separate statement, post, p. 479 U. S. 271. Page 479 U. S. 241

1998_97-1704

23(b)(1)(B) (read with subdivision (c)(2)) provides for certification of a class whose members have no right to withdraw, when "the prosecution of separate actions ... would create a risk" of "adjudications with respect to individual [class] members ... which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." Among the traditional varieties of representative suits encompassed by Rule 23(b)(1)(B) is the limited fund class action. In such a case, equity required absent parties to be represented, joinder being impractical, where individual claims to be satisfied from the one asset would, as a practical matter, prejudice the rights of absent claimants against a fund inadequate to pay them all. Pp. 832-837.(b) The cases forming the limited fund class action's pedigree as understood by Rule 23's drafters have a number of common characteristics, despite the variety of circumstances from which they arose. These characteristics show what the Advisory Committee must have assumed would be at least a sufficient set of conditions to justify binding absent members of a Rule 23(b)(1)(B) class, from which no one has the right to secede. In sum, mandatory class treatment through representative actions on a limited fund theory was justified with reference to a "fund" with a definitely ascertained limit that was inadequate to pay all claims against it, all of which was distributed to satisfy all those with claims based on a common theory of liability, by an equitable, pro rata distribution. Pp. 838-841.(c) There are good reasons to treat the foregoing characteristics as presumptively necessary, and not merely sufficient, to satisfy the limited fund rationale for a mandatory class action. At the least, the burden of justification rests on the proponent of any departure from the traditional norm. Although Rule 23(b)(1)(B)'s text is open to a more lenient limited fund concept, the greater the leniency in departing from the historical model, the greater the likelihood of abuse in ways that are apparent when the limited fund criteria are applied to this case. The prudent course, therefore, is to presume that when subdivision (b)(1)(B) was devised to cover limited fund actions, the object was to stay close to the historical model. This limiting construction finds support in the Advisory Committee's expressions of understanding, which clearly did not contemplate that the mandatory class action codified in subdivision (b)(1)(B) would be used to aggregate unliquidated tort claims on a limited fund rationale. The construction also minimizes potential conflict with the Rules Enabling Act, which requires that rules of procedure "not abridge, enlarge or modify any substantive right," 28 U. S. C. § 2072(b). See, e. g., Amchem, supra, at 613. Finally, the Court's construction avoids serious constitutional concerns, including the Seventh818SyllabusAmendment jury trial rights of absent class members, and the due process principle that, with limited exceptions, one is not bound by a judgment in personam in litigation in which he is not a party, Hansberry v. Lee, 311 U. S. 32, 40. Pp. 841-848.3. The record on which the District Court rested its class certification did not support the essential premises of a mandatory limited fund class action. It did not demonstrate that the fund was limited except by the agreement of the parties, and it affirmatively allowed exclusions from the class and allocations of assets at odds with the concept of limited fund treatment and the Rule 23(a) structural protections explained in Amchem. Pp. 848-861.(a) The certification defect going to the most characteristic feature of a limited fund action was the uncritical adoption by both courts below of figures agreed upon by the parties in defining the fund's limits. In a settlement-only class action such as this, the settling parties must present not only their agreement, but evidence on which the district court may ascertain the fund's limits, with support in findings of fact following a proceeding in which the evidence is subject to challenge. Here, there was no adequate demonstration of the fund's upper limit. The "fund" comprised both Fibreboard's general assets and the insurance provided by the two policies. As to the general assets, the lower courts concluded that Fibreboard had a then-current sale value of $235 million that could be devoted to the limited fund. While that estimate may have been conservative, at least the District Court heard evidence and made an independent finding at some point in the proceedings. The same, however, cannot be said for the value of the disputed insurance. Instead of independently evaluating potential insurance funds, the courts below simply accepted the $2 billion Trilateral Settlement Agreement figure, concluding that where insurance coverage is disputed, it is appropriate to value the insurance asset at a settlement value. Such value may be good evidence of the maximum available if one can assume that parties of equal knowledge and negotiating skill agreed upon the figure through arms-length bargaining, unhindered by any considerations tugging against the interests of the parties ostensibly represented in the negotiation. No such assumption may be indulged in here, since at least some of the same lawyers representing the class also negotiated the separate settlement of 45,000 pending claims, the full payment of which was contingent on a successful global settlement agreement or the successful resolution of the insurance coverage dispute. Class counsel thus had great incentive to reach any global settlement that they thought might survive a Rule 23(e) fairness hearing, rather than the best possible arrangement for the substantially unidentified global settlement class. See Amchem, supra, at 626-627. Pp. 848-853.819(b) The settlement certification also fell short with respect to the inclusiveness of the class and the fairness of distributions to those within it. The class excludes myriad claimants with causes of action, or foreseeable causes of action, arising from exposure to Fibreboard asbestos. The number of those outside the class who settled with a reservation of rights may be uncertain, but there is no such uncertainty about the significance of the settlement's exclusion of the 45,000 inventory plaintiffs and the plaintiffs in the unsettled present cases, estimated at more than 53,000. A mandatory limited fund settlement class cannot qualify for certification when, in the very negotiations aimed at a class settlement, class counsel agree to exclude what may turn out to be as much as a third of the claimants that negotiators thought might eventually be involved, a substantial number of whom class counsel represent. The settlement certification is likewise deficient as to the fairness of the fund's distribution among class members. First, a class including holders of present and future claims (some of the latter involving no physical injury and claimants not yet born) requires division into homogeneous subclasses under Rule 23(c)(4)(B), with separate representation to eliminate conflicting interests of counsel. See Amchem, 521 U. S., at 627. No such procedure was employed here. Second, the class included those exposed to Fibreboard's asbestos products both before and after 1959, the year that saw the expiration of Fibreboard's Continental policy, which provided the bulk of the insurance funds for the settlement. Pre-1959 claimants accordingly had more valuable claims than post-1959 claimants, the consequence being a second instance of disparate interests within the certified class. While at some point there must be an end to reclassification with separate counsel, these two instances of conflict are well within Amchem's structural protection requirement. Pp.854-859.(c) A third contested feature that departs markedly from the limited fund antecedents is the ultimate provision for a fund smaller than the assets understood by the Fifth Circuit to be available for payment of the mandatory class members' claims. Most notably, Fibreboard was allowed to retain virtually its entire net worth. Given this Court's treatment of the two preceding certification deficiencies, there is no need to decide whether this feature would alone be fatal to the global settlement. To ignore it entirely, however, would be so misleading that the Court simply identifies the issue it raises, without purporting to resolve it at this time. Fibreboard listed its supposed entire net worth as a component of the total (and allegedly inadequate) assets available for claimants, but subsequently retained all but $500,000 of that equity for itself. It hardly appears that such a regime is the best that can be provided for class members. Whether in a case where a settle-820Syllabusment saves transaction costs that would never have gone into a class member's pocket in the absence of settlement, a credit for some of the savings may be recognized as an incentive to settlement is at least a legitimate question, which the Court leaves for another day. pp. 859-861.134 F.3d 668, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ., joined. REHNQUIST, C. J., filed a concurring opinion, in which SCALIA and KENNEDY, JJ., joined, post, p. 865. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 865.Laurence H. Tribe argued the cause for petitioners. With him on the briefs were Brian Koukoutchos, Jonathan S. Massey, Frederick M. Baron, Brent M. Rosenthal, and Steve Baughman.Elihu Inselbuch argued the cause for respondents. With him on the brief for respondents Ahearn et al. were Peter Van N. Lockwood, Joseph B. Cox, Jr., Joseph F. Rice, Steven Kazan, and Harry F. Wartnick. Herbert M. Wachtell, Paul J. Bschorr, Richard B. Sypher, Kelly C. Wooster, Stephen M. Snyder, William R. Irwin, Rodney L. Eshelman, Donald T. Ramsey, Stuart Philip Ross, Sean M. Hanifan, Merril J. Hirsh, and Michael E. Jones filed a brief for respondents Continental Casualty Co. et al. **Briefs of amici curiae urging reversal were filed for the Association of Trial Lawyers of America by Jeffrey Robert White and Mark S. Mandell; for Trial Lawyers for Public Justice, P. C., by Arthur H. Bryant and Anne Bloom; and for Legal Ethics, Civil Procedure, and Constitutional Law Scholars by Roger C. Cramton, Kenneth J. Chesebro, and BarbaraBriefs of amici curiae urging affirmance were filed for Asbestos Victims of America by Daniel U. Smith; for Exxon Corporation by Charles W Bender, John F. Daum, and Charles C. Lifland; and for the National Association of Securities and Commercial Law Attorneys by Kevin P. Roddy and Arthur R. Miller.821JUSTICE SOUTER delivered the opinion of the Court.This case turns on the conditions for certifying a mandatory settlement class on a limited fund theory under Federal Rule of Civil Procedure 23(b)(1)(B). We hold that applicants for contested certification on this rationale must show that the fund is limited by more than the agreement of the parties, and has been allocated to claimants belonging within the class by a process addressing any conflicting interests of class members.ILike Amchem Products, Inc. v. Windsor, 521 U. S. 591 (1997), this case is a class action prompted by the elephantine mass of asbestos cases, and our discussion in Amchem will suffice to show how this litigation defies customary judicial administration and calls for national legislation.1 In 1967, one of the first actions for personal asbestos injury was filed in the United States District Court for the Eastern District1" '[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015."'The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether.''' Amchem Products, Inc. v. Windsor, 521 U. S., at 598 (quoting Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991) (hereinafter Report)). We noted in Amchem that the Judicial Conference Ad Hoc Committee on Asbestos Litigation in 1991 had called for "federal legislation creating a national asbestos dispute-resolution scheme." 521 U. S., at 528 (citing Report 3, 27-35). To date Congress has not responded.822of Texas against a group of asbestos manufacturers. App. to Pet. for Cert. 252a. In the 1970's and 1980's, plaintiffs' lawyers throughout the country, particularly in East Texas, honed the litigation of asbestos claims to the point of almost mechanical regularity, improving the forensic identification of diseases caused by asbestos, refining theories of liability, and often settling large inventories of cases. See D. Hensler, W. Felstiner, M. Selvin, & P. Ebener, Asbestos in the Courts: The Challenge of Mass Toxic Torts vii (1985); McGovern, Resolving Mature Mass Tort Litigation, 69 B. U. L. Rev. 659, 660-661 (1989); see also App. to Pet. for Cert. 253a.Respondent Fibreboard Corporation was a defendant in the 1967 action. Although it was primarily a timber company, from the 1920's through 1971 the company manufactured a variety of products containing asbestos, mainly for high-temperature industrial applications. As the tide of asbestos litigation rose, Fibreboard found itself litigating on two fronts. On one, plaintiffs were filing a stream of personal injury claims against it, swelling throughout the 1980's and 1990's to thousands of new claims for compensatory damages each year. Id., at 265a; App. 1040a. On the second front, Fibreboard was battling for funds to pay its tort claimants. From May 1957 through March 1959, respondent Continental Casualty Company had provided Fibreboard with a comprehensive general liability policy with limits of $1 million per occurrence, $500,000 per claim, and no aggregate limit. Fibreboard also claimed that respondent Pacific Indemnity Company had insured it from 1956 to 1957 under a similar policy. App. to Pet. for Cert. 267a-268a. Beginning in 1979, Fibreboard was locked in coverage litigation with Continental and Pacific in a California state trial court, which in 1990 held Continental and Pacific responsible for indemnification as to any claim by a claimant exposed to Fibreboard asbestos products prior to their policies' respective823expiration dates. I d., at 268a-269a. The decree also required the insurers to pay the full cost of defense for each claim covered. Ibid. The insurance companies appealed.With asbestos case filings continuing unabated, and its secure insurance assets almost depleted, Fibreboard in 1988 began a practice of "structured settlement," paying plaintiffs 40 percent of the settlement figure up front with the balance contingent upon a successful resolution of the coverage dispute.2 By 1991, however, the pace of filings forced Fibreboard to start settling cases entirely with the assignments of its rights against Continental, with no initial payment. To reflect the risk that Continental might prevail in the coverage dispute, these assignment agreements generally carried a figure about twice the nominal amount of earlier settlements. Continental challenged Fibreboard's right to make unilateral assignments, but in 1992 a California state court ruled for Fibreboard in that dispute.3Meanwhile, in the aftermath of a 1990 Federal Judicial Center conference on the asbestos litigation crisis, Fibreboard approached a group of leading asbestos plaintiffs' lawyers, offering to discuss a "global settlement" of its asbestos2 Because Fibreboard's insurance policy with Continental expired in 1959, before the global settlement the settlement value of claims by victims exposed to Fibreboard's asbestos prior to 1959 was much higher than for victims exposed after 1959, where the only right of recovery was against Fibreboard itself. See In re Asbestos Litigation, 90 F.3d 963, 1012-1013 (CA5 1996) (Smith, J., dissenting).3Id., at 969, and n. 1 (citing Andrus v. Fibreboard, No. 614747-3 (Sup.Ct., Alameda Cty., June 1, 1992)). Continental appealed, and, after the Global Settlement Agreement was reached in this case, but before the fairness hearing, see infra, at 827, a California appellate court reversed. See 90 F. 3d, at 969, and n. 1 (citing Fibreboard Corp. v. Continental Casualty Co., No. A059716 (Cal. App., Oct. 19, 1994)). Continental and Fibreboard had each brought actions seeking to establish (or challenge) the validity of Fibreboard's assignment-settlement program, but only Andrus produced a definitive ruling as opposed to a settlement. See App. to Pet. for Cert. 288a-290a.824personal-injury liability. Early negotiations bore relatively little fruit, save for the December 1992 settlement by assignment of a significant inventory of pending claims. This settlement brought Fibreboard's deferred settlement obligations to more than $1.2 billion, all contingent upon victory over Continental on the scope of coverage and the validity of the settlement assignments.In February 1993, after Continental had lost on both issues at the trial level, and thus faced the possibility of practically unbounded liability, it too joined the global settlement negotiations. Because Continental conditioned its part in any settlement on a guarantee of "total peace," ensuring no unknown future liabilities, talks focused on the feasibility of a mandatory class action, one binding all potential plaintiffs and giving none of them any choice to opt out of the certified class. Negotiations continued throughout the spring and summer of 1993, but the difficulty of settling both actually pending and potential future claims simultaneously led to an agreement in early August to segregate and settle an inventory of some 45,000 pending claims, being substantially all those filed by one of the plaintiffs' firms negotiating the global settlement. The settlement amounts per claim were higher than average, with one-half due on closing and the remainder contingent upon either a global settlement or Fibreboard's success in the coverage litigation. This agreement provided the model for settling inventory claims of other firms.With the insurance companies' appeal of the consolidated coverage case set to be heard on August 27, the negotiating parties faced a motivating deadline, and about midnight before the argument, in a coffee shop in Tyler, Texas, the negotiators finally agreed upon $1.535 billion as the key term of a "Global Settlement Agreement." $1.525 billion of this sum would come from Continental and Pacific, in the proportion established by the California trial court in the coverage case,825while Fibreboard would contribute $10 million, all but $500,000 of it from other insurance proceeds, App. 84a. The negotiators also agreed to identify unsettled present claims against Fibreboard and set aside an as-then unspecified fund to resolve them, anticipating that the bulk of any excess left in that fund would be transferred to class claimants. Ahearn v. Fibreboard Corp., 162 F. R. D. 505, 517 (ED Tex. 1995). The next day, as a hedge against the possibility that the Global Settlement Agreement might fail, plaintiffs' counsel insisted as a condition of that agreement that Fibreboard and its two insurers settle the coverage dispute by what came to be known as the "Trilateral Settlement Agreement." The two insurers agreed to provide Fibreboard with funds eventually set at $2 billion to defend against asbestos claimants and pay the winners, should the Global Settlement Agreement fail to win approval. Id., at 517, 521; see also App. to Pet. for Cert. 492a.4On September 9, 1993, as agreed, a group of named plaintiffs filed an action in the United States District Court for the Eastern District of Texas, seeking certification for settlement purposes of a mandatory class comprising three groups: all persons with personal injury claims against Fibreboard for asbestos exposure who had not yet brought suit or settled their claims before the previous August 27; those who had dismissed such a claim but retained the right to bring a future action against Fibreboard; and "past, present and future spouses, parents, children, and other relatives" of class mem-4 Two related settlement agreements accompanied the Global and Trilateral Settlement Agreements. The first, negotiated with representatives of Fibreboard's major codefendants, preserved credit rights for codefendant third parties, In re Asbestos Litigation, 90 F.3d 963, 973 (CA5 1996); the second provided that final approval of the Global Settlement Agreement would not constitute a "settlement" under the Longshore and Harbor Workers' Compensation Act, 33 U. S. C. § 933(g), 162 F. R. D., at 521-522. Neither of these agreements is before the Court.826bers exposed to Fibreboard asbestos.5 The class did not include claimants with actions presently pending against Fibreboard or claimants "who filed and, for cash payment or some other negotiated value, dismissed claims against Fibreboard, and whose only retained right is to sue Fibreboard upon development of an asbestos-related malignancy." Id.,5 The final judgment regarding class certification in the District Court defined the class as follows:"(a) All persons (or their legal representatives) who prior to August 27, 1993 were exposed, directly or indirectly (including but not limited to exposure through the exposure of a spouse, household member or any other person), to asbestos or to asbestos-containing products for which Fibreboard may bear legal liability and who have not, before August 27, 1993, (i) filed a lawsuit for any asbestos related personal injury, or damage, or death arising from such exposure in any court against Fibreboard or persons or entities for whose actions or omissions Fibreboard bears legal liability; or (ii) settled a claim for any asbestos-related personal injury, or damage, or death arising from such exposure with Fibreboard or with persons or entities for whose actions or omissions Fibreboard bears legal liability;"(b) All persons (or their legal representatives) exposed to asbestos or to asbestos-containing products, directly or indirectly (including but not limited to exposure through the exposure of a spouse, household member or any other person), who dismissed an action prior to August 27, 1993 without prejudice against Fibreboard, and who retain the right to sue Fibreboard upon development of a nonmalignant disease process or a malignancy; provided, however, that the Settlement Class does not include persons who filed and, for cash payment or some other negotiated value, dismissed claims against Fibreboard, and whose only retained right is to sue Fibreboard upon development of an asbestos-related malignancy; and"(c) All past, present and future spouses, parents, children and other relatives (or their legal representatives) of the class members described in paragraphs (a) and (b) above, except for any such person who has, before August 27, 1993, (i) filed a lawsuit for the asbestos-related personal injury, or damage, or death of a class member described in paragraph (a) or (b) above in any court against Fibreboard (or against entities for whose actions or omissions Fibreboard bears legal liability), or (ii) settled a claim for the asbestos-related personal injury, or damage, or death of a class member described in (a) or (b) above with Fibreboard (or with entities for whose actions or omissions Fibreboard bears legal liability)." App. to Pet. for Cert. 534a-535a.827at 534a-535a. The complaint pleaded personal injury claims against Fibreboard, and, as justification for class certification, relied on the shared necessity of ensuring insurance funds sufficient for compensation. Id., at 552a-569a. After Continental and Pacific had obtained leave to intervene as party-defendants, the District Court provisionally granted class certification, enjoined commencement of further separate litigation against Fibreboard by class members, and appointed a guardian ad litem to review the fairness of the settlement to the class members. See In re Asbestos Litigation, 90 F.3d 963, 972 (CA5 1996).As finally negotiated, the Global Settlement Agreement provided that in exchange for full releases from class members, Fibreboard, Continental, and Pacific would establish a trust to process and pay class members' asbestos personal injury and death claims. Claimants seeking compensation would be required to try to settle with the trust. If initial settlement attempts failed, claimants would have to proceed to mediation, arbitration, and a mandatory settlement conference. Only after exhausting that process could claimants go to court against the trust, subject to a limit of $500,000 per claim, with punitive damages and prejudgment interest barred. Claims resolved without litigation would be discharged over three years, while judgments would be paid out over a 5- to 10-year period. The Global Settlement Agreement also contained spendthrift provisions to conserve the trust, and provided for paying more serious claims first in the event of a shortfall in any given year. Id., at 973.After an extensive campaign to give notice of the pending settlement to potential class members, the District Court allowed groups of objectors, including petitioners here, to intervene. After an 8-day fairness hearing, the District Court certified the class and approved the settlement as "fair, adequate, and reasonable" under Rule 23(e). Ahearn, 162 F. R. D., at 527. Satisfied that the requirements of Rule82823(a) were met, id., at 523-526,6 the District Court certified the class under Rule 23(b)(1)(B),7 citing the risk that Fibreboard might lose or fare poorly on appeal of the coverage case or lose the assignment-settlement dispute, leaving it without funds to pay all claims. Id., at 526. The "allowance of individual adjudications by class members," the District Court concluded, "would have destroyed the opportunity to compromise the insurance coverage dispute by creating the settlement fund, and would have exposed the class members to the very risks that the settlement addresses." Id., at 527. In response to intervenors' objections that the absence of a "limited fund" precluded certification under Rule 23(b)(1)(B), the District Court ruled that although the subdivision is not so restricted, if it were, this case would qualify. It found both the "disputed insurance asset liquidated by the $1.535 billion Global Settlement," and, alternatively, "the sum of the value of Fibreboard plus the value of its insurance coverage," as measured by the insurance funds' settlement value, to be relevant "limited funds." App. to Pet. for Cert. 491a-492a.On appeal, the Fifth Circuit affirmed both as to class certification and adequacy of settlement. In re Asbestos Litiga-6 "Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a 'class [so large] that joinder of all members is impracticable'); (2) commonality ('questions of law or fact common to the class'); (3) typicality (named parties' claims or defenses 'are typical ... of the class'); and (4) adequacy of representation (representatives 'will fairly and adequately protect the interests of the class')." Amchem Products, Inc. v. Windsor, 521 U. S. 591, 613 (1997).7 Rule 23(b)(1)(B) provides that "[a]n action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of ... (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests."829tion, supra.s Agreeing with the District Court's application of Rule 23(a), the Court of Appeals found that there was commonality in class members' shared interest in securing and equitably distributing maximum possible settlement funds, and that the representative plaintiffs were sufficiently typical both in sharing that interest and in basing their claims on the same legal and remedial theories that absent class members might raise. Id., at 975-976. The Fifth Circuit also thought that there were no conflicts of interest sufficiently serious to undermine the adequacy of class counsel's representation. Id., at 976-982.9 As to Rule 23(b)(1)(B), the court approved the class certification on a "limited fund" rationale based on the threat to "the ability of other members of the class to receive full payment for their injuries from Fibreboard's limited assets." Id., at 982.10 The Court of Appeals cited expert testimony that Fibreboard faced enormous potential liabilities and defense costs that would likely equal or exceed the amount of damages paid out, and concluded that even combining Fibreboard's value of some $235 million with the $2 billion provided in the Trilateral Settlement Agreement, the company would be unable to pay all valid claims against it within five to nine years. Ibid. Judge Smith dissented, arguing among other things that the8 Continental and Pacific also filed a class action against a defendant class essentially identical to the plaintiff class in the Global Settlement Agreement as well as a class of third parties with asbestos-related claims against Fibreboard, seeking a declaration that the Trilateral Settlement Agreement was fair and reasonable. The District Court certified the class and approved the Trilateral Settlement Agreement, which the Fifth Circuit consolidated with the review of the case below and affirmed. See In re Asbestos Litigation, 90 F. 3d, at 974, 991-993. That decision is now final and is not before this Court.9 As the objectors did not challenge the adequacy of representation of class representatives, the Fifth Circuit did not consider the issue. Id., at 976, n. 10. Likewise, no party raised concerns with Rule 23(a)'s numerosity requirement.10 Abandoning the District Court's alternative rationale, the Court of Appeals rested entirely on a limited fund theory.830majority had skimped on serious due process concerns, had glossed over problems of commonality, typicality, and adequacy of representation, and had ignored a number of justiciability issues. See generally id., at 993-1026.11Shortly thereafter, this Court decided Amchem and proceeded to vacate the Fifth Circuit's judgment and remand for further consideration in light of that decision. 521 U. S. 1114 (1997). On remand, the Fifth Circuit again affirmed, in a brief per curiam opinion, distinguishing Amchem on the grounds that the instant action proceeded under Rule 23(b)(1)(B) rather than (b)(3), and did not allocate awards according to the nature of the claimant's injury. In re Asbestos Litigation, 134 F.3d 668, 669-670 (1998). Again citing the findings on certification under Rule 23(b)(1)(B), the Fifth Circuit affirmed as "incontestable" the District Court's conclusion that the terms of the subdivision had been met. Id., at 670. The Court of Appeals acknowledged Amchem's admonition that settlement class actions may not proceed unless the requirements of Rule 23(a) are met, but noted that the District Court had made extensive findings supporting its Rule 23(a) determinations. Ibid. Judge Smith again dissented, reiterating his previous concerns, and argued specifically that the District Court erred in certifying the class under Rule 23(b)(1)(B) on a "limited fund" theory because the only limited fund in the case was a creature of the settlement itself. Id., at 671-674.We granted certiorari, 524 U. S. 936 (1998), and now reverse.IIThe nub of this case is the certification of the class under Rule 23(b)(1)(B) on a limited fund rationale, but before we reach that issue, there are two threshold matters. First,11 The Fifth Circuit denied rehearing en bane, with Judge Smith, joined by five other Circuit Judges, dissenting. In re Asbestos Litigation, 101 F.3d 368, 369 (1996).831petitioners call the class claims nonjusticiable under Article III, saying that this is a feigned action initiated by Fibreboard to control its future asbestos tort liability, with the "vast majority" of the "exposure-only" class members being without injury in fact and hence without standing to sue. Brief for Petitioners 44-50. Ordinarily, of course, this or any other Article III court must be sure of its own jurisdiction before getting to the merits. Steel Co. v. Citizens For Better Environment, 523 U. S. 83, 88-89 (1998). But the class certification issues are, as they were in Amchem, "logically antecedent" to Article III concerns, 521 U. S., at 612, and themselves pertain to statutory standing, which may properly be treated before Article III standing, see Steel Co., supra, at 92. Thus the issue about Rule 23 certification should be treated first, "mindful that [the Rule's] requirements must be interpreted in keeping with Article III constraints .... " Amchem, supra, at 612-613.Petitioners also argue that the Fifth Circuit on remand disregarded Amchem in passing on the Rule 23(a) issues of commonality, typicality, and adequacy of representation. Brief for Petitioners 13-22. We agree that in reinstating its affirmance of the District Court's certification decision, the Fifth Circuit fell short in its attention to Amchem's explanation of the governing legal standards. Two aspects in particular of the District Court's certification should have received more detailed treatment by the Court of Appeals. First, the District Court's enquiry into both commonality and typicality focused almost entirely on the terms of the settlement. See Ahearn, 162 F. R. D., at 524.12 Second, and more significantly, the District Court took no steps at the outset to ensure that the potentially conflicting interests of12 In Amchem, the Court found that class members' shared exposure to asbestos was insufficient to meet the demanding predominance requirements of Rule 23(b)(3). 521 U. S., at 623-624. We left open the possibility, however, that such commonality might suffice for the purposes of Rule 23(a). Ibid.832easily identifiable categories of claimants be protected by provisional certification of subclasses under Rule 23(c)(4), relying instead on its post hoc findings at the fairness hearing that these subclasses in fact had been adequately represented. As will be seen, however, these points will reappear when we review the certification on the Court of Appeals's "limited fund" theory under Rule 23(b)(1)(B). We accordingly turn directly to that.III AAlthough representative suits have been recognized in various forms since the earliest days of English law, see generally S. Yeazell, From Medieval Group Litigation to the Modern Class Action (1987); see also Marcin, Searching for the Origin of the Class Action, 23 Cath. U. L. Rev. 515, 517524 (1973), class actions as we recognize them today developed as an exception to the formal rigidity of the necessary parties rule in equity, see Hazard, Gedid, & Sowle, An Historical Analysis of the Binding Effect of Class Suits, 146 U. Pa. L. Rev. 1849, 1859-1860 (1998) (hereinafter Hazard, Gedid, & Sowle), as well as from the bill of peace, an equitable device for combining multiple suits, see Z. Chafee, Some Problems of Equity 161-167, 200-203 (1950). The necessary parties rule in equity mandated that "all persons materially interested, either as plaintiffs or defendants in the subject matter of the bill ought to be made parties to the suit, however numerous they may be." West v. Randall, 29 F. Cas. 718, 721 (No. 17,424) (CC RI) (1820) (Story, J.). But because that rule would at times unfairly deny recovery to the party before the court, equity developed exceptions, among them one to cover situations "where the parties are very numerous, and the court perceives, that it will be almost impossible to bring them all before the court; or where the question is of general interest, and a few may sue for the benefit of the whole; or where the parties form a part of a voluntary associ-833ation for public or private purposes, and may be fairly supposed to represent the rights and interests of the whole .... " I d., at 722; see J. Story, Commentaries on Equity Pleadings § 97 (J. Gould 10th rev. ed. 1892); F. Calvert, A Treatise upon the Law Respecting Parties to Suits in Equity 17-29 (1837) (hereinafter Calvert, Parties to Suits in Equity). From these roots, modern class action practice emerged in the 1966 revision of Rule 23. In drafting Rule 23(b), the Advisory Committee sought to catalogue in "functional" terms "those recurrent life patterns which call for mass litigation through representative parties." Kaplan, A Prefatory Note, 10 B. C. Ind. & Com. L. Rev. 497 (1969).Rule 23(b)(1)(B) speaks from "a vantage point within the class, [from which the Advisory Committee] spied out situations where lawsuits conducted with individual members of the class would have the practical if not technical effect of concluding the interests of the other members as well, or of impairing the ability of the others to protect their own interests." Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 388 (1967) (hereinafter Kaplan, Continuing Work). Thus, the subdivision (read with subdivision (c)(2)) provides for certification of a class whose members have no right to withdraw, when "the prosecution of separate actions ... would create a risk" of "adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." Fed. Rule Civ. Proc. 23(b)(1)(B).13 Classic examples13 In contrast to class actions brought under subdivision (b)(3), in cases brought under subdivision (b)(1), Rule 23 does not provide for absent class members to receive notice and to exclude themselves from class membership as a matter of right. See 1 H. Newberg & A. Conte, Class Actions §4.01, p. 4-6 (3d ed. 1992) (hereinafter Newberg). It is for this reason that such cases are often referred to as "mandatory" class actions.834of such a risk of impairment may, for example, be found in suits brought to reorganize fraternal-benefit societies, see, e. g., Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 (1921); actions by shareholders to declare a dividend or otherwise to "fix [their] rights," Kaplan, Continuing Work 388; and actions charging "a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class" of beneficiaries, requiring an accounting or similar procedure "to restore the subject of the trust," Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 696 (hereinafter Adv. Comm. Notes). In each of these categories, the shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members.Among the traditional varieties of representative suit encompassed by Rule 23(b)(1)(B) were those involving "the presence of property which call[ed] for distribution or management," J. Moore & J. Friedman, 2 Federal Practice 2240 (1938) (hereinafter Moore & Friedman). One recurring type of such suits was the limited fund class action, aggregating "claims ... made by numerous persons against a fund insufficient to satisfy all claims." Adv. Comm. Notes 697; cf. 1 Newberg § 4.09, at 4-33 ("Classic" limited fund class actions "include claimants to trust assets, a bank account, insurance proceeds, company assets in a liquidation sale, proceeds of a ship sale in a maritime accident suit, and others").14 The Advisory Committee cited Dickinson v.14 Indeed, Professor Kaplan, reporter to the Advisory Committee's 1966 revision of Rule 23, commented in a letter to another member of the Advisory Committee that the phrase" 'impair or impede the ability of the other members to protect their interests'" is "redolent of claims against a fund." Letter from Benjamin Kaplan to John P. Frank, Feb. 7, 1963, Congressional Information Service Records of the U. S. Judicial Conference, Committee on Rules of Practice and Procedure 1935-1988, No. CI-6312-31, p.2.Some fund-related class actions involved claims for the creation or preservation of a specific fund subject to the interests of numerous claim-835Burnham, 197 F.2d 973 (CA2), cert. denied, 344 U. S. 875 (1952), as illustrative of this tradition. In Dickinson, investors hoping to save a failing company had contributed some $600,000, which had been misused until nothing was left but a pool of secret profits on a fraction of the original investment. In a class action, the District Court took charge of this fund, subjecting it to a constructive trust for division among subscribers who demonstrated their claims, in amounts proportional to each class member's percentage of all substantiated claims. 197 F. 2d, at 978.15 The Second Circuit approved the class action and the distribution of the entire pool to claimants, noting that "[a]lthough none of the contributors has been paid in full, no one ... now asserts or suggests that they should have full recovery ... as on an ordinary tort liability for conspiracy and defrauding. The court's power of disposition over the fund was therefore ab-ants. See, e. g., City & County of San Francisco v. Market Street R. Co., 95 Cal. App. 2d 648, 213 P. 2d 780 (1950). The rationale in such cases for representative plaintiffs suing on behalf of all similarly situated potential parties was that benefits arising from the action necessarily inured to the class as a whole. Another type of fund case involved the adjudication of the rights of all participants in a fund in which the participants had common rights. See, e. g., Hartford Life Ins. Co. v. IBS, 237 U. S. 662 (1915); Supreme Council of Royal Arcanum v. Green, 237 U. S. 531 (1915); Hartford Life Ins. Co. v. Barber, 245 U. S. 146 (1917); see also Smith v. Swormstedt, 16 How. 288 (1854). In such cases, regardless of the size of any individual claimant's stake, the adjudication would determine the operating rules governing the fund for all participants. This category is more analogous in modern practice to class actions seeking structural injunctions and is not at issue in this case.15 The District Court in Dickinson, as was the usual practice in such cases, distributed the limited fund only after notice had been given to all class members, allowing them to come into the suit, prove their claim, and share in the recovery. See 197 F. 2d, at 978; see also Adv. Comm. Notes 697 (describing limited fund class actions as involving an "action by or against representative members to settle the validity of the claims as a whole, or in groups, followed by separate proof of the amount of each valid claim and proportionate distribution of the fund").836solute and final." Id., at 980.16 As the Advisory Committee recognized in describing Dickinson, equity required absent parties to be represented, joinder being impractical, where individual claims to be satisfied from the one asset would, as a practical matter, prejudice the rights of absent claimants against a fund inadequate to pay them all.Equity, of course, recognized the same necessity to bind absent claimants to a limited fund when no formal imposition of a constructive trust was entailed. In Guffanti v. National Surety Co., 196 N. Y. 452, 458, 90 N. E. 174, 176 (1909), for example, the defendant received money to supply steamship tickets and had posted a $15,000 bond as required by state law. He converted to personal use funds collected from more than 150 ticket purchasers, was then adjudged bankrupt, and absconded. One of the defrauded ticket purchasers sued the surety in equity on behalf of himself and all others like him. Over the defendant's objection, the New York Court of Appeals sustained the equitable class suit, citing among other considerations the fact that all recovery had to come from a "limited fund out of which the aggregate recoveries must be sought" that was inadequate to pay all claims, and subject to pro rata distribution. Id., at 458, 90 N. E., at 176. See Hazard, Gedid, & Sowle 1915 ("[Guffanti]16 As Dickinson demonstrates, the immediate precursor to the type of limited fund class action invoked in this case was a subset of "hybrid" class actions under the 1938 version of Rule 23. Cf. 1 Newberg § 1.09, at 1-25. The original Rule 23 categorized class actions by "the character of the right sought to be enforced for or against the class," dividing such actions into "(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it; (2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or (3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought." Fed. Rule Civ. Proc. 23(a) (1938 ed., Supp. V). See Moore & Friedman 2240; see also Moore & Cohn, Federal Class Actions, 32 Ill. L. Rev. 307, 317-318 (1937); Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Geo. L. J. 551, 574 (1937).837explained that when a debtor's assets were less than the total of the creditors' claims, a binding class action was not only permitted but was required; otherwise some creditors (the parties) would be paid and others (the absentees) would not"). See also Morrison v. Warren 174 Misc. 233, 234, 20 N. Y. S. 2d 26, 27 (Sup. Ct. N. Y. Cty. 1940) (suit on behalf of more than 400 beneficiaries of an insurance policy following a fire appropriate where "the amount of the claims ... greatly exceeds the amount of the insurance"); National Surety Co. v. Graves, 211 Ala. 533, 534, 101 So. 190 (1924) (suit against a surety company by stockholders "for the benefit of themselves and all others similarly situate who will join the suit" where it was alleged that individual suits were being filed on surety bonds that "would result in the exhaustion of the penalties of the bonds, leaving many stockholders without remedy").Ross v. Crary, 1 Paige Ch. 416, 417-418 (N. Y. Ch. 1829), presents the concept of the limited fund class action in another incarnation. "[DJivers suits for general legacies," id., at 417, were brought by various legatees against the executor of a decedent's estate. The Ross court stated that where "there is an allegation of a deficiency of the fund, so that an account of the estate is necessary," the court will "direc[t] an account in one cause only" and "stay the proceeding[s] in the others, leaving all the parties interested in the fund, to come in under the decree." Id., at 417-418. Thus, in equity, legatee and creditor bills against the assets of a decedent's estate had to be brought on behalf of all similarly situated claimants where it was clear from the pleadings that the available portion of the estate could not satisfy the aggregate claims against it.1717 In early creditors' bills, for example, equity would order a master to call for all creditors to prove their debts, to take account of the entire estate, and to apply the estate in payment of the debts. See 1 J. Story, Commentaries on Equity Jurisprudence §§ 547, 548 (I. Redfield 8th rev. ed. 1861). This decree, with its equitable benefit and incorporation of all838BThe cases forming this pedigree of the limited fund class action as understood by the drafters of Rule 23 have a number of common characteristics, despite the variety of circumstances from which they arose. The points of resemblance are not necessarily the points of contention resolved in the particular cases, but they show what the Advisory Committee must have assumed would be at least a sufficient set of conditions to justify binding absent members of a class under Rule 23(b)(1)(B), from which no one has the right to secede.The first and most distinctive characteristic is that the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay all the claims. The concept driving this type of suit was insufficiency, which alone justified the limit on an early feast to avoid a later famine. See, e. g., Guffanti, supra, at 457, 90 N. E., at 176 ("The total amount of the claims exceeds the penalty of the bond .... A just and equitable payment from the bond would be a distribution pro rata upon the amount of the several embezzlements. Unless in a case like this the amountcreditors was not, however, available when the executor of the estate admitted assets sufficient to cover its debts, because where assets were not limited, no prejudice to the other creditors would result from the simple payment of the debt to the creditor who brought the bill. See Woodgate v. Field, 2 Hare 211, 213, 67 Eng. Rep. 88, 89 (Ch. 1842) ("The reason for ... the usual form of decree ... has no application where assets are admitted, for the executor thereby makes himself liable to the payment of the debt. In such a case, the other creditors cannot be prejudiced by a decree for payment of the Plaintiff's debt; and the object of the special form of the decree in a creditors' suit fails"); see also Hallett v. Hallett, 2 Paige 15, 21 (N. Y. 1829) ("[I]f by the answer of the defendant [in a creditors' or legatees' suit] it appears there will be a deficiency of assets so that all the creditors cannot be paid in full, or that there must be an abatement of the complainant's legacy, the court will make a decree for the general administration of the estate, and a distribution of the same among the several parties entitled thereto, agreeable to equity").839of the bond is so distributed among the persons having claims which are secured thereby, it must necessarily result in a scramble for precedence in payment, and the amount of the bond may be paid to the favored, or to those first obtaining knowledge of the embezzlements"); Graves, supra, at 534, 101 So., at 190 ("The primary equity of the bill is the adjustment of claims and the equitable apportionment of a fund provided by law, which is insufficient to pay claimants in full"). The equity of the limitation is its necessity.Second, the whole of the inadequate fund was to be devoted to the overwhelming claims. See, e. g., Dickinson, 197 F. 2d, at 979-980 (rejecting a challenge by holder of funds to the court's disposition of the entire fund); see also United States v. Butterworth-Judson Corp., 269 U. S. 504, 513 (1926) ("Here, the fund being less than the debts, the creditors are entitled to have all of it distributed among them according to their rights and priorities"). It went without saying that the defendant or estate or constructive trustee with the inadequate assets had no opportunity to benefit himself or claimants of lower priority by holding back on the amount distributed to the class. The limited fund cases thus ensured that the class as a whole was given the best deal; they did not give a defendant a better deal than seriatim litigation would have produced.Third, the claimants identified by a common theory of recovery were treated equitably among themselves. The cases assume that the class will comprise everyone who might state a claim on a single or repeated set of facts, invoking a common theory of recovery, to be satisfied from the limited fund as the source of payment. Each of the people represented in Ross, for example, had comparable entitlement as a legatee under the testator's will. Those subject to representation in Dickinson had a common source of claims in the solicitation of funds by parties whose subsequent defalcation left them without their investment, while in Guffanti the individuals represented had each entrusted840money for ticket purchases. In these cases the hope of recovery was limited, respectively, by estate assets, the residuum of profits, and the amount of the bond. Once the represented classes were so identified, there was no question of omitting anyone whose claim shared the common theory of liability and would contribute to the calculated shortfall of recovery. See Railroad Co. v. Orr, 18 Wall. 471, 474 (1873) (reciting the "well settled" general rule "that when it appears on the face of the bill that there will be a deficiency in the fund, and that there are other creditors or legatees who are entitled to a ratable distribution with the complainants, and who have a common interest with them, such creditors or legatees should be made parties to the bill, or the suit should be brought by the complainants in behalf of themselves and all others standing in a similar situation"). The plaintiff appeared on behalf of all similarly situated parties, see Calvert, Parties to Suits in Equity 24 ("[I]t is not sufficient that the plaintiff appear on behalf of numerous parties: the rule seems to be, that he must appear on behalf of all who are interested"); thus, the creditors' bill was brought on behalf of all creditors, cf. Leigh v. Thomas, 2 Yes. Sen. 312, 313, 28 Eng. Rep. 201 (Ch. 1751) ("No doubt but a bill may be by a few creditors in behalf of themselves and the rest ... but there is no instance of a bill by three or four to have an account of the estate, without saying they bring it in behalf of themselves and the rest of the creditors"), the constructive trust was asserted on behalf of all victims of the fraud, and the surety suit was brought on behalf of all entitled to a share of the bond.18 Once all similar claims18 Professor Chafee explained, in discussing bills of peace, that where a case presents a limited fund, "it is impossible to make a fair distribution of the fund or limited liability to all members of the multitude except in a single proceeding where the claim of each can be adjudicated with due reference to the claims of the rest. The fund or limited liability is like a mince pie, which can not be satisfactorily divided until the carver counts841were brought directly or by representation before the court, these antecedents of the mandatory class action presented straightforward models of equitable treatment, with the simple equity of a pro rata distribution providing the required fairness, see 1 J. Pomeroy, Equity Jurisprudence § 407, pp. 764-765 (4th ed. 1918) ("[I]f the fund is not sufficient to discharge all claims upon it in full ... equity will incline to regard all the demands as standing upon an equal footing, and will decree a pro rata distribution or payment").19In sum, mandatory class treatment through representative actions on a limited fund theory was justified with reference to a "fund" with a definitely ascertained limit, all of which would be distributed to satisfy all those with liquidated claims based on a common theory of liability, by an equitable, pro rata distribution.CThe Advisory Committee, and presumably the Congress in approving subdivision (b)(l)(B), must have assumed that an action with these characteristics would satisfy the limitedthe number of persons at the table." Bills of Peace with Multiple Parties, 45 Harv. L. Rev. 1297, 1311 (1932).19 As noted above, traditional limited fund class actions typically provided notice to all claimants and the opportunity for those claimants to establish their claims before the actual distribution took place. See, e. g., Dickinson v. Burnham, 197 F.2d 973, 978 (CA2 1952); Terry v. President and Directors of the Bank of Cape Fear, 20 F.7d 7, 782 (CC WDNC 1884); cf. Johnson v. Waters, 111 U. S. 640, 674 (1884) (in a creditors' bill, "it is the usual and correct course to open a reference in the master's office and to give other creditors, having valid claims against the fund, an opportunity to come in and have the benefit of the decree"). Rule 23, however, specifies no notice requirement for subdivision (b)(1)(B) actions beyond that required by subdivision (e) for settlement purposes. Plaintiffs in this case made an attempt to notify all presently identifiable class members in connection with the fairness hearing, though the adequacy of the effort is disputed. Since satisfaction or not of a notice requirement would not affect the disposition of this case, we express no opinion on the need for notice or the sufficiency of the effort to give it in this case.842fund rationale cognizable under that subdivision. The question remains how far the same characteristics are necessary for limited fund treatment. While we cannot settle all the details of a subdivision (b)(l)(B) limited fund here (and so cannot decide the ultimate question whether settlements of multitudes of related tort actions are amenable to mandatory class treatment), there are good reasons to treat these characteristics as presumptively necessary, and not merely sufficient, to satisfy the limited fund rationale for a mandatory action. At the least, the burden of justification rests on the proponent of any departure from the traditional norm.It is true, of course, that the text of Rule 23(b)(1)(B) is on its face open to a more lenient limited fund concept, just as it covers more historical antecedents than the limited fund. But the greater the leniency in departing from the historical limited fund model, the greater the likelihood of abuse in ways that will be apparent when we apply the limited fund criteria to the case before us. The prudent course, therefore, is to presume that when subdivision (b)(l)(B) was devised to cover limited fund actions, the object was to stay close to the historical model. As will be seen, this limiting construction finds support in the Advisory Committee's expressions of understanding, minimizes potential conflict with the Rules Enabling Act, and avoids serious constitutional concerns raised by the mandatory class resolution of individuallegal claims, especially where a case seeks to resolve future liability in a settlement-only action.To begin with, the Advisory Committee looked cautiously at the potential for creativity under Rule 23(b)(1)(B), at least in comparison with Rule 23(b)(3). Although the Committee crafted all three subdivisions of the Rule in general, practical terms, without the formalism that had bedeviled the original Rule 23, see Kaplan, Continuing Work 380-386, the Committee was consciously retrospective with intent to codify preRule categories under Rule 23(b)(1), not forward looking as it was in anticipating innovations under Rule 23(b)(3). Com-843pare Civil Rules Advisory Committee Meeting, Oct. 31-Nov. 2, 1963, Congressional Information Service Records of the U. S. Judicial Conference, Committee on Rules of Practice and Procedure 1935-1988, No. CI-7104-53, p. 11 (hereinafter Civil Rules Meeting) (comments of Reporter Kaplan) (Rule 23(b)(3) represents "the growing point of the law"); id., at 16 (comments of Committee Member Prof. Albert M. Sacks) (Rule 23(b)(3) is "an evolving area"). Thus, the Committee intended subdivision (b)(l) to capture the" 'standard'" class actions recognized in pre-Rule practice, Kaplan, Continuing Work 394.Consistent with its backward look under subdivision (b)(l), as commentators have pointed out, it is clear that the Advisory Committee did not contemplate that the mandatory class action codified in subdivision (b)(l)(B) would be used to aggregate unliquidated tort claims on a limited fund rationale. See Monaghan, Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members, 98 Colum. L. Rev. 1148, 1164 (1998) ("The 'framers' of Rule 23 did not envision the expansive interpretations of the rule that have emerged .... No draftsmen contemplated that, in mass torts, (b)(l)(B) 'limited fund' classes would emerge as the functional equivalent to bankruptcy by embracing 'funds' created by the litigation itself"); see also Schwarzer, Settlement of Mass Tort Class Actions: Order Out of Chaos, 80 Cornell L. Rev. 837, 840 (1995) ("The original concept of the limited fund class does not readily fit the situation where a large volume of claims might eventually result in judgments that in the aggregate could exceed the assets available to satisfy them"); Marcus, They Can't Do That, Can They? Tort Reform Via Rule 23, 80 Cornell L. Rev. 858, 877 (1995). None of the examples cited in the Advisory Committee Notes or by Professor Kaplan in explaining Rule 23(b)(1)(B) remotely approach what was then described as a "mass accident" case. While the Advisory Committee focused much attention on the amenability of Rule 23(b)(3) to such cases,844the Committee's debates are silent about resolving tort claims under a mandatory limited fund rationale under Rule 23(b)(1)(B).20 It is simply implausible that the Advisory Committee, so concerned about the potential difficulties posed by dealing with mass tort cases under Rule 23(b)(3), with its provisions for notice and the right to opt out, see Rule 23(c)(2), would have uncritically assumed that mandatory versions of such class actions, lacking such protections, could be certified under Rule 23(b)(1)(B)P We do not, it is true, decide the ultimate question whether Rule 23(b)(1)(B) may ever be used to aggregate individual tort claims, cf. Ticor Title Ins. Co. v. Brown, 511 U. S. 117, 121 (1994)20 To the extent that members of the Advisory Committee explicitly considered cases resembling the current mass tort limited fund class action, they did so in the context of the debate about bringing "mass accident" class actions under Rule 23(b)(3). There was much concern on the Advisory Committee about the degree to which subdivision (b)(3), which the Committee was drafting to replace the old spurious class action category, would be applied to "mass accident" cases. Compare, e. g., Civil Rules Meeting 9, 14, with, e. g., id., at 13, 44-45. See also id., at 51. As a compromise, the Advisory Committee Notes state that a '''mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways." Adv. Comm. Notes 697. See also Kaplan, Continuing Work 393.21 The Advisory Committee noted, moreover, that "[w]here the classaction character of the lawsuit is based solely on the existence of a 'limited fund,' the judgment, while extending to all claims of class members against the fund, has ordinarily left unaffected the personal claims of nonappearing members against the debtor." Adv. Comm. Notes 698. Cf. Bone, Personal and Impersonal Litigative Forms: Reconceiving the History of Adjudicative Representation, 70 B. U. L. Rev. 213, 282 (1990) (historically suits involving individual claims in the absence of a common fund did not automatically bind class members, instead providing a mechanism for notice and the opportunity to join the suit). This recognition underscores doubt that the Advisory Committee would have intended liberality in allowing such a circumscribed tradition to be transmogrified by operation of Rule 23(b)(I)(B) into a mechanism for resolving the claims of individuals not only against the fund, but also against an individual tortfeasor.845(per curiam). But we do recognize that the Committee would have thought such an application of the Rule surprising, and take this as a good reason to limit any surprise by presuming that the Rule's historical antecedents identify requirements.The Rules Enabling Act underscores the need for caution.As we said in Amchem, no reading of the Rule can ignore the Act's mandate that "rules of procedure 'shall not abridge, enlarge or modify any substantive right,'" Amchem, 521 U. S., at 613 (quoting 28 U. S. C. § 2072(b)); cf. Guaranty Trust Co. v. York, 326 U. S. 99, 105 (1945) ("In giving federal courts 'cognizance' of equity suits in cases of diversity jurisdiction, Congress never gave, nor did the federal courts ever claim, the power to deny substantive rights created by State law or to create substantive rights denied by State law"). Petitioners argue that the Act has been violated here, asserting that the Global Settlement Agreement's priorities of claims and compromise of full recovery abrogated the state law that must govern this diversity action under 28 U. S. C. § 1652. See Brief for Petitioners 31-36. Although we need not grapple with the difficult choice-of-Iaw and substantive state-law questions raised by petitioners' assertion, we do need to recognize the tension between the limited fund class action's pro rata distribution in equity and the rights of individual tort victims at law. Even if we assume that some such tension is acceptable under the Rules Enabling Act, it is best kept within tolerable limits by keeping limited fund practice under Rule 23(b)(1)(B) close to the practice preceding its adoption.Finally, if we needed further counsel against adventurous application of Rule 23(b)(1)(B), the Rules Enabling Act and the general doctrine of constitutional avoidance would jointly sound a warning of the serious constitutional concerns that come with any attempt to aggregate individual tort claims on a limited fund rationale. First, the certification of a mandatory class followed by settlement of its action for money846damages obviously implicates the Seventh Amendment jury trial rights of absent class members.22 We noted in Ross v. Bernhard, 396 U. S. 531 (1970), that since the merger of law and equity in 1938, it has become settled among the lower courts that "class action plaintiffs may obtain a jury trial on any legal issues they present." Id., at 541. By its nature, however, a mandatory settlement-only class action with legal issues and future claimants compromises their Seventh Amendment rights without their consent.Second, and no less important, mandatory class actions aggregating damages claims implicate the due process "principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process," Hansberry v. Lee, 311 U. S. 32, 40 (1940), it being "our 'deep-rooted historic tradition that everyone should have his own day in court,'" Martin v. Wilks, 490 U. S. 755, 762 (1989) (quoting 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4449, p. 417 (1981)); see Richards v. Jefferson County, 517 U. S. 793, 798-799 (1996). Although" '[w]e have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party," or "where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate," Martin, supra, at 762, n. 2 (citations omitted), the burden of justification rests on the exception.The inherent tension between representative suits and the day-in-court ideal is only magnified if applied to damages claims gathered in a mandatory class. Unlike Rule 23(b)(3) class members, objectors to the collectivism of a mandatory22 The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved .... "847subdivision (b)(l)(B) action have no inherent right to abstain. The legal rights of absent class members (which in a class like this one would include claimants who by definition may be unidentifiable when the class is certified) are resolved regardless of either their consent, or, in a class with objectors, their express wish to the contrary.23 And in settlement-only class actions the procedural protections built into the Rule to protect the rights of absent class members during litigation are never invoked in an adversarial setting, see Amchem, supra, at 620.In related circumstances, we raised the flag on this issue of due process more than a decade ago in Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985). Shutts was a state class action for small sums of interest on royalty payments suspended on the authority of a federal regulation. Id., at 800. After certification of the class, the named plaintiffs notified each member by first-class mail of the right to opt out of the lawsuit. Out of a class of 33,000, some 3,400 exercised that right, and another 1,500 were excluded because their notices could not be delivered. Id., at 801. After losing at trial, the defendant, Phillips Petroleum, argued that the state court had no jurisdiction over claims of out-of-state plaintiffs without their affirmative consent. We said no and held that out-of-state plaintiffs could not invoke the same due process limits on personal jurisdiction that out-of-state defendants had under International Shoe Co. v. Washington, 326 U. S.23 It is no answer in this case that the settlement agreement provided for a limited, back-end "opt out" in the form of a right on the part of class members eventually to take their case to court if dissatisfied with the amount provided by the trust. The "opt out" in this case requires claimants to exhaust a variety of alternative dispute mechanisms, to bring suit against the trust, and not against Fibreboard, and it limits damages to $500,000, to be paid out in installments over 5 to 10 years, see supra, at 827, despite multimillion-dollar jury verdicts sometimes reached in asbestos suits, In re Asbestos Litigation, 90 F. 3d, at 1006-1007, n. 30 (Smith, J., dissenting). Indeed, on approximately a dozen occasions, Fibreboard had settled for more than $500,000. See App. to Pet. for Cert. 373a.848310 (1945), and its progeny. 472 U. S., at 806-808. But we also saw that before an absent class member's right of action was extinguishable due process required that the member "receive notice plus an opportunity to be heard and participate in the litigation," and we said that "at a minimum ... an absent plaintiff [must] be provided with an opportunity to remove himself from the class." Id., at 812.24IVThe record on which the District Court rested its certification of the class for the purpose of the global settlement did not support the essential premises of mandatory limited fund actions. It failed to demonstrate that the fund was limited except by the agreement of the parties, and it showed exclusions from the class and allocations of assets at odds with the concept of limited fund treatment and the structural protections of Rule 23(a) explained in Amchem.AThe defect of certification going to the most characteristic feature of a limited fund action was the uncritical adoption by both the District Court and the Court of Appeals of figures 25 agreed upon by the parties in defining the limits of the fund and demonstrating its inadequacy.26 When a dis-24 We also reiterated the constitutional requirement articulated in Hansberry v. Lee, 311 U. S. 32 (1940), that "the named plaintiff at all times adequately represent the interests of the absent class members." Phillips Petroleum Co. v. Shutts, 472 U. S., at 812 (citing Hansberry, supra, at 42-43, 45). In Shutts, as an important caveat to our holding, we made clear that we were only examining the procedural protections attendant on binding out-of-state class members whose claims were "wholly or predominately for money judgments," 472 U. S., at 811, n. 3.25 The plural reflects the fact that the insurers agreed to provide $1.525 billion under the Global Settlement Agreement and $2 billion under the Trilateral Settlement Agreement.26 The federal courts have differed somewhat in articulating the standard to evaluate whether, in fact, a fund is limited, in cases involving mass torts. Compare, e. g., In re Northern Dist. of California, Dalkon Shield849trict court, as here, certifies for class action settlement only, the moment of certification requires "heightene[d] attention," Amchem, 521 U. S., at 620, to the justifications for binding the class members. This is so because certification of a mandatory settlement class, however provisional technically, effectively concludes the proceeding save for the final fairness hearing. And, as we held in Amchem, a fairness hearing under Rule 23(e) is no substitute for rigorous adherence to those provisions of the Rule "designed to protect absentees," ibid., among them subdivision (b)(1)(B).27 Thus, in an action such as this the settling parties must present not only their agreement, but evidence on which the district court may ascertain the limit and the insufficiency of the fund, with support in findings of fact following a proceeding in which the evidence is subject to challenge, see In re Bendectin Products Liability Litigation, 749 F.2d 300, 306 (CA6 1984) ("[T]he district court, as a matter of law, must have a fact-finding inquiry on this question and allow the opponents of class certification to present evidence that a limited fundIUD Products Liability Litigation, 693 F.2d 847, 852 (CA9 1982), cert. denied sub nom. A. H. Robins Co., Inc. v. Abed, 459 U. S. 1171 (1983) (class proponents must demonstrate that allowing the adjudication of individual claims will inescapably compromise the claims of absent class members), with, e. g., In re "Agent Orange" Product Liability Litigation, 100 F. R. D. 718, 726 (EDNY 1983), aff'd 818 F.2d 145 (CA2 1987), cert. denied sub nom. Fraticelli et al. v. Dow Chemical Co. et al., 484 U. S. 1004 (1988) (requiring only a "substantial probability-that is less than a preponderance but more than a mere possibility-that if damages are awarded, the claims of earlier litigants would exhaust the defendants' assets"). Cf. In re Bendectin Products Liability Litigation, 749 F.2d 300, 306 (CA6 1984). Because under either formulation, the class certification in this case cannot stand, it would be premature to decide the appropriate standard at this time.27 See Issacharoff, Class Action Conflicts, 30 U. C. D. L. Rev. 805, 822 (1997) ("[I]n the context of a mandatory settlement class, the individual class member is presented with what purports to be a binding fait accompli, with the only recourse a likely futile objection at the fairness hearing required by Rule 23(e)").850does not exist"); see also In re Temple, 851 F.2d 1269, 1272 (CAll 1988) ("Without a finding as to the net worth of the defendant, it is difficult to see how the fact of a limited fund could have been established given that all of [the defendant's] assets are potentially available to suitors"); In re Dennis Greenman Securities Litigation, 829 F.2d 1539, 1546 (CAll 1987) (discussing factual findings necessary for certification of a limited fund class action).We have already alluded to the difficulties facing limited fund treatment of huge numbers of actions for unliquidated damages arising from mass torts, the first such hurdle being a computation of the total claims. It is simply not a matter of adding up the liquidated amounts, as in the models of limited fund actions. Although we might assume, arguendo, that prior judicial experience with asbestos claims would allow a court to make a sufficiently reliable determination of the probable total, the District Court here apparently thought otherwise, concluding that "there is no way to predict Fibreboard's future asbestos liability with any certainty." 162 F. R. D., at 528. Nothing turns on this conclusion, however, since there was no adequate demonstration of the second element required for limited fund treatment, the upper limit of the fund itself, without which no showing of insufficiency is possible.The "fund" in this case comprised both the general assets of Fibreboard and the insurance assets provided by the two policies, see 90 F. 3d, at 982 (describing the fund as Fibreboard's entire equity and $2 billion in insurance assets under the Trilateral Settlement Agreement). As to Fibreboard's assets exclusive of the contested insurance, the District Court and the Fifth Circuit concluded that Fibreboard had a then-current sale value of $235 million that could be devoted to the limited fund. While that estimate may have been conservative,28 at least the District Court heard evi-28 The District Court based the $235 million figure on evidence provided by an investment banker regarding what a "financially prudent buyer" would pay to acquire Fibreboard free of its personal injury asbestos liabili-851dence and made an independent finding at some point in the proceedings. The same, however, cannot be said for the value of the disputed insurance.The insurance assets would obviously be "limited" in the traditional sense if the total of demonstrable claims would render the insurers insolvent, or if the policies provided aggregate limits falling short of that total; calculation might be difficult, but the way to demonstrate the limit would be clear. N either possibility is presented in this case, however. Instead, any limit of the insurance asset here had to be a product of potentially unlimited policy coverage discounted by the risk that Fibreboard would ultimately lose the coverage dispute litigation. This sense of limit as a value discounted by risk is of course a step removed from the historical model, but even on the assumption that it would suffice for limited fund treatment, there was no adequate finding of fact to support its application here. Instead of undertaking an independent evaluation of potential insurance funds, the District Court (and, later, the Court of Appeals), simply accepted the $2 billion Trilateral Settlement Agreement figure as representing the maximum amount the insurance companies could be required to pay tort victims, concluding that "[w]here insurance coverage is disputed, it is appropriate to value the insurance asset at a settlement value." App. to Pet. for Cert. 492a.29ties, less transaction costs. App. to Pet. for Cert. 377a, 492a. In 1997, however, Fibreboard was acquired for about $515 million, plus $85 million of assumed debt. See In re Asbestos Litigation, 134 F.3d 668, 674 (CA5 1998) (Smith, J., dissenting); see also Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1402 (1995) (noting the surge in Fibreboard's stock price following the settlement below).29 In describing possible limited funds in this case, the District Court discounted the $2 billion Trilateral Settlement Agreement figure by the amount necessary to resolve present claims included in neither the inventory settlements nor the global class claims and other items, yielding a figure equal to the $1.535 billion available under the Global Settlement Agreement. App. to Pet. for Cert. 492a. The Court of Appeals, by contrast, assumed that the full $2 billion represented by the Trilateral Settle-852Settlement value is not always acceptable, however. One may take a settlement amount as good evidence of the maximum available if one can assume that parties of equal knowledge and negotiating skill agreed upon the figure through arms-length bargaining, unhindered by any considerations tugging against the interests of the parties ostensibly represented in the negotiation. But no such assumption may be indulged in this case, or probably in any class action settlement with the potential for gigantic fees.30 In this case, certainly, any assumption that plaintiffs' counsel could be of a mind to do their simple best in bargaining for the benefit of the settlement class is patently at odds with the fact that at least some of the same lawyers representing plaintiffs and the class had also negotiated the separate settlement of 45,000 pending claims, 90 F. 3d, at 969-970, 971, the full payment of which was contingent on a successful Global Settlement Agreement or the successful resolution of the insurance coverage dispute (either by litigation or by agreement, as eventually occurred in the Trilateral Settlement Agreement), id., at 971, n. 3; App. 119a-120a. Class counsel thus had great incentive to reach any agreement in the global settlement negotiations that they thought might survive a Rule 23(e) fairness hearing, rather than the best possible arrangement for the substantially unidentified global settlement class. Cf. Cramton, Individualized Justice, Massment Agreement would be available to class claims. In re Asbestos Litigation, 90 F. 3d, at 982. The Court of Appeals provided no explanation for using the higher figure in light of the District Court's conclusion that only $1.535 billion of the $2 billion Trilateral Settlement Agreement figure would actually be available to the class. Either way, the figure represented only the amount the insurance companies agreed to pay, and not an independent evaluation of the limits of their payment obligations.30 In a strictly rational world, plaintiffs' counsel would always press for the limit of what the defense would pay. But with an already enormous fee within counsel's grasp, zeal for the client may relax sooner than it would in a case brought on behalf of one claimant.853Torts, and "Settlement Class Actions": An Introduction, 80 Cornell L. Rev. 811, 832 (1995) ("[S]ide settlements suggest that class counsel has been laboring under an impermissible conflict of interest and that it may have preferred the interests of current clients to those of the future claimants in the settlement class"). The resulting incentive to favor the known plaintiffs in the earlier settlement was, indeed, an egregious example of the conflict noted in Amchem resulting from divergent interests of the presently injured and future claimants. See 521 U. S., at 626-627 (discussing adequacy of named representatives under Rule 23(a)(4)).We do not, of course, know exactly what an independent valuation of the limit of the insurance assets would have shown. It might have revealed that even on the assumption that Fibreboard's coverage claim was sound, there would be insufficient assets to pay claims, considered with reference to their probable timing; if Fibreboard's own assets would not have been enough to pay the insurance shortfall plus any claims in excess of policy limits, the projected insolvency of the insurers and Fibreboard would have indicated a truly limited fund. (Nothing in the record, however, suggests that this would have been a supportable finding.) Or an independent valuation might have revealed assets of insufficient value to pay all projected claims if the assets were discounted by the prospects that the insurers would win the coverage cases. Or the court's independent valuation might have shown, discount or no discount, the probability of enough assets to pay all projected claims, precluding certification of any mandatory class on a limited fund rationale. Throughout this litigation the courts have accepted the assumption that the third possibility was out of the question, and they may have been right. But objecting and unidentified class members alike are entitled to have the issue settled by specific evidentiary findings independent of the agreement of defendants and conflicted class counsel.854BThe explanation of need for independent determination of the fund has necessarily anticipated our application of the requirement of equity among members of the class. There are two issues, the inclusiveness of the class and the fairness of distributions to those within it. On each, this certification for settlement fell short.The definition of the class excludes myriad claimants with causes of action, or foreseeable causes of action, arising from exposure to Fibreboard asbestos. While the class includes those with present claims never filed, present claims withdrawn without prejudice, and future claimants, it fails to include those who had previously settled with Fibreboard while retaining the right to sue again "upon development of an asbestos related malignancy," plaintiffs with claims pending against Fibreboard at the time of the initial announcement of the Global Settlement Agreement, and the plaintiffs in the "inventory" claims settled as a supposedly necessary step in reaching the global settlement, see 90 F. 3d, at 971. The number of those outside the class who settled with a reservation of rights may be uncertain, but there is no such uncertainty about the significance of the settlement's exclusion of the 45,000 inventory plaintiffs and the plaintiffs in the unsettled present cases, estimated by the Guardian Ad Litem at more than 53,000 as of August 27, 1993, see App. in No. 95-40635 (CA5), 6 Record, Tab 55, p. 72 (Report of the Guardian Ad Litem). It is a fair question how far a natural class may be depleted by prior dispositions of claims and still qualify as a mandatory limited fund class, but there can be no question that such a mandatory settlement class will not qualify when in the very negotiations aimed at a class settlement, class counsel agree to exclude what could turn out to be as much as a third of the claimants that negotiators thought might eventually be involved, a substantial number of whom class counsel represent, see App. to Pet. for Cert.855321a (noting that the parties negotiating the global settlement agreed to use a negotiating benchmark of 186,000 future claims against Fibreboard).Might such class exclusions be forgiven if it were shown that the class members with present claims and the outsiders ended up with comparable benefits? The question is academic here. On the record before us, we cannot speculate on how the unsettled claims would fare if the global settlement were approved, or under the trilateral settlement. As for the settled inventory claims, their plaintiffs appeared to have obtained better terms than the class members. They received an immediate payment of 50 percent of a settlement higher than the historical average, and would get the remainder if the global settlement were sustained (or the coverage litigation resolved, as it turned out to be by the Trilateral Settlement Agreement); the class members, by contrast, would be assured of a 3-year payout for claims settled, whereas the unsettled faced a prospect of mediation followed by arbitration as prior conditions of instituting suit, which would even then be subject to a recovery limit, a slower payout, and the limitations of the trust's spendthrift protection. See supra, at 827. Finally, as discussed below, even ostensible parity between settling nonclass plaintiffs and class members would be insufficient to overcome the failure to provide the structural protection of independent representation as for subclasses with conflicting interests.On the second element of equity within the class, the fairness of the distribution of the fund among class members, the settlement certification is likewise deficient. Fair treatment in the older cases was characteristically assured by straightforward pro rata distribution of the limited fund. See supra, at 841. While equity in such a simple sense is unattainable in a settlement covering present claims not specifically proven and claims not even due to arise, if at all, until some future time, at the least such a settlement must856seek equity by providing for procedures to resolve the difficult issues of treating such differently situated claimants with fairness as among themselves.First, it is obvious after Amchem that a class divided between holders of present and future claims (some of the latter involving no physical injury and attributable to claimants not yet born) requires division into homogeneous subclasses under Rule 23(c)(4)(B), with separate representation to eliminate conflicting interests of counsel. See Amchem, 521 U. S., at 627 (class settlements must provide "structural assurance of fair and adequate representation for the diverse groups and individuals affected"); cf. 5 J. Moore, T. Chorvat, D. Feinberg, R. Marmer, & J. Solovy, Moore's Federal Practice § 23.25[5][e], p. 23-149 (3d ed. 1998) (an attorney who represents another class against the same defendant may not serve as class counsel).31 As we said in Amchem, "for the currently injured, the critical goal is generous immediate payments," but "[t]hat goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflationprotected fund for the future." 521 U. S., at 626. No such procedure was employed here, and the conflict was as contrary to the equitable obligation entailed by the limited fund31 This adequacy of representation concern parallels the enquiry required at the threshold under Rule 23(a)(4), but as we indicated in Amchem, the same concerns that drive the threshold findings under Rule 23(a) may also influence the propriety of the certification decision under the subdivisions of Rule 23(b). See Amchem, 521 U. S., at 623, n. 18.In Amchem, we concentrated on the adequacy of named plaintiffs, but we recognized that the adequacy of representation enquiry is also concerned with the "competency and conflicts of class counsel." Id., at 626, n. 20 (citing General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 157-158, n. 13 (1982)); see also 5 Moore's Federal Practice § 23.25[3][a] (adequacy of representation concerns named plaintiff and class counsel). In this case, of course, the named representatives were not even "named [until] after the agreement in principle was reached," App. to Pet. for Cert. 483a; and they then relied on class counsel in subsequent settlement negotiations, ibid.857rationale as it was to the requirements of structural protection applicable to all class actions under Rule 23(a)(4).Second, the class included those exposed to Fibreboard's asbestos products both before and after 1959. The date is significant, for that year saw the expiration of Fibreboard's insurance policy with Continental, the one that provided the bulk of the insurance funds for the settlement. Pre-1959 claimants accordingly had more valuable claims than post1959 claimants, see 90 F. 3d, at 1012-1013 (Smith, J., dissenting), the consequence being a second instance of disparate interests within the certified class. While at some point there must be an end to reclassification with separate counsel, these two instances of conflict are well within the requirement of structural protection recognized in Amchem.It is no answer to say, as the Fifth Circuit said on remand, that these conflicts may be ignored because the settlement makes no disparate allocation of resources as between the conflicting classes. See 134 F. 3d, at 669-670. The settlement decides that the claims of the immediately injured deserve no provisions more favorable than the more speculative claims of those projected to have future injuries, and that liability subject to indemnification is no different from liability with no indemnification. The very decision to treat them all the same is itself an allocation decision with results almost certainly different from the results that those with immediate injuries or claims of indemnified liability would have chosen.Nor does it answer the settlement's failures to provide structural protections in the service of equity to argue that the certified class members' common interest in securing contested insurance funds for the payment of claims was so weighty as to diminish the deficiencies beneath recognition here. See Brief for Respondent Class Representatives Ahearn et al. 31 (discussing this issue in the context of the Rule 23(a)(4) adequacy of representation requirement); id.,858at 35-36 (citing, e. g., In re ''Agent Orange" Product Liability Litigation, 996 F.2d 1425, 1435-1436 (CA2 1993); In re ''Agent Orange" Product Liability Litigation, 800 F.2d 14, 18-19 (CA2 1986)). This argument is simply a variation of the position put forward by the proponents of the settlement in Amchem, who tried to discount the comparable failure in that case to provide separate representatives for subclasses with conflicting interests, see Brief for Petitioners in Amchem Products, Inc. v. Windsor, O. T. 1996, No. 96-270, p. 48 (arguing that "achieving a global settlement" was "an overriding concern that all plaintiffs [held] in common"); see also id., at 42 (arguing that the requirement of Rule 23(b)(3) that there be predominance of common questions of law or fact had been met by shared interest in "the fairness of the settlement"). The current position is just as unavailing as its predecessor in Amchem. There we gave the argument no weight, see 521 U. S., at 625-628, observing that "[t]he benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration," but the determination whether "proposed classes are sufficiently cohesive to warrant adjudication" must focus on "questions that preexist any settlement," id., at 622-623.32 Here, just as in the earlier case, the proponents of the settlement are trying to rewrite Rule 23; each ignores the fact that Rule 23 requires protections under subdivisions (a) and (b) against inequity and potential inequity at the precertification stage, quite independently of the required determination at postcertification fairness review under subdivision (e) that any settlement is fair in an overriding sense. A fairness hearing under subdivision (e) can no more swallow the preceding protective requirements32We made this observation in the context of Rule 23(b)(3)'s predominance enquiry, see Amchem, 521 U. S., at 622-623, and noted that no "'limited fund' capable of supporting class treatment under Rule 23(b)(1)(B)" was involved, id., at 623, n. 19.859of Rule 23 in a subdivision (b)(l)(B) action than in one under subdivision (b)(3).33CA third contested feature of this settlement certification that departs markedly from the limited fund antecedents is the ultimate provision for a fund smaller than the assets understood by the Court of Appeals to be available for payment of the mandatory class members' claims; most notably, Fibreboard was allowed to retain virtually its entire net worth. Given our treatment of the two preceding deficiencies of the certification, there is of course no need to decide whether this feature of the agreement would alone be fatal to the Global Settlement Agreement. To ignore it entirely, however, would be so misleading that we have decided simply to identify the issue it raises, without purporting to resolve it at this time.Fibreboard listed its supposed entire net worth as a component of the total (and allegedly inadequate) assets available for claimants, but subsequently retained all but $500,00033 As a variation of the argument that class members' common interest in securing the insurance settlement overrode any internal conflicts, respondents put forth an alternative rationale for sustaining the certification in this case under Rule 23(b)(1)(B). They assert that "failure by the class to file and maintain a class action to resolve the coverage disputes on a unitary basis-allowing class members instead to prosecute their claims separately-would have put class members to the 'significant risk[s]' that Fibreboard would lose its claimed insurance as a result of the coverage disputes," and that "any separate action by any class member could have itself resulted in an adjudication that the insurers owed no coverage to Fibreboard .... " Brief for Respondents Continental et al. 25 (quoting Rule 23(b)(1)(B)). Whatever its merits, this rationale for certification is foreclosed by the class conflicts, rehearsed above, that tainted the negotiation of the global settlement, and that at this point cannot be undone. Thus, whether a mandatory class could now be certified without the excluded inventory plaintiffs (whose settlements would appear to be final), or with properly represented subclasses, is an issue we need not address.860of that equity for itself.34 On the face of it, the arrangement seems irreconcilable with the justification of necessity in denying any opportunity for withdrawal of class members whose jury trial rights will be compromised, whose damages will be capped, and whose payments will be delayed. With Fibreboard retaining nearly all its net worth, it hardly appears that such a regime is the best that can be provided for class members. Given the nature of a limited fund and the need to apply its criteria at the certification stage, it is not enough for a District Court to say that it "need not ensure that a defendant designate a particular source of its assets to satisfy the class' claims; [but only that] the amount recovered by the class [be] fair." Ahearn, 162 F. R. D., at 527.The District Court in this case seems to have had a further point in mind, however. One great advantage of class action treatment of mass tort cases is the opportunity to save the enormous transaction costs of piecemeal litigation, an advantage to which the settlement's proponents have referred in this case.35 Although the District Court made no specific34 We need not decide here how close to insolvency a limited fund defendant must be brought as a condition of class certification. While there is no inherent conflict between a limited fund class action under Rule 23(b)(1)(B) and the Bankruptcy Code, cf., e. g., In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 292 (CA2 1992), it is worth noting that if limited fund certification is allowed in a situation where a company provides only a de minimis contribution to the ultimate settlement fund, the incentives such a resolution would provide to companies facing tort liability to engineer settlements similar to the one negotiated in this case would, in all likelihood, significantly undermine the protections for creditors built into the Bankruptcy Code. We note further that Congress in the Bankruptcy Reform Act of 1994, Pub. L. 103-394, § 111(a), amended the Bankruptcy Code to enable a debtor in a Chapter 11 reorganization in certain circumstances to establish a trust toward which the debtor may channel future asbestos-related liability, see 11 U. S. C. §§ 524(g), (h).35 Some courts certifying limited fund class actions have focused on the advantages such suits have in reducing transaction costs when compared to piecemeal litigation. See, e. g., In re Drexel Burnham Lambert Group, Inc., supra, at 292 (certifying mandatory class in part because "some mem-861finding about the transaction cost saving likely from this class settlement, estimating the amount in the "hundreds of millions," id., at 529, it did conclude that the amount would exceed Fibreboard's net worth as the Court valued it, ibid. (Fibreboard's net worth of $235 million "is considerably less than the likely savings in defense costs under the Global Settlement"). If a settlement thus saves transaction costs that would never have gone into a class member's pocket in the absence of settlement, may a credit for some of the savings be recognized in a mandatory class action as an incentive to settlement? It is at least a legitimate question, which we leave for another day.vOur decision rests on a different basis from the ground of JUSTICE BREYER'S dissent, just as there was a difference in approach between majority and dissenters in Amchem. The nub of our position is that we are bound to follow Rule 23 as we understood it upon its adoption, and that we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act. Although, as the dissent notes, post, at 882, the revised text adopted in 1966 was understood (somewhat cautiously) to authorize the courts to provide for class treatment of mass tort litigation, it was alsobers of the putative class might attempt to maintain costly individual actions in the hope and, perhaps, the belief that their claims are more meritorious than the claims of other class members," and thus warranting mandatory class certification "to prevent claimants with such motivations from unfairly diminishing the eventual recovery of other class members"). Although the transaction costs Fibreboard faced prior to settlement were at times significant, see Ahearn, 162 F. R. D., at 509; see also App. to Pet. for Cert. 282a (Fibreboard's annual asbestos litigation defense costs ran, at times, as high as twice the total face value of settlements reached), given the exigencies of Fibreboard's contingent insurance asset, this case does not present an instance in which limited fund certification can be justified on the ground that such settlement necessarily provided funds equal to, or greater than, what might have been recovered through individual litigation factoring out transaction costs.862the Court's understanding that the Rule's growing edge for that purpose would be the opt-out class authorized by subdivision (b)(3), not the mandatory class under subdivision (b)(l)(B), see supra, at 843-844. While we have not ruled out the possibility under the present Rule of a mandatory class to deal with mass tort litigation on a limited fund rationale, we are not free to dispense with the safeguards that have protected mandatory class members under that theory traditionally.Apart from its effect on the requirements of subdivision (a) as explained and held binding in Amchem, the dissent would move the standards for mandatory actions in the direction of opt-out class requirements by according weight to this "unusual limited fund['s] ... witching hour," post, at 877, in exercising discretion over class certification. It is on this belief (that we should sustain the allowances made by the District Court in consideration of the exigencies of this settlement proceeding) that the dissent addresses each of the criteria for limited fund treatment (demonstrably insufficient fund, intraclass equity, and dedication of the entire fund, see post, at 873-883).As to the calculation of the fund, the dissent believes an independent valuation by the District Court may be dispensed with here in favor of the figure agreed upon by the settling parties. The dissent discounts the conflicts on the part of class counsel who negotiated the Global Settlement Agreement by arguing that the "relevant" settlement negotiation, and hence the relevant benchmark for judging the actual value of the insurance amount, was the negotiation between Fibreboard and the insurers that produced the Trilateral Settlement Agreement. See post, at 876. This argument, however, minimizes two facts: (1) that Fibreboard and the insurers made this separate, backup agreement only at the insistence of class counsel as a condition for reaching the Global Settlement Agreement; (2) even more important, that "[t]he Insurers were ... adamant that they would not agree863to pay any more in the context of a backup agreement than in a global agreement," a principle "Fibreboard acceded to" on the day the Global Settlement Agreement was announced "as the price of permitting an agreement to be reached with respect to a global settlement," Ahearn, 162 F. R. D., at 516. Under these circumstances the reliability of the Trilateral Settlement Agreement's figure is inadequate as an independent benchmark that might excuse the want of any independent judicial determination that the Global Settlement Agreement's fund was the maximum possible. In any event, the dissent says, it is not crucial whether a $30 claim has to settle for $15 or $20. But it is crucial. Conflict-free counsel, as required by Rule 23(a) and Amchem, might have negotiated a $20 figure, and a limited fund rationale for mandatory class treatment of a settlement-only action requires assurance that claimants are receiving the maximum fund, not a potentially significant fraction less.With respect to the requirement of intraclass equity, the dissent argues that conflicts both within this certified class and between the class as certified and those excluded from it may be mitigated because separate counsel were simply not to be had in the short time that a settlement agreement was possible before the argument (or likely decision) in the coverage case. But this is to say that when the clock is about to strike midnight, a court considering class certification may lower the structural requirements of Rule 23(a) as declared in Amchem, and the parallel equity requirements necessary to justify mandatory class treatment on a limited fund theory.Finally, the dissent would excuse Fibreboard's retention of virtually all its net worth, and the loss to members of the certified class of some 13 percent of the fund putatively available to them, on the ground that the settlement made more money available than any other effort would likely have done. But even if we could be certain that this evaluation were true, this is to reargue Amchem: the settlement's fair-864ness under Rule 23(e) does not dispense with the requirements of Rules 23(a) and (b).We believe that if an allowance for exigency can make a substantial difference in the level of Rule 23 scrutiny, the economic temptations at work on counsel in class actions will guarantee enough exigencies to take the law back before Amchem and unsettle the line between mandatory class actions under subdivision (b)(l)(B) and opt-out actions under subdivision (b)(3).VIIn sum, the applicability of Rule 23(b)(1)(B) to a fund and plan purporting to liquidate actual and potential tort claims is subject to question, and its purported application in this case was in any event improper. The Advisory Committee did not envision mandatory class actions in cases like this one, and both the Rules Enabling Act and the policy of avoiding serious constitutional issues counsel against leniency in recognizing mandatory limited fund actions in circumstances markedly different from the traditional paradigm. Assuming, arguendo, that a mandatory, limited fund rationale could under some circumstances be applied to a settlement class of tort claimants, it would be essential that the fund be shown to be limited independently of the agreement of the parties to the action, and equally essential under Rules 23(a) and (b)(l)(B) that the class include all those with claims unsatisfied at the time of the settlement negotiations, with intraclass conflicts addressed by recognizing independently represented subclasses. In this case, the limit of the fund was determined by treating the settlement agreement as dispositive, an error magnified by the representation of class members by counsel also representing excluded plaintiffs, whose settlements would be funded fully upon settlement of the class action on any terms that could survive final fairness review. Those separate settlements, together with other exclusions from the claimant class, precluded adequate structural protection by subclass treatment, which was not even865afforded to the conflicting elements within the class as certified.The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusORTIZ ET AL. v. FIBRE BOARD CORP. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 97-1704. Argued December 8, 1998-Decided June 23,1999Respondent Fibreboard Corporation, an asbestos manufacturer, was locked in litigation for decades. Plaintiffs filed a stream of personal injury claims against it, swelling throughout the 1980's and 1990's to thousands of claims for compensatory damages each year. Fibreboard engaged in litigation with its insurers, respondent Continental Casualty Company and respondent Pacific Indemnity Company, over insurance coverage for the personal injury claims. In 1990, a California trial court ruled against Continental and Pacific, and the insurers appealed. At around the same time, Fibreboard approached a group of asbestos plaintiffs' lawyers, offering to discuss a "global settlement" of Fibreboard's asbestos liability. Negotiations at one point led to the settlement of some 45,000 pending claims, and the parties eventually agreed upon $1.535 billion as the key term of a "Global Settlement Agreement." Of this sum, $1.525 billion would come from Continental and Pacific, which had joined the negotiations, while Fibreboard would contribute $10 million, all but $500,000 of it from other insurance proceeds. At plaintiffs' counsels' insistence, Fibreboard and its insurers then reached a backup settlement of the coverage dispute in the "Trilateral Settlement Agreement," under which the insurers agreed to provide Fibreboard with $2 billion to defend against asbestos claimants and pay the winners, should the Global Settlement Agreement fail to win court approval. Subsequently, a group of named plaintiffs filed the present action in Federal District Court, seeking certification for settlement purposes of a mandatory class comprising three groups-claimants who had not yet sued Fibreboard, those who had dismissed such claims and retained the right to sue in the future, and relatives of class membersbut excluded claimants who had actions pending against Fibreboard or who had filed and, for negotiated value, dismissed such claims, and whose only retained right is to sue Fibreboard upon development of an asbestos-related malignancy. The District Court allowed petitioners and other objectors to intervene, held a fairness hearing under Federal Rule of Civil Procedure 23(e), ruled that the threshold Rule 23(a) numerosity, commonality, typicality, and adequacy of representation requirements were met, and certified the class under Rule 23(b)(1)(B). In response to intervenors' objections that the absence of a "limited fund"816Syllabusprecluded Rule 23(b)(1)(B) certification, the District Court ruled that both the disputed insurance asset liquidated by the $1.535 billion global settlement, and, alternatively, the sum of the value of Fibreboard plus the value of its insurance coverage, as measured by the insurance funds' settlement value, were relevant "limited funds." The Fifth Circuit affirmed both as to class certification and adequacy of settlement. Agreeing with the District Court's application of Rule 23(a), the Court of Appeals found, inter alia, that there were no conflicts of interest sufficiently serious to undermine the adequacy of class counsel's representation. As to Rule 23(b)(1)(B), the court approved the class certification on a "limited fund" rationale based on the threat to other class members' ability to receive full payment from Fibreboard's limited assets. This Court then decided Amchem Products, Inc. v. Windsor, 521 U. S. 591, vacated the Fifth Circuit's judgment, and remanded for further consideration in light of that decision. The Fifth Circuit again affirmed the District Court's judgment on remand.Held:1. This Court need not resolve two threshold matters before proceeding to the nub of the case. First, petitioners call the class claims nonjusticiable under Article III, saying that this is a feigned action initiated by Fibreboard to control its future asbestos tort liability, with the vast majority of the exposure-only class members being without injury in fact and hence without standing to sue. While an Article III court ordinarily must be sure of its own jurisdiction before getting to the merits, Steel Co. v. Citizens For Better Environment, 523 U. S. 83, 8889, a Rule 23 question should be treated first because class certification issues are "logically antecedent" to Article III concerns, Amchem, supra, at 612, and pertain to statutory standing, which may properly be treated before Article III standing, see Steel Co., supra, at 92. Second, although petitioners are correct that the Fifth Circuit on remand fell short in its attention to Amchem in passing on the Rule 23(a) issues, these points are dealt with in the Court's review of the certification on the Fifth Circuit's "limited fund" theory under Rule 23(b)(1)(B). Pp. 830-832.2. Applicants for contested certification of a mandatory settlement class on a limited fund theory under Rule 23(b)(1)(B) must show that the fund is limited by more than the agreement of the parties, and has been allocated to claimants belonging within the class by a process addressing the conflicting interests of class members. Pp. 832-848.(a) In drafting Rule 23(b), the Civil Rules Advisory Committee sought to catalogue in functional terms those recurrent life patterns which call for mass litigation through representative parties. Rule817Full Text of Opinion

1983_82-2120

JUSTICE BLACKMUN delivered the opinion of the Court.This case presents questions regarding the award of attorney's fees in a proceeding to secure a "free appropriate public education" for a handicapped child. At various stages in the proceeding, petitioners asserted claims for relief based on state law, on the Education of the Handicapped Act (EHA), 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq., on § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794, and on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The United States Court of Appeals Page 468 U. S. 995 for the First Circuit concluded that, because the proceeding, in essence, was one to enforce the provisions of the EHA, a statute that does not provide for the payment of attorney's fees, petitioners were not entitled to such fees. Smith v. Cumberland School Committee, 703 F.2d 4 (1983). Petitioners insist that this Court's decision in Maher v. Gagne, 448 U. S. 122 (1980), compels a different conclusion.IThe procedural history of the case is complicated, but it is significant to the resolution of the issues. Petitioner Thomas F. Smith III (Tommy), suffers from cerebral palsy and a variety of physical and emotional handicaps. When this proceeding began in November, 1976, Tommy was eight years old. In the preceding December, the Cumberland School Committee had agreed to place Tommy in a day program at Emma Pendleton Bradley Hospital in East Providence, R.I., and Tommy began attending that program. In November, 1976, however, the Superintendent of Schools informed Tommy's parents, who are the other petitioners here, that the School Committee no longer would fund Tommy's placement because, as it construed Rhode Island law, the responsibility for educating an emotionally disturbed child lay with the State's Division of Mental Health, Retardation and Hospitals (MHRH). App. 25-26.Petitioners took an appeal from the decision of the Superintendent to the School Committee. In addition, petitioners filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the District of Rhode Island against the members of the School Committee, asserting that due process required that the Committee comply with "Article IX -- Procedural Safeguards" of the Regulations adopted by the State Board of Regents regarding Education of Handicapped Children (Regulations) [Footnote 1] and that Tommy's placement Page 468 U. S. 996 in his program be continued pending appeal of the Superintendent's decision.In orders issued in December, 1976 and January, 1977, the District Court entered a temporary restraining order and then a preliminary injunction. The court agreed with petitioners that the Regulations required the School Committee to continue Tommy in his placement at Bradley Hospital pending appeal of the Superintendent's decision. The School Committee's failure to follow the Regulations, the court concluded, would constitute a deprivation of due process.On May 10, 1978, petitioners filed a first amended complaint. App. 49. By that time, petitioners had completed the state administrative process. They had appealed the Superintendent's decision to the School Committee and then to the State Commissioner of Education, who delegated responsibility for conducting a hearing to an Associate Commissioner of Education. Petitioners had moved that the Associate Commissioner recuse himself from conducting the review of the School Committee's decision, since he was an employee of the state education agency, and therefore not an impartial hearing officer. The Associate Commissioner denied the motion to recuse. Page 468 U. S. 997All the state officers agreed that, under R.I.Gen.Laws, Tit. 40, ch. 7 (1977), the responsibility for educating Tommy lay with MHRH. [Footnote 2] The Associate Commissioner acknowledged petitioners' argument that, since § 40.1-7-8 would require them to pay a portion of the cost of services provided to Tommy, [Footnote 3] the statute conflicted with the EHA, but concluded that the problem was not within his jurisdiction to resolve.In their first amended complaint, petitioners added as defendants the Commissioner of Education, the Associate Commissioner of Education, the Board of Regents for Education, and the Director of MHRH. They also specifically relied for the first time on the EHA, noting that, at all times mentioned in the complaint, the State of Rhode Island had submitted a plan for state-administered programs of special education and related services and had received federal funds pursuant to the EHA. [Footnote 4] Page 468 U. S. 998In the first count of their amended complaint, petitioners challenged the fact that both the hearing before the School Committee and the hearing before the Associate Commissioner were conducted before examiners who were employees of the local or state education agency. They sought a declaratory judgment that the procedural safeguards contained in Article IX of the Regulations did not comply with the Due Process Clause of the Fourteenth Amendment or with the requirements of the EHA, 20 U.S.C. § 1415, and its accompanying regulations. They also sought an injunction prohibiting the Commissioner and Associate Commissioner from conducting any more hearings in review of decisions of the Rhode Island local education agencies (LEA's) unless and until the Board of Regents adopted regulations that conformed to the requirements of § 1415 and its regulations. Finally, they sought reasonable attorney's fees and costs.In the second count of their amended complaint, petitioners challenged the substance of the Associate Commissioner's decision. In their view, the decision violated Tommy's rights"under federal and state law to have his LEA provide a free, appropriate educational placement without regard to whether or not said placement can be made within the local school system."App. 61. They sought both a declaratory judgment that the School Committee, not MHRH, was responsible for providing Tommy a free appropriate education, and an injunction requiring the School Committee to provide Tommy such an education. They also asked for reasonable attorney's fees and costs.On December 22, 1978, the District Court issued an opinion acknowledging confusion over whether, as a matter of state law, the School Committee or MHRH was responsible for funding and providing the necessary services for Tommy. Id. at 108. The court also noted that, if the Associate Page 468 U. S. 999 Commissioner were correct that Tommy's education was governed by § 40.1-7, the state scheme would appear to be in conflict with the requirements of the EHA, since § 40.1-7 may require parental contribution and may not require MHRH to provide education at all if it would cause the Department to incur a deficit. At the request of the state defendants, the District Court certified to the Supreme Court of Rhode Island the state law questions whether the School Committee was required to provide special education for a resident handicapped student if the local educational programs were inadequate, and whether the cost of such programs was the responsibility of the local School Committee or of the MHRH.On May 29, 1979, the District Court granted partial summary judgment for the defendants on petitioners' claim that they were denied due process by the requirement of the Regulations that they submit their dispute to the School Committee and by the Associate State Commissioner's refusal to recuse himself. The court noted that the School Committee's members were not "employees" of the local education agency, but elected officials, and determined that the provision of the EHA directing that no hearing shall be conducted by an employee of an agency or unit involved in the education or care of the child does not apply to hearings conducted by the state education agency.On June 3, 1980, the Rhode Island Supreme Court issued an opinion answering the certified questions. Smith v. Cumberland School Committee, 415 A.2d 168. Noting the responsibility of the Board of Regents for Education to comply with the requirements of the EHA, the court determined that the primary obligation of financing a handicapped child's special education lay with the local School Committee. Whatever obligation § 40.1-7 imposes on MHRH to provide educational services is limited and complements, rather than supplants, the obligations of School Committees under § 16.24-1. Page 468 U. S. 1000Petitioners thereafter filed their second amended and supplemental complaint. App. 152. In it, they added to Count II claims for relief under the Equal Protection Clause of the Fourteenth Amendment and under § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794. They also requested attorney's fees under 42 U.S.C. § 1988 and what was then 31 U.S.C. § 1244(e) (1976 ed.). [Footnote 5]On January 12, 1981, the District Court issued an order declaring petitioners' rights, entering a permanent injunction against the School Committee defendants, and approving an award of attorney's fees against those defendants. App. 172. The court ordered the School Committee to pay the full cost of Tommy's attendance at Harmony Hill School, Tommy's then-current placement. By agreement between petitioners and the School Committee and without prejudice to petitioners' claims against the other defendants, the court awarded attorney's fees in the amount of $8,000, pursuant to 42 U.S.C. § 1988 and the then 31 U.S.C. § 1244 (e) (1976 ed.).On June A, 1981, the District Court issued two orders, this time addressed to petitioners' claims against the state defendants. In the first order, App. 177, the court denied the state defendants' motion to dismiss. In the second order, id. at 189, the court declared that Tommy is entitled to a Page 468 U. S. 1001 free appropriate special education paid for by the Cumberland School Committee. The court noted that, since Tommy was entitled to the relief he sought as a matter of state law, it was unnecessary and improper for the court to go further and reach petitioners' federal statutory and constitutional claims. Petitioners were given 14 days to move for an award of fees.The Court of Appeals for the First Circuit affirmed in an unpublished per curiam opinion filed on January 11, 1982. It concluded that the Commissioner was not immune from injunctive relief and that petitioners' challenge to the District Court's award of summary judgment to respondents on their due process challenge was moot.Petitioners requested fees and costs against the state defendants. Id. at 195. On April 30, 1982, the District Court ruled orally that petitioners were entitled to fees and costs in the amount of $32,109 for the hours spent in the state administrative process both before and after the state defendants were named as parties to the federal litigation. App. to Pet. for Cert. A31-A58. Relying on New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 (1980), and its own opinion in Turillo v. Tyson, 535 F. Supp. 577 (1982), the court reasoned that, because petitioners were required to exhaust their EHA remedies before bringing their § 1983 and § 504 claims, they were entitled to fees for those procedures. The court agreed with respondents that petitioners were not entitled to compensation for hours spent challenging the use of employees as hearing officers. No fees were awarded for hours spent obtaining the preliminary injunctive relief, as petitioners already had been compensated for that work by the School Committee defendants. Finally, the court rejected the defendants' argument that fees should not be allowed, because this was an action under the EHA, which does not provide for fees. In the court's view, respondents had given insufficient weight to the fact that petitioners had alleged equal protection and § 1983 claims as well as the EHA claim. The court Page 468 U. S. 1002 added that it found the equal protection claim petitioners included in their second amended complaint to be colorable and nonfrivolous. Petitioners thus were entitled to fees for prevailing in an action to enforce their § 1983 claim.The Court of Appeals reversed. Smith v. Cumberland School Committee, 703 F.2d 4 (CA1 1983). The court first noted that, under what is labeled the "American Rule," attorney's fees are available as a general matter only when statutory authority so provides. Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240 (1975). Here the action and relief granted in this case fell within the reach of the EHA, a federal statute that establishes a comprehensive federal-state scheme for the provision of special education to handicapped children, but that does not provide for attorney's fees. [Footnote 6] For fees, the District Court had to look to § 1988 and § 505 of the Rehabilitation Act.As to the § 1988 claim, the court acknowledged the general rule that, when the claim upon which a plaintiff actually prevails is accompanied by a "substantial," though undecided, § 1983 claim arising from the same nucleus of facts, a fee award is appropriate. Maher v. Gagne, 448 U.S. at 448 U. S. 130-131. Here, petitioners' § 1983 claims arguably were at least substantial enough to support federal jurisdiction. Ibid. Even if the § 1983 claims were substantial, however, Page 468 U. S. 1003 the Court of Appeals concluded that, given the comprehensiveness of the EHA, Congress could not have intended its omission of attorney's fees relief to be rectified by recourse to § 1988.The Court of Appeals drew support for its conclusion from this Court's decision in Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981). There the Court held that, where Congress had provided comprehensive enforcement mechanisms for protection of a federal right and those mechanisms did not include a private right of action, a litigant could not obtain a private right of action by asserting his claim under § 1983. The Court of Appeals recognized that Sea Clammers might not logically preclude a 1983 action for violation of the EHA, since the EHA expressly recognizes a private right of action, but it does support the more general proposition that, when a statute creates a comprehensive remedial scheme, intentional "omissions" from that scheme should not be supplanted by the remedial apparatus of § 1983. In the view of the Court of Appeals, the fact that the § 1983 claims alleged here were based on independent constitutional violations, rather than violations of the EHA, was immaterial. The constitutional claims alleged -- a denial of due process and a denial of a free appropriate public education because of handicap -- are factually identical to the EHA claims. If a litigant could obtain fees simply by an incantation of § 1983, fees would become available in almost every case. [Footnote 7] Page 468 U. S. 1004The court disposed of the Rehabilitation Act basis for fees in a similar fashion. Even if Congress did not specifically intend to preempt § 504 claims with the EHA, the EHA's comprehensive remedial scheme entails a rejection of fee-shifting that properly limits the fees provision of the more general Rehabilitation Act.Because of confusion in the Courts of Appeals over the proper interplay among the various statutory and constitutional bases for relief in cases of this nature, and over the effect of that interplay on the provision of attorney's fees, [Footnote 8] we granted certiorari, 464 U.S. 932 (1983).IIPetitioners insist that the Court of Appeals simply ignored the guidance of this Court in Maher v. Gagne, supra, that a prevailing party who asserts substantial but unaddressed constitutional claims is entitled to attorney's fees under 42 U.S.C. § 1988. They urge that the reliance of the Court of Appeals on Sea Clammers was misplaced. Sea Clammers had to do only with an effort to enlarge a statutory remedy by asserting a claim based on that statute under the "and laws" provision of § 1983. [Footnote 9] In this case, petitioners made no Page 468 U. S. 1005 effort to enlarge the remedies available under the EHA by asserting their claim through the "and laws" provision of § 1983. They presented separate constitutional claims, properly cognizable under § 1983. Since the claim on which they prevailed and their constitutional claims arose out of a ""common nucleus of operative fact,"'" Maher v. Gagne, 448 U.S. at 448 U. S. 133, n. 15, quoting H.R.Rep. No. 94-1558, p. 4, n. 7 (1976), in turn quoting Mine Workers v. Gibbs, 383 U. S. 715, 383 U. S. 725 (1966), and since the constitutional claims were found by the District Court and assumed by the Court of Appeals to be substantial, petitioners urge that they are entitled to fees under § 1988. In addition, petitioners presented a substantial claim under § 504 of the Rehabilitation Act. Since § 505 of that Act authorizes attorney's fees in the same manner as does § 1988, and in fact incorporates the legislative history of § 1988, see 124 Cong.Rec. 30346 (1978) (remarks of Sen. Cranston), the reasoning of Maher applies to claims based on § 504. Petitioners therefore, it is claimed, are entitled to fees for substantial, though unaddressed, § 504 claims.Respondents counter that petitioners simply are attempting to circumvent the lack of a provision for attorney's fees in the EHA by resorting to the pleading trick of adding surplus constitutional claims and similar claims under § 504 of the Rehabilitation Act. Whatever Congress' intent was in authorizing fees for substantial, unaddressed claims based on § 1988 or § 505, it could not have been to allow plaintiffs to receive an award of attorney's fees in a situation where Congress has made clear its intent that fees not be available.Resolution of this dispute requires us to explore congressional intent, both in authorizing fees for substantial unaddressed Page 468 U. S. 1006 constitutional claims and in setting out the elaborate substantive and procedural requirements of the EHA, with no indication that attorney's fees are available in an action to enforce those requirements. We turn first to petitioners' claim that they were entitled to fees under 42 U.S.C. § 1988 because they asserted substantial constitutional claims.IIIAs the legislative history illustrates and as this Court has recognized, § 1988 is a broad grant of authority to courts to award attorney's fees to plaintiffs seeking to vindicate federal constitutional and statutory rights. Maine v. Thiboutot, 448 U. S. 1, 448 U. S. 9 (1980); Maher v. Gagne, supra; Hutto v. Finney, 437 U. S. 678, 437 U. S. 694 (1978); S.Rep. No. 94-1011, p. 4 (1976) (a prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust,'" quoting Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 390 U. S. 402 (1968)). Congress did not intend to have that authority extinguished by the fact that the case was settled or resolved on a nonconstitutional ground. Maher v. Gagne, 448 U.S. at 448 U. S. 132. As the Court also has recognized, however, the authority to award fees in a case where the plaintiff prevails on substantial constitutional claims is not without qualification. Due regard must be paid, not only to the fact that a plaintiff "prevailed," but also to the relationship between the claims on which effort was expended and the ultimate relief obtained. Hensley v. Eckerhart, 461 U. S. 424 (1983); Blum v. Stenson, 465 U. S. 886 (1984). Thus, for example, fees are not properly awarded for work done on a claim on which a plaintiff did not prevail and which involved distinctly different facts and legal theories from the claims on the basis of which relief was awarded. Hensley v. Eckerhart, 461 U.S. at 461 U. S. 434-435, 461 U. S. 440. Although, in most cases, there is no clear line between hours of work that contributed to a plaintiff's success and those that did not, district courts remain charged with the responsibility, imposed by Congress, of evaluating the award requested Page 468 U. S. 1007 in light of the relationship between particular claims for which work is done and the plaintiff's success. Id. at 461 U. S. 436-437.A similar analysis is appropriate in a case like this, where the prevailing plaintiffs rely on substantial, unaddressed constitutional claims as the basis for an award of attorney's fees. The fact that constitutional claims are made does not render automatic an award of fees for the entire proceeding. Congress' purpose in authorizing a fee award for an unaddressed constitutional claim was to avoid penalizing a litigant for the fact that courts are properly reluctant to resolve constitutional questions if a nonconstitutional claim is dispositive. H.R.Rep. No. 94-1558, at 4, n. 7. That purpose does not alter the requirement that a claim for which fees are awarded be reasonably related to the plaintiff's ultimate success. It simply authorizes a district court to assume that the plaintiff has prevailed on his fee-generating claim, and to award fees appropriate to that success. [Footnote 10]In light of the requirement that a claim for which fees are awarded be reasonably related to the plaintiff's ultimate success, it is clear that plaintiffs may not rely simply on the fact that substantial fee-generating claims were made during the course of the litigation. Closer examination of the nature of the claims and the relationship between those claims and petitioners' ultimate success is required.Besides making a claim under the EHA, petitioners asserted at two different points in the proceedings that procedures employed by state officials denied them due process. They also claimed that Tommy was being discriminated against on the basis of his handicapping condition, in violation Page 468 U. S. 1008 of the Equal Protection Clause of the Fourteenth Amendment.AThe first due process claim may be disposed of briefly. Petitioners challenged the refusal of the School Committee to grant them a full hearing before terminating Tommy's funding. Petitioners were awarded fees against the School Committee for their efforts in obtaining an injunction to prevent that due process deprivation. The award was not challenged on appeal, and we therefore assume that it was proper.The fact that petitioners prevailed on their initial due process claim, however, by itself does not entitle them to fees for the subsequent administrative and judicial proceedings. The due process claim that entitled petitioners to an order maintaining Tommy's placement throughout the course of the subsequent proceedings is entirely separate from the claims petitioners made in those proceedings. Nor were those proceedings necessitated by the School Committee's failings. Even if the School Committee had complied with state regulations and had guaranteed Tommy's continued placement pending administrative review of its decision, petitioners still would have had to avail themselves of the administrative process in order to obtain the permanent relief they wanted -- an interpretation of state law that placed on the School Committee the obligation to pay for Tommy's education. Petitioners' initial due process claim is not sufficiently related to their ultimate success to support an award of fees for the entire proceeding. We turn, therefore, to petitioners' other § 1983 claims.As petitioners emphasize, their § 1983 claims were not based on alleged violations of the EHA, [Footnote 11] but on independent Page 468 U. S. 1009 claims of constitutional deprivations. As the Court of Appeals recognized, however, petitioners' constitutional claims, a denial of due process and a denial of a free appropriate public education as guaranteed by the Equal Protection Clause, are virtually identical to their EHA claims. [Footnote 12] The question to be asked, therefore, is whether Congress intended that the EHA be the exclusive avenue through which a plaintiff may assert those claims.BWe have little difficulty concluding that Congress intended the EHA to be the exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education. The EHA is a comprehensive scheme set up by Congress to aid the States in complying with their constitutional obligations to provide public education for handicapped children. Both the provisions of the statute and its legislative history indicate that Congress intended handicapped children with constitutional claims to a free appropriate public education to pursue those claims through the carefully tailored administrative and judicial mechanism set out in the statute.In the statement of findings with which the EHA begins, Congress noted that there were more than 8 million handicapped children in the country, the special education needs of most of whom were not being fully met. 20 U.S.C. Page 468 U. S. 1010 §§ 1400(b)(1), (2), and (3). Congress also recognized that, in a series of "landmark court cases," the right to an equal education opportunity for handicapped children had been established. S.Rep. No. 94-168, p. 6 (1975). See also id. at 13 ("It is the intent of the Committee to establish and protect the right to education for all handicapped children and to provide assistance to the States in carrying out their responsibilities under State law and the Constitution of the United States to provide equal protection of the laws"). The EHA was an attempt to relieve the fiscal burden placed on States and localities by their responsibility to provide education for all handicapped children. 20 U.S.C. §§ 1400(b)(8) and (9). At the same time, however, Congress made clear that the EHA is not simply a funding statute. The responsibility for providing the required education remains on the States. S.Rep. No. 94-168, at 22. And the Act establishes an enforceable substantive right to a free appropriate public education. See Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U. S. 176 (1982). See also 121 Cong.Rec. 37417 (1975) (statement of Sen. Schweiker: "It can no longer be the policy of the Government to merely establish an unenforceable goal requiring all children to be in school. [The bill] takes positive necessary steps to insure that the rights of children and their families are protected"). [Footnote 13] Finally, the Act establishes an elaborate procedural mechanism to protect the rights of handicapped Page 468 U. S. 1011 children. The procedures not only ensure that hearings conducted by the State are fair and adequate. They also effect Congress' intent that each child's individual educational needs be worked out through a process that begins on the local level and includes ongoing parental involvement, detailed procedural safeguards, and a right to judicial review. §§ 1412(4), 1414(a)(5), 1415. See also S.Rep. No. 94-168, at 11-12 (emphasizing the role of parental involvement in assuring that appropriate services are provided to a handicapped child); id. at 22; Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. at 458 U. S. 208-209.In light of the comprehensive nature of the procedures and guarantees set out in the EHA and Congress' express efforts to place on local and state educational agencies the primary responsibility for developing a plan to accommodate the needs of each individual handicapped child, we find it difficult to believe that Congress also meant to leave undisturbed the ability of a handicapped child to go directly to court with an equal protection claim to a free appropriate public education. [Footnote 14] Not only would such a result render superfluous most of the detailed procedural protections outlined in the statute, Page 468 U. S. 1012 but, more important, it would also run counter to Congress' view that the needs of handicapped children are best accommodated by having the parents and the local education agency work together to formulate an individualized plan for each handicapped child's education. No federal district court presented with a constitutional claim to a public education can duplicate that process.We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim. Since 1871, when it was passed by Congress, § 1983 has stood as an independent safeguard against deprivations of federal constitutional and statutory rights. See Patsy v. Florida Board of Regents, 457 U. S. 496 (1982); Mitchm v. Foster, 407 U. S. 225, 407 U. S. 242 (1972); Monroe v. Pape, 365 U. S. 167, 365 U. S. 183 (1961). Nevertheless, § 1983 is a statutory remedy, and Congress retains the authority to repeal it or replace it with an alternative remedy. [Footnote 15] The crucial consideration is what Congress intended. See Brown v. GSA, 425 U. S. 820, 425 U. S. 825-829 (1976); Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 421 U. S. 459 (1975); Adickes v. S. H. Kress & Co., 398 U. S. 144, 398 U. S. 151, n. 5 (1970).In this case, we think Congress' intent is clear. Allowing a plaintiff to circumvent the EHA administrative remedies would be inconsistent with Congress' carefully tailored scheme. The legislative history gives no indication that Congress intended such a result. [Footnote 16] Rather, it indicates that Page 468 U. S. 1013 Congress perceived the EHA as the most effective vehicle for protecting the constitutional right of a handicapped child to a public education. We conclude, therefore, that where the EHA is available to a handicapped child asserting a right to a free appropriate public education, based either on the EHA or on the Equal Protection Clause of the Fourteenth Amendment, the EHA is the exclusive avenue through which the child and his parents or guardian can pursue their claim.CPetitioners also made a due process challenge to the partiality of the state hearing officer. The question whether this claim will support an award of attorney's fees has two aspects -- whether the procedural safeguards set out in the EHA manifest Congress' intent to preclude resort to § 1983 Page 468 U. S. 1014 on a due process challenge and, if not, whether petitioners are entitled to attorney's fees for their due process claim. We find it unnecessary to resolve the first question, because we are satisfied that, even if an independent due process challenge may be maintained, petitioners are not entitled to attorney's fees for their particular claim. [Footnote 17] Page 468 U. S. 1015Petitioners' plea for injunctive relief was not made until after the administrative proceedings had ended. They did not seek an order requiring the Commissioner of Education to grant them a new hearing, but only a declaratory judgment that the state Regulations did not comply with the requirements of due process and the EHA, and an injunction prohibiting the Commissioner from conducting further hearings under those Regulations. App. 59-60. That due process claim and the substantive claim on which petitioners ultimately prevailed involved entirely separate legal theories and, more important, would have warranted entirely different relief. According to their complaint, petitioners did not even seek relief for themselves on the due process claim, but sought only to protect the rights of others coming after them in the administrative process. The efforts petitioners subsequently expended in the judicial process addressed only the substantive question as to which agency, as a matter of state and federal law, was required to pay for Tommy's education. Whether or not the state procedures accorded petitioners the process they were due had no bearing on that substantive question.We conclude that where, as here, petitioners have presented distinctly different claims for different relief, based on different facts and legal theories, and have prevailed only on a nonfee claim, they are not entitled to a fee award simply because the other claim was a constitutional claim that could be asserted through § 1983. We note that a contrary conclusion would mean that every EHA plaintiff who seeks judicial review after an adverse agency determination could ensure a fee award for successful judicial efforts simply by including in his substantive challenge a claim that the administrative process was unfair. If the court ignored the due process claim but granted substantive relief, the due process claim could be considered a substantial unaddressed constitutional Page 468 U. S. 1016 claim and the plaintiff would be entitled to fees. [Footnote 18] It is unlikely that Congress intended such a result.IVWe turn, finally, to petitioners' claim that they were entitled to fees under § 505 of the Rehabilitation Act, because they asserted a substantial claim for relief under § 504 of that Act.Much of our analysis of petitioners' equal protection claim is applicable here. The EHA is a comprehensive scheme designed by Congress as the most effective way to protect the right of a handicapped child to a free appropriate public education. We concluded above that, in enacting the EHA, Congress was aware of, and intended to accommodate, the claims of handicapped children that the Equal Protection Clause required that they be ensured access to public education. We also concluded that Congress did not intend to have the EHA scheme circumvented by resort to the more general provisions of § 1983. We reach the same conclusion regarding petitioners' § 504 claim. The relationship between the EHA and § 504, however, requires a slightly different analysis from that required by petitioners' equal protection claim.Section 504 and the EHA are different substantive statutes. While the EHA guarantees a right to a free appropriate public education, § 504 simply prevents discrimination on the basis of handicap. But while the EHA is limited to handicapped children seeking access to public education, Page 468 U. S. 1017 § 504 protects handicapped persons of all ages from discrimination in a variety of programs and activities receiving federal financial assistance.Because both statutes are built around fundamental notions of equal access to state programs and facilities, their substantive requirements, as applied to the right of a handicapped child to a public education, have been interpreted to be strikingly similar. In regulations promulgated pursuant to § 504, the Secretary of Education [Footnote 19] has interpreted § 504 as requiring a recipient of federal funds that operates a public elementary or secondary education program to provide a free appropriate public education to each qualified handicapped person in the recipient's jurisdiction. 34 CFR § 104.33(a) (1983). [Footnote 20] The requirement extends to the provision of a public or private residential placement if necessary to provide a free appropriate public education. § 104.33(c)(3). The regulations also require that the recipient implement procedural safeguards, including notice, an opportunity for the parents or guardian to examine relevant records, an impartial hearing with opportunity for participation by the parents or guardian and representation by counsel, and a review procedure. § 104.36. The Secretary declined to require the exact EHA procedures, because those procedures might be inappropriate for some recipients not subject to the EHA, see 34 Page 468 U. S. 1018 CFR, Subtitle B, ch. 1, App. A, p. 371 (1983), but indicated that compliance with EHA procedures would satisfy § 104.36.On the other hand, although both statutes begin with an equal protection premise that handicapped children must be given access to public education, it does not follow that the affirmative requirements imposed by the two statutes are the same. The significant difference between the two, as applied to special education claims, is that the substantive and procedural rights assumed to be guaranteed by both statutes are specifically required only by the EHA.Section 504, 29 U.S.C. § 794, provides, in pertinent part:"No otherwise qualified handicapped individual in the United States, . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ."In Southeastern Community College v. Davis, 442 U. S. 397 (1979), the Court emphasized that § 504 does not require affirmative action on behalf of handicapped persons, but only the absence of discrimination against those persons. 442 U.S. at 442 U. S. 411-412. In light of Davis, courts construing § 504 as applied to the educational needs of handicapped children have expressed confusion about the extent to which § 504 requires special services necessary to make public education accessible to handicapped children. [Footnote 21]In the EHA, on the other hand, Congress specified the affirmative obligations imposed on States to ensure that Page 468 U. S. 1019 equal access to a public education is not an empty guarantee, but offers some benefit to a handicapped child. Thus, the statute specifically requires "such . . . supportive services . . . as may be required to assist a handicapped child to benefit from special education," see Board of Education v. Rowley, 458 U.S. at 458 U. S. 200, including, if the public facilities are inadequate for the needs of the child, "instruction in hospitals and institutions." 20 U.S.C. §§ 1401(16) and (17).We need not decide the extent of the guarantee of a free appropriate public education Congress intended to impose under § 504. We note the uncertainty regarding the reach of § 504 to emphasize that it is only in the EHA that Congress specified the rights and remedies available to a handicapped child seeking access to public education. Even assuming that the reach of § 504 is coextensive with that of the EHA, there is no doubt that the remedies, rights, and procedures Congress set out in the EHA are the ones it intended to apply to a handicapped child's claim to a free appropriate public education. We are satisfied that Congress did not intend a handicapped child to be able to circumvent the requirements or supplement the remedies of the EHA by resort to the general antidiscrimination provision of § 504.There is no suggestion that § 504 adds anything to petitioners' substantive right to a free appropriate public education. [Footnote 22] The only elements added by § 504 are the possibility of circumventing EHA administrative procedures and going straight to court with a § 504 claim, [Footnote 23] the possibility of a damages Page 468 U. S. 1020 award in cases where no such award is available under the EHA, [Footnote 24] and attorney's fees. As discussed above, Congress' intent to place on local and state educational agencies the responsibility for determining the most appropriate educational plan for a handicapped child is clear. To the extent § 504 otherwise would allow a plaintiff to circumvent that state procedure, we are satisfied that the remedy conflicts with Congress' intent in the EHA.Congress did not explain the absence of a provision for a damages remedy and attorney's fees in the EHA. Several references in the statute itself and in its legislative history, however, indicate that the omissions were in response to Congress' awareness of the financial burden already imposed on States by the responsibility of providing education for handicapped children. As noted above, one of the stated purposes of the statute was to relieve this financial burden. See 20 U.S.C. §§ 1400(b)(8) and (9). Discussions of the EHA by its proponents reflect Congress' intent to "make every resource, or as much as possible, available to the direct activities and the direct programs that are going to benefit the handicapped." 121 Cong.Rec.19501 (1975) (remarks of Sen. Dole). See also id. at 37025 (procedural safeguards designed to further the congressional goal of ensuring full educational opportunity without overburdening the local school districts and state educational agencies) (remarks of Page 468 U. S. 1021 Rep. Perkins); S.Rep. No. 94-168, at 81 (minority views cognizant of financial burdens on localities). The Act appears to represent Congress' judgment that the best way to ensure a free appropriate public education for handicapped children is to clarify and make enforceable the rights of those children while at the same time endeavoring to relieve the financial burden imposed on the agencies responsible to guarantee those rights. Where § 504 adds nothing to the substantive rights of a handicapped child, we cannot believe that Congress intended to have the careful balance struck in the EHA upset by reliance on § 504 for otherwise unavailable damages or for an award of attorney's fees.We emphasize the narrowness of our holding. We do not address a situation where the EHA is not available or where § 504 guarantees substantive rights greater than those available under the EHA. We hold only that where, as here, whatever remedy might be provided under § 504 is provided with more clarity and precision under the EHA, a plaintiff may not circumvent or enlarge on the remedies available under the EHA by resort to § 504.In light of our conclusion that § 504 was not available to petitioners as an alternative basis for the relief they sought, we need not decide whether, as petitioners urge, § 505 authorizes attorney's fees for substantial, unaddressed § 504 claims or whether a Rehabilitation Act claim is entitled only to a "determination on the . . . claim for the purpose of awarding counsel fees." H.R.Rep. No. 94-1558, at 4, n. 7.VThe judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtSmith v. Robinson, 468 U.S. 992 (1984)Smith v. RobinsonNo. 82-2120Argued March 28, 1984Decided July 5, 1984468 U.S. 992SyllabusWhen the Superintendent of Schools in Cumberland, R.I., informed petitioner parents of petitioner child, who suffers from cerebral palsy and other handicaps, that the School Committee no longer would fund the child's placement in a special educational program, the parents, in addition to appealing the Superintendent's decision to the School Committee and thereafter through the state administrative process, filed an action in Federal District Court against the School Committee and, subsequently, against certain state school officials. They asserted, at various points in the proceedings, claims for declaratory and injunctive relief based on state law, on the Education of the Handicapped Act (EHA), on § 504 of the Rehabilitation Act of 1973, and, with respect to certain federal constitutional claims, on 42 U.S.C. § 1983. The District Court held that the child was entitled, as a matter of state law, to a free appropriate special education paid for by the School Committee, and that it was therefore unnecessary and improper to reach petitioners' federal statutory and constitutional claims. By agreement between the parties, the court awarded attorney's fees against the School Committee. Petitioners then requested attorney's fees against the state defendants. The District Court held that petitioners were entitled to such fees for the hours spent in the state administrative process both before and after the date the state defendants were named as parties, reasoning that, because petitioners were required to exhaust their EHA remedies before asserting their § 1983 and § 504 claims, they were entitled to fees for those procedures. The Court of Appeals reversed, holding that, since the action and relief granted fell within the reach of the EHA, which establishes a comprehensive federal-state scheme for the provision of special education to handicapped children but does not provide for attorney's fees, the District Court had to look to 42 U.S.C. § 1988 and § 505 of the Rehabilitation Act for such fees. The Court of Appeals concluded that, even if the unaddressed § 1983 claims were substantial enough to support federal jurisdiction so as generally to warrant an award of attorney's fees, nevertheless, given the comprehensiveness of the EHA, Congress could not have intended its omission of attorney's fees relief in that statute to Page 468 U. S. 993 be rectified by recourse to § 1988. The court disposed of the Rehabilitation Act basis for attorney's fees for similar reasons.Held:1. Petitioners were not entitled to attorney's fees under § 1988. Pp. 468 U. S. 1006-1016.(a) The fact that petitioners prevailed on their initial claim that the School Committee violated due process by refusing to grant petitioners a full hearing before terminating funding of petitioner child's special education program does not, by itself, entitle petitioners to attorney's fees for the subsequent administrative and judicial proceedings. That due process claim was entirely separate from the claims made in the subsequent proceedings, and was not sufficiently related to petitioners' ultimate success to support an award of fees for the entire proceeding. Pp. 468 U. S. 1008-1009.(b) As to petitioners' claim that the child was being discriminated against on the basis of his handicapped condition, in violation of the Equal Protection Clause of the Fourteenth Amendment, it is apparent that Congress intended the EHA to be the exclusive avenue through which such a claim can be pursued. The EHA is a comprehensive scheme to aid the States in complying with their constitutional obligations to provide public education for the handicapped. Allowing a plaintiff to circumvent the EHA's administrative remedies by relying on § 1983 as a remedy for a substantial equal protection claim would be inconsistent with that scheme. Pp. 468 U. S. 1009-1013.(c) Even if petitioners' due process challenge to the partiality of the state hearing officer who reviewed the School Committee's decision might be maintained as an independent challenge, petitioners are not entitled to attorney's fees for such claim. That claim had no bearing on the substantive claim, on which petitioners prevailed, that the School Committee, as a matter of state and federal law, was required to pay for petitioner child's education. Where petitioners presented different claims for different relief, based on different facts and legal theories, and prevailed only on a nonfee claim, they are not entitled to a fee award simply because the other claim was a constitutional claim that could be asserted through § 1983. Pp. 468 U. S. 1013-1016.2. Nor were petitioners entitled to attorney's fees under § 505 of the Rehabilitation Act. Congress struck a careful balance in the EHA between clarifying and making enforceable the rights of handicapped children to a free appropriate public education and endeavoring to relieve the financial burden imposed on the agencies responsible to guarantee those rights. It could not have intended a handicapped child to upset that balance by relying on § 504 for otherwise unavailable damages or for Page 468 U. S. 994 an award of attorney's fees. Where, as here, whatever remedy might be provided under § 504 -- which prevents discrimination on the basis of a handicap in any program receiving federal financial assistance -- is provided with more clarity and precision under the EHA, a plaintiff may not circumvent or enlarge on the remedies available under the EHA by resort to § 504. Pp. 468 U. S. 1016-1021.703 F.2d 4, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 468 U. S. 1021.

1961_46

MR. JUSTICE HARLAN announced the judgment of the Court and an opinion in which MR. JUSTICE CLARK and MR. JUSTICE STEWART join.After a trial without a jury, petitioner was found guilty on all 18 counts of an indictment charging him with having violated 2 U.S.C. § 192, [Footnote 1] by refusing to answer pertinent questions put to him on June 27, 1958, by the Senate Select Committee on Improper Activities in the Labor or Management Field, commonly known as the McClellan Committee. He was sentenced to six months' imprisonment and fined $500. The judgment was affirmed by the Court of Appeals, without opinion. We granted certiorari to consider petitioner's constitutional challenges to his conviction. 365 U. S. 866.The McClellan Committee was established by the Senate in 1957"to conduct an investigation and study of the extent to which criminal or other improper practices or activities are, or have been, engaged in in the field of labor-management relations or in groups or organizations Page 369 U. S. 601 of employees or employers to the detriment of the interests of the public, employers or employees, and to determine whether any changes are required in the laws of the United States in order to protect such interests against the occurrence of such practices or activities."S.Res. 74, 85th Cong., 1st Sess. (1957). [Footnote 2] Pursuing an investigation pattern which in 1957 and the forepart of 1958 had disclosed misuse of union funds for the personal benefit of various union officials, [Footnote 3] the Committee on June 4, 1958, began hearings at Washington, D.C., into the affairs of various organizations, including the United Brotherhood of Carpenters and Joiners of America, of which the petitioner was president. Initially, the Committee sought to inquire into the personal financial interests of petitioner and other officials of the Carpenters Union in the World Wide Press, a New York publishing house owned by one Maxwell Raddock, which was publisher of the "Trade Union Courier." More especially, the Committee wished to learn whether union funds had been misused in the publication by the Press of a biography of petitioner's father, entitled "The Portrait of an American Labor Leader, William L. Hutcheson." Senator McClellan, Chairman of the Committee, Page 369 U. S. 602 announced that the petitioner and Raddock would both be called to testify. [Footnote 4]On June 25, Raddock testified as to the affairs of the "Trade Union Courier" and the publication of the Page 369 U. S. 603 Hutcheson book. [Footnote 5] On the following day, however, he claimed the Fifth Amendment privilege against self-incrimination with respect to another matter to which the Committee had turned. That matter related to the possible use of union funds or influence to "fix" a 1957 criminal investigation, conducted in Lake County, Indiana, by a state grand jury, into an alleged scheme to defraud the State of Indiana, in which petitioner and two other officials of the Carpenters Union, O. William Blaier and Frank M. Chapman, were allegedly implicated.The alleged scheme to defraud had been revealed in testimony given before a Subcommittee of the Senate Committee on Public Works during May and June. 1957. That testimony had disclosed that, in June, 1956, the petitioner, Blaier, and Chapman had together bought, in their individual capacities, certain real property in Lake County for $20,000, and had shortly thereafter sold it at a profit of $78,000, to the State of Indiana for highway construction purposes, pursuant to an agreement whereby a deputy in the Indiana Right-of-Way Department was paid one-fifth of that profit. [Footnote 6] The ensuing grand jury proceeding had been terminated in August, 1957, without any indictment having been found, with an announcement by the county prosecutor, Metro Holovachka, that "jurisdiction" over the matter was lacking in Lake County, and that the entire $78,000 profit had been returned to the State. Thereafter, in February, 1958, Page 369 U. S. 604 the petitioner, Blaier, and Chapman were indicted in adjoining Marion County on this transaction. [Footnote 7]It is apparent from the questioning of Raddock by the chief counsel for the McClellan Committee that the Committee had information indicating that Raddock, the petitioner, Blaier, and several officials of the Teamsters Union had been involved in a plan whereby Holovachka had been induced to drop the Lake County grand jury investigation, and Committee counsel explained to Raddock that the Committee was interested to learn whether union funds or influence had been used for that purpose. [Footnote 8]In addition to Raddock, whose self-incrimination plea with respect to all questions relating to that episode was respected by the Committee, Blaier, and two witnesses connected with an Indiana Local of the Teamsters Union, Michael Sawochka its secretary-treasurer and Joseph P. Sullivan its attorney, were also examined before the Committee on June 26. Sawochka and Sullivan each refused to answer any questions relating to the termination of the Lake County grand jury proceedings, Sawochka basing his refusal on the Fifth Amendment privilege against self-incrimination and Sullivan invoking the attorney-client privilege insofar as the questions related to any discussions with Sawochka. Both claims were honored by the Committee.Blaier, who was asked no questions regarding the Lake County real estate transaction itself, [Footnote 9] refused to answer the question whether he had made "any arrangements for Page 369 U. S. 605 Mr. Max Raddock to fix any case for you in Indiana." He asserted that the question"relates solely to a personal matter, not pertinent to any activity which this committee is authorized to investigate, and . . . it might aid the prosecution in the case in which I am under indictment."The Committee Chairman, without ruling on the objection, stated that the witness might claim the privilege against self-incrimination. Although Blaier did not thereafter do so, he was never directed by the Committee to answer this question. [Footnote 10]The last witness who was examined by the Committee on this phase of its investigation was the petitioner, who was called on June 27. He answered questions concerning the publication by Raddock of the biography of petitioner's father, commissioned by the Carpenters Union at a total expense of $310,000. When the inquiry turned to the subject of the Lake County grand jury investigation, however, petitioner refused to answer any questions. Being under the same indictment as Blaier and represented by the same counsel, petitioner's grounds for refusal were the same as those which had been advanced the day before by Blaier:"it [the question] relates solely to a personal matter, not pertinent to any activity which this committee is authorized to investigate, and also it Page 369 U. S. 606 relates or might be claimed to relate to or aid the prosecution in the case in which I am under indictment, and thus be in denial of due process of law. [Footnote 11]"No claim of the Fifth Amendment privilege against self-incrimination was made at any stage. This objection, upon which the petitioner stood throughout this phase of his interrogation, was overruled by the Committee, and petitioner was directed, and refused to answer, each of the 18 questions constituting the subject matter of the indictment upon which he has been convicted. [Footnote 12] Page 369 U. S. 607The many arguments now made to us in support of reversal are reducible to two constitutional challenges. First, it is contended that questioning petitioner on any matters germane to the state criminal charges then pending against him was offensive to the Due Process Clause of the Fifth Amendment. Second, it is argued that the Committee invaded domains constitutionally reserved to the Executive and the Judiciary, in that its inquiry was simply aimed at petitioner's "exposure," and served no legislative purpose. For reasons now to be discussed we decide that neither challenge is availing.IDue ProcessThe Committee's interrogation is said to have been fundamentally unfair in two respects: (1) it placed the petitioner in a position where, save for silence, his only choice lay between prejudicing his defense to the state indictment and committing perjury, and (2) it was a "pretrial" of the state charges before the Committee. The first of these propositions rests on two premises respecting Indiana law, which we accept for the purposes of the ensuing discussion: admissions of an attempt to "fix" the grand jury investigation could have been used against petitioner in the state trial as evidence of consciousness of guilt (see, e.g., Davidson v. State, 205 Ind. 564, 569, 187 N.E. 376, 378); a claim of the federal self-incrimination Page 369 U. S. 608 privilege before that Committee could also have been so used at least to impeach petitioner's testimony had he taken the stand at the state trial (see Crickmore v. State, 213 Ind. 586, 592-593, 12 N.E.2d 266, 269).The contention respecting Indiana's future use of incriminatory answers at once encounters an obstacle in Hale v. Henkel, 201 U. S. 43, and United States v. Murdock, 284 U. S. 141. Those cases establish that possible self-incrimination under state law is not a ground for refusing to answer questions in a federal inquiry; accordingly, the Fifth Amendment privilege against self-incrimination will not avail one so circumstanced. Manifestly, this constitutional doctrine is no less relevant here either because the petition was actually under, and not merely threatened with, state indictment at the time of his appearance before the Committee, or because of the likelihood that the Committee would have respected, even though not required to do so under existing law, a privilege claim had one been made.Recognizing this obstacle, petitioner asks us to overrule Hale and Murdock, asserting that both decisions rested on misapprehensions as to earlier American and English law. [Footnote 13] But we need not consider those contentions, Page 369 U. S. 609 for petitioner never having claimed the Fifth Amendment privilege before the Committee, this aspect of his due process challenge is not open to him now. This is not a case like Quinn v. United States, 349 U. S. 155, or Emspak v. United States, 349 U. S. 190, where there is doubt whether that privilege was invoked by the witness. "If," as was noted in Emspak, at 349 U. S. 195,"the witness intelligently and unequivocally waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question."In this instance, the petitioner, with counsel at his side, unequivocally and repeatedly disclaimed any reliance on the Fifth Amendment privilege. [Footnote 14] Page 369 U. S. 610Petitioner cannot escape the effect of his waiver by arguing, as he does, that his refusals to answer were based on "due process" grounds, and not upon a claim of "privilege." We agree, of course, that a congressional committee's right to inquire is "subject to" all relevant "limitations placed by the Constitution on governmental action," including "the relevant limitations of the Bill of Page 369 U. S. 611 Rights," Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112; that such limitations go beyond the protection of the self-incrimination clause of the Fifth Amendment, id., 360 U. S. 111-112, and that nonreliance on one such limitation does not preclude reliance on another. But it is surely equally clear that where, as here, the validity of a particular constitutional objection depends in part on the availability of another, both must be adequately raised before the inquiring committee if the former is to be fully preserved for review in this Court.To hold otherwise would enable a witness to toy with a congressional committee in a manner obnoxious to the rule that such committees are entitled to be clearly apprised of the grounds on which a witness asserts a right of refusal to answer. Emspak v. United States, supra, at 349 U. S. 195; cf. Barenblatt v. United States, supra, at 360 U. S. 123-124. The present case indeed furnishes an apt illustration of this. Pursuant to its policy of respecting Fifth Amendment privilege claims with respect to "state" self-incrimination (even though, with Hale and Murdock still on the books, it need not have done so), the Committee was at pains to discover whether petitioner's due process objection included a privilege claim. Had he made such a claim, there is little doubt but that the Committee would have honored it. It was only after petitioner's express disclaimer of the privilege that the Committee proceeded to disallow his due process objection. Now to consider that the self-incrimination aspect of petitioner's due process claim is still open to him would in effect require us to say that, despite petitioner's unequivocal disclaimer, the Committee should nonetheless have taken his due process objection as subsuming also a privilege claim. [Footnote 15] We cannot so consider the situation. Page 369 U. S. 612We also find untenable the contention that possible use in the state trial of a claim of the federal privilege against self-incrimination either excused petitioner from asserting it before the Committee or furnishes independent support for his due process challenge. Whether or not, as is intimated by the Government, but, for obvious reasons, not by the petitioner, the State's use of such a claim directly or for impeachment purposes might be preventable need not now be considered. For if such a proposition is arguable in the face of Twining v. New Jersey, 211 U. S. 78, and Adamson v. California, 332 U. S. 46, 332 U. S. 51, let alone Knapp v. Schweitzer, 357 U. S. 371; Feldman v. United States, 322 U. S. 487; Hale v. Henkel, supra, and United States v. Murdock, supra, its consideration should in any event await another day. The appropriate time for that, had the petitioner in this instance claimed the privilege before the Committee, would have been upon review of his state conviction, when we would have known exactly what use, if any, the State had made of the federal claim. To thwart the exercise of legitimate congressional power, on the basis of conjecture that a State may later abuse an individual's reliance upon federally assured rights, would require of us a constitutional adjudication contrary to well established principles of ripeness and justiciability. Cf. United Public Workers v. Mitchell, 330 U. S. 75, 330 U.S. 89-90.There remains for discussion on the due process challenge, the contention that the Committee's inquiry was a "pretrial" of the state indictment. Insofar as this proposition suggests that the congressional inquiry infected the later state proceedings, the answer to it is found in what we have just said respecting the contention Page 369 U. S. 613 that a claim of self-incrimination before the Committee could have been used in the state proceedings. If the Committee's public hearings rendered petitioner's state trial unfair, such a challenge should not be dealt with at this juncture. The proper time for its consideration would be on review of the state conviction. To determine it now would require us to pass upon the claim in the dark, since we are entirely ignorant of what transpired at the state trial.Nor can it be argued that the mere pendency of the state indictment ipso facto constitutionally closed this avenue of interrogation to the Committee."It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."Sinclair v. United States, 279 U. S. 263, 279 U. S. 295. It would be absurd to suggest that in establishing this committee the Congress was actuated by a purpose to aid state prosecutions, still less that of this particular individual. The pertinency of the observation in Sinclair is not lessened by the circumstance that, in this instance, the state proceeding involved was criminal, rather than civil. Cf. Delaney v. United States, 199 F.2d 107, 114. [Footnote 16] Page 369 U. S. 614IIExposureThere is also no merit to petitioner's contention that the Committee undertook simply "to expose" petitioner "for the sake of exposure," Watkins v. United States, 354 U. S. 178, 354 U. S. 200. The origins of the McClellan Committee, and the products of its endeavors, both belie that challenge, and nothing in the record of the present hearings points to a contrary conclusion.It cannot be gainsaid that legislation, whether civil or criminal, in the labor-management field is within the competence of Congress under its power to regulate interstate Page 369 U. S. 615 commerce. The Committee's general legislative recommendations, made at the conclusion of its First Interim Report, S.Rep.No.1417, 85th Cong., 2d Sess. 450-453 (1958), were embodied in two remedial statutes enacted by Congress: the Welfare and Pension Plans Disclosure Act of 1958, 72 Stat. 997, and the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519. The enactment of the first of these statutes is attributable primarily to the findings and recommendations of several Subcommittees of the Senate Committee on Labor and Public Welfare, S.Rep.No.1440, 85th Cong., 2d Sess. 2-3 (1958). But passage of the bill was stimulated by the information then being gathered at hearings of the McClellan Committee. See 104 Cong.Rec. 7054, 7197-7198, 7233, 7337-7338, 7483, 7509-7510, 7521 (1958). Page 369 U. S. 616The Labor-Management Reporting and Disclosure Act of 1959 was a direct response to the need for remedial federal legislation disclosed by the testimony before the McClellan Committee. This is made clear not by imprecise inferences drawn from legislative history; the proof is in the statute itself. Section 2(b) of the Act declares it to be a finding of Congress,"from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation."73 Stat. 519. The Senate and House Reports lean heavily on findings made by the McClellan Committee to justify particular provisions in the proposed bills. See S.Rep.No.187, 86th Cong., 1st Sess. 2, 6, 9, 10, 13-17 (1959), p. 2318; H.R.Rep.No.741, 86th Cong., 1st Sess. 1, 2, 6, 9, 11-13, 76, 83 (1959).The resolution which gave birth to this Committee, when considered in light of the fruits of its labors, proves beyond any doubt"that the committee members . . . [were] serving as the representatives of the parent assembly in collecting information for a legislative purpose."Watkins v. United States, supra, at 354 U. S. 200. This is not a case involving an indefinite and fluctuating delegation which permits a legislative committee "in essence, to define its own authority, to choose the direction and focus of its activities." Id. at 354 U. S. 205. This Committee was directed to investigate "criminal or other improper practices . . . in the field of labor-management relations." Deciding whether acts that are made criminal by state law ought also to be brought within a federal prohibition, if, as here, the subject is a permissible one for federal regulation, turns entirely on legislative inquiry. And it is this inquiry in which the Senate was engaged when it assigned the factfinding duty to the Select Committee Page 369 U. S. 617 on Improper Activities in the Labor or Management Field.Moreover, this record is barren of evidence indicating that the Committee, for reasons of its own, undertook to "expose" this petitioner.First: the transcript discloses a most scrupulous adherence to the announced Committee policy of not asking a witness under state indictment any questions "on the subject matter involved in the indictment." Note 9 supra. This particular indictment related solely to activity in which petitioner and others had been engaged in their individual capacities, not on behalf of any labor organization. The Committee's concern was not whether petitioner had in fact defrauded the State of Indiana of $78,000 in concluding a dishonest sale, or whether he had personally corrupted a state employee. Its interest, which was entirely within the province entrusted to it by the Senate, was to discover whether and how funds of the Brotherhood of Carpenters or of the Teamsters Union [Footnote 17] had been used in a conspiracy to bribe a state prosecutor to drop charges made against individuals who were also officers of the Brotherhood of Carpenters, and whether the influence of union officials had been exerted to that end. If these suspicions were founded, they would have supported remedial federal legislation for the future, even though they might at the same time have warranted a separate state prosecution for obstruction of justice, or Page 369 U. S. 618 been usable at the trial of the Marion County indictment as evidence of consciousness of guilt. Supra, pp. 369 U. S. 607-608. But surely a congressional committee which is engaged in a legitimate legislative investigation need not grind to a halt whenever responses to its inquiries might potentially be harmful to a witness in some distinct proceeding, Sinclair v. United States, supra, at 279 U. S. 295, or when crime or wrongdoing is disclosed, McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 179-180.Second: the information sought to be elicited by the Committee was pertinent to the legislative inquiry. The Committee was investigating whether and how union funds had been misused, in the interest of devising a legislative scheme to deal with irregular practices. Because of petitioner's refusal to answer questions, and because of the similar refusal by other witnesses to testify with regard to the Lake County grand jury proceedings, the Committee was not able to learn whether union funds or influence had been used to persuade Holovachka to drop those proceedings.Petitioner contends that the Committee's finding in its Second Interim Report that Raddock had been "used by Hutcheson as a fixer in an attempt to head-off the indictment of Hutcheson [and others] . . . " shows that his testimony was not needed for any purpose other than to prejudice or embarrass him. But this overlooks the fact that the Committee had been able to obtain no information whatever on the Lake County grand jury proceedings from any of the other witnesses by reason of their refusals to testify on the subject. [Footnote 18] Moreover, it does not lie with Page 369 U. S. 619 this Court to say when a congressional committee should be deemed to have acquired sufficient information for its legislative purposes.Third: the Committee's interrogation was within the express terms of its authorizing resolution. If the Committee was to be at all effective in bringing to Congress' attention certain practices in the labor-management field which should be subject to federal prohibitions, it necessarily had to ask some witnesses questions which, if truthfully answered, might place them in jeopardy of state prosecution. Unless interrogation is met with a valid constitutional objection,"the scope of the power of [congressional] inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution."Barenblatt v. United States, supra, at 360 U. S. 111. And it is not until the question is asked that the interrogator can know whether it will be answered or will be met with some constitutional objection. To deny the Committee the right to ask the question would be to turn an "option of refusal" into a "prohibition of inquiry," 8 Wigmore, Evidence (3d ed.) § 2268, and to limit congressional inquiry to those areas in which there is not the slightest possibility of state prosecution for information that may be divulged. Such a restriction upon congressional investigatory powers should not be countenanced.The three episodes upon which the petitioner relies as evidencing a Committee departure from these legitimate congressional concerns fall far short of sustaining what is sought to be made of them. The first of these is the Page 369 U. S. 620 Committee counsel's statement at the outset of the hearings explaining "the subject matter being inquired into," in the course of which he referred to the real estate transaction involved in the Marion County indictment, and explained the Committee's interest in finding out whether union funds or influence had been used in bringing to an end the Lake County grand jury investigation of the matter. [Footnote 19] The propriety of such an inquiry has already been discussed. Pp. 369 U. S. 617-618, supra.The second episode is the Chairman's statement to the effect that all the facts as to the Lake County proceedings had "not been developed by the committee," that further "exposure" of them "should be made," and that the Page 369 U. S. 621 Committee stood ready to "assist and help" Indiana if it chose to interest itself in the matter. [Footnote 20] We can see nothing in this statement, which was made after the Committee's inquiry had ended, beyond a perfectly normal offer on the part of the Chairman to put the Committee transcript at the disposal of the Indiana law enforcement authorities if they wished to avail themselves of it. [Footnote 21]The final occurrence is the so-called Committee "finding" as to petitioner's alleged use of Raddock as a "fixer" to "head-off" an indictment by the Lake County grand jury. Whatever the basis for that "finding" (cf. note 18 supra), we must say that its mere inclusion in an official report to the Senate of the Committee's activities [Footnote 22] furnishes Page 369 U. S. 622 a slender reed indeed for a charge that that Committee was engaged in unconstitutional "exposure."In conclusion, it is appropriate to observe that, just as the Constitution forbids the Congress to enter fields reserved to the Executive and Judiciary, it imposes on the Judiciary the reciprocal duty of not lightly interfering with Congress' exercise of its legitimate powers. Having scrutinized this case with care, we conclude that the judgment of the Court of Appeals must beAffirmed

U.S. Supreme CourtHutcheson v. United States, 369 U.S. 599 (1962)Hutcheson v. United StatesNo. 46Argued November 6, 1961Decided May 14, 1962369 U.S. 599SyllabusSummoned to testify before the Senate Select Committee on Improper Activities in the Labor or Management Field, which was seeking information to aid in drafting and adopting legislation to curb misuse of union funds by union officials, petitioner, president of a labor union, refused to answer 18 questions pertaining to the use of union funds in an attempt to forestall an indictment in Lake County, Indiana, for the alleged bribery of a state official in connection with a sale of land to the State. He disclaimed any intention to rely on his privilege against self-incrimination; but he claimed that the questions were not pertinent to any activity which the Committee was authorized to investigate, that they were asked for purposes of "exposure," and that they might aid the prosecution of criminal charges then pending against him in a state court, and thus violate his rights under the Due Process Clause of the Fifth Amendment. These objections were overruled, but petitioner persisted in his refusal to answer. For such refusal, he was convicted of a violation of 2 U.S.C. § 192, which makes it a misdemeanor for any person summoned as a witness by either House of Congress or a committee thereof to refuse to answer any question pertinent to the question under inquiry.Held: the questions which petitioner refused to answer were clearly within the proper scope of the Committee's inquiry; the record does not support a conclusion that they were asked merely for the sake of "exposure" or to aid in the pending state criminal trial; the mere fact that answers to the questions might have been used against petitioner in the pending state criminal trial did not make this conviction violative of the Due Process Clause of the Fifth Amendment, and the conviction is sustained. Pp. 369 U. S. 600-628.109 U.S.App.D.C. 200, 285 F.2d 280, affirmed. Page 369 U. S. 600

1975_74-1608

MR. JUSTICE STEWART delivered the opinion of the Court.The issue in this case is to what extent, if any, the Federal Power Commission, in the performance of its functions under the Federal Power Act, 41 Stat. 1063, as amended, 16 U.S.C. § 791a et seq. (Power Act), and the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq. (Gas Act), has authority to prohibit discriminatory employment practices on the part of its regulatees. Page 425 U. S. 664IIn 1972, the National Association for the Advancement of Colored People (NAACP) and several other organizations petitioned the Commission to issue a rule "requiring equal employment opportunity and nondiscrimination in the employment practices of its regulatees." The proposed rule would have required the regulated companies to adopt affirmative action programs to combat discrimination in employment, and would have given any person who believed himself to have been subjected to employment discrimination by any such company the right to file a complaint with the Commission. [Footnote 1]The Commission refused to adopt the proposed rule, holding that it had no jurisdiction to do so because"the purposes of the Natural Gas and Federal Power Acts are economic regulation of entrepreneurs engaged in resource developments. So considered, we do not find the necessary nexus between those aspects of our economic regulatory activities and the employment procedures of the utility systems which we regulate, as would justify [adopting petitioners' proposed rule]."48 F.P.C. 40, 44.On petition for review, the Court of Appeals for the District of Columbia Circuit agreed that the Commission was without "power . . . to prescribe personnel practices in detail and to receive complaints, adjudicate them, and punish directly infractions of those practices." 172 U.S.App.D.C. 32, 35, 520 F.2d 432, 435. The court held, however, that the Commission does have"power to take Page 425 U. S. 665 into account, in the performance of its regulatory functions, including licensing and rate review, evidence that the regulatee is a demonstrated discriminatory in its employment relations."Ibid.Because of doubt as to the Commission's recognition of any power on its part to take into account the employment practices of its regulatees even in the narrower sense described above, the Court of Appeals vacated the Commission's order and remanded the case. Id. at 47, 520 F.2d at 447. The Commission and the NAACP each petitioned for certiorari, and we granted both petitions in order to consider the scope of the Commission's authority to deal with discriminatory employment practices on the part of the companies that it regulates. 423 U.S. 890.IIThe question presented is not whether the elimination of discrimination from our society is an important national goal. It clearly is. The question is not whether Congress could authorize the Federal Power Commission to combat such discrimination. It clearly could. The question is simply whether or to what extent Congress did grant the Commission such authority. Two possible statutory bases have been advanced to justify the conclusion that the Commission can or must concern itself with discriminatory employment practices on the part of the companies it regulates. [Footnote 2] Page 425 U. S. 666The first of these statutory bases is the legislative command to the Commission under the Power and Gas Acts to establish "just and reasonable" rates for the transmission and sale of electric energy, 16 U.S.C. § 824d(a), and for the transportation and sale of natural gas, 15 U.S.C. § 717c(a), and, consequently, to allow only such rates as will prevent consumers from being charged any unnecessary or illegal costs. [Footnote 3] The second and broader statutory basis advanced for Commission regulation of employment discrimination is the Commission's asserted duty to advance the public interest. The NAACP notes that Congress found that "the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest," 16 U.S.C. § 824(a), and that "the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest," 15 U.S.C. § 717(a). From these and other references to the "public interest" in the Gas and Power Acts, [Footnote 4] it is argued that the Commission is charged with advancing the public interest in general, and that the Commission is thus authorized, if not required, to promulgate rules prohibiting its regulatees from engaging in discriminatory employment practices, since ending discrimination in employment is in the public interest.AThe Court of Appeals basically accepted the first of these statutory arguments:"The Commission's task in protecting the consumer Page 425 U. S. 667 against exploitation can be alternatively described as the task of seeing that no unnecessary or illegitimate costs are passed along to that consumer. Costs incurred by reason of a regulatee's choosing to practice racial discrimination are within the reach of that responsibility. Without attempting an exhaustive enumeration of such costs, we identify at least the following as indicative of those arguably within the Commission's range of concern: (1) duplicative labor costs incurred in the form of back pay recoveries by employees who have proven that they were discriminatorily denied employment or advancement, (2) the costs of losing valuable government contracts terminated because of employment discrimination, (3) the costs of legal proceedings in either of these two categories, (4) the costs of strikes, demonstrations, and boycotts aimed against regulatees because of employment discrimination, (5) excessive labor costs incurred because of the elimination from the prospective labor force of those who are discriminated against, and (6) the costs of inefficiency among minority employees demoralized by discriminatory barriers to their fair treatment or promotion.""Obviously such costs of employment discrimination range from the very definite and easily ascertainable to the very questionable and virtually unquantifiable. The problem of how to see that they are not borne by the consumer could arise in any number of different regulatory contexts, including both rate and certificate proceedings. We therefore do not attempt to detail all the various ways the Commission may thus 'regulate' employment discrimination, leaving this in the first instance to the Commission itself."172 U.S.App.D.C. at 44, 520 F.2d at 444 (footnote omitted). Page 425 U. S. 668Without necessarily endorsing the specific identification of the costs "arguably within" the Commission's "range of concern," we agree with the basic conclusion of the Court of Appeals on this branch of the case. The Commission clearly has the duty to prevent its regulatees from charging rates based upon illegal, duplicative, or unnecessary labor costs. To the extent that such costs are demonstrably the product of a regulatee's discriminatory employment practices, the Commission should disallow them. For example, when a company complies with a backpay award resulting from a finding of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., it pays twice for work that was performed only once. The amount of the backpay award, therefore, can and should be disallowed as an unnecessary cost in a ratemaking proceeding.To the extent that these and other similar costs, such as attorneys' fees, can be or have been demonstrably quantified by judicial decree or the final action of an administrative agency charged with consideration of such matters, the Commission clearly should treat these costs as it treats any other illegal, unnecessary, or duplicative costs. We were told by counsel during oral argument that the Commission would routinely disallow the costs of a backpay award resulting from an order of the National Labor Relations Board or the decree of a court based upon a finding of an unfair labor practice. The governing principle is no different in the area of discriminatory employment practices.As a general proposition, it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures. SEC v. Chenery Corp., 332 U. S. 194, 332 U. S. 202-203. The present Commission practice, we are told, is to consider Page 425 U. S. 669 such questions only in individual ratemaking proceedings, under its detailed accounting procedures. Assuming that the Commission continues that practice, it has ample authority to consider whatever evidence and make whatever inquiries are necessary to determine whether a regulatee has incurred unnecessary or illegitimate costs because of racially discriminatory employment practices. 15 U.S.C. §§ 717c(e), 717m; 16 U.S.C. §§ 824d(e), 824f.BThe Court of Appeals rejected the broader argument based upon the statutory criterion of "public interest," and we hold that it was correct in doing so. This Court's cases have consistently held that the use of the words "public interest" in a regulatory statute is not a broad license to promote the general public welfare. Rather, the words take meaning from the purposes of the regulatory legislation.For example, in the case of the Interstate Commerce Commission, which is responsible for enforcing an Act "designed . . . to assure adequacy in transportation service,""the term 'public interest' . . . is not a concept without ascertainable criteria, but has direct relation to adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision and best use of transportation facilities. . . ."New York Central Securities Corp. v. United States, 287 U. S. 12, 287 U. S. 24-25. See also New Haven Inclusion Cases, 399 U. S. 392, 399 U. S. 432; National Broadcasting Co. v. United States, 319 U. S. 190, 319 U. S. 216; Federal Radio Comm'n v. Nelson Bros. Co., 289 U. S. 266, 289 U. S. 285.Thus, in order to give content and meaning to the words "public interest" as used in the Power and Gas Acts, it is necessary to look to the purposes for which the Acts were adopted. In the case of the Power and Gas Acts, it is clear that the principal purpose of those Page 425 U. S. 670 Acts was to encourage the orderly development of plentiful supplies of electricity and natural gas at reasonable prices. [Footnote 5] While there are undoubtedly other subsidiary purposes contained in these Acts, [Footnote 6] the parties point to nothing in the Acts or their legislative histories to indicate that the elimination of employment discrimination was one of the purposes that Congress had in mind when it enacted this legislation. The use of the words "public interest" in the Gas and Power Acts is not a directive to the Commission to seek to eradicate discrimination, but, rather, is a charge to promote the orderly production of plentiful supplies of electric energy and natural gas at just and reasonable rates. [Footnote 7] Page 425 U. S. 671It is useful again to draw on the analogy of federal labor law. No less than in the federal legislation defining the national interest in ending employment discrimination, Congress in its earlier labor legislation unmistakably defined the national interest in free collective bargaining. Yet it could hardly be supposed that, in directing the Federal Power Commission to be guided by the "public interest," Congress thereby instructed it to take original jurisdiction over the processing of charges of unfair labor practices on the part of its regulatees.We agree, in short, with the Court of Appeals that the Federal Power Commission is authorized to consider the consequences of discriminatory employment practices on the part of its regulatees only insofar as such consequences are directly related to the Commission's establishment of just and reasonable rates in the public interest. Accordingly, we affirm the judgment before us.It is so ordered

U.S. Supreme CourtNAACP v. FPC, 425 U.S. 662 (1976)National Association for the Advancement of Colored Peoplev. Federal Power CommissionNo. 74-1608Argued February 25, 1976Decided May 19, 1976*425 U.S. 662SyllabusThe National Association for the Advancement of Colored People and various other organizations petitioned the Federal Power Commission (FPC) to issue a rule "requiring equal employment opportunity and nondiscrimination in the employment practices of its regulatees." The FPC refused, holding that it had no jurisdiction to issue such a rule. On petition for review, the Court of Appeals, while agreeing that the FPC lacked power to prescribe personnel practices in detail and act upon personnel complaints, held that the FPC does have"power to take into account, in the performance of its regulatory functions, including licensing and rate review, evidence that the regulatee is a demonstrated discriminatory in its employment relations."Held:1. The FPC is authorized to consider the consequences of discriminatory employment practices on the part of its regulatees only insofar as such consequences are directly related to the FPC's establishment of just and reasonable rates in the public interest. To the extent that illegal, duplicative, or unnecessary labor costs are demonstrably the product of a regulatee's discriminatory employment practices and can be or have been demonstrably quantified by judicial decree or the final action of an administrative agency, the FPC should disallow them. Pp. 425 U. S. 666-669.2. The FPC's asserted duty to advance the public interest, however, does not afford any basis for its prohibiting regulatees from engaging in discriminatory employment practices, as references to the "public interest" in the Federal Power Act and Natural Gas Act require the FPC to promote the orderly production of plentiful supplies of electric energy and natural gas at just Page 425 U. S. 663 and reasonable rates, and do not constitute a directive to the FPC to seek to eradicate discrimination. Pp. 425 U. S. 669-671.172 U.S.App.D.C. 32, 520 F.2d 432, affirmed.STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 425 U. S. 671. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 425 U. S. 672. MARSHALL, J., took no part in the consideration or decision of the cases.

1982_81-298

JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether § 504 of the Rehabilitation Act of 1973 [Footnote 1] requires the Federal Communications Commission to review a public television station's license renewal application under a different standard than it applies to a commercial licensee's renewal application. Contrary to the holding of the Court of Appeals for the District of Columbia Circuit, 210 U.S.App.D.C. 184, 655 F.2d 297 (1981), we conclude that it does not.IOn October 28, 1977, respondent Sue Gottfried filed a formal petition with the Federal Communications Commission requesting it to deny renewal of the television license of station KCET-TV in Los Angeles. She advanced two principal grounds for denial: first, that the licensee had failed to discharge its obligation to ascertain the problems, needs, and interests of the deaf and hearing-impaired population within its service area; and second, that the licensee had Page 459 U. S. 501 violated, and remained in violation of, § 504 of the Rehabilitation Act. [Footnote 2]Correspondence attached to Gottfried's petition included complaints about KCET-TV's failure to carry enough programming with special captioning [Footnote 3] or other aids to benefit the hearing-impaired members of the audience. The exhibits emphasized the station's failure to broadcast the ABC evening news in captioned form prior to May 23, 1977, and its subsequent failure to broadcast the captioned program during prime time.In a verified opposition to the petition, the licensee recounted in some detail its efforts to ascertain the problems of the community it served, including the deaf and the hearing impaired, by a community leader survey and by a general public survey. App. in No. 79-1722 (CADC), pp. 102-105. The licensee also described its programming efforts to respond to the special needs of the hearing impaired, [Footnote 4] and Page 459 U. S. 502 explained why its two daily broadcasts of the ABC captioned news had usually been scheduled for 11:30 p. m. and 6:30 a. m. The licensee specifically denied that it had violated § 504, and averred that the Commission is not an appropriate forum for the adjudication of Rehabilitation Act claims. Id. at 113.On December 22, 1977, Gottfried filed a verified response, criticizing the station's public survey and commenting further on the station's failure to rebroadcast ABC captioned news programs before May 23, 1977. The response renewed the charge that the station had violated § 504, [Footnote 5] and asserted that the Federal Communications Commission was indeed the proper forum to evaluate that charge. [Footnote 6] Page 459 U. S. 503Gottfried also filed separate formal objections to the renewal of seven commercial television station licenses in the Los Angeles area. E.g., id. at 199. The Commission consolidated all eight proceedings and ruled on Gottfried's objections in a single memorandum opinion adopted on August 8, 1978. 69 F.C.C.2d 451.The Commission first reviewed its own efforts to encourage the industry to serve the needs of the hearing impaired. In 1970, the Commission had issued a Public Notice to all licensees, advising them of the special needs of the deaf in responding to emergency situations as well as in appreciating general television programming. [Footnote 7] In 1972, the Commission had granted authority to the Public Broadcasting System to begin experimentation with a "closed" captioning system, which would enable hearing-impaired persons with specially equipped television sets to receive captioned information that could not be seen by the remainder of the viewing audience. [Footnote 8] Page 459 U. S. 504 In 1976, the Commission had adopted a rule requiring television licensees to broadcast emergency information visually. In that year, however, the Commission had also concluded that there were so many unanswered questions -- both technical and financial -- concerning the most effective means of improving television service for the hearing impaired that it remained "the responsibility of each licensee to determine how it [could] most effectively meet those needs." [Footnote 9] The Commission summarized its views concerning mandated forms of technology by noting that"there is no requirement that any television licensee -- commercial or noncommercial -- provide open or closed captioning or any other form of special visual program material other than for broadcasting emergency information."Id. at 455.The Commission then turned to Gottfried's objections to the eight license renewals. It approached the question whether the renewals would serve the public interest, convenience, and necessity from three different perspectives: ascertainment, programming, and § 504 of the Rehabilitation Act. It first found that the licensees' efforts to ascertain the special needs of the community were adequate. Next, it held that the facts alleged by Gottfried did not give rise to a substantial and material question whether any of the eight stations had abused its discretion in its selection of programming matter. The Commission explained that it is more difficult to provide special programming for the hearing impaired than for other segments of the community; [Footnote 10] in the Page 459 U. S. 505 absence of any Commission requirement for specialized programming techniques, it found "no basis to fault a licensee for failure to provide these options for the deaf and hearing impaired in the station service area." Id. at 458.The Commission held that § 504 of the Rehabilitation Act had no application to the seven commercial licensees, because they were not alleged to have received any federal financial assistance. The Commission agreed that KCET-TV might be governed by § 504, and that a violation of the Act would need to be considered in a license renewal proceeding, but it saw no reason to consider § 504 in the absence of an adverse finding by the Department of Health, Education, and Welfare -- "the proper governmental agency to consider such matters." Id. at 459.On May 29, 1979, the Commission adopted a second memorandum opinion and order denying Gottfried's petition for reconsideration. 72 F.C.C.2d 273. The Commission again reviewed Gottfried's § 504 charge and again concluded that the Rehabilitation Act does not apply to commercial stations and that the allegations against KCET-TV under that Act were premature unless and until the agency with authority to enforce compliance determined that the station had violated its provisions. The Commission also rejected Gottfried's additional argument that it had a duty to adopt regulations to implement § 504. Finally, the Commission refused to hold that either its omission of a rule requiring "captioning or other techniques to enable the deaf and hearing impaired to have full access to television broadcasts," or the failure of the licensees to provide such services, was a violation of the "public interest" standard embodied in § 309 of the Communications Act of 1934, as amended. The Commission held: Page 459 U. S. 506"We find no error and nothing inconsistent in concluding that licensees are serving the public interest, although they are not currently providing captioning, in view of the fact that we have not required licensees to undertake such an activity. Furthermore, to judge a licensee's qualifications on the basis of the retroactive application of such a requirement would, in our opinion, raise serious questions of fundamental fairness. Thus, there is no inconsistency or error in our finding that the subject licensees had met their public interest burden even though they did not caption their programming."Id. at 279.Gottfried appealed the decision of the Commission to the Court of Appeals for the District of Columbia Circuit, pursuant to 47 U.S.C. § 402. The Court of Appeals affirmed the portion of the Commission's order that related to the commercial stations, but vacated the renewal of the KCET-TV license and remanded for further proceedings. 210 U.S.App.D.C. 184, 655 F.2d 297 (1981).The court held that Congress did not intend the Commission's renewal of a broadcast license to be considered a form of "financial assistance" within the meaning of § 504, and therefore that the Rehabilitation Act did not directly apply to the seven commercial stations. The court was persuaded, however, that the Act reflected a national policy of extending increased opportunities to the hearing impaired, and that commercial stations must therefore make some accommodation for the hard of hearing, given the Communications Act's general requirement that licensees serve the "public interest, convenience, and necessity." 47 U.S.C. §§ 307(d), 309(a), 309(d). In the absence of a more specific statutory directive than that contained in the public interest standard, however, the court accepted the Commission's judgment that the commercial licenses should be renewed."Recognizing that the Commission possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace, we defer today Page 459 U. S. 507 to its judgment."210 U.S.App.D.C. at 202-203, 655 F.2d at 315-316 (footnote omitted).The majority of the Court of Appeals reached a different conclusion with respect to KCET-TV. As a recipient of federal financial assistance, the public station was admittedly under a duty to comply with § 504. The Court of Appeals did not hold that KCET-TV had violated § 504, or that its efforts to provide programming for the hearing impaired were less satisfactory than the efforts of the commercial licensees; nevertheless, it held that a stricter "public interest" standard should be applied to a licensee covered by § 504 than to a commercial licensee. Its narrow holding was that the Commission could not find the service of public stations"to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired."Id. at 188, 655 F.2d at 301.Judge McGowan dissented in part. He agreed with the majority's view concerning commercial stations that rulemaking would be"a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing,"id. at 188, 203, 655 F.2d at 301, 316, than case-by-case adjudication in license renewal proceedings. He felt, however, that the same standard should be applied to public stations until regulations had been issued by the Department of Education dealing specifically with the rights of access of the hearing impaired to television programs. [Footnote 11] Judge McGowan stated:"[F]orm is favored over substance when commercial stations are, for this reason, spared the expense and uncertainty of renewal hearings, and a noncommercial station is not. Neither, on the record before us, had advance notice during their expired license terms of what was, and therefore could reasonably be, expected Page 459 U. S. 508 of them with respect to the wholly laudable, but technically complex, objective of providing access for the hearing impaired."Id. at 204, 655 F.2d at 317.Both the Commission and the licensee petitioned for certiorari. Because of the serious implications of the Court of Appeals' holding on the status of licenses of public broadcasting stations, we granted both petitions. 454 U.S. 1141 (1982).IIAll parties agree that the public interest would be served by making television broadcasting more available and more understandable to the substantial portion of our population that is handicapped by impaired hearing. [Footnote 12] The Commission recognized this component of the public interest even before the enactment of the Rehabilitation Act of 1973, see The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F.C.C.2d 917 (1970), and that statute confirms the federal interest in developing the opportunities for all individuals with handicaps to live full and independent lives. No party suggests that a licensee, whether commercial or public, may simply ignore the needs of the hearing impaired in discharging its responsibilities to the community which it serves. [Footnote 13] Page 459 U. S. 509We are not persuaded, however, that Congress intended the Rehabilitation Act of 1973 to impose any new enforcement obligation on the Federal Communications Commission. [Footnote 14] As originally enacted, the Act did not expressly allocate enforcement responsibility. See Pub.L. 93-112, Tit. V, § 504, 87 Stat. 394. Nevertheless, since § 504 was patterned after Title VI of the Civil Rights Act of 1964, it was understood that responsibility for enforcing it, insofar as it regulated private recipients of federal funds, would lie with those agencies administering the federal financial assistance programs. See S.Rep. No. 93-1297, pp. 39-40 (1974). When the Act was amended in 1978, that understanding was made explicit. See Pub.L. 95-602, Tit. I, § 119, 92 Stat. 2982; n 1, supra. It is clear that the Commission is not a funding agency, and has never been thought to have responsibility for enforcing § 504. [Footnote 15] Furthermore, there is not a Page 459 U. S. 510 word in the legislative history of the Act suggesting that it was intended to alter the Commission's standard for reviewing the programming decisions of public television licensees.If a licensee should be found guilty of violating the Rehabilitation Act, or indeed of violating any other federal statute, the Commission would certainly be obligated to consider the possible relevance of such a violation in determining whether or not to renew the lawbreaker's license. [Footnote 16] But in the absence of a direction in the Rehabilitation Act itself, and without any expression of such intent in the legislative history, we are unwilling to assume that Congress has instructed the Federal Communications Commission to take original jurisdiction over the processing of charges that its regulatees have violated that Act. [Footnote 17] Page 459 U. S. 511The fact that a public television station has a duty to comply with the Rehabilitation Act does not support the quite different conclusion that the Commission must evaluate a public station's service to the handicapped community by a more stringent standard than that applicable to commercial stations. The interest in having all television stations -- public and commercial -- consider and serve their handicapped viewers is equally strong. By the same token, it is equally unfair to criticize a licensee -- whether public or commercial -- for failing to comply with a requirement of which it had no notice. [Footnote 18] As both the majority and the dissenting judge in the Court of Appeals observed, rulemaking is generally a "better, fairer, and more effective" method of implementing a new industry-wide policy than is the uneven application of conditions in isolated license renewal proceedings. That observation should be as determinative in relicensing a public station as it is in relicensing a commercial station.A federal agency providing financial assistance to a public television station may, of course, attach conditions to its subsidy Page 459 U. S. 512 that will have the effect of subjecting such a licensee to more stringent requirements than must be met by a commercial licensee. Or regulations may be promulgated under the Rehabilitation Act that impose special obligations on the subsidized licensee. Conceivably, the Federal Communications Commission might determine that the policies underlying the Communications Act require extraordinary efforts to make certain types of programming universally accessible, thereby placing heightened responsibility on certain stations. But unless and until such a differential standard has been promulgated, the Federal Communications Commission does not abuse its discretion in interpreting the public interest standard, see FCC v. WNCN Listener Guild, 450 U. S. 582 (1981), when it declines to impose a greater obligation to provide special programming for the hearing impaired on a public licensee than on a commercial licensee. [Footnote 19]The Court of Appeals was unanimous in its holding that the renewal of the seven commercial licensees was consistent with the public interest requirement in § 309 of the Federal Communications Act. Neither that court nor the Commission suggested that there was anything in the record that would justify treating the public licensee differently from the commercial licensees if both classes were to be judged under the same standard. The Court of Appeals' affirmance of the Commission's rejection of Gottfried's objection to the renewal of the commercial licenses therefore requires a like disposition of the objections to the renewal of the KCET-TV license. Accordingly, the judgment of the Court of Appeals is reversed insofar as it vacated the order of the CommissionIt is so ordered

U.S. Supreme CourtCommunity Television v. Gottfried, 459 U.S. 498 (1983)Community Television of Southern California v. GottfriedNo. 81-298Argued October 12, 1982Decided February 22, 1983*459 U.S. 498SyllabusSection 504 of the Rehabilitation Act of 1973 provides that no otherwise qualified handicapped individual 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. Respondent Gottfried (respondent) filed a petition with the Federal Communications Commission (FCC) requesting it to deny renewal of a public television station's license because the station allegedly (1) had failed to discharge its obligation under the Communications Act of 1934 to ascertain the problems, needs, and interests of the deaf and hearing-impaired population within its service area, and (2) had violated § 504. Respondent filed similar objections to the renewal of seven commercial television station licenses. Consolidating all eight proceedings, the FCC held that the licensees' efforts to ascertain the special needs of the community were adequate; that the facts alleged by respondent did not give rise to a substantial and material question whether any of the licensees had abused its discretion in its programming; that § 504 did not apply to the commercial licensees; and that, while the public television station might be governed by § 504, the allegations against that station under § 504 were premature unless and until the agency with authority to enforce compliance determined that the station had violated the Rehabilitation Act. The Court of Appeals affirmed the portion of the FCC's order relating to the commercial stations, but vacated the renewal of the public station's license and remanded for further proceedings. Because the public station, as a recipient of federal financial assistance, was under a duty to comply with § 504, the court, while not holding that the station had violated § 504 or that its programming efforts were less satisfactory than the commercial licensees' efforts, held that, nevertheless, a stricter "public interest" standard should be applied to a licensee covered by § 504 than to a commercial licensee, and that the FCC could not find the service of public stations to be adequate to justify license renewal without at least inquiring into their efforts to meet the programming needs of the hearing impaired. Page 459 U. S. 499Held: Section 504 does not require the FCC to review a public television station's license renewal application under a different standard than applies to a commercial licensee's renewal application. Pp. 459 U. S. 508-512.(a) Congress did not intend the Rehabilitation Act to impose any special enforcement obligation on the FCC. The FCC is not a funding agency, and has no responsibility for enforcing § 504. Moreover, there is not a word in the Act's legislative history suggesting that the Act was intended to alter the FCC's standard for reviewing the programming decisions of public television licensees. Pp. 459 U. S. 508-510.(b) The fact that a public television station has a duty to comply with the Rehabilitation Act does not support the conclusion that the FCC must evaluate the station's service to the handicapped community by a more stringent standard than that applicable to commercial stations. P. 459 U. S. 511.(c) Unless and until a differential standard has been promulgated with respect to public television stations as against commercial stations, the FCC acts within its authority when it declines to impose a greater obligation to provide special programming for the hearing impaired on a public licensee than on a commercial licensee. Pp. 459 U. S. 511-512.210 U.S.App.D.C. 184, 655 F.2d 297, reversed in part.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 459 U. S. 513. Page 459 U. S. 500

1984_83-1476

JUSTICE BRENNAN delivered the opinion of the Court.The question presented in this case is whether the appropriation of funds into a Treasury account pursuant to 31 U.S.C. § 724a (1976 ed., Supp. V) [Footnote 1] constitutes "payment" Page 470 U. S. 41 under § 22(a) of the Indian Claims Commission Act, 60 Stat. 1055, 25 U.S.C. § 70u(a) (1976 ed.). [Footnote 2]IThis case is an episode in a longstanding conflict between the United States and the Shoshone Tribe over title to lands in the western United States. In 1951, certain members of the Shoshone Tribe sought compensation for the loss of aboriginal title [Footnote 3] to lands located in California, Colorado, Idaho, Nevada, Utah, and Wyoming. [Footnote 4] Eleven years later, the Indian Claims Commission entered an interlocutory order holding that the aboriginal title of the Western Shoshone had been extinguished in the latter part of the 19th century, Page 470 U. S. 42 Shoshone Tribe v. United States, 11 Ind.Cl.Comm'n 387, 416 (1962), and later awarded the Western Shoshone in excess of $26 million in compensation. Western Shoshone Identifiable Group v. United States, 40 Ind.Cl.Comm'n 318 (1977). The Court of Claims affirmed this award. [Footnote 5] Temoak Band of Western Shoshone Indians v. United States, 219 Ct.Cl. 346, 593 F.2d 994 (1979). On December 6, 1979, the Clerk of the Court of Claims certified the Commission's award to the General Accounting Office. Pursuant to 31 U.S.C. § 724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award and deposited it for the Tribe in an interest-bearing trust account in the Treasury of the United States.Under 25 U.S.C. § 1402(a) [Footnote 6] and § 1403(a), [Footnote 7] the Secretary of the Interior is required, after consulting with the Tribe, to submit to Congress within a specified period of time a plan for the distribution of the fund. In this case, the Secretary has yet to submit a plan of distribution of the $26 million owing to the refusal of the Western Shoshone to cooperate in Page 470 U. S. 43 devising the plan. The fund apparently has now grown to $43 million. Reply Brief for United States 20.In 1974, the United States brought an action in trespass against two sisters, Mary and Carrie Dann, members of an autonomous band [Footnote 8] of the Western Shoshone, alleging that the Danns, in grazing livestock without a permit from the United States, were acting in violation of regulations issued by the Secretary of the Interior under the authority of the Taylor Grazing Act, 43 U.S.C. § 315b. [Footnote 9] The 5,120 acres at issue in the suit are located in the northeast corner of Nevada. In response to the United States' suit, the Danns claimed that the land has been in the possession of their family from time immemorial, and that their aboriginal title to the land precluded the Government from requiring grazing permits. The United States District Court for the District of Nevada rejected the Danns' argument and ruled that aboriginal title had been extinguished by the collateral estoppel effect of the Indian Claims Commission's judgment in 1962. United States v. Mary and Carrie Dann, Civil No. R-74-60 (Jan. 5, 1977). The Court of Appeals for the Ninth Circuit reversed and remanded, however, on the ground that"[w]hatever may have been the implicit assumptions of both the United States and the Shoshone Tribes during the Page 470 U. S. 44 litigation . . the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided."United States v. Dann, 572 F.2d 222, 226-227 (1978).On remand, the District Court held that aboriginal title was extinguished when the final award of the Indian Claims Commission was certified for payment on December 6, 1979. Civil No. R-74-60 (Apr. 25, 1980). On appeal, the Government defended the judgment of the District Court on the ground that the "full discharge" language of § 22(a) of the Indian Claims Commission Act, see n 2, supra, precluded the Danns from raising the defense of aboriginal title. Although Congress had not yet approved a plan for the distribution of the funds to the Western Shoshone, the United States maintained that the requirement of "payment" under § 22(a) was satisfied by the congressional appropriation of the $26 million award into the Treasury account. The Danns argued that, until Congress approved a plan for the distribution of the money to the Tribe, "payment" was not satisfied.The Court of Appeals held that "payment" had not occurred within the meaning of § 22(a), and reversed the District Court. 706 F.2d 919, 926 (1983). The court reasoned that, until a plan of distribution was adopted by the Congress, there remained "significant legal blocks in the way of delivery to the payee," and thus the "ordinary meaning" of payment was not satisfied. We granted certiorari to resolve the question of whether the certification of the award and appropriation under § 724a constitutes payment under § 22(a). 467 U.S. 1214 (1984). We reverse.IIThe legislative purposes of the Indian Claims Commission Act and the principles of payment under the common law of trust as they have been applied to the context of relations between native American communities and the United States require that we hold that "payment" occurs under § 22(a) when funds are placed by the United States into an account in Page 470 U. S. 45 the Treasury of the United States for the Tribe pursuant to 31 U.S.C. § 724a (1976 ed., Supp. V).AThe Indian Claims Commission Act had two purposes. The "chief purpose of the [Act was] to dispose of the Indian claims problem with finality." H.R.Rep. No. 1466, 79th Cong., 1st Sess., 10 (1945). This purpose was effected by the language of § 22(a):"When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims. . . . [Footnote 10]"Section 22(a) also states that the"payment of any claim . . . shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy."To hold, as the court below has, that payment does not occur until a final plan of distribution has been approved by Congress would frustrate the purpose of finality by postponing the preclusive effects of § 22(a) while subjecting the United States to continued liability for claims and demands that "touch" the matter previously litigated and resolved by the Indian Claims Commission.The second purpose of the Indian Claims Commission Act was to transfer from Congress to the Indian Claims Commission the responsibility for determining the merits of native American claims. In the course of hearings on the creation of the Indian Claims Commission, Congressman Henry Jackson, Chairman of the House Committee on Indian Affairs, made this clear: Page 470 U. S. 46". . . [T]he very purpose of this act, the reason we are coming to Congress, is that we are being harassed constantly by various individual pieces of legislation. I do not want to act on separate legislation and Congress is being told to act on those bills, without knowing the facts, and the purpose of this legislation will be to dispose of all those routine claims and let the commission decide what the obligation is of this Government to the Indians; and, acting upon those findings made by the Commission, Congress will appropriate the money."Hearings on H.R. 1198 and H.R. 1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 68 (1945). During the floor debate on the Act, Congressman Jackson observed that the House was acting in response to a study by the Brookings Institution that had concluded that"there ought to be a prompt and final settlement of all claims between the Government and its Indian citizens, and that the best way to accomplish this purpose is to set up temporarily an Indian Claims Commission which will sift all these claims, subject to appropriate judicial review, and bring them to a conclusion once and for all."92 Cong.Rec. 5312 (1946).Prior to the adoption of the Indian Claims Commission Act by the House of Representatives, Attorney General Clark issued the following warning:"The bill would provide that, when the report of the Commission determining any claimant to be entitled to recover has been filed with the Congress, such report would have the effect of a final judgment to be paid in like manner as are judgments of the Court of Claims. This provision would make the Commission virtually a court with the power to determine claims based both upon legal and moral grounds, rather than a factfinding body as an aid to Congress. In view of the vague basis upon which many of the claims presented to the Commission would be predicated, and the extremely novel Page 470 U. S. 47 character of the functions delegated to the Commission, the question is raised of whether or not the recognition of the claims should not rest finally with Congress. The provision making the findings of the Commission binding upon Congress would constitute a surrender by Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government."Id. at 5311 (letter to Congressman John Cochran in response to his request for the Attorney General's "views with respect to the bill (H.R. 4497) to create a Indian Claims Commission." Id. at 5310). Despite this warning, the House left the language of the Act unchanged. The Senate, however, deleted from the House bill the language that Attorney General Clark asserted would give the decisions of the Indian Claims Commission the effect of a final judgment binding upon Congress. The Conference adopted the House version"in order to make perfectly clear the intention of both houses that the determinations of the Commission should, unless reversed [by the Court of Claims], have the same finality as judgments of the Court of Claims."H.R.Conf.Rep. No. 2693, 79th Cong., 2d Sess., 8 (1946). As enacted, the Indian Claims Commission Act explicitly incorporated this standard of finality in § 22(a).The court below justified its decision on the ground that, in making "payment" turn on the submission and approval of a final plan of distribution, Congress would have one last opportunity to review the merits of claims litigated before the Indian Claims Commission. 706 F.2d at 927. This justification for delay obviously conflicts with the purpose of relieving Congress of the burden of having to resolve these claims.BAside from its departure from the purposes of the Indian Claims Commission Act, the Court of Appeals' interpretation is in conflict with the accepted legal uses of the word "payment" -- uses we assume Congress intended to adopt when it Page 470 U. S. 48 enacted § 22(a). To accept the argument of the Court of Appeals would give the word "payment" a meaning that differs markedly from its common law meaning, which has long been applied by this Court to the relations between native American tribes and the United States.The common law recognizes that payment may be satisfied despite the absence of actual possession of the funds by the creditor. Funds transferred from a debtor to an agent or trustee of the creditor constitute payment, and it is of no consequence that the creditor refuses to accept the funds from the agent or the agent misappropriates the funds. [Footnote 11] The rationale for this is that fiduciary obligations and the rules of agency so bind the trustee or agent to the creditor (i.e., the beneficiary or principal) as to confer effective control of the funds upon the creditor.The Court has applied these principles to relations between native American communities and the United States. In Seminole Nation v. United States, 316 U. S. 286 (1942), the United States was obligated by treaty to pay annual annuities to members of the Seminole Nation. Instead, the Government transferred the money to the Seminole General Council. Members of the Tribe argued that, because the Page 470 U. S. 49 Seminole General Council had misappropriated the money, the Government had not satisfied its obligation to pay the individual members of the Tribe. In disposing of the case, the Court relied upon the rule that"a third party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to his trust, is a participant in the breach of trust and liable therefor to the beneficiary."Id. at 316 U. S. 296. The Court's holding was based on its recognition of the traditional rule that a debtor's payment to a fiduciary of the creditor satisfies the debt. [Footnote 12] Absent actual knowledge of the fraudulent intent of the trustee -- or some other recognized exception to the general rule -- the Government's payment to the Council would have discharged its treaty obligations. Ibid. The order remanding the case for purposes of determining whether the Government had fraudulent intent, id. at 316 U. S. 300, would have made sense only if the Court believed that, absent such knowledge, the Government's treaty obligations were discharged.The Court's reliance on the general rule in Seminole Nation is authority for our holding that the United States has made "payment" under § 22(a). The final award of the Indian Claims Commission placed the Government in a dual role with respect to the Tribe: the Government was at once a judgment debtor, owing $26 million to the Tribe, and a trustee for the Tribe responsible for ensuring that the money was put to productive use and ultimately distributed in a Page 470 U. S. 50 manner consistent with the best interests of the Tribe. [Footnote 13] In short, the Indian Claims Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as the beneficiary. Once the money was deposited into the trust account, payment was effected.IIIThe Danns also claim to possess individual as well as tribal aboriginal rights and that, because only the latter were before the Indian Claims Commission, the "final discharge" of § 22(a) does not bar the Danns from raising individual aboriginal title as a defense in this action. Though we have recognized that individual aboriginal rights may exist in certain contexts, [Footnote 14] this contention has not been addressed by the lower courts and, if open, should first be addressed below. We express no opinion as to its merits.The judgment of the Ninth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Dann, 470 U.S. 39 (1985)United States v. DannNo. 83-1476Argued November 5, 1984Decided February 20, 1985470 U.S. 39SyllabusIn 1951, the Shoshone Tribe sought compensation for the loss of aboriginal title to lands in several Western States. The Indian Claims Commission (Commission) entered an interlocutory order holding that aboriginal title had been extinguished and later awarded $26 million in compensation. The Court of Claims affirmed, and the award was certified to the General Accounting Office. Pursuant to 31 U.S.C. § 724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award, which was then deposited for the Tribe in an interest-bearing trust account in the United States Treasury. The Secretary of the Interior is required by statute, after consulting with the Tribe, to submit to Congress a plan for distribution of the fund, but has not yet done so, owing to the Tribe's refusal to cooperate. Subsequently, the United States brought a trespass action in Federal District Court against respondent Tribe members, alleging that in grazing livestock without a permit on land involved in the prior Commission proceeding respondents were violating certain regulations. Respondents claimed that they have aboriginal title to the land, and that thus the Government was precluded from requiring grazing permits. The District Court held that aboriginal title had been extinguished when the Commission's final award was certified for payment. The Court of Appeals reversed, holding that "payment" had not occurred within the meaning of § 22(a) of the Indian Claims Commission Act, which provided that"payment of any claim [of an Indian tribe], after its determination in accordance with this [Act], shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy."The court reasoned that until a plan of distribution of the fund in question is adopted, there remain significant blocks in the way of delivery to the payee, and that thus the "ordinary meaning" of payment was not satisfied.Held: "Payment" occurred under § 22(a) when the funds in question were placed by the United States into an account in the Treasury for the Tribe. Pp. 470 U. S. 44-50.(a) To hold that payment under § 22(a) does not occur until a final plan of distribution has been approved by Congress would frustrate the Indian Claims Commission Act's purpose to dispose of Indian claims with Page 470 U. S. 40 finality, and would also conflict with the Act's purpose of transferring from Congress to the Commission the responsibility for determining the merits of Indian claims. Pp. 470 U. S. 46-47.(b) To construe the word "payment" as the Court of Appeals did gives the word a markedly different meaning than it has under the general common law rule, relied upon in Seminole Nation v. United States, 316 U. S. 286, that a debtor's payment to a fiduciary for the creditor's benefit satisfies the debt. Here, the Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as beneficiary. Once the money was deposited into the trust account, payment was effected. Pp. 470 U. S. 47-60.706 F.2d 919, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court.

1967_510

MR. JUSTICE MARSHALL delivered the opinion of the Court.Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant's dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and hence, under the relevant Page 391 U. S. 565 Illinois statute, Ill.Rev.Stat. c. 122, § 10-22.4 (1963), that "interests of the school require[d] [his dismissal]."Appellant's claim that his writing of the letter was protected by the First and Fourteenth Amendments was rejected. Appellant then sought review of the Board's action in the Circuit Court of Will County, which affirmed his dismissal on the ground that the determination that appellant's letter was detrimental to the interests of the school system was supported by substantial evidence and that the interests of the schools overrode appellant's First Amendment rights. On appeal, the Supreme Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. 36 Ill. 2d 568, 225 N.E.2d 1 (1967). We noted probable jurisdiction of appellant's claim that the Illinois statute permitting his dismissal on the facts of this case was unconstitutional as applied under the First and Fourteenth Amendments. [Footnote 1] 389 U.S. 925 (1967). For the reasons detailed below, we agree that appellant's rights to freedom of speech were violated, and we reverse.IIn February of 1961, the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed, and the schools were built with the money raised by the bond Page 391 U. S. 566 sales. In May of 1964, a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board, and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor (which we reproduce in an 391 U.S. 563app|>Appendix to this opinion) that resulted in his dismissal.Prior to the vote on the second tax increase proposal, a variety of articles attributed to the District 205 Teachers' Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district's schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper.The letter constituted, basically, an attack on the School Board's handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing, the Board charged that numerous statements in the letter were false, and that the publication Page 391 U. S. 567 of the statements unjustifiably impugned the "motives, honesty, integrity, truthfulness, responsibility and competence" of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment "controversy, conflict and dissension" among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made.The Illinois courts reviewed the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant's publication of the letter was "detrimental to the best interests of the schools." Pickering's claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools "which in the absence of such position he would have an undoubted right to engage in." It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant's dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection. Page 391 U. S. 568 In any event, it clearly rejected Pickering's claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position.IITo the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E.g., Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967)."[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected."Keyishian v. Board of Regents, supra, at 385 U. S. 605-606. At the same time, it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, 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.IIIThe Board contends that"the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with Page 391 U. S. 569 his education and experience."Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made "with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not," New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 280 (1964), should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.An examination of the statements in appellant's letter objected to by the Board [Footnote 2] reveals that they, like the letter as a whole, consist essentially of criticism of the Board's allocation of school funds between educational and athletic programs, and of both the Board's and the superintendent's methods of informing, or preventing the informing of, the district's taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in Page 391 U. S. 570 contact in the course of his daily work as a teacher. Thus, no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant's employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Accordingly, to the extent that the Board's position here can be taken to suggest that even comments on matters of public concern that are substantially correct, such as statements (1)-(4) of appellant's letter, see 391 U.S. 563app|>Appendix, infra may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it. [Footnote 3]We next consider the statements in appellant's letter which we agree to be false. The Board's original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering's letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, Page 391 U. S. 571 have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members' own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant's letter containing the statements that we have found to be false, see 391 U.S. 563app|>Appendix, infra) cannot reasonably be regarded as per se detrimental to the district's schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.In addition, the fact that particular illustrations of the Board's claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering's letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written.More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open Page 391 U. S. 572 debate is vital to informed decisionmaking by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant's errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher's presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether, under such circumstances, a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them. [Footnote 4]What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in Page 391 U. S. 573 the classroom [Footnote 5] or to have interfered with the regular operation of the schools generally. In these circumstances, we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.IVThe public interest in having free and unhindered debate on matters of public importance -- the core value of the Free Speech Clause of the First Amendment -- is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); St. Amant v. Thompson, 390 U. S. 727 (1968). Compare Linn v. United Plant Guard Workers, 383 U. S. 53 (1966). The same test has been applied to suits for invasion of privacy based on false statements where a "matter of public interest" is involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). It is therefore perfectly clear that, were appellant a member of the general public, the State's power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times. Page 391 U. S. 574This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. Louisiana, 379 U. S. 64 (1964); Wood v. Georgia, 370 U. S. 375 (1962). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district attorney about the judges before whom he regularly appeared.While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, [Footnote 6] a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no Page 391 U. S. 575 such showing has been made in this case regarding appellant's letter, see 391 U.S. 563app|>Appendix, infra, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtPickering v. Board of Education, 391 U.S. 563 (1968)Pickering v. Board of Education of TownshipHigh School District 205, Will CountyNo. 510Argued March 27, 1968Decided June 3, 1968391 U.S. 563SyllabusAppellee, Board of Education, dismissed appellant, a teacher, for writing and publishing in a newspaper a letter criticizing the Board's allocation of school funds between educational and athletic programs and the Board's and superintendent's methods of informing, or preventing the informing of, the school district's taxpayers of the real reasons why additional tax revenues were being sought for the schools. At a hearing, the Board charged that numerous statements in the letter were false, and that the publication of the statements unjustifiably impugned the Board and school administration. The Board found all the statements false as charged, and concluded that publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and that "the interests of the school require[d] [appellant's dismissal]" under the applicable statute. There was no evidence at the hearing as to the effect of appellant's statements on the community or school administration. The Illinois courts, reviewing the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether the Board could reasonably conclude that the publication was "detrimental to the best interests of the schools," upheld the dismissal, rejecting appellant's claim that the letter was protected by the First and Fourteenth Amendments, on the ground that, as a teacher, he had to refrain from making statements about the schools' operation "which, in the absence of such position, he would have an undoubted right to engage in."Held:1."[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected."Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 605-606 (1967). The teacher's interest as a citizen in making public comment must be balanced against the State's interest in promoting the efficiency of its employees' public services. P. 391 U. S. 568.2. Those statements of appellant's which were substantially correct regarded matters of public concern and presented no questions Page 391 U. S. 564 of faculty discipline or harmony; hence those statements afforded no proper basis for the Board's action in dismissing appellant. Pp. 391 U. S. 569-570.3. Appellant's statements which were false likewise concerned issues then currently the subject of public attention and were neither shown nor could be presumed to have interfered with appellant's performance of his teaching duties or the schools' general operation. They were thus entitled to the same protection as if they had been made by a member of the general public, and, absent proof that those false statements were knowingly or recklessly made, did not justify the Board in dismissing appellant from public employment. New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Pp. 391 U. S. 570-575.36 Ill. 2d 568, 225 N.E.2d 1, reversed and remanded.

1980_79-927

JUSTICE STEVENS delivered the opinion of the Court.In 1956, Congress enacted the Bank Holding Company Act to control the future expansion of bank holding companies and to require divestment of their nonbanking interests. [Footnote 1] The Act, however, authorizes the Federal Reserve Board (Board) to allow holding companies to acquire or retain ownership in companies whose activities are "so closely related to banking or managing or controlling banks as to be a proper incident thereto." [Footnote 2] In 1972, the Board amended its Page 450 U. S. 49 regulations to enlarge the category of activities that it would regard as "closely related to banking," and therefore permissible for bank holding companies and their nonbanking subsidiaries. Specifically, the Board determined that the services of an investment adviser to a closed-end investment company may be such a permissible activity. The question presented by this case is whether the Board had the statutory authority to make that determination.The Board's determination, which was implemented by an amendment to its "Regulation Y," permits bank holding companies and their nonbanking subsidiaries to act as an investment adviser as that term is defined by the Investment Company Act of 1940. [Footnote 3] Although the statutory definition Page 450 U. S. 50 is a detailed one, [Footnote 4] the typical relationship between an investment adviser and an investment company can be briefly described. Investment companies, by pooling the resources of small investors under the guidance of one manager, provide those investors with diversification and expert management. [Footnote 5] Investment advisers generally organize and manage investment companies pursuant to a contractual arrangement with the company. [Footnote 6] In return for a management fee, the adviser Page 450 U. S. 51 selects the company's investment portfolio and supervises most aspects of its business. [Footnote 7]The Board issued an interpretive ruling in connection with its amendment to Regulation Y. That ruling distinguished "open-end" investment companies (commonly referred to as "mutual funds") from "closed-end" investment companies. The ruling explained that"a mutual fund is an investment company, which, typically, is continuously engaged in the issuance of its shares and stands ready at any time to redeem the securities as to which it is the issuer; a closed-end investment company typically does not issue shares after its initial organization except at infrequent intervals and does not stand ready to redeem its shares. [Footnote 8]"Because open-end investment companies will redeem their shares, they must constantly issue securities to prevent shrinkage of assets. [Footnote 9] In contrast, the capital structure of a closed-end company is similar to that of other corporations; if its shareholders wish to sell, they must do so in the marketplace. Without any obligation to redeem, closed-end companies need not continuously seek new capital. [Footnote 10] Page 450 U. S. 52The Board' interpretive ruling expressed the opinion that a bank holding company may not lawfully sponsor, organize, or control an open-end investment company, [Footnote 11] but the Board perceived no objection to sponsorship of a closed-end investment company provided that certain restrictions are observed. [Footnote 12] Among those restrictions is a requirement that the investment company may not primarily or frequently engage in the issuance, sale, and distribution of securities; a requirement that the investment adviser may not have any ownership interest in the investment company, or extend credit to it; and a requirement that the adviser may not underwrite or otherwise participate in the sale or distribution of the investment company's securities. [Footnote 13] Page 450 U. S. 53Respondent Investment Company Institute, a trade association of open-end investment companies, commenced this litigation challenging as in excess of the Board's statutory authority the determination that investment adviser services are "closely related" to banking. Both in proceedings before the Board and in a direct review proceeding in the United States Court of Appeals for the District of Columbia Circuit, respondent based this challenge on the Banking Act of 1933, commonly known as the Glass-Steagall Act, in which Congress placed restrictions on the securities-related business of banks in order to protect their depositors. [Footnote 14]The Court of Appeals rejected respondent's argument that Regulation Y, as amended, violated the Glass-Steagall Act, relying on the fact that the prohibitions of §§ 16 and 21 of Page 450 U. S. 54 that Act [Footnote 15] apply only to banks, rather than to bank holding companies or their nonbanking subsidiaries. 196 U.S.App.D.C. 97, 606 F.2d 1004. The court nevertheless concluded that § 4(c)(8) of the Bank Holding Company Act did not authorize the regulation. The court reasoned that the legislative history of the Act demonstrates that Congress did not intend the Bank Holding Company Act to restrict the scope of the Glass-Steagall Act. Because the court read the legislative history to indicate that Congress perceived the Glass-Steagall Act as an effort to effect as complete a separation as possible between the securities business and the commercial banking business, the court read a similar intent into the Bank Holding Company Act. The Court of Appeals believed that activities permitted by the challenged regulation were not consistent with the congressional intent to effect this separation.We granted certiorari because of the importance of the Court of Appeals holding. 444 U.S. 1070. We are persuaded Page 450 U. S. 55 that the language of both the Bank Holding Company Act and the Glass-Steagall Act, as well as our interpretation of the Glass-Steagall Act in Investment Company Institute v. Camp, 401 U. S. 617 (1971), supports the Board. Moreover, contrary to the view of the Court of Appeals, we are persuaded that the regulation is consistent with the legislative history of both statutes.IThe services of an investment adviser are not significantly different from the traditional fiduciary functions of banks. The principal activity of an investment adviser is to manage the investment portfolio of its advisee -- to invest and reinvest the funds of the client. Banks have engaged in that sort of activity for decades. [Footnote 16] As executor, trustee, or managing agent of funds committed to its custody, a bank regularly buys and sells securities for its customers. Bank trust departments manage employee benefits trusts, institutional and corporate agency accounts, and personal trust and agency accounts. [Footnote 17] Moreover, for over 50 years, banks have performed these tasks for trust funds consisting of commingled funds of customers. [Footnote 18] These common trust funds administered Page 450 U. S. 56 by banks would be regulated as investment companies by the Investment Company Act of 1940 were they not exempted from the Act's coverage. [Footnote 19] The Board's conclusion that the services performed by an investment adviser are "so closely related to banking . . . as to be a proper incident thereto" is therefore supported by banking practice and by a normal reading of the language of § 4(c)(8). [Footnote 20]The Board's determination of what activities are "closely related" to banking is entitled to the greatest deference. [Footnote 21] Page 450 U. S. 57 Such deference' is particularly appropriate in this case because the regulation under attack is merely a general determination that investment advisory services which otherwise satisfy the restrictions imposed by the Board's interpretive ruling constitute an activity that is so closely related to banking as to be a proper incident thereto. [Footnote 22] Because the authority for any specific investment advisory relationship must be preceded by a further determination by the Board that the relationship can be expected to provide benefits for the public, the Board will have the opportunity to ensure that no bank holding company exceeds the bounds of a bank's traditional fiduciary function of managing customers' accounts. [Footnote 23] Thus, Page 450 U. S. 58 unless the Glass-Stegall Act requires a contrary conclusion, the Board's interpretation of the plain language of the Bank Company Holding Act must be upheld.IIRespondent's principal attack on the Board's general determination that investment adviser services are so closely related as to be a proper incident to banking proceeds from the premise that, if such services were performed by a bank, the bank would violate §§ 16 and 21 of the Glass-Steagall Act. [Footnote 24] Respondent therefore argues that such services may Page 450 U. S. 59 never be regarded as a "proper incident" that could be performed by a bank affiliate. [Footnote 25] We reject both the premise and the conclusion of this argument. The performance of Page 450 U. S. 60 investment advisory services by a bank would not necessarily violate § 16 or § 21 of the Glass-Steagall Act. Moreover, bank affiliates may be authorized to engage in certain activities that are prohibited to banks themselves. [Footnote 26] Page 450 U. S. 61It is familiar history that the Glass-Steagall Act was enacted in 1933 to protect bank depositors from any repetition of the widespread bank closings that occurred during the Great Depression. [Footnote 27] Congress was persuaded that speculative activities, partially attributable to the connection between commercial banking and investment banking, had contributed to the rash of bank failures. [Footnote 28] The legislative history reveals that securities firms affiliated with banks had Page 450 U. S. 62 engaged in perilous underwriting operations, stock speculation, and maintaining a market for the bank's own stock, often with the bank's resources. [Footnote 29] Congress sought to separate national banks, as completely as possible, from affiliates engaged in such activities. [Footnote 30]Sections 16 and 21 of the Glass-Steagall Act approach the legislative goal of separating the securities business from the banking business from different directions. The former places a limit on the power of a bank to engage in securities transactions; the latter prohibits a securities firm from engaging in the banking business. Section 16 expressly prohibits a bank from "underwriting" any issue of a security or purchasing any security for its own account. The Board's interpretive ruling here expressly prohibits a bank holding company or its subsidiaries from participating in the "sale or distribution" of securities of any investment company for which it acts as investment adviser. 12 CFR § 225.125(h) (1980). The ruling also prohibits bank holding companies and their subsidiaries from purchasing securities of the investment company for which it acts as investment adviser. § 225.125(g). [Footnote 31] Therefore, if the restrictions imposed by the Board's interpretive ruling are followed, investment advisory services -- even if performed by a bank -- would not violate the requirements of § 16.We are also satisfied that a bank's performance of such services would not necessarily violate § 21. In contrast to § 16, § 21 prohibits certain kinds of securities firms from engaging in banking. The § 21 prohibition applies to any organization "engaged in the business of issuing, underwriting, selling, or distributing" securities. Such a securities firm may not engage at the same time "to any extent whatever in Page 450 U. S. 63 the business of. receiving deposits." The management of a customer's investment portfolio -- even when the manager has the power to sell securities owned by the customer -- is not the kind of selling activity that Congress contemplated when it enacted § 21. If it were, the statute would prohibit banks from continuing to manage investment accounts in a fiduciary capacity or as an agent for an individual. We do not believe Congress intended that such a reading be given § 21. [Footnote 32] Rather, § 21 presented the converse situation of § 16, and was intended to require securities firms such as underwriters or brokerage houses to sever their banking connections. It surely was not intended to require banks to abandon an accepted banking practice that was subjected to regulation under § 16. [Footnote 33]Even if we were to assume that a bank would violate the Glass-Steagall Act by engaging in certain investment advisory Page 450 U. S. 64 services, it would. not follow that a bank holding company could never perform such services. In both the Glass-Steagall Act itself and in the Bank Holding Company Act, Congress indicated that a bank affiliate may engage in activities that would be impermissible for the bank itself. Thus, § 21 of Glass-Steagall entirely prohibits the same firm from engaging in banking and in the underwriting business, whereas § 20 does not prohibit bank affiliation with a securities firm unless that firm is "engaged principally" in activities such as underwriting. [Footnote 34] Further, § 4(c)(7) of the Bank Holding Company Act, which authorizes holding companies to purchase and own shares of investment companies, permits investment activity by a holding company that is impermissible for a bank itself. [Footnote 35] Finally, inasmuch as the Bank Holding Company Act requires divestment only of nonbanking interests, the § 4(c)(8) exception would be unnecessary if it applied only to services that a bank could legally perform. Thus even if the Glass-Steagall Act did prohibit banks from acting as investment advisers, that prohibition would not necessarily preclude the Board from determining that such adviser services would be permissible under § 4(c)(8).In all events, because all that is presently at issue is the Board's preliminary authorization of such services, rather than approval of any specific advisory relationship, speculation about possible conflicts with the Glass-Steagall Act is plainly not a sufficient basis for totally rejecting the Board's carefully considered determination.IIIOur conclusions with respect to the Glass-Steagall Act are in no way altered by consideration of our decision in Investment Page 450 U. S. 65 Company Institute v. Camp, 401 U. S. 617 (1971). The Court there held that a regulation issued by the Comptroller of the Currency purporting to authorize banks to operate mutual funds violated §§ 16 and 21 of the Glass-Steagall Act. The mutual fund under review in that case was the functional equivalent of an open-end investment company. [Footnote 36] Because the authorization at issue in this case is expressly limited to closed-end investment companies, the holding in Camp is clearly not dispositive. Respondent argues, however, that both the Court's reasoning in Camp and its description of the "more subtle hazards" created by the performance of investment advisory services by a bank are inconsistent with the Board's action. We disagree.In Camp, the Court relied squarely on the literal language of §§ 16 and 21 of the Glass-Steagall Act. After noting that § 16 prohibited the underwriting by a national bank of any issue of securities and the purchase for its own account of shares of stock of any corporation, and that § 21 prohibited corporations from both receiving deposits and engaging in issuing, underwriting, selling, or distributing securities, the Court recognized that the statutory language plainly applied to a bank's sale of redeemable and transferable "units of participation" in a common investment fund operated by the bank. 401 U.S. at 401 U. S. 634. Because the Court held that the bank was the underwriter of the fund's units of participation within the meaning of the Investment Company Act of 1940, Page 450 U. S. 66 id. at 401 U. S. 622-623, the Comptroller attempted to avoid the reach of § 16 by arguing that the units of participation were not "securities" within the meaning of the Glass-Steagall Act. The Court's contrary determination led inexorably to the conclusion that § 16 had been violated.This case presents an entirely different issue. No one could dispute the fact that the shares in a closed-end investment company are securities. But as we have indicated, such securities are not issued, sold, or underwritten by the investment adviser. In contrast to the bank's activities in issuing, underwriting, selling, and redeeming the units of participation in the Camp case, in this case, the Board's interpretive ruling expressly prohibits such activity. [Footnote 37]The Court in Camp recognized that, in enacting the Glass-Steagall Act, Congress contemplated other hazards in addition to the danger of banks using bank assets in imprudent securities investments. [Footnote 38] But none of these "more subtle hazards" Page 450 U. S. 67 would be present were a bank to act as an investment adviser to a closed-end investment company subject to the restrictions imposed by the Board. Those restrictions would prevent the bank from extending credit to the investment company, and would also preclude the promotional pressures that are inherent in the investment banking business. [Footnote 39] In addition to the fact that the bank could not underwrite or sell the stock of the closed-end investment company, that company, unlike a mutual fund, would not be constantly involved in the search for new capital to cover the redemption of other stock. The advisory fee earned by the bank would provide little incentive to the bank or its holding company to engage in promotional activities. [Footnote 40] Page 450 U. S. 68Our obligation to accord deference to the Board's interpretive ruling provides added support to our conclusion that the Board's regulation avoids the potential hazards involved in any association between a bank affiliate and a closed-end investment company. In Camp, the Court emphasized that the Comptroller of the Currency had provided no guidance as to the effect of the Glass-Steagall Act on the proposed activity. [Footnote 41] Whereas, in Camp, the Court was deprived of administrative "expertise that can enlighten and rationalize the search for the meaning and intent of Congress," 401 U.S. at 401 U. S. 628, in this case, the regulatory action by the Board recognized and addressed the concerns that led to the enactment of the Glass-Steagall Act. Contrary to respondent's argument, the Camp decision therefore affirmatively supports the Board's action in this case.IVThe Court of Appeals rested its conclusion that the Board had exceeded its statutory authority on a review of the legislative history of § 4(c)(8). As originally enacted in 1956, the section referred to activities "closely related to the business of banking." In 1970, when the Act was amended to Page 450 U. S. 69 extend its coverage to holding companies controlling just one bank, the words "business of" were deleted from § 4(c)(8), thereby making the section refer merely to activities "closely related to banking." The conclusion of the Court of Appeals did not, however, place special reliance on this modest change. Rather, the Court of Appeals was persuaded that, in 1956, Congress believed that the Glass-Steagall Act had been enacted in 1933 to "divorc[e] investment from commercial banking," and that the 1970 amendment to § 4(c)(8) did not alter the intent expressed by the 1956 Congress. 196 U.S.App.D.C. at 110, 606 F.2d at 1017.Congress did intend the Bank Holding Company Act to maintain and even to strengthen Glass-Steagall's restrictions on the relationship between commercial and investment banking. Part of the motivation underlying the requirement that bank holding companies divest themselves of nonbanking interests was the desire to provide a measure of regulation missing from the Glass-Steagall Act. [Footnote 42] In 1956, the only provision of the Glass-Steagall Act which regulated bank holding companies was § 19(e) of the Act, which provided that a bank holding company could not obtain a permit from the Federal Reserve Board entitling it to vote the shares of a bank subsidiary unless it agreed to divest itself within five years of any interest in a company formed for the purpose of, or "engaged principally" in, the issuance or underwriting of securities. [Footnote 43] This provision was largely ineffectual, because Page 450 U. S. 70 bank holding companies were not subject to the divestiture requirement as long as they did not vote their bank subsidiary shares. [Footnote 44] Thus, bank holding companies were able to avoid Glass-Steagall's general purpose of separating as completely as possible commercial from investment banking in a way not available to other bank affiliates or banks themselves. The inadequacy of § 19(e) therefore lay not in the type of affiliation with securities-related firms permitted to bank holding companies but in the ability of holding companies to avoid any restrictions on affiliation by simply not voting their shares. To the extent that Congress strengthened the Glass-Steagall Act, it did so by closing this loophole, rather than by imposing further restrictions on the permissible securities-related business of bank affiliates. [Footnote 45] The clear evidence of a Page 450 U. S. 71 congressional purpose in 1956 to remedy the inadequacy of § 19(e) of the 1933 Act does not support the conclusion that Congress also intended § 4(c)(8) to be read as totally prohibiting bank holding companies from being "engaged" in any securities-related activities; on the contrary, it is more accurately read as merely completing the job of severing the connection between bank holding companies and affiliates "principally engaged" in the securities business. [Footnote 46]To invalidate the Board's regulation, the Court of Appeals had to assume that the activity of managing investments for a customer had been regarded by Congress as an aspect of investment banking, rather than an aspect of commercial banking. But the Congress that enacted the Glass-Steagall Act did not take such an expansive view of investment banking. [Footnote 47] Investment advisers and closed-end investment companies are not "principally engaged" in the issuance or the underwriting of securities within the meaning of the Glass-Steagall Act, even if they are so engaged within the meaning of §§ 16 and 21. [Footnote 48] Nothing in the legislative history of the Bank Holding Company Act persuades us that Congress, in 1956, intended to effect a more complete separation between commercial and investment banking than the separation that the Glass-Steagall Act had achieved with respect to banks in §§ 16 and 21 and had sought unsuccessfully to achieve with respect to bank holding companies in § 19(e). [Footnote 49] Page 450 U. S. 72A review of the 1970 Amendments to the Bank Holding Company Act only strengthens this conclusion. [Footnote 50] On its face, the 1970 amendment to § 4(c)(8) would appear to have Page 450 U. S. 73 broadened the Board's authority to determine when an activity is sufficiently related to banking to be permissible for a nonbanking subsidiary of a bank holding company. [Footnote 51] The initial versions of both the House and the Senate bills changed the "closely related" test of § 4(c)(8) to a "functionally related" test. [Footnote 52] The Conference Committee's final version of the bill, however, retained the "closely related" language of the 1956 Act. [Footnote 53] Whether this indicated that § 4(c)(8) was to have the same scope as it did under the 1956 Act is difficult to discern. [Footnote 54] For purposes of this case, however, we need Page 450 U. S. 74 not reconcile the conflicting views as to whether the 1970 amendment expanded the scope of § 4(c)(8), because no one disputes that the Board's discretion is at least as broad under the 1970 Amendments as it was under the 1956 Act. Therefore, our conclusion that nothing in the 1956 Act or its legislative history indicates that Congress intended to prohibit bank holding companies from acting as investment advisers to closed-end investment companies should also apply to the 1970 Amendments unless Congress specifically indicated that such services should not be authorized by the Board. Not only is there no such specific evidence, there is affirmative evidence to the contrary.The legislative history of the 1970 Amendments indicates that Congress did not intend the 1970 Amendments to have any effect on the prohibitions of the Glass-Steagall Act. The Senate chairman of the Conference Committee assured his fellow Senators that the conference bill was intended neither to enlarge nor to restrict the prohibitions contained Page 450 U. S. 75 in the Glass-Steagall Act. [Footnote 55] Moreover, the Senate Report refers to investment services, but declines to state that the Board could not approve under § 4(c)(8) "bank sponsored mutual funds." [Footnote 56] The House's version of the bill rigidly Page 450 U. S. 76 confined the Board's discretion in certain areas by including a "laundry list" of activities which the Board could not approve. Included in this list was a prohibition of bank holding company acquisition of shares of any company engaged in "the issue, flotation, underwriting, public sale, or distribution," of securities, "whether or not any such interests ar redeemable." [Footnote 57] The Conference Committee deleted this list. This deletion indicates a rejection of the House's restrictive approach in favor of the Senate's more flexible attitude toward the Board's exercise of its discretion. [Footnote 58] Thus, Page 450 U. S. 77 as we read the legislative history of the 1970 Amendments, Congress did not intend the Bank Holding Company Act to limit the Board's discretion to approve securities-related activity as closely related to banking beyond the prohibitions already contained in the Glass-Steagall Act. [Footnote 59] This case is Page 450 U. S. 78 therefore one that is best resolved by deferring to the Board's expertise in determining what activities are encompassed within the plain language of the statute.Because we have concluded that the Board's decision to permit bank holding companies to act as investment advisers for closed-end investment companies is consistent with the language of the Bank Holding Company Act, and because such services are not prohibited by the Glass-Steagall Act, we hold that the amendment to Regulation Y does not exceed the Board's statutory authority. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtBoard of Governors, FRS v. Investment Co. Inst., 450 U.S. 46 (1981)Board of Governors of the Federal Reserve System v.Investment Company InstituteNo. 79-927Argued October 15, 1980Decided February 24, 1981450 U.S. 46SyllabusSection 4(c)(8) of the Bank Holding Company Act authorizes the Federal Reserve Board (Board) to allow bank holding companies to acquire or retain ownership in companies whose activities are "so closely related to banking or managing or controlling banks as to be a proper incident thereto." In 1972, the Board amended its Regulation Y, and issued an interpretive ruling in connection therewith, enlarging the category of activities that it would regard as "closely related to banking" under § 4(c)(8) by permitting bank holding companies and their nonbanking subsidiaries to act as an investment adviser to a closed-end investment company. Section 16 of the Banking Act of 1933 (Glass-Steagall Act) prohibits a bank from "underwriting" any issue of a security or purchasing any security for its own account, and § 21 of that Act prohibits any organization "engaged in the business of issuing, underwriting, selling, or distributing" securities from engaging in banking. Respondent trade association of open-end investment companies, in proceedings before the Board and on direct review in the Court of Appeals, challenged, on the basis of the Glass-Steagall Act, the Board's authority to determine that investment adviser services are "closely related" to banking. While rejecting respondent's argument that Regulation Y, as amended, violated the Glass-Steagall Act, the Court of Appeals nevertheless held that § 4(c)(8) of the Bank Holding Company Act did not authorize the regulation, because the activities that it permitted were not consistent with the congressional intent in both of these Acts to effect as complete a separation as possible between the securities and commercial banking businesses.Held: The amendment to Regulation Y does not exceed the Board's statutory authority. Pp. 450 U. S. 55-78.(a) The Board's determination that services performed by an investment adviser for a closed-end investment company are "so closely related to banking . . . as to be a proper incident thereto" is supported not only by the normal practice of banks in performing fiduciary functions in various capacities but also by a normal reading of the language of § 4(c)(8). And the Board's determination of what activities are Page 450 U. S. 47 "closely related" to banking is entitled to the greatest deference. Pp. 450 U. S. 55-58.(b) Investment adviser services by a bank do not necessarily violate either § 16 or § 21 of the Glass-Steagall Act. The Board interpretive ruling here prohibits a bank holding company or its subsidiaries from participating in the "sale or distribution" of, or from purchasing, securities of any investment company for which it acts as an investment adviser. Thus, if such restrictions are followed, investment advisory services -- even if performed b a bank -- would not violate § 16's requirements. And the management of a customer's investment portfolio is not the kind of selling activity contemplated in the prohibition in § 21, which was intended to require securities firms, such as underwriters or brokerage houses, to sever their banking connections. In any event, even if the Glass-Steagall Act did prohibit banks from acting as investment advisers, that prohibition would not necessarily preclude the Board from determining that such adviser services would be permissible under § 4(c)(8). Pp. 450 U. S. 58-64.(c) Since the interpretive ruling issued with the amendment to Regulation Y prohibits a bank holding company acting as an investment adviser from issuing, underwriting, selling, or redeeming securities, Regulation Y, as amended, avoids the potential hazards involved in any association between a bank affiliate and a closed-end investment company. Cf. Investment Company Institute v. Camp, 401 U. S. 617. Pp. 450 U. S. 64-68.(d) Regulation Y, as amended, is consistent with the legislative history of both the Bank Holding Company Act and the Glass-Steagall Act. More specifically, such legislative history indicates that Congress did not intend the Bank Holding Company Act to limit the Board's discretion to approve securities-related activity as closely related to banking beyond the prohibitions already contained in the Glass-Steagall Act. Pp. 450 U. S. 68-78.196 U.S.App.D.C. 97, 606 F.2d 1004, reversed.STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except STEWART and REHNQUIST, JJ., who took no part in the consideration or decision of the case, and POWELL, J., who took no part in the decision of the case. Page 450 U. S. 48

1975_74-676

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case to determine whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws.In November, 1970, respondent Williams was convicted in state court in Harris County, Tex., for assault with intent to commit murder with malice. The crime occurred during an altercation between respondent and his former landlord on the latter's property. The evidence showed that respondent returned to the apartment complex where he had formerly resided to visit a female tenant. While there, respondent and his former landlord became involved in a quarrel. Heated words were exchanged, and a fight ensued. Respondent struck the landlord with a knife in the neck, chest, and abdomen, severely wounding him.Unable to post bond, respondent was held in custody while awaiting trial. When he learned that he was to go on trial, respondent asked an officer at the jail for his civilian clothes. This request was denied. As a result, respondent appeared at trial in clothes that were distinctly marked as prison issue. Neither respondent nor his counsel raised an objection to the prison attire at any time. Page 425 U. S. 503A jury returned a verdict of guilty on the charge of assault with intent to murder with malice. The Texas Court of Criminal Appeals affirmed the conviction. Williams v. State, 477 S.W.2d 24 (1972). Williams then sought release in the United States District Court on a petition for a writ of habeas corpus. Although holding that requiring a defendant to stand trial in prison garb was inherently unfair, the District Court denied relief on the ground that the error was harmless.The Court of Appeals reversed on the basis of its own prior holding in Hernandez v. Beto, 443 F.2d 634 (CA5), cert. denied, 404 U.S. 897 (1971). 500 F.2d 206. The Fifth Circuit disagreed with the District Court solely on the issue of harmless error.(1)The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. Drope v. Missouri, 420 U. S. 162, 420 U. S. 172 (1975). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago, this Court stated:"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."Coffin v. United States, 156 U. S. 432, 156 U. S. 453 (1895).To implement the presumption, courts must be alert to factors that may undermine the fairness of the factfinding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U. S. 358, 397 U. S. 364 (1970). Page 425 U. S. 504The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Estes v. Texas, 381 U. S. 532 (1965); In re Murchison, 349 U. S. 133 (1955). Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions, [Footnote 1] determined that a accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. Gaito v. Brierley, 485 F.2d 86 (CA3 1973); Hernandez v. Beto, supra; Brooks v. Texas, 381 F.2d 619 (CA5 1967); Commonwealth v. Keeler, 216 Pa.Super.193, 264 A.2d 407 (1970); Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970); People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969); People v. Zapata, 220 Cal. App. 2d 903, 34 Cal. Rptr. 171 (1963), cert. denied, 377 U. S. 406 (1964); Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946). The American Bar Association's Standards for Criminal Justice also disapprove the practice. ABA Project on Standards for Criminal Justice, Trial by Jury § 4.1(b), p. 91 (App.Draft 1968). This is a recognition that the constant reminder of the accused's condition implicit in such distinctive, identifiable Page 425 U. S. 505 attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. Turner v. Louisiana, 379 U. S. 466, 379 U. S. 473 (1965).That such factors cannot always be avoided is manifest in Illinois v. Allen, 397 U. S. 337 (1970), where we expressly recognized that "the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant . . . ," id. at 397 U. S. 344; yet the Court upheld the practice when necessary to control a contumacious defendant. For that reason, the Court authorized removal of a disruptive defendant from the courtroom or, alternatively, binding and gagging of the accused until he agrees to conduct himself properly in the courtroom.Unlike physical restraints, permitted under Allen, supra, compelling an accused to wear jail clothing furthers no essential state policy. That it may be more convenient for jail administrators, a factor quite unlike the substantial need to impose physical restraints upon contumacious defendants, [Footnote 2] provides no justification for the practice. Indeed, the State of Texas asserts no interest whatever in maintaining this procedure.Similarly troubling is the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Persons who can secure release are not subjected to this condition. To impose the condition on one category of defendants, over objection, would be repugnant to the Page 425 U. S. 506 concept of equal justice embodied in the Fourteenth Amendment. Griffin v. Illinois, 351 U. S. 12 (1956).(2)The Fifth Circuit, in this as well as in prior decisions, has not purported to adopt a per se rule invalidating all convictions where a defendant had appeared in identifiable prison clothes. That court has held, for instance, that the harmless error doctrine is applicable to this line of cases. 500 F.2d at 210-212. See also Thomas v. Beto, 474 F.2d 981, cert. denied, 414 U.S. 871 (1973); Hernandez v. Beto, supra at 637. Other courts are in accord. Bentley v. Crist, 469 F.2d 854, 856 (CA9 1972); Watt v. Page, 452 F.2d 1174, 1176-1177 (CA10), cert. denied, 405 U.S. 1070 (1972). In this case, the Court of Appeals quoted the language of Mr. Justice Douglas, speaking for the Court in Harrington v. California, 395 U. S. 250 (1969):"We held in Chapman v. California that, 'before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' We said that . . . not all 'trial errors which violate the Constitution automatically call for reversal.'"Id. at 395 U. S. 251-252 (citations omitted). In Chapman v. California, 386 U. S. 18 (1967), the Court, speaking through Mr. Justice Black, held:"We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless error statutes or rules, and the United Page 425 U. S. 507 States long ago, through its Congress, established for its courts the rule that judgments shall not be reversed for 'errors or defects which do not affect the substantial rights of the parties.' . . . We conclude that there may be some constitutional errors which, in the setting of a particular case, are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction."Id. at 386 U. S. 21-22 (citation and footnote omitted).In other situations, when, for example, the accused is being tried for an offense committed in confinement, or in an attempted escape, courts have refused to find error in the practice. In United States ex rel. Stahl v. Henderson, 472 F.2d 556 (CA5), cert. denied, 411 U.S. 971 (1973), the Court of Appeals declined to overturn a conviction where the defendant, albeit tried in jail clothes, was charged with having murdered another inmate while confined in prison. "No prejudice can result from seeing that which is already known." 472 F.2d at 557. In the present case, the Court of Appeals concluded:"A different result may be appropriate where the defendant is on trial for an offense allegedly committed while he was in prison, because the jury would learn of his incarceration in any event."500 F.2d at 209 n.5. Contra: People v. Roman, 35 N.Y.2d 978, 324 N.E.2d 885 (1975).Consequently, the courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. The Page 425 U. S. 508 reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. The cases show, for example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury. Anderson v. Watt, 475 F.2d 881, 882 (CA10 1973); Watt v. Page, supra, at 1176. Cf. Garcia v. Beto, 452 F.2d 655, 656 (CA5 1971). This is apparently an accepted practice in Texas courts, Barber v. State, 477 S.W.2d 868, 870 (Tex.Crim.App. 1972), including the court where respondent was tried.Courts have therefore required an accused to object to being tried in jail garments, just as he must invoke or abandon other rights. [Footnote 3] The Fifth Circuit has held: "A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error." Hernandez v. Beto, 443 F.2d at 637. The essential meaning of the Page 425 U. S. 509 Court of Appeals' decision in Hernandez has been described by that court as follows:"We held [in Hernandez] that the defendant and his attorney had the burden to make known that the defendant desired to be tried in civilian clothes before the state could be accountable for his being tried in jail clothes. . . ."United States ex rel. Stahl v. Henderson, 472 F.2d at 557. [Footnote 4] Similarly, the Ninth Circuit has indicated that the courts must determine whether an accused "was, in fact, compelled to wear prison clothing at his state court trial." Bentley v. Crist, 469 F.2d at 856. See also Dennis v. Dees, 278 F. Supp. 354, 359 (ED La.1968), disapproved on other grounds, United States ex rel. Stahl v. Henderson, supra at 557; People v. Roman, 35 N.Y.2d at 978-979, 324 N.E.2d at 885-886; People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969).(3)The record is clear that no objection was made to the Page 425 U. S. 510 trial judge concerning the jail attire either before or at any time during the trial. This omission plainly did not result from any lack of appreciation of the issue, for respondent had raised the question with the jail attendant prior to trial. At trial, defense counsel expressly referred to respondent's attire during voir dire. The trial judge was thus informed that respondent's counsel was fully conscious of the situation. [Footnote 5]Despite respondent's failure to raise the issue at trial, the Court of Appeals held:"Waiver of the objection cannot be inferred merely from failure to object if trial in prison garb is customary in the jurisdiction."500 F.2d at 208. The District Court had concluded that, at the time of respondent's trial, the majority of nonbailed defendants in Harris County were indeed tried in jail clothes. From this, the Court of Appeals concluded that the practice followed in respondent's case was customary. Ibid.However, that analysis ignores essential facts adduced at the evidentiary hearing. Notwithstanding the evidence as to the general practice in Harris County, there was no finding that nonbailed defendants were compelled to stand trial in prison garments if timely objection was made to the trial judge. On the contrary, the District Court concluded that the practice of the particular judge presiding in respondent's case was to permit any accused who so desired to change into civilian clothes:"There is no doubt but that the [judge] had a Page 425 U. S. 511 practice of allowing defendants to stand trial in civilian clothing, if requested, a practice evidently followed by certain of the other judges as well."Williams v. Beto, 364 F. Supp. 335, 343 (1973). [Footnote 6] The state judge's policy was confirmed at the evidentiary hearing by the prosecutor and by a defense attorney who practiced in the judge's court.Significantly, at the evidentiary hearing respondent's trial counsel did not intimate that he feared any adverse consequences attending an objection to the procedure. [Footnote 7] There is nothing to suggest that there would have been any prejudicial effect on defense counsel had he made objection, given the decisions on this point in that jurisdiction. Four years before respondent's trial, the United States Court of Appeals for the Fifth Circuit had held: "It is inherently unfair to try a defendant for crime while garbed in his jail uniform. . . ." Brooks v. Texas, 381 F.2d at 624. Similarly, the Texas Court of Criminal Appeals had held: "[E]very effort should be made to avoid trying an accused while in jail garb." Ring v. State, 450 S.W.2d 85, 88 (1970). [Footnote 8] Prior Texas cases Page 425 U. S. 512 had made it clear that an objection should be interposed. See Wilkinson v. State, 423 S.W.2d 311, 313 (Tex.Crim.App. 198); Ring v. State, supra at 88.Nothing in this record, therefore, warrants a conclusion that respondent was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial. [Footnote 9] Nor can the trial judge be faulted for not asking the respondent or his counsel whether he was deliberately going to trial in jail clothes. To impose this requirement suggests that the trial judge operates under the same burden here as he would in the situation in Johnson v. Zerbst, 304 U. S. 458 (1938), where the issue concerned whether the accused willingly stood trial without the benefit of counsel. Under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, Page 425 U. S. 513 is sufficient to negate the presence of compulsion necessary to establish a constitutional violation. [Footnote 10]The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtEstelle v. Williams, 425 U.S. 501 (1976)Estelle v. WilliamsNo. 74-676Argued October 7, 1975Decided May 3, 1976425 U.S. 501SyllabusRespondent, who was charged with a criminal offense and held in custody awaiting trial, asked a jail officer on the morning of trial for his civilian clothes to wear at trial; no action was taken. During voir dire, his counsel expressly referred to respondent's jail attire. At no time before or during the ensuing jury trial was the issue raised to the trial judge concerning the jail attire. Respondent, whose conviction was upheld on appeal, sought federal habeas corpus. The District Court denied relief, but the Court of Appeals reversed. Though there was evidence that, in the county where the trial occurred, the majority of nonbailed defendants were tried in jail clothes, there was no evidence that such a practice was followed if timely objection was made to the trial judge; and the practice of the particular trial judge was to permit any accused who so desired to be tried in civilian garb.Held: Although the State cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes negates the presence of the compulsion necessary to establish a constitutional violation. Nothing in the record here warrants a conclusion that respondent was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial. Pp. 425 U. S. 503-513.500 F.2d 206, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 425 U. S. 513. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 425 U. S. 515. STEVENS, J., took no part in the consideration or decision of the case. Page 425 U. S. 502

1956_582

MR. JUSTICE BRENNAN delivered the opinion of the Court.The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute [Footnote 1] violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code [Footnote 2] invade the freedoms of speech and press as they may be incorporated in Page 354 U. S. 480 the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.Other constitutional questions are: whether these statutes violate due process, [Footnote 3] because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth), and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to establish post offices and post roads, preempted the regulation of the subject matter (raised in Alberts).Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit. [Footnote 4] We granted certiorari. [Footnote 5] Page 354 U. S. 481Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District (having waived a jury trial) under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles. [Footnote 6] We noted probable jurisdiction. [Footnote 7]The dispositive question is whether obscenity is utterance within the area of protected speech and press. [Footnote 8] Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U. S. 727, 96 U. S. 736-737; United States v. Chase, 135 U. S. 255, 135 U. S. 261; Robertson v. Baldwin, 165 U. S. 275, 165 U. S. 281; Public Clearing House v. Coyne, 194 U. S. 497, 194 U. S. 508; Hoke v. United States, 227 U. S. 308, 227 U. S. 322; Near v. Minnesota, 283 U. S. 697, 283 U. S. 716; Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572; Hannegan v. Esquire, Inc., 327 U. S. 146, 327 U. S. 158; Winters v. New York, 333 U. S. 507, 333 U. S. 510; Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 266. [Footnote 9] Page 354 U. S. 482The guaranties of freedom of expression [Footnote 10] in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, [Footnote 11] and all of those States made either blasphemy or profanity, or both, statutory crimes. [Footnote 12] As early as Page 354 U. S. 483 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses.In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press. [Footnote 13] Page 354 U. S. 484The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:"The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs."1 Journals of the Continental Congress 108 (1774).All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. [Footnote 14] But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for Page 354 U. S. 485 that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, [Footnote 15] in the obscenity laws of all of the 48 States, [Footnote 16] and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. [Footnote 17] This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572:". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."(Emphasis added.) We hold that obscenity is not within the area of constitutionally protected speech or press.It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish Page 354 U. S. 486 incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial Judge instructed the jury:"The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts."(Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal. App. 2d Supp. 959, 178 P.2d 853, namely, whether the material has "a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires." (Emphasis added.) It is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of anti-social conduct, [Footnote 18] or will probably induce its recipients to such conduct. [Footnote 19] But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois, supra, at 343 U. S. 266:"Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech, Page 354 U. S. 487 for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class."However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. [Footnote 20] The portrayal of sex, e.g., in art, literature and scientific works, [Footnote 21] is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. As to all such problems, Page 354 U. S. 488 this Court said in Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102:"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."(Emphasis added.)The fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to its continued growth. [Footnote 22] Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed, and opened only the slightest crack necessary to prevent encroachment upon more important interests. [Footnote 23] It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated Page 354 U. S. 489 excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. [Footnote 24] Some American courts adopted this standard, [Footnote 25] but later decisions have rejected it and substituted this test: whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. [Footnote 26] The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in ruling on a motion to dismiss, the trial judge indicated that, as the Page 354 U. S. 490 trier of facts, he was judging each item as a whole as it would affect the normal person, [Footnote 27] and, in Roth, the trial judge instructed the jury as follows:". . . The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated indifferent and unmoved. . . .""* * * *" "The test in each case is the effect of the book, picture or publication considered as a whole not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.""* * * *" "In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and, in determining that conscience, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious -- men, women and children. "Page 354 U. S. 491It is argued that the statutes do not provide reasonably ascertainable standards of guilt, and therefore violates the constitutional requirements of due process. Winters v. New York, 333 U. S. 507. The federal obscenity statute makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character." [Footnote 28] The California statute makes punishable, inter alia, the keeping for sale or advertising material that is "obscene or indecent." The thrust of the argument is that these words are not sufficiently precise, because they do not mean the same thing to all people, all the time, everywhere.Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote 29] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ". . . [T]he Constitution does not require impossible standards"; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ." United States v. Petrillo, 332 U. S. 1, 332 U. S. 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed, and mark". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on Page 354 U. S. 492 which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ."Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 U. S. 340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373. [Footnote 30]In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.Roth's argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." (Emphasis added.) That argument falls in light of our holding that obscenity is not expression protected by the First Amendment. [Footnote 31] We Page 354 U. S. 493 therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7. [Footnote 32] In United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 95-96, this Court said:". . . The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. . . ."Alberts argues that, because his was a mail-order business, the California statute is repugnant to Art. I, § 8, cl. 7, under which the Congress allegedly preempted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal statute deals only with actual Page 354 U. S. 494 mailing; it does not eliminate the power of the state to punish "keeping for sale" or "advertising" obscene material. The state statute in no way imposes a burden or interferes with the federal postal functions.". . . The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions. . . ."Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96.The judgments areAffirmed

U.S. Supreme CourtRoth v. United States, 354 U.S. 476 (1957)Roth v. United StatesNo. 582Argued April 22, 1957Decided June 24, 1957*354 U.S. 476Syllabus1. In the Roth case, the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising, are sustained. Pp. 354 U. S. 479-494.2. In the Albert case, the constitutionality of § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale, or to advertise, material that is "obscene or indecent," and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent books and for writing, composing, and publishing an obscene advertisement of them, are sustained. Pp. 354 U. S. 479-494.3. Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 354 U. S. 481-485.(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 354 U. S. 482-483.(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 354 U. S. 484.(c) All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 354 U. S. 484-485. Page 354 U. S. 4774. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U. S. 250. Pp. 354 U. S. 485-490.(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest -- i.e., material having a tendency to excite lustful thoughts. P. 354 U. S. 487.(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 354 U. S. 487-488.(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 354 U. S. 488-489.(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. Pp. 354 U. S. 489-490.5. When applied according to the proper standard for judging obscenity, 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," does not (1) violate the freedom of speech or press guaranteed by the First Amendment, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.6. When applied according to the proper standard for judging obscenity, § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to advertise material that is "obscene or indecent," does not (1) violate the freedom of speech or press guaranteed by the Fourteenth Amendment against encroachment by the States, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.7. The federal obscenity statute, 18 U.S.C. § 1461, punishing the use of the mails for obscene material, is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7, and it Page 354 U. S. 478 does not unconstitutionally encroach upon the powers reserved to the States by the Ninth and Tenth Amendments. Pp. 354 U. S. 492-493.8. The California obscenity statute here involved is not repugnant to Art. I, § 8, cl. 7, since it does not impose a burden upon, or interfere with, the federal postal functions -- even when applied to a mail-order business. Pp. 354 U. S. 493-494.237 F.2d 796, affirmed.138 Cal. App. 2d Supp. 909, 292 P.2d 90, affirmed. Page 354 U. S. 479

1976_76-63

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.In 1973, North Carolina enacted a statute which required, inter alia, all closed containers of apples sold, offered for sale, or shipped into the State to bear "no grade other than the applicable U.S. grade or standard." N.C.Gen.Stat. § 106-189.1 (1973). In an action brought by the Washington State Apple Advertising Commission, a three-judge Federal District Court invalidated the statute insofar as it prohibited the display of Washington State apple grades on the ground that it unconstitutionally discriminated against interstate commerce. Page 432 U. S. 336The specific questions presented on appeal are (a) whether the Commission had standing to bring this action; (b) if so, whether it satisfied the jurisdictional amount requirement of 28 U.S.C. § 1331; [Footnote 1] and (c) whether the challenged North Carolina statute constitutes an unconstitutional burden on interstate commerce.(1)Washington State is the Nation's largest producer of apples, its crops accounting for approximately 30% of all apples grown domestically and nearly half of all apples shipped in closed containers in interstate commerce. As might be expected, the production and sale of apples on this scale is a multimillion dollar enterprise which plays a significant role in Washington's economy. Because of the importance of the apple industry to the State, its legislature has undertaken to protect and enhance the reputation of Washington apples by establishing a stringent mandatory inspection program, administered by the State's Department of Agriculture, which requires all apples shipped in interstate commerce to be tested under strict quality standards and graded accordingly. In all cases, the Washington State grades, which have gained substantial acceptance in the trade, are the equivalent of, or superior to, the comparable grades and standards adopted by the United States Department of Agriculture (USDA). Compliance with the Washington inspection scheme costs the State's growers approximately $1 million each year.In addition to the inspection program, the state legislature has sought to enhance the market for Washington apples through the creation of a state agency, the Washington State Apple Advertising Commission, charged with the statutory Page 432 U. S. 337 duty of promoting and protecting the State's apple industry. The Commission itself is composed of 13 Washington apple growers and dealers who are nominated and elected within electoral districts by their fellow growers and dealers. Wash.Rev.Code §§ 15.24.020, 15.24.030 (1974). Among its activities are the promotion of Washington apples in both domestic and foreign markets through advertising, market research and analysis, and public education, as well as scientific research into the uses, development, and improvement of apples. Its activities are financed entirely by assessments levied upon the apple industry, § 15.24.100; in the year during which this litigation began, these assessments totaled approximately $1.75 million. The assessments, while initially fixed by statute, can be increased only upon the majority vote of the apple growers themselves. § 15.24.090.In 1972, the North Carolina Board of Agriculture adopted an administrative regulation, unique in the 50 States, which in effect required all closed containers of apples shipped into or sold in the State to display either the applicable USDA grade or a notice indicating no classification. State grades were expressly prohibited. [Footnote 2] In addition to its obvious consequence -- prohibiting the display of Washington State apple grades on containers of apples shipped into North Carolina, the regulation presented the Washington apple industry with a marketing problem of potentially nationwide significance. Washington apple growers annually ship in commerce approximately 40 million closed containers of apples, nearly 500,000 of which eventually find their way into North Carolina, stamped with the applicable Washington State variety Page 432 U. S. 338 and grade. It is the industry's practice to purchase these containers preprinted with the various apple varieties and grades, prior to harvest. After these containers re filled with apples of the appropriate type and grade, a substantial portion of them are placed in cold-storage warehouses where the grade labels identify the product and facilitate its handling. These apples are then shipped as needed throughout the year; after February 1 of each year, they constitute approximately two-thirds of all apples sold in fresh markets in this country. Since the ultimate destination of these apples is unknown at the time they are placed in storage, compliance with North Carolina's unique regulation would have required Washington growers to obliterate the printed labels on containers shipped to North Carolina, thus giving their product a damaged appearance. Alternatively, they could have changed their marketing practices to accommodate the needs of the North Carolina market, i.e., repack apples to be shipped to North Carolina in containers bearing only the USDA grade, and/or store the estimated portion of the harvest destined for that market in such special containers. As a last resort, they could discontinue the use of the preprinted containers entirely. None of these costly and less efficient options was very attractive to the industry. Moreover, in the event a number of other States followed North Carolina's lead, the resultant inability to display the Washington grades could force the Washington growers to abandon the State's expensive inspection and grading system which their customers had come to know and rely on over the 60-odd years of its existence.With these problems confronting the industry, the Washington State Apple Advertising Commission petitioned the North Carolina Board of Agriculture to amend its regulation to permit the display of state grades. An administrative hearing was held on the question, but no relief was granted. Page 432 U. S. 339 Indeed, North Carolina hardened its position shortly thereafter by enacting the regulation into law:"All apples sold, offered for sale or shipped into this State in closed containers shall bear on the container, bag or other receptacle, no grade other than the applicable U.S. grade or standard or the marking 'unclassified,' 'not graded' or 'grade not determined.'"N.C.Gen.Stat. § 106-189.1 (1973). Nonetheless, the Commission once again requested an exemption which would have permitted the Washington apple growers to display both the United States and the Washington State grades on their shipments to North Carolina. This request, to, was denied.Unsuccessful in its attempts to secure administrative relief, the Commission [Footnote 3] instituted this action challenging the constitutionality of the statute in the United States District Court for the Eastern District of North Carolina. Its complaint, which invoked the District Court's jurisdiction under 28 U.S.C. §§ 1331 and 1343, sought a declaration that the statute violated, inter alia, the Commerce Clause of the United States Constitution, Art. I, § 8, Cl. 3, insofar as it prohibited the display of Washington State grades, and prayed for a permanent injunction against its enforcement in this manner. A three-judge Federal District Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284 to consider the Commission's constitutional attack on the statute.After a hearing, the District Court granted the requested relief. 408 F. Supp. 857 (1976). At the outset, it held that the Commission had standing to challenge the statute both in its own right and on behalf of the Washington State growers and dealers, and that the $10,000 amount in controversy Page 432 U. S. 340 requirement of § 1331 had been satisfied. [Footnote 4] 408 F. Supp. at 858. Proceeding to the merits, the District Court found that the North Carolina statute, while neutral on its face, actually discriminated against Washington State growers and dealers in favor of their local counterparts. Id. at 860-861. This discrimination resulted from the fact that North Carolina, unlike Washington, had never established a grading and inspection system. Hence, the statute had no effect on the existing practices of North Carolina producers; they were still free to use the USDA grade or none at all. Washington growers and dealers, on the other hand, were forced to alter their long-established procedures, at substantial cost, or abandon the North Carolina market. The District Court then concluded that this discrimination against out-of-state competitors was not justified by the asserted local interest -- the elimination of deception and confusion from the marketplace -- arguably furthered by the statute. Indeed, it noted that the statute was "irrationally" drawn to accomplish that alleged goal, since it permitted the marketing of closed containers of apples without any grade at all. Id. at 861-862. The court therefore held that the statute unconstitutionally discriminated against commerce, insofar as it affected the interstate shipment of Washington apples, [Footnote 5] and enjoined its application. This appeal followed, and we postponed further consideration of the question of jurisdiction to the hearing of the case on the Page 432 U. S. 341 merits sub nom. Holshouser v. Washington State Apple Advertising Comm'n, 429 U.S. 814 (1976).(2)In this Court, as before, the North Carolina officials vigorously contest the Washington Commission's standing to prosecute this action, either in its own right, or on behalf of that State's apple industry which it purports to represent. At the outset, appellants maintain that the Commission lacks the "personal stake" in the outcome of this litigation essential to its invocation of federal court jurisdiction. Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962). The Commission, they point out, is a state agency, not itself engaged in the production and sale of Washington apples or their shipment into North Carolina. Rather, its North Carolina activities are limited to the promotion of Washington apples in that market through advertising. [Footnote 6] Appellants contend that the challenged statute has no impact on that activity, since it prohibits only the display of state apple grades on closed containers of apples. Indeed, since the statute imposed no restrictions on the advertisement of Washington apples or grades other than the labeling ban, which affects only those parties actually engaged in the apple trade, the Commission is said to be free to carry on the same activities that it engaged in prior to the regulatory program. Appellants therefore argue that the Commission suffers no injury, economic or otherwise, from the statute's operation, and, as a result, cannot make out the "case or controversy" between itself and the appellants needed to establish standing in the constitutional sense. E.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 429 U. S. 260-264 (1977); Warth v. Seldin, 422 U. S. 490, 422 U. S. 498-499 (1975). Moreover, appellants assert, the Commission cannot rely on Page 432 U. S. 342 the injuries which the statute allegedly inflicts individually or collectively on Washington apple growers and dealers in order to confer standing on itself. Those growers and dealers, appellants argue, are under no disabilities which prevent them from coming forward to protect their own rights if they are, in fact, injured by the statute's operation. In any event, appellants contend that the Commission is not a proper representative of industry interests. Although this Court has recognized that an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity, e.g., Warth v. Seldin, supra at 422 U. S. 511; National Motor Freight Assn. v. United States, 372 U. S. 246 (1963), the Commission is not a traditional voluntary membership organization such as a trade association, for it has no members at all. Thus, since the Commission has no members whose claims it might raise, and since it has suffered no "distinct and palpable injury" to itself, it can assert no more than an abstract concern for the wellbeing of the Washington apple industry as the basis for its standing. That type of interest, appellants argue, cannot "substitute for the concrete injury required by Art. III." Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 426 U. S. 40 (1976).If the Commission were a voluntary membership organization -- a typical trade association -- its standing to bring this action as the representative of its constituents would be clear under prior decisions of this Court. In Warth v. Seldin, supra, we stated:"Even in the absence of injury to itself, an association may have standing solely as the representative of its members. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. . . . So long as this can be established, and so long as the nature of the claim and Page 432 U. S. 343 of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association maybe an appropriate representative of its members, entitled to invoke the court's jurisdiction."422 U.S. at 422 U. S. 511. See also Simon v. Eastern Ky. Welfare Rights Org., supra at 426 U. S. 39-40; Meek v. Pittenger, 421 U. S. 349, 421 U. S. 355-35, n. 5 (1975); Sierra Club v. Morton, 405 U. S. 727, 405 U. S. 739 (1972); National Motor Freight Assn. v. United States, supra. We went on in Warth to elaborate on the type of relief that an association could properly pursue on behalf of its members:"[W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind."422 U.S. at 422 U. S. 515. Thus, we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.The prerequisites to "associational standing" described in Warth are clearly present here. The Commission's complaint alleged, and the District Court found as a fact, that the North Carolina statute had caused some Washington apple growers and dealers (a) to obliterate Washington State grades from the Page 432 U. S. 344 large volume of closed containers destined for the North Carolina market at a cost ranging from 5 to 15 cents per carton; (b) to abandon the use of preprinted containers, thus diminishing the efficiency of their marketing operations; or (c) to lose accounts in North Carolina. Such injuries are direct and sufficient to establish the requisite "case or controversy" between Washington apple producers and appellant. Moreover, the Commission's attempt to remedy these injuries and to secure the industry's right to publicize its grading system is central to the Commission's purpose of protecting and enhancing the market for Washington apples. Finally, neither the interstate commerce claim nor the request for declaratory and injunctive relief requires individualized proof, and both are thus properly resolved in a group context.The only question presented, therefore, is whether, on this record, the Commission's status as a state agency, rather than a traditional voluntary membership organization, precludes it from asserting the claims of the Washington apple growers and dealers who form its constituency. We think not. The Commission, while admittedly a state agency, for all practical purposes performs the functions of a traditional trade association representing the Washington apple industry. As previously noted, its purpose is the protection and promotion of the Washington apple industry; and, in the pursuit of that end, it has engaged in advertising, market research and analysis, public education campaigns, and scientific research. It thus serves a specialized segment of the State's economic community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation.Moreover, while the apple growers and dealers are not "members" of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization. They alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, Page 432 U. S. 345 through assessments levied upon them. In a very real sense, therefore, the Commission represents the State's growers and dealers and provides the means by which they express their collective views and protect their collective interests. Nor do we find it significant in determining whether the Commission may properly represent its constituency that "membership" is "compelled" in the form of mandatory assessments. Membership in a union, or its equivalent, is often required. Likewise, membership in a bar association, which may also be an agency of the State, is often a prerequisite to the practice of law. Yet in neither instance would it be reasonable to suggest that such an organization lacked standing to assert the claims of its constituents.Finally, we note that the interests of the Commission itself may be adversely affected by the outcome of this litigation. The annual assessments paid to the Commission are tied to the volume of apples grown and packaged as "Washington Apples." In the event the North Carolina statute results in a contraction of the market for Washington apples or prevents any market expansion that might otherwise occur, it could reduce the amount of the assessments due the Commission and used to support its activities. This financial nexus between the interests of the Commission and its constituents coalesces with the other factors noted above to"assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."Baker v. Carr, 369 U.S. at 369 U. S. 204; see also NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 459-460 (1958).Under the circumstances presented here, it would exalt form over substance to differentiate between the Washington Commission and a traditional trade association representing the individual growers and dealers who collectively form its constituency. We therefore agree with the District Court that the Commission has standing to bring this action in a representational capacity. Page 432 U. S. 346(3)We turn next to the appellants' claim that the Commission has failed to satisfy the $10,000 amount in controversy requirement of 28 U.S.C. § 1331. As to this, the appellants maintain that the Commission itself has not demonstrated that its right to be free of the restrictions imposed by the challenged statute is worth more than the requisite $10,000. Indeed, they argue that the Commission has made no real effort to do so, but has instead attempted to rely on the actual and threatened injury to the individual Washington apple growers and dealers upon whom the statute has a direct impact. This, they claim, it cannot do, for those growers and dealers are not parties to this litigation. Alternatively, appellants argue that even if the Commission can properly rely on the claims of the individual growers and dealers, it cannot establish the required jurisdictional amount without aggregating those claims. Such aggregation, they argue, is impermissible under this Court's decisions in Snyder v. Harris, 394 U. S. 332 (1969), and Zahn v. International Paper Co., 414 U. S. 291 (1973).Our determination that the Commission has standing to assert the rights of the individual growers and dealers in a representational capacity disposes of the appellants' first contention. Obviously, if the Commission has standing to litigate the claims of its constituents, it may also rely on them to meet the requisite amount in controversy. Hence, we proceed to the question of whether those claims were sufficient to confer subject matter jurisdiction on the District Court. In resolving this issue, we have found it unnecessary to reach the aggregation question posed by the appellants, for it does not appear to us "to a legal certainty" that the claims of at least some of the individual growers and dealers will not amount to the required $10,000. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 303 U. S. 288-289 (1938). Page 432 U. S. 347In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation. E g., McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 298 U. S. 181 (1936); Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U. S. 121, 239 U. S. 126 (1915); Hunt v. New York Cotton Exchange, 205 U. S. 322, 205 U. S. 336 (1907); 1 J. Moore, Federal Practice �� 0.95, 0.96 (2d ed.1975); C. Wright, A Miller, & E. Cooper, Federal Practice & Procedure § 3708 (1976). Here, that object is the right of the individual Washington apple growers and dealers to conduct their business affairs in the North Carolina market free from the interference of the challenged statute. The value of that right is measured by the losses that will follow from the statute's enforcement. McNutt, supra at 298 U. S. 181; Buck v. Gallagher, 307 U. S. 95, 307 U. S. 100 (1939); Kroger Grocery & Baking Co. v. Lutz, 299 U. S. 300, 299 U. S. 301 (1936); Packard v. Banton, 264 U. S. 140, 264 U. S. 142 (1924).Here the record demonstrates that the growers and dealers have suffered and will continue to suffer losses of various types. For example, there is evidence supporting the District Court's finding that individual growers and shippers lost accounts in North Carolina as a direct result of the statute. Obviously, those lost sales could lead to diminished profits. There is also evidence to support the finding that individual growers and dealers incurred substantial costs in complying with the statute. As previously noted, the statute caused some growers and dealers to manually obliterate the Washington grades from closed containers to be shipped to North Carolina at a cost of from 5 to 15 cents per carton. Other dealers decided to alter their marketing practices, not without cost, by repacking apples or abandoning the use of preprinted containers entirely, among other things. Such costs of compliance are properly considered in computing the amount in controversy. Buck v. Gallagher, supra; Packard v. Banton, supra; Allway Taxi, Inc. v. New York, 340 F. Supp. 1120 Page 432 U. S. 348 (SDNY), aff'd; 468 F.2d 624 (CA2 1972). In addition, the statute deprived the growers and dealers of their rights to utilize most effectively the Washington State grades which, the record demonstrates, were of long-standing and had gained wide acceptance in the trade. The competitive advantages thus lost could not be regained without incurring additional costs in the form of advertising, etc. Cf. Spock v. David, 502 F.2d 953, 956 (CA3 1974), rev'd on other grounds, 424 U. S. 828 (1976). Moreover, since many apples eventually shipped to North Carolina will have already gone through the expensive inspection and grading procedure, the challenged statute will have the additional effect of causing growers and dealers to incur inspection costs unnecessarily.Both the substantial volume of sales in North Carolina -- the record demonstrates that in 1974 alone, such sales were in excess of $2 million [Footnote 7] -- and the continuing nature of the statute's interference with the business affairs of the Commission's constituents, preclude our saying "to a legal certainty," on this record, that such losses and expenses will not, over time, if they have not done so already, amount to the requisite $10,000 for at least some of the individual growers and dealers. That is sufficient to sustain the District Court's jurisdiction. The requirements of § 1331 are therefore met.(4)We turn finally to the appellants' claim that the District Court erred in holding that the North Carolina statute violated the Commerce Clause insofar as it prohibited the display of Washington State grades on closed containers of apples shipped into the State. Appellants do not really contest the District Court's determination that the challenged statute burdened the Washington apple industry by increasing its Page 432 U. S. 349 costs of doing business in the North Carolina market and causing it to lose accounts there. Rather, they maintain that any such burdens on the interstate sale of Washington apples were far outweighed by the local benefits flowing from what they contend was a valid exercise of North Carolina's inherent police powers designed to protect its citizenry from fraud and deception in the marketing of apples.Prior to the statute's enactment, appellants point out, apples from 13 different States were shipped into North Carolina for sale. Seven of those States, including the State of Washington, had their own grading systems which, while differing in their standards, used similar descriptive labels (e.g., fancy, extra fancy, etc.). This multiplicity of inconsistent state grades, as the District Court itself found, posed dangers of deception and confusion not only in the North Carolina market, but in the Nation as a whole. The North Carolina statute, appellants claim, was enacted to eliminate this source of deception and confusion by replacing the numerous state grades with a single uniform standard. Moreover, it is contended that North Carolina sought to accomplish this goal of uniformity in an evenhanded manner as evidenced by the fact that its statute applies to all apples sold in closed containers in the State without regard to their point of origin. Nonetheless, appellants argue that the District Court gave "scant attention" to the obvious benefits flowing from the challenged legislation and to the long line of decisions from this Court holding that the States possess "broad powers" to protect local purchasers from fraud and deception in the marketing of foodstuffs. E.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963); Pacific States Box & Basket Co. v. White, 296 U. S. 176 (1935); Corn Products Refining Co. v. Eddy, 249 U. S. 427 (1919).As the appellants properly point out, not every exercise of state authority imposing some burden on the free flow of commerce is invalid. E.g., 424 U. S. Page 432 U. S. 350 v. Cottrell, 424 U. S. 366, 424 U. S. 371 (1976); Freeman v. Hewit, 329 U. S. 249, 329 U. S. 252 (1946). Although the Commerce Clause acts as a limitation upon state power even without congressional implementation, e.g., Great Atlantic & Pacific Tea Co., supra at 424 U. S. 370-371; Freeman v. Hewit, supra at 329 U. S. 252; Cooley v. Board of Wardens, 12 How. 299 (1852), our opinions have long recognized that,"in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it."Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 325 U. S. 767 (1945). Moreover, as appellants correctly note, that "residuum" is particularly strong when the State acts to protect its citizenry in matters pertaining to the sale of foodstuffs. Florida Lime & Avocado Growers, Inc., supra at 373 U. S. 146. By the same token, however, a finding that state legislation furthers matters of legitimate local concern, even in the health and consumer protection areas, does not end the inquiry. Such a view, we have noted,"would mean that the Commerce Clause of itself imposes no limitations on state action . . . save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods."Dean Milk Co v. Madison, 340 U. S. 349, 340 U. S. 354 (1951). Rather, when such state legislation comes into conflict with the Commerce Clause's overriding requirement of a national "common market," we are confronted with the task of effecting an accommodation of the competing national and local interests. Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 142 (1970); Great Atlantic & Pacific Tea Co., supra at 424 U. S. 370-372. We turn to that task.As the District Court correctly found, the challenged statute has the practical effect of not only burdening interstate sales of Washington apples, but also discriminating against them. This discrimination takes various forms. The first, and most Page 432 U. S. 351 obvious, is the statute's consequence of raising the costs of doing business in the North Carolina market for Washington apple growers and dealers, while leaving those of their North Carolina counterparts unaffected. As previously noted, this disparate effect results from the fact that North Carolina apple producers, unlike their Washington competitors, were not forced to alter their marketing practices in order to comply with the statute. They were still free to market their wares under the USDA grade or none at all, as they had done prior to the statute's enactment. Obviously, the increased costs imposed by the statute would tend to shield the local apple industry from the competition of Washington apple growers and dealers who are already at a competitive disadvantage because of their great distance from the North Carolina market.Second, the statute has the effect of stripping away from the Washington apple industry the competitive and economic advantages it has earned for itself through its expensive inspection and grading system. The record demonstrates that the Washington apple grading system has gained nationwide acceptance in the apple trade. Indeed, it contains numerous affidavits from apple brokers and dealers located both inside and outside of North Carolina who state their preference, and that of their customers, for apples graded under the Washington, as opposed to the USDA, system because of the former's greater consistency, its emphasis on color, and its supporting mandatory inspections. Once again, the statute had no similar impact on the North Carolina apple industry, and thus operated to its benefit.Third, by prohibiting Washington growers and dealers from marketing apples under their State's grades, the statute has a leveling effect which insidiously operates to the advantage of local apple producers. As noted earlier, the Washington State grades are equal or superior to the USDA grades in all corresponding categories. Hence, with free market forces at Page 432 U. S. 352 work, Washington sellers would normally enjoy a distinct market advantage vis-a-vis local producers in those categories where the Washington grade is superior. However, because of the statute's operation, Washington apples which would otherwise qualify for and be sold under the superior Washington grades will now have to be marketed under their inferior USDA counterparts. Such "downgrading" offers the North Carolina apple industry the very sort of protection against competing out-of-state products that the Commerce Clause was designed to prohibit. At worst, it will have the effect of an embargo against those Washington apples in the superior grades as Washington dealers withhold them from the North Carolina market. At best, it will deprive Washington sellers of the market premium that such apples would otherwise command.Despite the statute's facial neutrality, the Commission suggests that its discriminatory impact on interstate commerce was not an unintended byproduct, and there are some indications in the record to that effect. The most glaring is the response of the North Carolina Agriculture Commissioner to the Commission's request for an exemption following the statute's passage in which he indicated that, before he could support such an exemption, he would "want to have the sentiment from our apple producers, since they were mainly responsible for this legislation being passed. . . ." App. 21 (emphasis added). Moreover, we find it somewhat suspect that North Carolina singled out only closed containers of apples, the very means by which apples are transported in commerce, to effectuate the statute's ostensible consumer protection purpose when apples are not generally sold at retail in their shipping containers. However, we need not ascribe an economic protection motive to the North Carolina Legislature to resolve this case; we conclude that the challenged statute cannot stand insofar as it prohibits the Page 432 U. S. 353 display of Washington State grades even if enacted for the declared purpose of protecting consumers from deception and fraud in the marketplace.When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake. Dean Milk Co. v. Madison, 340 U.S. at 340 U. S. 354. See also Great Atlantic & Pacific Tea Co., 424 U.S. at 424 U. S. 373; Pike v. Bruce Church, Inc., 397 U.S. at 397 U. S. 142; Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361, 375 U. S. 375 n. 9 (1964); Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 294 U. S. 524 (1935). North Carolina has failed to sustain that burden on both scores.The several States unquestionably possess a substantial interest in protecting their citizens from confusion and deception in the marketing of foodstuffs, but the challenged statute does remarkably little to further that laudable goal, at least with respect to Washington apples and grades. The statute, as already noted, permits the marketing of closed containers of apples under no grades at all. Such a result can hardly be thought to eliminate the problems of deception and confusion created by the multiplicity of differing state grades; indeed, it magnifies them by depriving purchasers of all information concerning the quality of the contents of closed apple containers. Moreover, although the statute is ostensibly a consumer protection measure, it directs its primary efforts not at the consuming public at large, but at apple wholesalers and brokers who are the principal purchasers of closed containers of apples. And those individuals are presumably the most knowledgeable individuals in this area. Since the statute does nothing at all to purify the flow of information at the retail level, it does little to protect consumers against the problems it was designed to eliminate. Finally, we note that any potential Page 432 U. S. 354 for confusion and deception created by the Washington grades [Footnote 8] was not of the type that led to the statute's enactment. Since Washington grades are in all cases equal or superior to their USDA counterparts, they could only "deceive" or "confuse" a consumer to his benefit, hardly a harmful result.In addition, it appears that nondiscriminatory alternatives to the outright ban of Washington State grades are readily available. For example, North Carolina could effectuate its goal by permitting out-of-state growers to utilize state grades only if they also marked their shipments with the applicable USDA label. In that case, the USDA grade would serve as a benchmark against which the consumer could evaluate the quality of the various state grades. If this alternative was for some reason inadequate to eradicate problems caused by state grades inferior to those adopted by the USDA, North Carolina might consider banning those state grades which, unlike Washington's, could not be demonstrated to be equal or superior to the corresponding USDA categories. Concededly, even in this latter instance, some potential for "confusion" might persist. However, it is the type of "confusion" that the national interest in the free flow of goods between the States demands be tolerated. [Footnote 9]The judgment of the District Court isAffirmed

U.S. Supreme CourtHunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977)Hunt v. Washington State Apple Advertising CommissionNo. 76-63Argued February 22, 1977Decided June 20, 1977432 U.S. 333SyllabusAppellee, a statutory agency for the promotion and protection of the Washington State apple industry and composed of 13 state growers and dealers chosen from electoral districts by their fellow growers and dealers, all of whom by mandatory assessments finance appellee's operations, brought this suit challenging the constitutionality of a North Carolina statute requiring that all apples sold or shipped into North Carolina in closed containers be identified by no grade on the containers other than the applicable federal grade or a designation that the apples are not graded. A three-judge District Court granted the requested injunctive and declaratory relief, holding that appellee had standing to challenge the statute, that the $10,000 jurisdictional amount of 28 U.S.C. § 1331 was satisfied, and that the challenged statute unconstitutionally discriminated against commerce insofar as it affected the interstate shipment of Washington apples.Held:1. Appellee has standing to bring this action in a representational capacity. Pp. 341-345.(a) An association has standing to bring suit on behalf of its members when (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation in the lawsuit of each of the individual members. Warth v. Seldin, 422 U. S. 490. Pp. 432 U. S. 342-343.(b) The prerequisites to associational standing described in Warth are clearly present here: (1) At the risk of otherwise losing North Carolina accounts, some Washington apple growers and dealers had (at a per-container cost of 5� to 15�) obliterated Washington State grades from the large volume of North Carolina-bound containers; and they had stopped using preprinted containers, thus diminishing the efficiency of their marketing operations; (2) appellee's attempt to remedy these injuries is central to its purpose of protecting and enhancing the Washington apple market; and (3) neither appellee's constitutional claim nor the relief requested requires individualized proof. Pp. 432 U. S. 343-344. Page 432 U. S. 334(c) Though appellee is a state agency, it is not, on that account, precluded from asserting the claims of the State's apple growers and dealers, since, for all practical purposes, appellee performs the functions of a traditional trade association. While the apple growers are not "members" of appellee in the traditional trade association sense, they possess all the indicia of organization membership (viz., electing the members, being the only ones to serve on the Commission, and financing its activities), and it is of no consequence that membership assessments are mandatory. Pp. 432 U. S. 344-345.(d) Appellee's own interests may be adversely affected by the outcome of this litigation, since the annual assessments that are used to support its activities and which are tied to the production of Washington apples could be reduced if the market for those apples declines as a result of the North Carolina statute. P. 432 U. S. 345.2. The requirements of § 1331 are satisfied. Since appellee has standing to litigate its constituents' claims, it may rely on them to meet the requisite amount of $10,000 in controversy. And it does not appear "to a legal certainty" that the claims of at least some of the individual growers and dealers will not come to that amount in view of the substantial annual sales volume of Washington apples in North Carolina (over $2 million) and the continuing nature of the statute's interference with the Washington apple industry, coupled with the evidence in the record that growers and dealers have suffered and will continue to suffer losses of various types from the operation of the challenged statute. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283. Pp. 432 U. S. 346-348.3. The North Carolina statute violates the Commerce Clause by burdening and discriminating against the interstate sale of Washington apples. Pp. 432 U. S. 348-354.(a) The statute raises the costs of doing business in the North Carolina market for Washington growers and dealers while leaving unaffected their North Carolina counterparts, who were still free to market apples under the federal grade or none at all. Pp. 432 U.S. 350-351.(b) The statute strips the Washington apple industry of the competitive and economic advantages it has earned for itself by an expensive, stringent mandatory state inspection and grading system that exceeds federal requirements. By requiring Washington apples to be sold under the inferior grades of their federal counterparts, the North Carolina statute offers the North Carolina apple industry the very sort of protection against out-of-state competition that the Commerce Clause was designed to prohibit. Pp. 432 U. S. 351-352. Page 432 U. S. 335(c) Even if the statute was not intended to be discriminatory and was enacted for the declared purpose of protecting consumers from deception and fraud because of the multiplicity of state grades, the statute does remarkably little to further that goal, at least with respect to Washington apples and grades, for it permits marketing of apples in closed containers under no grades at all, and does nothing to purify the flow of information at the retail level. Moreover, Washington grades could not have led to the type of deception at which the statute was assertedly aimed, since those grades equal or surpass the comparable federal standards. Pp. 432 U. S. 352-354.(d) Nondiscriminatory alternatives to the outright ban of Washington State grades are readily available. P. 432 U. S. 354.408 F. Supp. 857, affirmed.BURGER, C.J., delivered the opinion of the Court, in which all Members joined except REHNQUIST, J., who took no part in the consideration or decision of the case.

1981_81-411

JUSTICE BLACKMUN delivered the opinion of the Court.Under § 13(c) of the Urban Mass Transportation Act of 1964 (Act or UMTA), 78 Stat. 307, as amended, 49 U.S.C. § 1609(c), [Footnote 1] a state or local government must make arrangements to preserve transit workers' existing collective bargaining rights before that government may receive federal financial assistance for the acquisition of a privately owned transit company. This case presents the issue whether § 13(c), by itself, permits a union to sue in federal court for alleged violations of an arrangement of this kind or of the collective bargaining agreement between the union and the local government transit authority. Page 457 U. S. 17IAWhen the Act was under consideration in the Congress, that body was aware of the increasingly precarious financial condition of a number of private transportation companies across the country, and it feared that communities might be left without adequate mass transportation. See S.Rep. No. 82, 88th Cong., 1st Sess., 4-5, 19-20 (1963). The Act was designed in part to provide federal aid for local governments in acquiring failing private transit companies so that communities could continue to receive the benefits of mass transportation despite the collapse of the private operations. See §§ 2(b) and 3, as amended, 49 U.S.C. §§ 1601(b) and 1602.At the same time, however, Congress was aware that public ownership might threaten existing collective bargaining rights of unionized transit workers employed by private companies. If, for example, state law forbade collective bargaining by state and local government employees, the workers might lose their collective bargaining rights when a private company was acquired by a local government. See Urban Mass Transportation -- 1963, Hearings on S. 6 and S. 917 before a Subcommittee of the Senate Committee on Banking and Currency, 88th Cong., 1st Sess., 318-323 (1963) (Senate Hearings) (statement of Andrew J. Biemiller, Director, Department. of Legislation, AFL-CIO). To prevent federal funds from being used to destroy the collective bargaining rights of organized workers, Congress included § 13(c) in the Act. See H.R.Rep. No. 204, 88th Cong., 1st Sess., 15-16 (1963).Section 13(c) requires, as a condition of federal assistance under the Act, that the Secretary of Labor certify that "fair and equitable arrangements" have been made "to protect the interests of employees affected by [the] assistance." The statute lists several protective steps that must be taken before a local government may receive federal aid; among these Page 457 U. S. 18 are the preservation of benefits under existing collective bargaining agreements and the continuation of collective bargaining rights. The protective arrangements must be specified in the contract granting federal aid. [Footnote 2]BIn 1966, petitioner city of Jackson, Tenn., applied for federal aid to convert a failing private bus company into a public entity, petitioner Jackson Transit Authority. See App. 12a-16a. In order to satisfy § 13(c), the Authority so created entered into a "§ 13(c) agreement" with respondent Local Division 125, Amalgamated Transit Union, AFL-CIC-CLC, the union that represented the private company's employees. See 29 CFR pt. 215 (1981). Among other things, the § 13(c) agreement guaranteed the preservation of the transit workers' collective bargaining rights. App. 16a-20a. The Secretary of Labor certified that the agreement was "fair and equitable." Its substance was made a part of the grant contract between the city and the United States, and the city received approximately $279,000 in federal aid. Page 457 U. S. 19Thereafter, until 1975, the Authority's unionized workers were covered by a series of collective bargaining agreements. Six months after a new 3-year collective bargaining agreement was signed in 1975, see id. at 31a, however, the Authority notified the union that it no longer considered itself bound by that contract. See id. at 45a. [Footnote 3]Ultimately, the union filed suit in the United States District Court for the Western District of Tennessee. It sought damages and injunctive relief, alleging that petitioners had breached the § 13(c) agreement and the collective bargaining contract. App. 8a, 10a-11a. [Footnote 4] The District Court concluded that it lacked subject matter jurisdiction to hear the suit because the complaint rested on contract rights that should be enforced only in a state court. 447 F. Supp. 88 (1977).The United States Court of Appeals for the Sixth Circuit reversed. 650 F.2d 1379 (1981). Relying on Bell v. Hood, 327 U. S. 678 (1946), that court first determined that it had subject matter jurisdiction under 28 U.S.C. § 1331, because the union's claim arose under the laws of the United States, Page 457 U. S. 20 specifically § 13(c). The court then held that § 13(c) implicitly provides a federal private right of action. Section 13(c) reflects national labor policy, the Court of Appeals reasoned, and the rights protected by the statute are thus federal rights. The court concluded that it was consistent with the congressional intent behind § 13(c) to permit enforcement of these federal rights in federal court.Because of the importance of the interpretation of § 13(c) for local transit labor relations, [Footnote 5] we granted certiorari. 454 U.S. 1079 (1981).IIWhile the Court of Appeals treated this as a private right of action case, see, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 (1982), it does not fit comfortably in that mold. Indeed, since § 13(c) contemplates protective arrangements between grant recipients and unions as well as subsequent collective bargaining agreements between those parties, see H.R.Rep. No. 204, 88th Cong., 1st Sess., 16 (1963), it is reasonable to conclude that Congress expected the § 13(c) agreement and the collective bargaining agreement, like ordinary contracts, to be enforceable Page 457 U. S. 21 by private suit upon a breach. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 444 U. S. 119 (1979). The gist of the union's position is not that § 13(c) creates an implied right of action to sue for violations of the statute. Instead, the union argues that"[i]t was the intent of Congress that federal law would determine the binding effect of labor protective agreements under § 13(c) and of the collective bargaining agreements reached pursuant to § 13(c) between unions and recipients of UMTA funds"so that those agreements "are enforceable in the federal courts." Brief for Respondent 24.The issue, then, is not whether Congress intended the union to be able to bring contract actions for breaches of the two contracts, but whether Congress intended such contract actions to set forth federal, rather than state, claims. Admittedly, since the private right of action decisions address the related question whether Congress intended that a particular party be able to bring suit under a federal statute, those decisions may provide assistance in resolving this case. But the precise question before us is whether the union's contract actions are federal causes of action, not whether the union can bring suit at all to enforce its contracts. See Local Div. 72, Amalgamated Transit Union v. Metropolitan Atlanta Rapid Transit Authority, 667 F.2d 1327, 1329-1334 (CA11 1982). [Footnote 6] Page 457 U. S. 22As the union points out, on several occasions, the Court has determined that a plaintiff stated a federal claim when he sued to vindicate contractual rights set forth by federal statutes, despite the fact that the relevant statutes lacked express provisions creating federal causes of action. In Machinists v. Central Airlines, Inc., 372 U. S. 682 (1963), the Court held that a union had a federal cause of action to enforce an award of an airline adjustment board included in a collective bargaining contract pursuant to § 204 of the Railway Labor Act, 45 U.S.C. § 184 (1958 ed.). Similarly, in Norfolk & Western R. Co. v. Nemitz, 404 U. S. 37 (1971), the Court ruled that a railroad's employees made out federal claims when they sought to enforce assurances made by the railroad to secure the Interstate Commerce Commission's approval of a consolidation under a provision of the Interstate Commerce Act, 49 U.S.C. § 5(2)(f) (1970 ed.). And recently, in an analogous private right of action decision, the Court permitted a federal suit for rescission of a contract declared void by § 215 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-15, although the statute itself made no express provision for private suits. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at 444 U. S. 119. See also Mills v. Electric Auto-Lite Co., 396 U. S. 375, 396 U. S. 388 (1970) (recognizing federal right to rescind contracts rendered void by § 29(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(b)); American Surety Co. v. Shulz, 237 U. S. 159 (1915) (finding federal question jurisdiction to hear suit on supersedeas bond required by Rev.Stat. § 1007).These decisions demonstrate that suits to enforce contracts contemplated by federal statutes may set forth federal claims, and that private parties, in appropriate cases, may sue in federal court to enforce contractual rights created by federal statutes. But they do not dictate the result in this case. Whenever we determine the scope of rights and remedies under a federal statute, the critical factor is the congressional intent behind the particular provision at issue. See, e.g., Page 457 U. S. 23 Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at 444 U. S. 18; Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 688 (1979); Machinists v. Central Airlines, Inc., 372 U.S. at 372 U. S. 685-692; see also n 9, infra. Thus, if Congress intended that § 13(c) agreements and collective bargaining agreements be "creations of federal law," Machinists v. Central Airlines, Inc., 372 U.S. at 372 U. S. 692, and that the rights and duties contained in those contracts be federal in nature, see id. at 372 U. S. 695, then the union's suit states federal claims. Otherwise, the union's complaint presents only state law claims. See Miree v. De Kalb County, 433 U. S. 25 (1977).IIIWe begin with the language of the statute itself. See, e.g., Universities Research Assn., Inc. v. Coutu, 450 U. S. 754, 450 U. S. 771 (1981). The bare language of § 13(c) is not conclusive. In some ways, the statute seems to make § 13(c) agreements and collective bargaining contracts creatures of federal law. Section 13(c) demands "fair and equitable arrangements" as prerequisites for federal aid; it requires the approval of the Secretary of Labor for those arrangements; it specifies five different varieties of protective provisions that must be included among the 13(c) arrangements; and it expressly incorporates the protective arrangements into the grant contract between the recipient and the Federal Government. [Footnote 7] See n 2, supra. On the other hand, labor relations between local governments and their employees are the subject of a longstanding statutory exemption from the National Labor Relations Act. 29 U.S.C. § 152(2). Section 13(c) evinces no congressional intent to upset the decision in the National Labor Relations Act to permit state law to govern the relationships Page 457 U. S. 24between local governmental entities and the unions representing their employees. See Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975) (noting reluctance to permit suit in federal court when "the cause of action [is] one traditionally relegated to state law").While the statutory language supplies no definitive answer, the legislative history is conclusive. A consistent theme runs throughout the consideration of § 13(c): Congress intended that labor relations between transit workers and local governments would be controlled by state law.In 1963, Secretary of Labor Wirtz presented the original version of § 13(c) to the relevant House and Senate Committees. Before both Committees, Members of Congress expressed concern about the effect of the statute on state laws. And Secretary Wirtz explained to both Committees that, while attempts would be made to accommodate state law to the preservation of collective bargaining rights, state law would control local transit labor relations. The Secretary told the House Committee that "this proposal is submitted on this basis, . . . that the State laws must control." Urban Mass Transportation Act of 1963, Hearings on H.R. 3881 before the House Committee on Banking and Currency, 88th Cong., 1st Sess., 482 (1963) (House Hearings). A Committee member raised the issue again; the Secretary repeated that "State laws would be controlling in the situation," though he suggested that there "would be few, if any, situations" where state law and § 13(c) could not be reconciled. House Hearings, at 486. When similar concerns were expressed during his testimony before the Senate Committee, the Secretary reiterated: "I should like it quite clear that I think that there could be no superseding here of the State law." Senate Hearings at 313.The House and Senate Reports took the Secretary at his word. The House Report advised that § 13(c) would ensure protection of the interests of workers, but that,"subject to the basic standards set forth in the bill, specific conditions for worker protection will normally be the product of local bargaining Page 457 U. S. 25 and negotiation."H.R.Rep. No. 204, 88th Cong., 1st Sess., 16 (1963). The Senate Report was more direct:"In regard to the question as to whether these provisions would supersede State labor laws, the committee concurs in a statement made by the Secretary of Labor 'that there could be no superseding of State laws by a provision of this kind.'"S.Rep. No. 82, 88th Cong., 1st Sess., 29 (1963).During the debates, the role of state law under § 13(c) was discussed at length. Senators Goldwater and Tower suggested that § 13(c) would supplant state law with federal law. 109 Cong.Rec. 5416 (1963). Senator Williams, one of the bill's chief sponsors, replied: "The legislative history has to be corrected" because"we must have a record that will show that the bill does not preempt State law; it does not control or dominate with irrevocable authority local situations."Id. at 5417. The proposed statute, Senator Williams continued, would not "preempt or be a substitute for State law." Ibid. Senator Goldwater remained adamant that "we are attempting a major alteration in the Nation's labor laws." Id. at 5418. But Senator Sparkman, the Chairman of the Senate Committee, repeated the Secretary's assurance that § 13(c) "will not supersede or displace or override" state law. 109 Cong.Rec. 5418 (1963). [Footnote 8] Page 457 U. S. 26The Senate returned to the issue during a colloquy between Senator Goldwater and Senator Morse. Senator Goldwater feared that the proposed statute would override state laws denying public employees the right to strike. Id. at 5673. Senator Morse assured Senator Goldwater otherwise that "the State law would supervene." Ibid. When Senator Goldwater inquired about state laws other than those concerning the right to strike, Senator Morse replied in the same vein: "The amendment does not supersede any State policy." Ibid. .In an important exchange, Senator Goldwater noted that local government employers were excluded from the coverage of the National Labor Relations Act, see 29 U.S.C. § 152(2), and asked whether § 13(c) would be inconsistent with that exclusion. 109 Cong.Rec. 5673-5674 (1963). Senator Morse responded that the language of the bill "make[s] it clear that the Taft-Hartley exemptions are not changed by the amendment." Id. at 5674. See also id. at 5422 (remarks of Sen. Javits) (state law could not be overridden "under any phase of the Taft-Hartley law"). Senator Morse underscored the purpose of the amendment:"I cannot emphasize the point more than I already have done in the legislative history in our debate. It deals with municipal and State problems, and not Federal problems."Id. at 5674. Finally, Senator Goldwater asked whether state law would control if there were no specific state law forbidding strikes by public employees. Senator Morse adhered to the same course: "In the absence of any local law, it would be for the State court to decide whether [the employees] had that right." Ibid.A similar, but more abbreviated, interchange took place on the House floor. When some Congressmen questioned the effect of § 13(c) on state law, they were reassured by Congressman Multer that "[n]othing in this bill . . . will infringe upon local law, whether it be of a State or municipality." 110 Page 457 U. S. 27 Cong.Rec. 14980 (1964). And Congressman Rains repeated, "there is not one line in this bill that would vitiate in any way any State or local law." Ibid.Thus, Congress made it absolutely clear that it did not intend to create a body of federal law applicable to labor relations between local governmental entities and transit workers. [Footnote 9] Section 13(c) would not supersede state law, it would leave intact the exclusion of local government employers from the National Labor Relations Act, and state courts would retain jurisdiction to determine the application of state policy to local government transit labor relations. Congress intended that § 13(c) would be an important tool to protect the collective bargaining rights of transit workers, by ensuring that state law preserved their rights before federal aid Page 457 U. S. 28 could be used to convert private companies into public entities. [Footnote 10] See 109 Cong.Rec. 5673 (1963) (remarks of Sen. Morse) (if city proposed to reject collective bargaining, it would be ineligible for federal aid). But Congress designed § 13(c) as a means to accommodate state law to collective bargaining, not as a means to substitute a federal law of collective bargaining for state labor law. [Footnote 11] Page 457 U. S. 29IVGiven this explicit legislative history, we cannot read § 13(c) to create federal causes of action for breaches of § 13(c) agreements and collective bargaining contracts between UMTA aid recipients and transit unions. [Footnote 12] The legislative history indicates that Congress intended those contracts to be governed by state law applied in state courts. [Footnote 13]Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtJackson Transit Auth. v. Transit Union, 457 U.S. 15 (1982)Jackson Transit Authority v. Local Division 1285,Amalgamated Transit Union, AFL-CIO-CLCNo. 81 111Argued April 21, 1982Decided June 7, 1982457 U.S. 15SyllabusSection 13(c) of the Urban Mass Transportation Act of 1964 requires a state or local government to make arrangements to preserve transit workers' existing collective bargaining rights before that government may receive federal financial assistance for the acquisition of a privately owned transit company. Petitioner city entered into a "§ 13(c) agreement" with respondent transit union in order to obtain federal funds to acquire a failing private bus company and convert it into petitioner Jackson Transit Authority. Thereafter, the Authority's unionized workers were covered by a series of collective bargaining agreements. In 1975, however, the Authority notified the union that it no longer considered itself bound by the newest of the collective bargaining agreements. The union subsequently filed suit in Federal District Court, seeking damages and injunctive relief and alleging that petitioners had breached the § 13(c) and collective bargaining agreements. The District Court held that it lacked subject matter jurisdiction because the complaint rested on contract rights that should be enforced only in a state court. The Court of Appeals reversed, holding that there was subject matter jurisdiction because the claim arose under a federal law, specifically § 13(c), and that § 13(c) implicitly provided a federal private right of action.Held: Section 13(c) does not provide the union with federal causes of action for alleged breaches of the § 13(c) and collective bargaining agreements. While § 13(c)'s language supplies no definitive answer, the legislative history is conclusive that Congress intended that such agreements be governed by state law applied in state courts. Congress designed § 13(c) as a means to accommodate state law to collective bargaining, not as a means to substitute a federal law of collective bargaining for state labor law. Pp. 457 U. S. 20-29.650 F.2d 1379, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court. POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 457 U. S. 29. Page 457 U. S. 16

1986_86-71

JUSTICE POWELL delivered the opinion of the Court.These cases present the questions whether the Control Share Acquisitions Chapter of the Indiana Business Corporation Law, Ind.Code § 23-1-42-1 et seq. (Supp.1986), is preempted by the Williams Act, 82 Stat. 454, as amended, 15 U.S.C. §§ 78m(d)-(e) and 78n(d)-(f) (1982 ed. and Supp. III), or violates the Commerce Clause of the Federal Constitution, Art. I, § 8, cl. 3.IAOn March 4, 1986, the Governor of Indiana signed a revised Indiana Business Corporation Law, Ind.Code § 23-1-17-1 et seq. (Supp.1986). That law included the Control Share Acquisitions Chapter (Indiana Act or Act). Beginning on August 1, 1987, the Act will apply to any corporation incorporated in Indiana, § 23-1-17-3(a), unless the corporation amends its articles of incorporation or bylaws to opt out of the Act, § 23-1-42-5. Before that date, any Indiana corporation can opt into the Act by resolution of its board of directors. § 23-1-17-3(b). The Act applies only to "issuing Page 481 U. S. 73 public corporations." The term "corporation" includes only businesses incorporated in Indiana. See § 23-1-20-5. An "issuing public corporation" is defined as:"a corporation that has:""(1) one hundred (100) or more shareholders;""(2) its principal place of business, its principal office, or substantial assets within Indiana; and""(3) either:"" (A) more than ten percent (10%) of its shareholders resident in Indiana;"" (B) more than ten percent (10%) of its shares owned by Indiana residents; or"" (C) ten thousand (10,000) shareholders resident in Indiana."§ 23-1-42-4(a). [Footnote 1]The Act focuses on the acquisition of "control shares" in an issuing public corporation. Under the Act, an entity acquires "control shares" whenever it acquires shares that, but for the operation of the Act, would bring its voting power in the corporation to or above any of three thresholds: 20%, 33 1/3%, or 50%. § 23-1-42-1. An entity that acquires control shares does not necessarily acquire voting rights. Rather, it gains those rights only "to the extent granted by resolution approved by the shareholders of the issuing public corporation." § 23-1-42-9(a). Section 23-1-42-9(b) requires a majority vote of all disinterested [Footnote 2] shareholders holding each Page 481 U. S. 74 class of stock for passage of such a resolution. The practical effect of this requirement is to condition acquisition of control of a corporation on approval of a majority of the preexisting disinterested shareholders. [Footnote 3]The shareholders decide whether to confer rights on the control shares at the next regularly scheduled meeting of the shareholders, or at a specially scheduled meeting. The Page 481 U. S. 75 acquiror can require management of the corporation to hold such a special meeting within 50 days if it files an "acquiring person statement," [Footnote 4] requests the meeting, and agrees to pay the expenses of the meeting. See § 23-1-42-7. If the shareholders do not vote to restore voting rights to the shares, the corporation may redeem the control shares from the acquiror at fair market value, but it is not required to do so. § 23-1-42-10(b). Similarly, if the acquiror does not file an acquiring person statement with the corporation, the corporation may, if its bylaws or articles of incorporation so provide, redeem the shares at any time after 60 days after the acquiror's last acquisition. § 23-1-42-10(a).BOn March 10, 1986, appellee Dynamics Corporation of America (Dynamics) owned 9.6% of the common stock of appellant CTS Corporation, an Indiana corporation. On that day, six days after the Act went into effect, Dynamics announced a tender offer for another million shares in CTS; purchase of those shares would have brought Dynamics' ownership interest in CTS to 27.5%. Also on March 10, Dynamics filed suit in the United States District Court for the Northern District of Illinois, alleging that CTS had violated the federal securities laws in a number of respects no longer relevant to these proceedings. On March 27, the board of directors of CTS, an Indiana corporation, elected to be governed by the provisions of the Act, see § 23-1-17-3.Four days later, on March 31, Dynamics moved for leave to amend its complaint to allege that the Act is preempted by the Williams Act, 15 U.S.C. §§ 78m(d)(e) and 78n(d)-(f) (1982 ed. and Supp. III), and violates the Commerce Clause, Art. I, § 8, cl. 3. Dynamics sought a temporary restraining order, a preliminary injunction, and declaratory relief against Page 481 U. S. 76 CTS' use of the Act. On April 9, the District Court ruled that the Williams Act preempts the Indiana Act, and granted Dynamics' motion for declaratory relief. 637 F. Supp. 389 (ND Ill.1986). Relying on JUSTICE WHITE's plurality opinion in Edgar v. MITE Corp., 457 U. S. 624 (1982), the court concluded that the Act"wholly frustrates the purpose and objective of Congress in striking a balance between the investor, management, and the takeover bidder in takeover contests."637 F. Supp. at 399. A week later, on April 17, the District Court issued an opinion accepting Dynamics' claim that the Act violates the Commerce Clause. This holding rested on the court's conclusion that"the substantial interference with interstate commerce created by the [Act] outweighs the articulated local benefits so as to create an impermissible indirect burden on interstate commerce."Id. at 406. The District Court certified its decisions on the Williams Act and Commerce Clause claims as final under Federal Rule of Civil Procedure 54(b). Ibid.CTS appealed the District Court's holdings on these claims to the Court of Appeals for the Seventh Circuit. Because of the imminence of CTS' annual meeting, the Court of Appeals consolidated and expedited the two appeals. On April 23 -- 23 days after Dynamics first contested application of the Act in the District Court -- the Court of Appeals issued an order affirming the judgment of the District Court. The opinion followed on May 28. 794 F.2d 250 (1986).After disposing of a variety of questions not relevant to this appeal, the Court of Appeals examined Dynamics' claim that the Williams Act preempts the Indiana Act. The court looked first to the plurality opinion in Edgar v. MITE Corp., supra, in which three Justices found that the Williams Act preempts state statutes that upset the balance between target management and a tender offeror. The court noted that some commentators had disputed this view of the Williams Act, concluding instead that the Williams Act was "an anti-takeover statute, expressing a view, however benighted, Page 481 U. S. 77 that hostile takeovers are bad." 794 F.2d at 262. It also noted:"[I]t is a big leap from saying that the Williams Act does not itself exhibit much hostility to tender offers to saying that it implicitly forbids states to adopt more hostile regulations. . . . But whatever doubts of the Williams' Act preemptive intent we might entertain as an original matter are stilled by the weight of precedent."Ibid. Once the court had decided to apply the analysis of the MITE plurality, it found the case straightforward:"Very few tender offers could run the gauntlet that Indiana has set up. In any event, if the Williams Act is to be taken as a congressional determination that a month (roughly) is enough time to force a tender offer to be kept open, 50 days is too much; and 50 days is the minimum under the Indiana act if the target corporation so chooses."Id. at 263.The court next addressed Dynamic's Commerce Clause challenge to the Act. Applying the balancing test articulated in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the court found the Act unconstitutional:"Unlike a state's blue sky law, the Indiana statute is calculated to impede transactions between residents of other states. For the sake of trivial or even negative benefits to its residents, Indiana is depriving nonresidents of the valued opportunity to accept tender offers from other nonresidents."". . . Even if a corporation's tangible assets are immovable, the efficiency with which they are employed and the proportions in which the earnings they generate are divided between management and shareholders depends on the market for corporate control -- an interstate, indeed international, market that the State of Indiana is not authorized to opt out of, as in effect it has done in this statute."794 F.2d at 264. Page 481 U. S. 78Finally, the court addressed the "internal affairs" doctrine, a"principle of conflict of laws . . . designed to make sure that the law of only one state shall govern the internal affairs of a corporation or other association."Ibid. It stated:"We may assume, without having to decide, that Indiana has a broad latitude in regulating those affairs, even when the consequence may be to make it harder to take over an Indiana corporation. . . . But in this case, the effect on the interstate market in securities and corporate control is direct, intended, and substantial. . . . [T]hat the mode of regulation involves jiggering with voting rights cannot take it outside the scope of judicial review under the commerce clause."Ibid. Accordingly, the court affirmed the judgment of the District Court.Both Indiana and CTS filed jurisdictional statements. We noted probable jurisdiction under 28 U.S.C. § 1254(2), 479 U.S. 810 (1986), and now reverse. [Footnote 5]IIThe first question in these cases is whether the Williams Act preempts the Indiana Act. As we have stated frequently, absent an explicit indication by Congress of an intent to preempt state law, a state statute is preempted only Page 481 U. S. 79"'where compliance with both federal and state regulations is a physical impossibility. . . ,' Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963), or where the state 'law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). . . ."Ray v. Atlantic Richfield Co., 435 U. S. 151, 435 U. S. 158 (1978). Because it is entirely possible for entities to comply with both the Williams Act and the Indiana Act, the state statute can be preempted only if it frustrates the purposes of the federal law.AOur discussion begins with a brief summary of the structure and purposes of the Williams Act. Congress passed the Williams Act in 1968 in response to the increasing number of hostile tender offers. Before its passage, these transactions were not covered by the disclosure requirements of the federal securities laws. See Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 430 U. S. 22 (1977). The Williams Act, backed by regulations of the SEC, imposes requirements in two basic areas. First, it requires the offeror to file a statement disclosing information about the offer, including: the offeror's background and identity; the source and amount of the funds to be used in making the purchase; the purpose of the purchase, including any plans to liquidate the company or make major changes in its corporate structure; and the extent of the offeror's holdings in the target company. See 15 U.S.C. § 78n(d)(1) (incorporating § 78m(d)(1) by reference); 17 CFR §§ 240.13d-1, 240.14d-3 (1986).Second, the Williams Act, and the regulations that accompany it, establish procedural rules to govern tender offers. For example, stockholders who tender their shares may withdraw them while the offer remains open, and, if the offeror has not purchased their shares, any time after 60 days from commencement of the offer. 15 U.S.C. § 78n(d)(5); 17 Page 481 U. S. 80 CFR § 240.14d-7(a)(1) (1986), as amended, 51 Fed.Reg. 25873 (1986). The offer must remain open for at least 20 business days. 17 CFR § 240.14e-1(a) (1986). If more shares are tendered than the offeror sought to purchase, purchases must be made on a pro rata basis from each tendering shareholder. 15 U.S.C. § 78n(d)(6); 17 CFR § 240.14(8) (1986). Finally, the offeror must pay the same price for all purchases; if the offering price is increased before the end of the offer, those who already have tendered must receive the benefit of the increased price. § 78n(d)(7).BThe Indiana Act differs in major respects from the Illinois statute that the Court considered in Edgar v. MITE Corp., 457 U. S. 624 (1982). After reviewing the legislative history of the Williams Act, JUSTICE WHITE, joined by Chief Justice Burger and JUSTICE BLACKMUN (the plurality), concluded that the Williams Act struck a careful balance between the interests of offerors and target companies, and that any state statute that "upset" this balance was preempted. Id. at 457 U. S. 632-634.The plurality then identified three offending features of the Illinois statute. JUSTICE WHITE's opinion first noted that the Illinois statute provided for a 20-day precommencement period. During this time, management could disseminate its views on the upcoming offer to shareholders, but offerors could not publish their offers. The plurality found that this provision gave management "a powerful tool to combat tender offers." Id. at 457 U. S. 635. This contrasted dramatically with the Williams Act; Congress had deleted express precommencement notice provisions from the Williams Act. According to the plurality, Congress had determined that the potentially adverse consequences of such a provision on shareholders should be avoided. Thus, the plurality concluded that the Illinois provision "frustrate[d] the objectives of the Williams Act." Ibid. The second criticized feature of Page 481 U. S. 81 the Illinois statute was a provision for a hearing on a tender offer that, because it set no deadline, allowed management "to stymie indefinitely a takeover,'" id. at 457 U. S. v. Dixon, 633 F.2d 486, 494 (CA7 1980)). The plurality noted that "`delay can seriously impede a tender offer,'" 457 U.S. at 457 U. S. 637 (quoting Great Western United Corp. v. Kidwell,@ 577 F.2d 1256, 1277 (CA5 1978) (Wisdom, J.)), and that "Congress anticipated that investors and the takeover offeror would be free to go forward without unreasonable delay," 457 U.S. at 457 U. S. 639. Accordingly, the plurality concluded that this provision conflicted with the Williams Act. The third troublesome feature of the Illinois statute was its requirement that the fairness of tender offers would be reviewed by the Illinois Secretary of State. Noting that "Congress intended for investors to be free to make their own decisions," the plurality concluded that"'[t]he state thus offers investor protection at the expense of investor autonomy -- an approach quite in conflict with that adopted by Congress.'"Id. at 457 U. S. 639-640 (quoting MITE Corp. v. Dixon, supra, at 494).CAs the plurality opinion in MITE did not represent the views of a majority of the Court, [Footnote 6] we are not bound by its reasoning. We need not question that reasoning, however, because we believe the Indiana Act passes muster even under the broad interpretation of the Williams Act articulated by JUSTICE WHITE in MITE. As is apparent from our summary of its reasoning, the overriding concern of the Page 481 U. S. 82 MITE plurality was that the Illinois statute considered in that case operated to favor management against offerors, to the detriment of shareholders. By contrast, the statute now before the Court protects the independent shareholder against the contending parties. Thus, the Act furthers a basic purpose of the Williams Act, "plac[ing] investors on an equal footing with the takeover bidder,'" Piper v. Chris-Craft Industries, Inc., 430 U.S. at 430 U. S. 30 (quoting the Senate Report accompanying the Williams Act, S.Rep. No. 550, 90th Cong., 1st Sess., 4 (1967)). [Footnote 7]The Indiana Act operates on the assumption, implicit in the Williams Act, that independent shareholders faced with tender offers often are at a disadvantage. By allowing such Page 481 U. S. 83 shareholders to vote as a group, the Act protects them from the coercive aspects of some tender offers. If, for example, shareholders believe that a successful tender offer will be followed by a purchase of nontendering shares at a depressed price, individual shareholders may tender their shares -- even if they doubt the tender offer is in the corporation's best interest -- to protect themselves from being forced to sell their shares at a depressed price. As the SEC explains:"The alternative of not accepting the tender offer is virtual assurance that, if the offer is successful, the shares will have to be sold in the lower priced, second step."Two-Tier Tender Offer Pricing and Non-Tender Offer Purchase Programs, SEC Exchange Act Rel. No. 21079 (June 21, 1984), [1984 Transfer Binder] CCH Fed.Sec.L.Rep. � 83,637, p. 86,916 (footnote omitted) (hereinafter SEC Release No. 21079). See Lowenstein, Pruning Deadwood in Hostile Takeovers: A Proposal for Legislation, 83 Colum.L.Rev. 249, 307-309 (1983). In such a situation under the Indiana Act, the shareholders as a group, acting in the corporation's best interest, could reject the offer, although individual shareholders might be inclined to accept it. The desire of the Indiana Legislature to protect shareholders of Indiana corporations from this type of coercive offer does not conflict with the Williams Act. Rather, it furthers the federal policy of investor protection.In implementing its goal, the Indiana Act avoids the problems the plurality discussed in MITE. Unlike the MITE statute, the Indiana Act does not give either management or the offeror an advantage in communicating with the shareholders about the impending offer. The Act also does not impose an indefinite delay on tender offers. Nothing in the Act prohibits an offeror from consummating an offer on the 20th business day, the earliest day permitted under applicable federal regulations, see 17 CFR § 240.14e-1(a) (1986). Nor does the Act allow the state government to interpose its views of fairness between willing buyers and sellers of shares Page 481 U. S. 84 of the target company. Rather, the Act allows shareholders to evaluate the fairness of the offer collectively.DThe Court of Appeals based its finding of preemption on its view that the practical effect of the Indiana Act is to delay consummation of tender offers until 50 days after the commencement of the offer. 794 F.2d at 263. As did the Court of Appeals, Dynamics reasons that no rational offeror will purchase shares until it gains assurance that those shares will carry voting rights. Because it is possible that voting rights will not be conferred until a shareholder meeting 50 days after commencement of the offer, Dynamics concludes that the Act imposes a 50-day delay. This, it argues, conflicts with the shorter 20-business-day period established by the SEC as the minimum period for which a tender offer may be held open. 17 CFR § 240.14e-1 (1986). We find the alleged conflict illusory.The Act does not impose an absolute 50-day delay on tender offers, nor does it preclude an offeror from purchasing shares as soon as federal law permits. If the offeror fears an adverse shareholder vote under the Act, it can make a conditional tender offer, offering to accept shares on the condition that the shares receive voting rights within a certain period of time. The Williams Act permits tender offers to be conditioned on the offeror's subsequently obtaining regulatory approval. E.g., Interpretive Release Relating to Tender Offer Rules, SEC Exchange Act Rel. No. 34-16623 (Mar. 5, 1980), 3 CCH Fed.Sec.L.Rep. 1124,284I, p. 17,758, quoted in MacFadden Holdings, Inc. v. JB Acquisition Corp., 802 F.2d 62, 70 (CA2 1986). [Footnote 8] There is no reason to doubt that Page 481 U. S. 85 this type of conditional tender offer would be legitimate as well. [Footnote 9]Even assuming that the Indiana Act imposes some additional delay, nothing in MITE suggested that any delay imposed by state regulation, however short, would create a conflict with the Williams Act. The plurality argued only that the offeror should "be free to go forward without unreasonable delay." 457 U.S. at 457 U. S. 639 (emphasis added). In that case, the Court was confronted with the potential for indefinite delay and presented with no persuasive reason why some deadline could not be established. By contrast, the Indiana Act provides that full voting rights will be vested -- if this eventually is to occur -- within 50 days after commencement of the offer. This period is within the 60-day period Congress established for reinstitution of withdrawal rights in 15 U.S.C. § 78n(d)(5). We cannot say that a delay within that congressionally determined period is unreasonable.Finally, we note that the Williams Act would preempt a variety of state corporate laws of hitherto unquestioned validity if it were construed to preempt any state statute that may limit or delay the free exercise of power after a successful tender offer. State corporate laws commonly permit corporations to stagger the terms of their directors. See Model Business Corp. Act § 37 (1969 draft) in 3 Model Business Corp. Act Ann. (2d ed.1971) (hereinafter MBCA); American Page 481 U. S. 86 Bar Foundation, Revised Model Business Corp. Act § 8.06 (1984 draft) (1985) (hereinafter RMBCA). [Footnote 10] By staggering the terms of directors, and thus having annual elections for only one class of directors each year, corporations may delay the time when a successful offeror gains control of the board of directors. Similarly, state corporation laws commonly provide for cumulative voting. See 1 MBCA § 33, � 4; RMBCA § 7.28. [Footnote 11] By enabling minority shareholders to assure themselves of representation in each class of directors, cumulative voting provisions can delay further the ability of offerors to gain untrammeled authority over the affairs of the target corporation. See Hochman & Folger, Deflecting Takeovers: Charter and By-Law Techniques, 34 Bus.Law. 537, 538-539 (1979).In our view, the possibility that the Indiana Act will delay some tender offers is insufficient to require a conclusion that the Williams Act preempts the Act. The longstanding prevalence of state regulation in this area suggests that, if Congress had intended to preempt all state laws that delay the acquisition of voting control following a tender offer, it would have said so explicitly. The regulatory conditions that the Act places on tender offers are consistent with the text and the purposes of the Williams Act. Accordingly, we Page 481 U. S. 87 hold that the Williams Act does not preempt the Indiana Act.IIIAs an alternative basis for its decision, the Court of Appeals held that the Act violates the Commerce Clause of the Federal Constitution. We now address this holding. On its face, the Commerce Clause is nothing more than a grant to Congress of the power "[t]o regulate Commerce . . . among the several States . . . ," Art. I, § 8, cl. 3. But it has been settled for more than a century that the Clause prohibits States from taking certain actions respecting interstate commerce even absent congressional action. See, e.g., 53 U. S. Board of Wardens, 12 How. 299 (1852). The Court's interpretation of "these great silences of the Constitution," H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 535 (1949), has not always been easy to follow. Rather, as the volume and complexity of commerce and regulation have grown in this country, the Court has articulated a variety of tests in an attempt to describe the difference between those regulations that the Commerce Clause permits and those regulations that it prohibits. See, e.g., Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 434 U. S. 441, n. 15 (1978).AThe principal objects of dormant Commerce Clause scrutiny are statutes that discriminate against interstate commerce. See, e.g., Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 447 U. S. 36-37 (1980); Philadelphia v. New Jersey, 437 U. S. 617, 437 U. S. 624 (1978). See generally Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich.L.Rev. 1091 (1986). The Indiana Act is not such a statute. It has the same effects on tender offers whether or not the offeror is a domiciliary or resident of Indiana. Thus, it "visits its effects equally upon both interstate and local business," Lewis v. BT Investment Managers, Inc., supra, at 36. Page 481 U. S. 88Dynamics nevertheless contends that the statute is discriminatory, because it will apply most often to out-of-state entities. This argument rests on the contention that, as a practical matter, most hostile tender offers are launched by offerors outside Indiana. But this argument avails Dynamics little."The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce."Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 437 U. S. 126 (1978). See Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 449 U. S. 471-472 (1981) (rejecting a claim of discrimination because the challenged statute "regulate[d] evenhandedly . . . without regard to whether the [commerce came] from outside the State"); Commonwealth Edison Co. v. Montana, 453 U. S. 609, 453 U. S. 619 (1981) (rejecting a claim of discrimination because the "tax burden [was] borne according to the amount . . . consumed and not according to any distinction between instate and out-of-state consumers"). Because nothing in the Indiana Act imposes a greater burden on out-of-state offerors than it does on similarly situated Indiana offerors, we reject the contention that the Act discriminates against interstate commerce.BThis Court's recent Commerce Clause cases also have invalidated statutes that may adversely affect interstate commerce by subjecting activities to inconsistent regulations. E.g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 476 U. S. 583-584 (1986); Edgar v. MITE Corp., 457 U.S. at 457 U. S. 642 (plurality opinion of WHITE, J.); Kassel v. Consolidated Freightways Corp., 450 U. S. 662, 450 U. S. 671 (1981) (plurality opinion of POWELL, J.). See Southern Pacific Co. v. Arizona, 325 U. S. 761, 325 U. S. 774 (1945) (noting the "confusion and difficulty" that would attend the "unsatisfied need for uniformity" in setting maximum limits on train lengths); Cooley v. Board of Wardens, supra, at 53 U. S. 319 (stating that the Commerce Clause prohibits States from regulating Page 481 U. S. 89 subjects that "are in their nature national, or admit only of one uniform system, or plan of regulation"). The Indiana Act poses no such problem. So long as each State regulates voting rights only in the corporations it has created, each corporation will be subject to the law of only one State. No principle of corporation law and practice is more firmly established than a State's authority to regulate domestic corporations, including the authority to define the voting rights of shareholders. See Restatement (Second) of Conflict of Laws § 304 (1971) (concluding that the law of the incorporating State generally should "determine the right of a shareholder to participate in the administration of the affairs of the corporation"). Accordingly, we conclude that the Indiana Act does not create an impermissible risk of inconsistent regulation by different States.CThe Court of Appeals did not find the Act unconstitutional for either of these threshold reasons. Rather, its decision rested on its view of the Act's potential to hinder tender offers. We think the Court of Appeals failed to appreciate the significance for Commerce Clause analysis of the fact that state regulation of corporate governance is regulation of entities whose very existence and attributes are a product of state law. As Chief Justice Marshall explained:"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created."Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 17 U. S. 636 (1819). See First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 822-824 (1978) (REHNQUIST, J., dissenting). Every State in this country has enacted laws regulating corporate governance. Page 481 U. S. 90 By prohibiting certain transactions and regulating others, such laws necessarily affect certain aspects of interstate commerce. This necessarily is true with respect to corporations with shareholders in States other than the State of incorporation. Large corporations that are listed on national exchanges, or even regional exchanges, will have shareholders in many States and shares that are traded frequently. The markets that facilitate this national and international participation in ownership of corporations are essential for providing capital not only for new enterprises, but also for established companies that need to expand their businesses. This beneficial free market system depends at its core upon the fact that a corporation -- except in the rarest situations -- is organized under, and governed by, the law of a single jurisdiction, traditionally the corporate law of the State of its incorporation.These regulatory laws may affect directly a variety of corporate transactions. Mergers are a typical example. In view of the substantial effect that a merger may have on the shareholders' interests in a corporation, many States require supermajority votes to approve mergers. See, e.g., 2 MBCA § 73 (requiring approval of a merger by a majority of all shares, rather than simply a majority of votes cast); RMBCA § 11.03 (same). By requiring a greater vote for mergers than is required for other transactions, these laws make it more difficult for corporations to merge. State laws also may provide for "dissenters' rights" under which minority shareholders who disagree with corporate decisions to take particular actions are entitled to sell their shares to the corporation at fair market value. See, e.g., 2 MBCA §§ 80, 81; RMBCA § 13.02. By requiring the corporation to purchase the shares of dissenting shareholders, these laws may inhibit a corporation from engaging in the specified transactions. [Footnote 12] Page 481 U. S. 91It thus is an accepted part of the business landscape in this country for States to create corporations, to prescribe their powers, and to define the rights that are acquired by purchasing their shares. A State has an interest in promoting stable relationships among parties involved in the corporations it charters, as well as in ensuring that investors in such corporations have an effective voice in corporate affairs.There can be no doubt that the Act reflects these concerns. The primary purpose of the Act is to protect the shareholders of Indiana corporations. It does this by affording shareholders, when a takeover offer is made, an opportunity to decide collectively whether the resulting change in voting control of the corporation, as they perceive it, would be desirable. A change of management may have important effects on the shareholders' interests; it is well within the State's role as overseer of corporate governance to offer this opportunity. The autonomy provided by allowing shareholders collectively to determine whether the takeover is advantageous to their Page 481 U. S. 92 interests may be especially beneficial where a hostile tender offer may coerce shareholders into tendering their shares.Appellee Dynamics responds to this concern by arguing that the prospect of coercive tender offers is illusory, and that tender offers generally should be favored because they reallocate corporate assets into the hands of management who can use them most effectively. [Footnote 13] See generally Easterbrook & Fischel, The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv.L.Rev. 1161 (1981). As indicated supra at 481 U. S. 82-83, Indiana's concern with tender offers is not groundless. Indeed, the potentially coercive aspects of tender offers have been recognized by the SEC, see SEC Release No. 21079, p. 86,916, and by a number of scholarly commentators, see, e.g., Bradley & Rosenzweig, Defensive Stock Repurchases, 99 Harv.L.Rev. 1377, 1412-1413 (1986); Macey & McChesney, A Theoretical Analysis of Corporate Greenmail, 95 Yale L.J. 13, 20-22 (1985); Lowenstein, 83 Colum.L.Rev. at 307-309. The Constitution does not require the States to subscribe to any particular economic theory. We are not inclined "to second-guess the empirical judgments of lawmakers concerning the utility of legislation," Kassel v. Consolidated Freightways Corp., 450 U.S. at 450 U. S. 679 (BRENNAN, J., concurring in judgment). In our view, the possibility of coercion in some takeover bids offers additional justification for Indiana's decision to promote the autonomy of independent shareholders. Page 481 U. S. 93Dynamics argues in any event that the State has "no legitimate interest in protecting the nonresident shareholders.'" Brief for Appellee 21 (quoting Edgar v. MITE Corp., 457 U.S. at 457 U. S. 644). Dynamics relies heavily on the statement by the MITE Court that "[i]nsofar as the . . . law burdens out-of-state transactions, there is nothing to be weighed in the balance to sustain the law." 457 U.S. at 457 U. S. 644. But that comment was made in reference to an Illinois law that applied as well to out-of-state corporations as to in-state corporations. We agree that Indiana has no interest in protecting nonresident shareholders of nonresident corporations. But this Act applies only to corporations incorporated in Indiana. We reject the contention that Indiana has no interest in providing for the shareholders of its corporations the voting autonomy granted by the Act. Indiana has a substantial interest in preventing the corporate form from becoming a shield for unfair business dealing. Moreover, unlike the Illinois statute invalidated in MITE, the Indiana Act applies only to corporations that have a substantial number of shareholders in Indiana. See Ind.Code § 23-1-42-4(a)(3) (Supp.1986). Thus, every application of the Indiana Act will affect a substantial number of Indiana residents, whom Indiana indisputably has an interest in protecting.DDynamics' argument that the Act is unconstitutional ultimately rests on its contention that the Act will limit the number of successful tender offers. There is little evidence that this will occur. But even if true, this result would not substantially affect our Commerce Clause analysis. We reiterate that this Act does not prohibit any entity -- resident or nonresident -- from offering to purchase, or from purchasing, shares in Indiana corporations, or from attempting thereby to gain control. It only provides regulatory procedures designed for the better protection of the corporations' shareholders. We have rejected the "notion that the Commerce Page 481 U. S. 94 Clause protects the particular structure or methods of operation in a . . . market." Exxon Corp. v. Governor of Maryland, 437 U.S. at 437 U. S. 127. The very commodity that is traded in the securities market is one whose characteristics are defined by state law. Similarly, the very commodity that is traded in the "market for corporate control" -- the corporation -- is one that owes its existence and attributes to state law. Indiana need not define these commodities as other States do; it need only provide that residents and nonresidents have equal access to them. This Indiana has done. Accordingly, even if the Act should decrease the number of successful tender offers for Indiana corporations, this would not offend the Commerce Clause. [Footnote 14]IVOn its face, the Indiana Control Share Acquisitions Chapter evenhandedly determines the voting rights of shares of Indiana corporations. The Act does not conflict with the provisions or purposes of the Williams Act. To the limited extent that the Act affects interstate commerce, this is justified by the State's interests in defining the attributes of shares in its corporations and in protecting shareholders. Congress has never questioned the need for state regulation of these matters. Nor do we think such regulation offends the Constitution. Accordingly, we reverse the judgment of the Court of Appeals.It is so ordered

U.S. Supreme CourtCTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987)CTS Corp. v. Dynamics Corporation of AmericaNo. 86-71Argued March 2, 1987Decided April 21, 1987*481 U.S. 69SyllabusThe federal Williams Act and implementing regulations govern hostile corporate stock tender offers by requiring, inter alia, that offers remain open for at least 20 business days. An Indiana Act applies to certain business corporations chartered in Indiana that have specified levels of shares or shareholders within the State and that opt into the Act's protection. The Indiana Act provides that the acquisition of "control shares" in such a corporation -- shares that, but for the Act, would bring the acquiring entity's voting power to or above certain threshold levels -- does not include voting rights unless a majority of all preexisting disinterested shareholders so agree at their next regularly scheduled meeting. However, the stock acquiror can require a special meeting within 50 days by following specified procedures. Appellee Dynamics Corporation announced a tender offer that would have raised its ownership interest in CTS Corporation above the Indiana Act's threshold. Dynamics also filed suit in Federal District Court alleging federal securities violations by CTS. After CTS opted into the Indiana Act, Dynamics amended its complaint to challenge the Act's validity. The District Court granted Dynamics' motion for declaratory relief, ruling that the Act is preempted by the Williams Act, and violates the Commerce Clause. The Court of Appeals affirmed, adopting the holding of the plurality opinion in Edgar v. MITE Corp., 457 U. S. 624, that the Williams Act preempts state statutes that upset the balance between target company management and a tender offeror. The court based its preemption finding on the view that the Indiana Act, in effect, imposes at least a 50-day delay on the consummation of tender offers, and that this conflicts with the minimum 20-day, hold-open period under the Williams Act. The court also held that the state Act violates the Commerce Clause, since it deprives nonresidents of the valued opportunity to accept tender offers from other nonresidents, and that it violates the conflict-of-laws "internal affairs" doctrine in that it has a direct, intended, and Page 481 U. S. 70 substantial effect on the interstate market in securities and corporate control.Held:1. The Indiana Act is consistent with the provisions and purposes of the Williams Act, and is not preempted thereby. Pp. 481 U. S. 78-87.(a) The Indiana Act protects independent shareholders from the coercive aspects of tender offers by allowing them to vote as a group, and thereby furthers the Williams Act's basic purpose of placing investors on an equal footing with takeover bidders. Moreover, the Indiana Act avoids the problems the plurality discussed in MITE, since it does not give either management or the offeror an advantage in communicating with shareholders, nor impose an indefinite delay on offers, nor allow the state government to interpose its views of fairness between willing buyers and sellers. Thus, the Act satisfies even the MITE plurality's broad interpretation of the Williams Act. Pp. 481 U. S. 81-84.(b) The possibility that the Indiana Act will delay some tender offers does not mandate preemption. The state Act neither imposes an absolute 50-day delay on the consummation of tender offers nor precludes offerors from purchasing shares as soon as federal law permits. If an adverse shareholder vote is feared, the tender offer can be conditioned on the shares' receiving voting rights within a specified period. Furthermore, even assuming that the Indiana Act does impose some additional delay, the MITE plurality found only that "unreasonable" delays conflict with the Williams Act. Here, it cannot be said that a 50-day delay is unreasonable, since that period falls within a 60-day period Congress established for tendering shareholders to withdraw their unpurchased shares. If the Williams Act were construed to preempt any state statute that caused delays, it would preempt a variety of state corporate laws of hitherto unquestioned validity. The longstanding prevalence of state regulation in this area suggests that, if Congress had intended to preempt all such state laws, it would have said so. Pp. 481 U. S. 84-87.2. The Indiana Act does not violate the Commerce Clause. The Act's limited effect on interstate commerce is justified by the State's interests in defining attributes of its corporations' shares, and in protecting shareholders. Pp. 481 U. S. 87-94.(a) The Act does not discriminate against interstate commerce, since it has the same effect on tender offers whether or not the offeror is an Indiana domiciliary or resident. That the Act might apply most often to out-of-state entities who launch most hostile tender offers is irrelevant, since a claim of discrimination is not established by the mere fact that the burden of a state regulation falls on some interstate companies. Pp. 481 U. S. 87-88. Page 481 U. S. 71(b) The Act does not create an impermissible risk of inconsistent regulation of tender offers by different States. It simply and evenhandedly exercises the State's firmly established authority to define the voting rights of shareholders in Indiana corporations, and thus subjects such corporations to the law of only one State. Pp. 481 U. S. 88-89.(c) The Court of Appeals' holding that the Act unconstitutionally hinders tender offers ignores the fact that a State, in its role as overseer of corporate governance, enacts laws that necessarily affect certain aspects of interstate commerce, particularly with respect to corporations with shareholders in other States. A State has interests in promoting stable relationships among parties involved in its corporations, and in ensuring that investors have an effective voice in corporate affairs. The Indiana Act validly furthers these interests by allowing shareholders collectively to determine whether the takeover is advantageous to them. The argument that Indiana has no legitimate interest in protecting nonresident shareholders is unavailing, since the Act applies only to corporations incorporated in Indiana that have a substantial number of shareholders in the State. Pp. 481 U. S. 89-93.(d) Even if the Act should decrease the number of successful tender offers for Indiana corporations, this would not offend the Commerce Clause. The Act does not prohibit any resident or nonresident from offering to purchase, or from purchasing, shares in Indiana corporations, or from attempting thereby to gain control. It only provides regulatory procedures designed for the better protection of the corporations' shareholders. The Commerce Clause does not protect the particular structure or methods of operation in a market. Pp. 481 U. S. 93-94.794 F.2d 250, reversed.POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, and O'CONNOR, JJ., joined, and in Parts I, III-A, and III-B of which SCALIA, J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 481 U. S. 94. WHITE, J., filed a dissenting opinion, in Part II of which BLACKMUN and STEVENS, JJ., joined, post, p. 481 U. S. 97. Page 481 U. S. 72

1975_75-252

MR. JUSTICE WHITE delivered the opinion of the Court.The question here is whether the Due Process Clause of the Fourteenth Amendment entitles a state prisoner to a hearing when he is transferred to a prison the conditions of which are substantially less favorable to the prisoner, absent a state law or practice conditioning such transfers on proof of serious misconduct or the occurrence of other events. We hold that it does not.IDuring a 2 1/2-month period in 1974, there were nine serious fires at the Massachusetts Correctional Institution at Norfolk -- a medium security institution. Based primarily on reports from informants, the six respondent inmates were removed from the general prison population and placed in the Receiving Building, an administrative detention area used to process new inmates. Proceedings were then had before the Norfolk prison Page 427 U. S. 217 Classification Board with respect to whether respondents were to be transferred to another institution -- possibly a maximum security institution, the living conditions at which are substantially less favorable than those at Norfolk. Each respondent was notified of the classification hearing and was informed that the authorities had information indicating that he had engaged in criminal conduct. [Footnote 1]Individual classification hearings were held, each respondent being represented by counsel. Each hearing began by the reading of a prepared statement by the Classification Board. The Board then heard, in camera and out of the respondents' presence, the testimony of petitioner Meachum, the Norfolk prison superintendent, Page 427 U. S. 218 who repeated the information that had been received from informants. Each respondent was then told that the evidence supported the allegations contained in the notice, but was not then -- or ever -- given transcripts or summaries of Meachum's testimony before the Board. Each respondent was allowed to present evidence in his own behalf; and each denied involvement in the particular infraction being investigated. Some respondents submitted supportive testimony or written statements from correction officers. A social worker also testified in the presence of each respondent, furnishing the respondent's criminal and custodial record, including prior rule infractions, if any, and other aspects of his performance and "general adjustment" at Norfolk.The Board recommended that Royce be placed in administrative segregation for 30 days; that Fano, Dussault, and McPhearson be transferred to Walpole, a maximum security institution where the living conditions are substantially less favorable to the prisoners than those at Norfolk, and that DeBrosky and Hathaway be transferred to Bridgewater, which has both maximum and medium security facilities. The reasons for its actions were stated in the Board's reports, [Footnote 2] which, however, Page 427 U. S. 219 were not. then available to respondents. Although respondents were aware of the general import of the informants' allegations and were told that the recommendations Page 427 U. S. 220 drew upon informant sources, the details of this information were not revealed to respondents and are not included in the Board's reports which are part of the record before us. Page 427 U. S. 221The Board's recommendations were reviewed by the Acting Deputy Commissioner for Classification and Treatment and by the Commissioner of Corrections on the basis of the written report prepared by the Board. They accepted the recommendations of the Board with respect to Fano, Dussault, Hathaway, and McPhearson. DeBrosky and Royce were ordered transferred to Walpole. [Footnote 3] The transfers were carried out, with two exceptions. [Footnote 4] No respondent was subjected to disciplinary Page 427 U. S. 222 punishment upon arrival at the transfer prison. None of the transfers ordered entailed loss of good time or disciplinary confinement. [Footnote 5]Meanwhile respondents had brought this action under 42 U.S.C. § 1983 against petitioners Meachum, the prison superintendent; Hall, the State Commissioner of Corrections; and Dawber, the Acting Deputy for Classification and Treatment, alleging that respondents were being deprived of liberty without due process of law in that petitioners had ordered them transferred to a less favorable institution without an adequate factfinding hearing. They sought an injunction setting aside the ordered transfer, declaratory relief, and damages.The District Court understood Wolff v. McDonnell, 418 U. S. 539 (1974), to entitle respondents to notice and hearing, and held both constitutionally inadequate in this case. Respondents were ordered returned to the general prison population at Norfolk until transferred after proper notice and hearing. Petitioners were also ordered to promulgate regulations to establish procedures governing future transfer hearings involving informant testimony. A divided panel of the Court of Appeals affirmed, 520 F.2d 374, holding that the transfers from Norfolk to maximum security institutions involved "a significant modification of the overall conditions of confinement," and that this change in circumstances was "serious enough to trigger the application of due process protections." Id. at 377-378. [Footnote 6] Page 427 U. S. 223We granted the prison officials' petition for writ of certiorari, 423 U.S. 1013 (1975), in order to determine whether the Constitution required petitioners to conduct a factfinding hearing in connection with the transfers in this case where state law does not condition the authority to transfer on the occurrence of specific acts of misconduct or other events and, if so, whether the hearings granted in this case were adequate. In light of our resolution of the first issue, we do not reach the second.IIThe Fourteenth Amendment prohibits any State from depriving a person of life, liberty, or property without due process of law. The initial inquiry is whether the transfer of respondents from Norfolk to Walpole and Bridgewater infringed or implicated a "liberty" interest Page 427 U. S. 224 of respondents within the meaning of the Due Process Clause. Contrary to the Court of Appeals, we hold that it did not. We reject at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause. In Board of Regents v. Roth, 408 U. S. 564 (1972), a university professor was deprived of his job, a loss which was surely a matter of great substance, but, because the professor had no property interest in his position, due process procedures were not required in connection with his dismissal. We there held that the determining factor is the nature of the interest involved, rather than its weight. Id. at 408 U. S. 570-571.Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause. The Due Process Clause, by its own force, forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause. But, given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. The Constitution does not require that the State have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be placed in any particular prison if, as is likely, the State has more than one correctional institution. The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another. The conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons. Page 427 U. S. 225Neither, in our view, does the Due Process Clause, in and of itself, protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not, in itself, signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.Our cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U.S. at 418 U. S. 556, and cases there cited. But none of these cases reaches this one; and to hold, as we are urged to do, that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators, rather than of the federal courts.Transfers between institutions, for example, are made for a variety of reasons, and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate. Yet, under the approach urged here, any transfer, for whatever reason, would require a hearing as long as it could be said that the transfer would place the prisoner in substantially more burdensome conditions that he had been experiencing. We are unwilling to go so far.Wolf v. McDonnell, on which the Court of Appeals heavily relied, is not to the contrary. Under that case, the Due Process Clause entitles a state prisoner to certain Page 427 U. S. 226 procedural protections when he is deprived of good time credits because of serious misconduct. But the liberty interest there identified did not originate in the Constitution, which "itself does not guarantee good time credit for satisfactory behavior while in prison." Id. at 418 U. S. 557. The State itself, not the Constitution, had "not only provided a statutory right to good time, but also specifics that it is to be forfeited only for serious misbehavior." Ibid. We concluded:"[A] person's liberty is equally protected, even when the liberty itself is a statutory creation of the State. The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U. S. 114, 129 U. S. 123 (1889). Since prisoners in Nebraska can only lose good time credits if they are guilty of serious misconduct, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed."Id. at 418 U. S. 558. The liberty interest protected in Wolff had its roots in state law, and the minimum procedures appropriate under the circumstances were held required by the Due Process Clause "to insure that the state-created right is not arbitrarily abrogated." Id. at 418 U. S. 557. This is consistent with our approach in other due process cases such as Goss v. Lopez, 419 U. S. 565 (1975); Board of Regents v. Roth, supra; Perry v. Sindermann, 408 U. S. 593 (1972); Goldberg v. Kelly, 397 U. S. 254 (1970).Here, Massachusetts law conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct. Insofar as we are advised, transfers bet Page 427 U. S. 227 the occurrence of specified events. [Footnote 7] On the contrary, transfer in a wide variety of circumstances is vested in prison officials. The predicate for invoking the protection of the Fourteenth Amendment as construed and applied in Wolff v. McDonnell is totally nonexistent in this case. Page 427 U. S. 228Even if Massachusetts has not represented that transfers will occur only on the occurrence of certain events, it is argued that charges of serious misbehavior, as in this case, often initiate and heavily influence the transfer decision and that, because allegations of misconduct may be erroneous, hearings should be held before transfer to a more confining institution is to be suffered by the prisoner. That an inmate's conduct, in general or in specific instances, may often be a major factor in the decision of prison officials to transfer him is to be expected unless it be assumed that transfers are mindless events. A prisoner's past and anticipated future behavior will very likely be taken into account in selecting a prison in which he will be initially incarcerated or to which he will be transferred to best serve the State's penological goals.A prisoner's behavior may precipitate a transfer; and, absent such behavior, perhaps transfer would not take place at all. But, as we have said, Massachusetts prison officials have the discretion to transfer prisoners for any number of reasons. Their discretion is not limited to instances of serious misconduct. As we understand it, no legal interest or right of these respondents under Massachusetts law would have been violated by their transfer, whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances. Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason, or for no reason at all.Holding that arrangements like this are within reach of the procedural protections of the Due Process Clause would place the Clause astride the day-to-day functioning of state prisons, and involve the judiciary in issues Page 427 U. S. 229 and discretionary decisions that are not the business of federal judges. We decline to so interpret and apply the Due Process Clause. The federal courts do not. sit to supervise state prisons, the administration of which is of acute interest to the States. Preiser v. Rodriguez, 411 U. S. 475, 411 U. S. 491-492 (1973); Cruz v. Beto, 405 U. S. 319, 405 U. S. 321 (1972); Johnson v. Avery, 393 U. S. 483, 393 U. S. 486 (1969). The individual States, of course, are free to follow another course, whether by statute, by rule or regulation, or by interpretation of their own constitutions. They may thus decide that prudent prison administration requires pretransfer hearings. Our holding is that the Due Process Clause does not impose a nationwide rule mandating transfer hearings. [Footnote 8]The judgment of the Court of Appeals accordingly isReversed

U.S. Supreme CourtMeachum v. Fano, 427 U.S. 215 (1976)Meachum v. FanoNo. 75-252Argued April 21, 1976Decided June 25, 1976427 U.S. 215SyllabusThe Due Process Clause of the Fourteenth Amendment held not to entitle a duly convicted state prisoner to a factfinding hearing when he is transferred to a prison the conditions of which are substantially less favorable to him, absent a state law or practice conditioning such transfers on proof of serious misconduct or the occurrence of other specified events. Such a transfer does not infringe or implicate a "liberty" interest of the prisoner within the meaning of the Due Process Clause. Pp. 427 U. S. 223-229.(a) Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. P. 427 U. S. 224.(b) The Due Process Clause does not, in and of itself, protect a duly convicted prisoner against transfer from one institution to another, and that life in one prison is much more disagreeable than in another does not, in itself, signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules. P. 427 U. S. 225.(c) To hold that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators, rather than of the federal courts. Wolff v. McDonnell, 418 U. S. 539, distinguished. Pp. 427 U. S. 225-227.(d) Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for any reason whatsoever, or for no reason at all. P. 427 U. S. 228.520 F.2d 374, reversed. Page 427 U. S. 216WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 427 U. S. 229.

1975_74-1216

MR. JUSTICE POWELL delivered the opinion of the Court.Respondent is a Negro convicted in a state court of violent crimes against a white security guard. The trial Page 424 U. S. 590 judge denied respondent's motion that a question specifically directed to racial prejudice be asked during voir dire in addition to customary questions directed to general bias or prejudice. The narrow issue is whether, under our recent decision in Ham v. South Carolina, 409 U. S. 524 (1973), respondent was constitutionally entitled to require the asking of a question specifically directed to racial prejudice. The broader issue presented is whether Ham announced a requirement applicable whenever there may be a confrontation in a criminal trial between persons of different races or different ethnic origins. We answer both of these questions in the negative.IRespondent, James Ross, Jr., was tried in a Massachusetts court with two other Negroes for armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder. The victim of the alleged crimes was a white man employed by Boston University as a uniformed security guard. The voir dire of prospective jurors was to be conducted by the court, which was required by statute to inquire generally into prejudice. See n 3, infra. Each defendant, represented by separate counsel, made a written motion that the prospective jurors also be questioned specifically about racial prejudice. [Footnote 1] Each defendant also moved that the veniremen be asked about affiliations with law enforcement agencies.The trial judge consulted counsel for the defendants about their motions. After tentatively indicating that Page 424 U. S. 591 he "[felt] that no purpose would be accomplished by asking such questions in this instance," the judge invited the views of counsel:"THE COURT: . . . I thought from something Mr. Donnelly [counsel for a codefendant] said, he might have wanted on the record something which was peculiar to this case, or peculiar to the circumstances which we are operating under here which perhaps he didn't want to say in open court.""Is there anything peculiar about it, Mr. Donnelly?""MR. DONNELLY: No, just the fact that the victim is white, and the defendants are black.""THE COURT: This, unfortunately, is a problem with us, and all we can hope and pray for is that the jurors and all of them take their oaths seriously and understand the spirit of their oath and understand the spirit of what the Court says to them -- this Judge anyway -- and I am sure all Judges of this Court -- would take the time to impress upon them before, during, and after the trial, and before their verdict, that their oath means just what it says, that they are to decide the case on the evidence, with no extraneous considerations.""I believe that that is the best that can be done with respect to the problems which -- as I said, I regard as extremely important. . . ."App. 29-30. Further discussion persuaded the judge that a question about law enforcement affiliations should be asked because of the victim's status as a security guard. [Footnote 2] But Page 424 U. S. 592 he adhered to his decision not to pose a question directed specifically to racial prejudice.The voir dire of five panels of prospective jurors then commenced. The trial judge briefly familiarized each panel with the facts of the case, omitting any reference to racial matters. He then explained to the panel that the clerk would ask a general question about impartiality and a question about affiliations with law enforcement agencies. [Footnote 3] Consistently with his announced intention to "impress upon [the jurors] . . . that they are to decide the case on the evidence, with no extraneous considerations," the judge preceded the questioning of the panel with an extended discussion of the obligations of jurors. [Footnote 4] Page 424 U. S. 593 After these remarks, the clerk posed the questions indicated to the panel. Panelists answering a question affirmatively were questioned individually a the bench by the judge, in the presence of counsel. This procedure led to the excusing of 18 veniremen for cause on grounds of prejudice, including one panelist who admitted a racial bias. [Footnote 5]The jury eventually impaneled convicted each defendant of all counts. On direct appeal, Ross contended that his federal constitutional rights were violated by the denial of his request that prospective jurors be questioned specifically about racial prejudice. This contention was rejected by the Supreme Judicial Court of Massachusetts, Commonwealth v. Ross, 361 Mass. 665, 282 N.E.2d 70 (1972), and Ross sought a writ of certiorari. While his petition was pending, we held in Ham that a trial court's failure on request to question veniremen specifically about racial prejudice had denied Ham due process Page 424 U. S. 594 of law. We granted Ross' petition for certiorari and remanded for reconsideration in light of Ham, 410 U.S. 901 (1973); the Supreme Judicial Court again affirmed Ross' conviction. Commonwealth v. Ross, 363 Mass. 665, 296 N.E.2d 810 (1973). The court reasoned that Ham turned on the need for questions about racial prejudice presented by its facts, and did not announce"a new broad constitutional principle requiring that [such] questions . . . be put to prospective jurors in all State criminal trials when the defendant is black. . . ."Id. at 671, 296 N.E.2d at 815. Ross again sought certiorari, but the writ was denied. 414 U. S. 1080 (1973).In the present case, Ross renewed his contention on collateral attack in federal habeas corpus. Relying on Ham, the District Court granted a writ of habeas corpus, and the Court of Appeals for the First Circuit affirmed. 508 F.2d 754 (1974). The Court of Appeals assumed that Ham turned on its facts. But it held that the facts of Ross' case, involving "violence against a white" with "a status close to that of a police officer," presented a need for specific questioning about racial prejudice similar to that, in Ham. Id. at 756. We think the Court of Appeals read Ham too broadly.IIThe Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Ham, supra at 409 U. S. 527-528. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Connors v. United States, 158 U. S. 408, 158 U. S. 413 (1895); see Ham, supra at 409 U. S. 527-528; Aldridge v. United States, 283 U. S. 308, 283 U. S. 310 (1931). This is so because Page 424 U. S. 595 the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge." Rideau v. Louisiana, 373 U. S. 723, 373 U. S. 733 (163) (Clark, J., dissenting). Thus, the State's obligation to the defendant to impanel an impartial jury [Footnote 6] generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. Ham, supra at 409 U. S. 527-528.In Ham, however, we recognized that some cases may present circumstances in which an impermissible threat to the fair trial guaranteed by due process is posed by a trial court's refusal to question prospective jurors specifically about racial prejudice during voir dire. Ham involved a Negro tried in South Carolina courts for possession of marihuana. He was well known in the locale of his trial as a civil rights activist, and his defense was that law enforcement officials had framed him on the narcotics charge to "get him" for those activities. Despite the circumstances, the trial judge denied Ham's request that the court-conducted voir dire include questions specifically directed to racial prejudice. [Footnote 7] We reversed the judgment of conviction because"the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that, under the facts shown by this record, the [defendant] be permitted to have the Page 424 U. S. 596 jurors interrogated [during voir dire] on the issue of racial bias."409 U.S. at 409 U. S. 527.By its terms, Ham did not announce a requirement of universal applicability. [Footnote 8] Rather, it reflected an assessment of whether, under all of the circumstances presented, there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be as "indifferent as [they stand] unsworne." Coke on Littleton 155b (19th ed. 1832). In this approach, Ham was consistent with other determinations by this Court that a State had denied a defendant due process by failing to impanel an impartial jury. See Irvin v. Dowd, 366 U. S. 717 (1961); Rideau v. Louisiana, supra; Turner v. Louisiana, 379 U. S. 466 (1965); cf. Avery v. Georgia, 345 U. S. 559 (1953).The circumstances in Ham strongly suggested the need for voir dire to include specific questioning about racial prejudice. Ham's defense was that he had been framed because of his civil rights activities. His prominence Page 424 U. S. 597 in the community as a civil rights activist, if not already known to veniremen, inevitably would have been revealed to the members of the jury in the course of his presentation of that defense. Racial issues therefore were inextricably bound up with the conduct of the trial. Further, Ham's reputation as a civil rights activist and the defense he interposed were likely to intensify any prejudice that individual members of the jury might harbor. In such circumstances, we deemed a voir dire that included questioning specifically directed to racial prejudice, when sought by Ham, necessary to meet the constitutional requirement that an impartial jury be impaneled.We do not agree with the Court of Appeals that the need to question veniremen specifically about racial prejudice also rose to constitutional dimensions in this case. [Footnote 9] The mere fact that the victim of the crimes alleged was a white man and the defendants were Negroes was less likely to distort the trial than were the special factors involved in Ham. The victim's status as a security officer, also relied upon by the Court of Appeals, was cited by respective defense counsel primarily as a separate source of prejudice, not as an aggravating racial factor, Page 424 U. S. 598 see n 2, supra, and the trial judge dealt with it by his question about law enforcement affiliations. [Footnote 10] The circumstances thus did not suggest a significant likelihood that racial prejudice might infect Ross' trial. This was made clear to the trial judge when Ross was unable to support his motion concerning voir dire by pointing to racial factors such as existed in Ham or others of comparable significance. In these circumstances, the trial judge acted within the Constitution in determining that the demands of due process could be satisfied by his more generalized but thorough inquiry into the impartiality of the veniremen. Accordingly, the judgment isReversed

U.S. Supreme CourtRistaino v. Ross, 424 U.S. 589 (1976)Ristaino v. RossNo. 74-1216Argued December 9, 1975Decided March 3, 1976424 U.S. 589SyllabusAbsent circumstances comparable in significance to those existing in Ham v. South Carolina, 409 U. S. 524, examination of veniremen during voir dire about racial prejudice is held not constitutionally required. In the instant case, which involved the prosecution of respondent, a Negro, for violent crimes against a white security guard, respondent did not show such circumstances. There was thus no error of constitutional dimensions when the state trial judge questioned veniremen about general bias or prejudice but declined to question them specifically about racial prejudice. Pp. 424 U. S. 594-598.508 F.2d 754, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J., filed a statement concurring in the result, post, p. 424 U. S. 598. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 424 U. S. 599. STEVENS, J., took no part in the consideration or decision of the case.

1967_517

MR. JUSTICE WHITE delivered the opinion of the Court.The question presented by this case is whether the Louisiana Supreme Court, in sustaining a judgment for damages in a public official's defamation action, correctly interpreted and applied the rule of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), that the plaintiff in such an action must prove that the defamatory publication "was made with actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 376 U. S. 279-280.On June 27, 1962, petitioner St. Amant, a candidate for public office, made a televised speech in Baton Rouge, Louisiana. In the course of this speech, St. Amant read a series of questions which he had put to J. D. Albin, a member of a Teamsters Union local, and Albin's answers to those questions. The exchange concerned the allegedly nefarious activities of E. G. Partin, the president of the local, and the alleged relationship between Partin and St. Amant's political opponent. One of Albin's answers concerned his efforts to prevent Partin from secreting union records; in this answer, Albin referred to Herman A. Thompson, an East Baton Rouge Parish deputy sheriff and respondent here:"Now, we knew that this safe was gonna be moved that night, but imagine our predicament, knowing Page 390 U. S. 729 of Ed's connections with the Sheriff's office through Herman Thompson, who made recent visits to the Hall to see Ed. We also knew of money that had passed hands between Ed and Herman Thompson . . . from Ed to Herman. We also knew of his connections with State Trooper Lieutenant Joe Green. We knew we couldn't get any help from there, and we didn't know how far that he was involved in the Sheriff's office or the State Police office through that, and it was out of the jurisdiction of the City Police. [Footnote 1]"Thompson promptly brought suit for defamation, claiming that the publication had "impute[d] . . . gross misconduct" and "infer[red] conduct of the most nefarious nature." The case was tried prior to the decision in New York Times Co. v. Sullivan, supra. The trial judge ruled in Thompson's favor and awarded $5,000 in damages. Thereafter, in the course of entertaining and denying a motion for a new trial, the Court considered the ruling in New York Times, finding that rule no barrier to the judgment already entered. The Louisiana Court of Appeal reversed because the record failed to show that St. Amant had acted with actual malice, as required by New York Times. 184 So. 2d 314 (1966). The Supreme Court of Louisiana reversed the intermediate appellate court. 250 La. 405, 196 So. 2d 255 (1967). In its view, there was sufficient evidence that St. Amant recklessly disregarded whether the statements about Thompson were true or false. We granted a writ of certiorari. 389 U.S. 1033 (1968). Page 390 U. S. 730For purposes of this case, we accept the determinations of the Louisiana courts that the material published by St. Amant charged Thompson with criminal conduct, that the charge was false, and that Thompson was a public official, [Footnote 2] and so had the burden of proving that the false statements about Thompson were made with actual malice as defined in New York Times Co. v. Sullivan and later cases. We cannot, however, agree with either the Supreme Court of Louisiana or the trial court that Thompson sustained this burden.Purporting to apply the New York Times malice standard, the Louisiana Supreme Court ruled that St. Amant had broadcast false information about Thompson recklessly, though not knowingly. Several reasons were given for this conclusion. St. Amant had no personal knowledge of Thompson's activities; he relied solely on Albin's affidavit, although the record was silent as to Albin's reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson, and went ahead heedless of the consequences, and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting Albin's words.These considerations fall short of proving St. Amant's reckless disregard for the accuracy of his statements about Thompson. "Reckless disregard," it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards Page 390 U. S. 731 for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication. In New York Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. Louisiana, 379 U. S. 64 (1964), also decided before the decision of the Louisiana Supreme Court in this case, the opinion emphasized the necessity for a showing that a false publication was made with a "high degree of awareness of . . . probable falsity." 379 U.S. at 379 U. S. 74. MR. JUSTICE HARLAN's opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 388 U. S. 153 (1967), stated that evidence of either deliberate falsification or reckless publication "despite the publisher's awareness of probable falsity" was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant, in fact, entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant's testimony that he published the statement in good faith and unaware of its probable falsity. Concededly the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher. But New York Times and succeeding cases have emphasized that the stake of the Page 390 U. S. 732 people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship, and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications, as well as true ones. We adhere to this view, and to the line which our cases have drawn between false communications which are protected and those which are not.The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. [Footnote 3]By no proper test of reckless disregard was St. Amant's broadcast a reckless publication about a public officer. Nothing referred to by the Louisiana courts indicates an awareness by St. Amant of the probable falsity of Albin's Page 390 U. S. 733 statement about Thompson. Failure to investigate does not, in itself, establish bad faith. New York Times Co. v. Sullivan, supra, at 376 U. S. 287-288. St. Amant's mistake about his probable legal liability does not evidence a doubtful mind on his part. That he failed to realize the import of what he broadcast -- and was thus "heedless" of the consequences for Thompson -- is similarly colorless. Closer to the mark are considerations of Albin's reliability. However, the most the state court could say was that there was no evidence in the record of Albin's reputation for veracity, and this fact merely underlines the failure of Thompson's evidence to demonstrate a low community assessment of Albin's trustworthiness or unsatisfactory experience with him by St. Amant.Other facts in this record support our view. St. Amant made his broadcast in June, 1962. He had known Albin since October, 1961, when he first met with members of the dissident Teamsters faction. St. Amant testified that he had verified other aspects of Albin's information, and that he had affidavits from others. Moreover, Albin swore to his answers, first in writing and later in the presence of newsmen. According to Albin, he was prepared to substantiate his charges. St. Amant knew that Albin was engaged in an internal struggle in the union; Albin seemed to St. Amant to be placing himself in personal danger by publicly airing the details of the dispute.Because the state court misunderstood and misapplied the actual malice standard which must be observed in a public official's defamation action, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtSt. Amant v. Thompson, 390 U.S. 727 (1968)St. Amant v. ThompsonNo. 517Argued April 4, 1968Decided April 29, 1968390 U.S. 727SyllabusPetitioner made a televised political speech in the course of which he read questions which he had put to a union member, Albin, and Albin's answers; the answers falsely charged respondent, a public official, with criminal conduct. Respondent sued petitioner for defamation, and was awarded damages by the trial judge. The trial judge, having considered New York Times Co. v. Sullivan, 376 U. S. 254 (1964), decided after the trial, denied a motion for a new trial. An intermediate appellate court reversed the trial court's judgment, having found that petitioner had not acted with actual malice within the meaning of the New York Times rule, i.e., with knowledge that petitioner's statements were false or with reckless disregard of whether they were false or not. The State Supreme Court reversed, finding that there had been sufficient evidence that petitioner had acted in "reckless disregard" in that petitioner had no personal knowledge of respondent's activities; relied solely on Albin's affidavit though there was no evidence as to Albin's veracity; failed to verify the information with others who might know the facts; did not consider whether the statements were defamatory, and mistakenly believed that he had no responsibility for the broadcast because he was merely quoting Albin.Held: In order that it can be found that a defendant, within the meaning of New York Times, acted in "reckless disregard" of whether a defamatory statement which he made about a public official is false or not, there must be sufficient evidence to permit the conclusion that the defendant had serious doubts as to the truth of his publication. Pp. 390 U. S. 730-733.(a) In a defamation action by a public official, reckless conduct is not measured by whether a reasonably prudent man would have published the statement or would have investigated before publishing. P. 390 U. S. 731.(b) The people's stake in the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would adequately implement First Amendment policies. Pp. 390 U. S. 731-732.(c) A defendant's testimony that he acted in good faith is not conclusive as to that issue, since the factfinder, in the light of all Page 390 U. S. 728 the surrounding circumstances. must determine whether the publication was indeed made in good faith. P. 390 U. S. 732.(d) The evidence in this case is not sufficient to permit the conclusion that petitioner acted in reckless disregard of whether the statements about respondent were false or not. Pp. 390 U. S. 732-73. .250 La. 405, 196 So. 2d 255, reversed and remanded.

1997_96-1469

REHNQUIST, C. J., delivered the opinion for a unanimous Court.David C. Frederick argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and J. Douglas Wilson.Michael R. Levine argued the cause and filed a brief for respondent. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In Richards v. Wisconsin, 520 U. S. 385, 394 (1997), we held that so-called "no-knock" entries are justified when police officers have a "reasonable suspicion" that knocking and announcing their presence before entering would "be dangerous or futile, or ... inhibit the effective investigation of*Briefs of amici curiae urging reversal were filed for Americans for Effective Law Enforcement, Inc., et al. by Richard M. Weintraub, Bernard J. Farber, Fred E. Inbau, Wayne W Schmidt, and James P. Manak; and for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Elise Porter, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, Daniel E. Lungren of California, M. Jane Brady of Delaware, Robert Butterworth of Florida, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, Jose Fuentes Agostini of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, William H. Sorrell of Vermont, Richard Cullen of Virginia, and Christine Q Gregoire of Washington.John Wesley Hall, Jr., and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.68the crime." In this case, we must decide whether the Fourth Amendment holds officers to a higher standard than this when a "no-knock" entry results in the destruction of property. We hold that it does not.Alan Shelby was a prisoner serving concurrent state and federal sentences in the Oregon state prison system. On November 1,1994, the Tillamook County Sheriff's Office took temporary custody of Shelby, expecting to transport him to the Tillamook County Courthouse, where he was scheduled to testify. On the way to the courthouse, Shelby slipped his handcuffs, knocked over a deputy sheriff, and escaped from custody.It was not the first time Shelby had attempted escape. In 1991 he struck an officer, kicked out a jail door, assaulted a woman, stole her vehicle, and used it to ram a police vehicle. Another time he attempted escape by using a rope made from torn bedsheets. He was reported to have made threats to kill witnesses and police officers, to have tortured people with a hammer, and to have said that he would "'not do federal time.'" App. to Pet. for Cert. 38a. It was also thought that Shelby had had access to large supplies of weapons.Shortly after learning of Shelby's escape, the authorities sent out a press release, seeking information that would lead to his recapture. On November 3, a reliable confidential informant told Bureau of Alcohol, Tobacco, and Firearms Agent George Kim that on the previous day he had seen a person he believed to be Shelby at respondent Hernan Ramirez's home in Boring, Oregon. Kim and the informant then drove to an area near respondent's home, from where Kim observed a man working outside who resembled Shelby.Based on this information, a Deputy United States Marshal sought and received a "no-knock" warrant granting permission to enter and search Ramirez's home. Around this time, the confidential informant also told authorities that respondent might have a stash of guns and drugs hidden in69his garage. In the early morning of November 5, approximately 45 officers gathered to execute the warrant. The officers set up a portable loudspeaker system and began announcing that they had a search warrant. Simultaneously, they broke a single window in the garage and pointed a gun through the opening, hoping thereby to dissuade any of the occupants from rushing to the weapons the officers believed might be in the garage.Respondent and his family were asleep inside the house at the time this activity began. Awakened by the noise, respondent believed that they were being burglarized. He ran to his utility closet, grabbed a pistol, and fired it into the ceiling of his garage. The officers fired back and shouted "police." At that point respondent realized that it was law enforcement officers who were trying to enter his home. He ran to the living room, threw his pistol away, and threw himself onto the floor. Shortly thereafter, he, his wife, and their child left the house and were taken into police custody. Respondent waived his Miranda rights, and then admitted that he had fired the weapon, that he owned both that gun and another gun that was inside the house, and that he was a convicted felon. Officers soon obtained another search warrant, which they used to return to the house and retrieve the two guns. Shelby was not found.Respondent was subsequently indicted for being a felon in possession of firearms. 18 U. S. C. § 922(g)(1). The District Court granted his motion to suppress evidence regarding his possession of the weapons, ruling that the police officers had violated both the Fourth Amendment and 18 U. S. C. § 3109 because there were "insufficient exigent circumstances" to justify the police officers' destruction of property in their execution of the warrant. App. to Pet. for Cert. 34a.The Court of Appeals for the Ninth Circuit affirmed. 91 F.3d 1297 (1996). Applying Circuit precedent, that court concluded that while a "mild exigency" is sufficient to justify a no-knock entry that can be accomplished without the de-70struction of property, "'more specific inferences of exigency are necessary'" when property is destroyed. Id., at 130l. It held that this heightened standard had not been met on the facts of this case. We granted certiorari and now reverse. 521 U. S. 1103 (1997).In two recent cases we have considered whether and to what extent "no-knock" entries implicate the protections of the Fourth Amendment. In Wilson v. Arkansas, 514 U. S. 927 (1995), we reviewed the Arkansas Supreme Court's holding that the common-law requirement that police officers knock and announce their presence before entering played no role in Fourth Amendment analysis. We rejected that conclusion, and held instead that "in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment." Id., at 934. We were careful to note, however, that there was no rigid rule requiring announcement in all instances, and left "to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment." Id., at 934, 936.In Richards v. Wisconsin, 520 U. S. 385 (1997),1 the Wisconsin Supreme Court held that police officers executing search warrants in felony drug investigations were never required to knock and announce their presence. We concluded that this blanket rule was overly broad and held instead that "[i]n order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id., at 394.Neither of these cases explicitly addressed the question whether the lawfulness of a no-knock entry depends on whether property is damaged in the course of the entry. It1 It should be noted that our opinion in Richards came down after the Court of Appeals issued its opinion in this case.71is obvious from their holdings, however, that it does not. Under Richards, a no-knock entry is justified if police have a "reasonable suspicion" that knocking and announcing would be dangerous, futile, or destructive to the purposes of the investigation. Whether such a "reasonable suspicion" exists depends in no way on whether police must destroy property in order to enter.This is not to say that the Fourth Amendment speaks not at all to the manner of executing a search warrant. The general touchstone of reasonableness which governs Fourth Amendment analysis, see Pennsylvania v. Mimms, 434 U. S. 106,108-109 (1977) (per curiam), governs the method of execution of the warrant. Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression.Applying these principles to the facts at hand, we conclude that no Fourth Amendment violation occurred. A reliable confidential informant had notified the police that Alan Shelby might be inside respondent's home, and an officer had confirmed this possibility. Shelby was a prison escapee with a violent past who reportedly had access to a large supply of weapons. He had vowed that he would "'not do federal time.'" The police certainly had a "reasonable suspicion" that knocking and announcing their presence might be dangerous to themselves or to others.2As for the manner in which the entry was accomplished, the police here broke a single window in respondent's garage. They did so because they wished to discourage Shelby, or any other occupant of the house, from rushing to the weapons that the informant had told them respondent might have2 It is of no consequence that Shelby was not found. "[I]n determining the lawfulness of entry and the existence of probable cause we may concern ourselves only with what the officers had reason to believe at the time of their entry." Ker v. California, 374 U. S. 23, 40-41, n. 12 (1963) (opinion of Clark, J.) (emphasis in original).72kept there. Their conduct was clearly reasonable and we conclude that there was no Fourth Amendment violation.3Respondent also argues, however, that suppression is appropriate because the officers executing the warrant violated 18 U. S. C. § 3109. This statutory argument fares no better. Section 3109 provides:"The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."Respondent contends that the statute specifies the only circumstances under which an officer may damage property in executing a search warrant, and that it therefore forbids all other property-damaging entries.But by its terms § 3109 prohibits nothing. It merely authorizes officers to damage property in certain instances. Even accepting, arguendo, that the statute implicitly forbids some of what it does not expressly permit, it is of no help to respondent. In Miller v. United States, 357 U. S. 301, 313 (1958), we noted that § 3109's "requirement of prior notice ... before forcing entry ... codif[ied] a tradition embedded in Anglo-American law." We repeated this point in Sabbath v. United States, 391 U. S. 585, 591, n. 8 (1968) (referring to § 3109 as "codification" of the common law). In neither of3 After concluding that the Fourth Amendment had been violated in this case, the Ninth Circuit further concluded that the guns should be excluded from evidence. Because we conclude that there was no Fourth Amendment violation, we need not decide whether, for example, there was sufficient causal relationship between the breaking of the window and the discovery of the guns to warrant suppression of the evidence. Cf. Nix v. Williams, 467 U. S. 431 (1984); Wong Sun v. United States, 371 U. S. 471 (1963).73these cases, however, did we expressly hold that § 3109 also codified the exceptions to the common-law requirement of notice before entry. In Miller the Government made "no claim ... of the existence of circumstances excusing compliance" and the question was accordingly not before us. 357 U. S., at 309. In Sabbath the Government did make such a claim, but because the record did "not reveal any substantial basis for the failure of the agents ... to announce their authority" we did not decide the question. We did note, however, that "[e]xceptions to any possible constitutional rule relating to announcement and entry have been recognized ... and there is little reason why those limited exceptions might not also apply to § 3109, since they existed at common law, of which the statute is a codification." 391 U. S., at 591, n. 8.In this case the question is squarely presented. We remove whatever doubt may remain on the subject and hold that § 3109 codifies the exceptions to the common-law announcement requirement. If § 3109 codifies the common law in this area, and the common law in turn informs the Fourth Amendment, our decisions in Wilson and Richards serve as guideposts in construing the statute. In Wilson v. Arkansas, 514 U. S. 927 (1995), we concluded that the common-law principle of announcement is "an element of the reasonableness inquiry under the Fourth Amendment," but noted that the principle "was never stated as an inflexible rule requiring announcement under all circumstances." Id., at 934. In Richards v. Wisconsin, 520 U. S. 385 (1997), we articulated the test used to determine whether exigent circumstances justify a particular no-knock entry. Id., at 394. We therefore hold that § 3109 includes an exigent circumstances exception and that the exception's applicability in a given instance is measured by the same standard we articulated in Richards. The police met that standard here and § 3109 was therefore not violated.74We accordingly reverse the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusUNITED STATES v. RAMIREZCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 96-1469. Argued January 13, 1998-Decided March 4, 1998Based on a reliable confidential informant's statement that he had seen a person he believed to be Alan Shelby, a dangerous escaped prisoner, at respondent's home, and on a federal agent's subsequent observation of a man resembling Shelby outside that home, the Government obtained a "no-knock" warrant to enter and search the home. Having gathered in the early morning hours to execute the warrant, officers announced over a loud speaker system that they had a search warrant. Simultaneously, they broke a single window in respondent's garage and pointed a gun through the opening, hoping thereby to dissuade occupants from rushing to the weapons stash the informant had told them was in the garage. Awakened by the noise and fearful that his house was being burglarized, respondent grabbed a pistol and fired it into the garage ceiling. When the officers shouted "police," respondent surrendered and was taken into custody. After he admitted that he had fired the weapon, that he owned both that gun and another in the house, and that he was a convicted felon, respondent was indicted on federal charges of being a felon in possession of firearms. The District Court granted his motion to suppress evidence regarding weapons possession, ruling that the officers had violated both the Fourth Amendment and 18 U. S. C. § 3109 because there were "insufficient exigent circumstances" to justify their destruction of property in executing the warrant. The Ninth Circuit affirmed.Held:1. The Fourth Amendment does not hold officers to a higher standard when a "no-knock" entry results in the destruction of property. It is obvious from the holdings in Wilson v. Arkansas, 514 U. S. 927, 934, 936, and Richards v. Wisconsin, 520 U. S. 385, that such an entry's lawfulness does not depend on whether property is damaged in the course of the entry. Under Richards, a no-knock entry is justified if police have a "reasonable suspicion" that knocking and announcing their presence before entering would "be dangerous or futile, or ... inhibit the effective investigation of the crime." Id., at 394. Whether such a reasonable suspicion exists does not depend on whether police must destroy property in order to enter. This is not to say that the Fourth Amendment does not speak to the manner of executing a warrant.66SyllabusSuch execution is governed by the general touchstone of reasonableness that applies to all Fourth Amendment analysis. See Pennsylvania v. Mimms, 434 U. S. 106, 108-109. Excessive or unnecessary property destruction during a search may violate the Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression. Applying these principles to the facts at hand demonstrates that no Fourth Amendment violation occurred. The police certainly had a "reasonable suspicion" that knocking and announcing their presence might be dangerous to themselves or others, in that a reliable informant had told them that Alan Shelby might be in respondent's home, an officer had confirmed this possibility, and Shelby had a violent past and possible access to a large supply of weapons and had vowed that he "would not do federal time." Moreover, the manner in which the entry was accomplished was clearly reasonable, in that the police broke but a single window in the garage to discourage Shelby, or anyone else, from rushing to the weapons that the informant had told them were there. Pp.70-72.2. The officers executing the warrant did not violate § 3109, which provides: "The officer may break open any ... window ... to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance .... " Contrary to respondent's contention, that statute does not specify the only circumstances under which an officer executing a warrant may damage property. By its terms § 3109 prohibits nothing, but merely authorizes officers to damage property in certain instances. Even accepting, arguendo, that it implicitly forbids some of what it does not expressly permit, it is of no help to respondent. In both Miller v. United States, 357 U. S. 301,313, and Sabbath v. United States, 391 U. S. 585, 591, n. 8, this Court noted that § 3109's prior notice requirement codified a common-law tradition. The Court now makes clear that § 3109 also codified the exceptions to the common-law requirement of notice before entry. Because that is the case, and because the common law informs the Fourth Amendment, Wilson and Richards serve as guideposts in construing the statute. In Wilson, the Court concluded that the common-law announcement principle is an element of the Fourth Amendment reasonableness inquiry, but noted that the principle was never stated as an inflexible rule requiring announcement under all circumstances. 514 U. S., at 934. In Richards, the Court articulated the test used to determine whether exigent circumstances justify a particular no-knock entry. 520 U. S., at 394. Thus, § 3109 includes an exigent circumstances exception and that exception's applicability in a given instance is measured by the same standard articulated in Richards. The police met that standard here. Pp. 72-74.91 F.3d 1297, reversed and remanded.67Full Text of Opinion

1956_30

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.Appellants challenge as violative of the Fourteenth Amendment the application of Title D, Chapter 17, of the New York City Administrative Code to two improved parcels of land owned by them as trustees. The statute is the counterpart, operative in the City of New York, of the state tax lien foreclosure statute that was before us last Term in Covey v. Town of Somers, 351 U. S. 141. [Footnote 1] Page 352 U. S. 105In 1950, the City proceeded to foreclose its lien on the first of these parcels, referred to as the 45th Avenue property, for water charges that had been unpaid for four years. These charges, for the years 1945 and 1946, amounted to $65; [Footnote 2] the property was assessed at $6,000. The action was begun on May 20 with the filing of a list of 294 liened parcels, including the 45th Avenue property, in two sections of the Borough of Queens. Under the statute, this constituted the filing of a complaint. [Footnote 3] The statute requires that notice of such a foreclosure proceeding be posted and published and a copy of the published notice mailed to the last known address of the owner of property sought to be foreclosed. [Footnote 4] It is undisputed that the statutory notice requirements were satisfied in this case; a copy of the published notice was mailed to the address of the trust estate. However, appellants took no Page 352 U. S. 106 action during the 7 weeks allowed for redeeming the property through payment of back charges, nor during the 20 additional days allowed for answering the City's complaint. Judgments of foreclosure were entered by default, and on August 22, the City acquired title to the parcel. The property was later sold to a private party for $7,000, the City retaining all the proceeds.On December 17, 1951, a similar in rem foreclosure action was commenced against 1,704 parcels in four sections of the Borough of Brooklyn, including appellants' second parcel, referred to as the Powell Street property. The four-year-old water charges on this parcel amounted to $814.50; [Footnote 5] the property was assessed at $46,000. Again the statutory notice requirements were satisfied, and again judgment of foreclosure was entered by default. The City acquired title to the Powell Street property on May 19, 1952, and still retains it.In November, 1952, the appellants offered to pay with interest and penalties all amounts owing to the City on the two parcels. The offer was refused, and the appellants instituted a plenary action to set aside the City's deed to the Powell Street property and to recover the surplus proceeds from the sale of the 45th Avenue property. The Appellate Division of the New York Supreme Court affirmed the denial of the requested relief without prejudice to appellants' seeking to open their default by motions in the foreclosure proceedings. The appellants filed such motions, requesting the same relief they had sought in the plenary action. The case was submitted to the Supreme Court, Special Term, on opposing affidavits, and the motions were denied. The Special Term's orders were affirmed by the Appellate Division, 284 App.Div. 894, 134 N.Y.S.2d 597, and the Court of Page 352 U. S. 107 Appeals, 309 N.Y. 94, 127 N.E.2d 827. The Court of Appeals amended its remittitur to show that the federal questions here presented were decided adversely to appellants. 309 N.Y. 801, 130 N.E.2d 602.1. Appellants contend they received no actual notice of the foreclosure proceedings. The reason they assign is that the mailed notices were concealed by their trusted bookkeeper, who is also alleged to have concealed from them the nonpayment of the water charges. There is no claim that the bills for the water charges were not mailed to the estate. They assert that it was not until November, 1952, when the judgments of foreclosure had long since become final, that they discovered the bookkeeper's derelictions, and thus were made aware of their loss. However, as we have said, it is not disputed that the notices were mailed to the proper address. Nor is this all. Appellants themselves placed in evidence as exhibits 1950-1951 and 1951-1952 real estate tax bills for the 45th Avenue property. These were concededly brought to the attention of appellant Gerald D. Nelson, the "active" or "managing" trustee. On the face of the bills appears the word "ARREARS," with a prominent black arrow pointing to it and beneath the arrow the statement,"The word ARREARS if it appears in the space indicated by the Arrow, means that, as of JUNE 30, 1950, previous TAXES, ASSESSMENTS OR WATER CHARGES HAVE NOT BEEN RECORDED AS PAID. If these have not been paid since June 30, 1950, payment should be made IMMEDIATELY. [Footnote 6]"Furthermore, the Page 352 U. S. 108 City's assistant corporation counsel stated in his affidavit that the tax bills for the Powell Street property each year from 1946 to 1953 contained a notice that the property was in arrears. Appellant Nelson stated that the bookkeeper"had been regularly presenting to deponent for payment all of the bills for real estate taxes which were paid through the first half of 1951-52. . . . [Footnote 7]"It is clear that the City cannot be charged with responsibility for the misconduct of the bookkeeper in whom appellants misplaced their confidence, nor for the carelessness of the managing trustee in overlooking notices of arrearagesAppellants make the further contention that the City officials should have known from the state of the records of the two parcels that mailed notice would probably be ineffective. That is, the fact that water charges were not paid, while the much larger real estate taxes were paid, should have indicated to the officials that something was amiss. They rely on Covey v. Town of Somers, supra. We cannot so hold. In the Covey case, there were uncontroverted allegations that the taxpayer, who lived on the foreclosed property, was known by the officials of a small community to be an incompetent, unable to understand the meaning of any notice served upon her; no attempt was made to have a committee appointed for her person or property until after entry of judgment of foreclosure in an in rem proceeding. The affidavit of the assistant corporation counsel here states that there are more than 834,000 tax parcels in the City, and, on the facts of this case, the City cannot be held to a duty to determine why a taxpayer neglects some taxes while paying others.We conclude, therefore, that the City, having taken steps to notify appellants of the arrearages and the foreclosure Page 352 U. S. 109 proceedings, and their agent having received such notices, its application of the statute did not deprive appellants of procedural due process.2. Appellants also claim a denial of the equal protection of the laws in that the City officials had available to them other remedies for collecting taxes, which would not necessarily have resulted in forfeiture of the entire value of their property. Their theory is that the choice to proceed against their property under Title D, Chapter 17, was arbitrary. We find the contention without merit. The statute is explicit that, when the strict foreclosure provisions of Title D, Chapter 17, are invoked, they must be used against all parcels in a section of the City on which charges have been outstanding for four years. [Footnote 8] It is clear that the aim is to prevent precisely the kind of discrimination of which appellants complain. Appellants do not assert that the statute was not complied with in this regard.3. In their reply brief, appellants urged that, by reason of the City's retention of property, in one instance, and proceeds of sale in the other, far exceeding in value the amounts due, they are deprived of property without due process of law, or have suffered a taking without just compensation. They called our attention to United States v. Lawton, 110 U. S. 146. In affirming a judgment in favor of a foreclosed landowner for the surplus proceeds from the sale of his land, the Court there said:"To withhold the Page 352 U. S. 110 surplus from the owner would be to violate the fifth amendment to the constitution and to deprive him of his property without due process of law or to take his property for public use without just compensation."110 U.S. at 110 U. S. 150. However, the statute involved in that case had been construed in United States v. Taylor, 104 U. S. 216, to require that the surplus be paid to the owner, and there, the problem was treated as purely one of statutory construction, without constitutional overtones. [Footnote 9] But we do not have here a statute which absolutely precludes an owner from obtaining the surplus proceeds of a judicial sale. In City of New York v. Chapman Docks Co., 1 App.Div.2d 895, 149 N.Y.S.2d 679, an owner filed a timely answer in a foreclosure proceeding, asserting his property had a value substantially exceeding the tax due. The Appellate Division construed § D17-12.0 of the statute [Footnote 10] to mean that, upon proof of this allegation, a separate sale should be directed so that the owner might receive the surplus. What the City of New York has done is to foreclose real property for charges four years delinquent and, in the absence of timely action to redeem or to recovery any surplus, retain the property or the entire proceeds of its sale. We hold that nothing in the Federal Constitution prevents this where the record shows adequate steps were taken to notify the owners of the charges due and the foreclosure proceedings.It is contended that this is a harsh statute. The New York Court of Appeals took cognizance of this claim and Page 352 U. S. 111 spoke of the "extreme hardships" resulting from the application of the statute in this case. But it held, as we must, that relief from the hardship imposed by a state statute is the responsibility of the state legislature, and not of the courts, unless some constitutional guarantee is infringed. In this connection, we note that the New York Legislature this year has ameliorated to some extent the severity of Title D, Chapter 17. Section D17-25.0 was added to the statute, permitting the reconveyance of property acquired and still held by the City upon payment of arrears, interest and the costs of foreclosure. The City concedes this amendment applies to the Powell Street property. Appellants have applied for a reconveyance of that property, and action has been held in abeyance pending the disposition of this appeal.Affirmed

U.S. Supreme CourtNelson v. City of New York, 352 U.S. 103 (1956)Nelson v. City of New YorkNo. 30Argued November 7, 1956Decided December 10, 1956352 U.S. 103SyllabusUnder Title D, Chapter 17, of the New York City Administrative Code, the City proceeded to foreclose liens for unpaid water charges on two parcels of land held in trust by appellants. In accordance with the statute, notice was given by posting, publication and mailing notices to the trust estate. Because of the derelictions of a bookkeeper, the notices were not brought to the attention of appellants, and they claimed to have had no knowledge of the foreclosure proceedings until after judgments of foreclosure had been entered by default and the City had acquired title to the property. The City sold one parcel for an amount many times that of the unpaid water charges, and retained all the proceeds. The value of the other parcel was many times the amount of the unpaid water charges, and the City retained title to it. Appellants moved to have the defaults opened, the deed to one parcel set aside, and to recover the surplus proceeds from the sale of the other parcel. Such relief was denied.Held:1. The City having taken steps to notify appellants of the arrearages and the foreclosure proceedings, and appellants' agent having received such notices, application of the statute did not deprive appellants of procedural due process. Pp. 352 U. S. 107-109.(a) The City cannot be charged with responsibility for the misconduct of the appellants' bookkeeper, nor for the carelessness of the managing trustee in overlooking notices of arrearages given on tax bills. P. 352 U. S. 108.(b) In view of the fact that there are 834,000 tax parcels, the City cannot be held to a duty to determine why appellants neglected water charges while paying much larger real estate taxes. Covey v. Town of Somers, 351 U. S. 141, distinguished. P. 352 U. S. 108.2. Since the statute requires that, when the strict foreclosure provisions of Title D, Chapter 17, are invoked, they must be used against all parcels in a section of the City on which charges have been outstanding for four years, appellants were not denied equal protection of the laws by failure of the City officials to resort to other remedies which would not necessarily have resulted in forfeiture of the entire value of their property. P. 352 U. S. 109. Page 352 U. S. 1043. Appellants not having taken timely action to secure the relief available under the statute although adequate steps were taken to notify them of the charges due and the foreclosure proceedings, they were not deprived of property without due process of law nor was their property taken without just compensation by reason of the City's retention of property, in one instance, and retention of the proceeds of sale, in the other instance, far exceeding in value the amounts due. Pp. 352 U. S. 109-111.(a) United States v. Lawton, 110 U. S. 146, distinguished. Pp. 352 U. S. 109-110.(b) Relief from the hardship imposed by a state statute is the responsibility of the state legislature, and not of the court, unless some constitutional guarantee is infringed. Pp. 352 U. S. 110-111.309 N.Y. 94, 801, 127 N.E.2d 827, 130 N.E.2d 602, affirmed.

1969_768

MR. JUSTICE BRENNAN delivered the opinion of the Court.In this case, we reexamine the holding of Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962), that the anti-injunction provisions of the Norris-LaGuardia Act [Footnote 1] preclude a federal district court from enjoining a strike in breach of a no-strike obligation under a collective Page 398 U. S. 238 bargaining agreement, even though that agreement contains provisions, enforceable under § 301(a) of the Labor Management Relations Act, 1947, [Footnote 2] for binding arbitration of the grievance dispute concerning which the strike was called. The Court of Appeals for the Ninth Circuit, considering itself bound by Sinclair, reversed the grant by the District Court for the Central District of California of petitioner's prayer for injunctive relief. 416 F.2d 368 (1969). We granted certiorari. 396 U.S. 1000 (1970). Having concluded that Sinclair was erroneously decided and that subsequent events have undermined its continuing validity, we overrule that decision and reverse the judgment of the Court of Appeals.IIn February, 1969, at the time of the incidents that produced this litigation, petitioner and respondent were parties to a collective bargaining agreement which provided, inter alia, that all controversies concerning its interpretation or application should be resolved by adjustment and arbitration procedures set forth therein [Footnote 3] and that, during the life of the contract, there should Page 398 U. S. 239 be "no cessation or stoppage of work, lock-out, picketing or boycotts. . . ." [Footnote 4] The dispute arose when petitioner's frozen foods supervisor and certain members of his crew who were not members of the bargaining unit began to rearrange merchandise in the frozen food cases of one of petitioner's supermarkets. A union representative insisted that the food cases be stripped of all merchandise and be restocked by union personnel. When petitioner did not accede to the union's demand, a strike was called and the union began to picket petitioner's establishment. Thereupon petitioner demanded that the union cease the work stoppage and picketing and sought to invoke the grievance and arbitration procedures specified in the contract.The following day, since the strike had not been terminated, petitioner filed a complaint in California Page 398 U. S. 240 Superior Court seeking a temporary restraining order, a preliminary and permanent injunction, and specific performance of the contractual arbitration provision. The state court issued a temporary restraining order forbidding continuation of the strike and also an order to show cause why a preliminary injunction should not be granted. Shortly thereafter, the union removed the case to the Federal District Court, and there made a motion to quash the state court's temporary restraining order. In opposition, petitioner moved for an order compelling arbitration and enjoining continuation of the strike. Concluding that the dispute was subject to arbitration under the collective bargaining agreement and that the strike was in violation of the contract, the District Court ordered the parties to arbitrate the underlying dispute, and simultaneously enjoined the strike, all picketing in the vicinity of petitioner's supermarket, and any attempts by the union to induce the employees to strike or to refuse to perform their services.IIAt the outset, we are met with respondent's contention that Sinclair ought not to be disturbed, because the decision turned on a question of statutory construction which Congress can alter at any time. Since Congress has not modified our conclusions in Sinclair, even though it has been urged to do so, [Footnote 5] respondent argues that principles of stare decisis should govern the present case.We do not agree that the doctrine of stare decisis bars a reexamination of Sinclair in the circumstances of this case. We fully recognize that important policy considerations militate in favor of continuity and predictability in the law. Nevertheless, as Mr. Justice Frankfurter Page 398 U. S. 241 wrote for the Court,"[S]tare decisis is a principle of policy, and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience."Helvering v. Hallock, 309 U. S. 106, 309 U. S. 119 (1940). See Swift & Co. v. Wickham, 382 U. S. 111, 382 U. S. 116 (1965). It is precisely because Sinclair stands as a significant departure from our otherwise consistent emphasis upon the congressional policy to promote the peaceful settlement of labor disputes through arbitration [Footnote 6] and our efforts to accommodate and harmonize this policy with those underlying the anti-injunction provisions of the Norris-LaGuardia Act [Footnote 7] that we believe Sinclair should be reconsidered. Furthermore, in light of developments subsequent to Sinclair, in particular, our decision in Avco Corp. v. Aero Lodge 735, 390 U. S. 557 (1968), it has become clear that the Sinclair decision does not further, but rather frustrates, realization of an important goal of our national labor policy.Nor can we agree that conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that "[i]t is, at best, treacherous to find in congressional silence alone the adoption of a controlling rule of law." Girouard v. United States, 328 U. S. 61, 328 U. S. 69 Page 398 U. S. 242 (1946). Therefore, in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to reconsider the decision. Helvering v. Hallock, supra, at 309 U. S. 119-120.IIIFrom the time Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957), was decided, we have frequently found it necessary to consider various substantive and procedural aspects of federal labor contract law and questions concerning its application in both state and federal courts. Lincoln Mills held generally that"the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws,"353 U.S. at 353 U. S. 456, and, more specifically, that a union can obtain specific performance of an employer's promise to arbitrate grievances. We rejected the contention that the anti-injunction proscriptions of the Norris-LaGuardia Act prohibited this type of relief, noting that a refusal to arbitrate was not "part and parcel of the abuses against which the Act was aimed," id. at 353 U. S. 458, and that the Act itself manifests a policy determination that arbitration should be encouraged. See 29 U.S.C. § 108. [Footnote 8] Subsequently, in the Steelworkers Page 398 U. S. 243 Trilogy, [Footnote 9] we emphasized the importance of arbitration as an instrument of federal policy for resolving disputes between labor and management, and cautioned the lower courts against usurping the functions of the arbitrator.Serious questions remained, however, concerning the role that state courts were to play in suits involving collective bargaining agreements. Confronted with some of these problems in Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962), we held that Congress clearly intended not to disturb the preexisting jurisdiction of the state courts over suits for violations of collective bargaining agreements. We noted that the"clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations."Id. at 368 U. S. 511.Shortly after the decision in Dowd Box, we sustained, in Teamsters Local 174 v. Lucas Flour Co., 369 U. S. 95 (1962), an award of damages by a state court to an employer for a breach by the union of a no-strike provision in its contract. While emphasizing that, "in enacting § 301, Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules," id. at 369 U. S. 104, we did not consider the applicability of the Norris-LaGuardia Act to state court proceedings because the employer's prayer for relief sought only Page 398 U. S. 244 damages and not specific performance of a no-strike obligation.Subsequent to the decision in Sinclair, we held in Avco Corp. v. Aero Lodge 7, supra, that § 301(a) suits initially brought in state courts may be removed to the designated federal forum under the federal question removal jurisdiction delineated in 28 U.S.C. § 1441. In so holding, however, the Court expressly left open the questions whether state courts are bound by the anti-injunction proscriptions of the Norris-LaGuardia Act and whether federal courts, after removal of a § 301(a) action, are required to dissolve any injunctive relief previously granted by the state courts. See generally General Electric Co. v. Local Union 191, 413 F.2d 964 (C.A. 5th Cir.1969) (dissolution of state injunction required). Three Justices who concurred expressed the view that Sinclair should be reconsidered "upon an appropriate future occasion." 390 U.S. at 390 U. S. 562 (STEWART, J., concurring). [Footnote 10]The decision in Avco, viewed in the context of Lincoln Mills and its progeny, has produced an anomalous situation which, in our view, makes urgent the reconsideration of Sinclair. The principal practical effect of Avco and Sinclair, taken together, is nothing less than to oust state courts of jurisdiction in § 301(a) suits where injunctive Page 398 U. S. 245 relief is sought for breach of a no-strike obligation. Union defendants can, as a matter of course, obtain removal to a federal court, [Footnote 11] and there is obviously a compelling incentive for them to do so in order to gain the advantage of the strictures upon injunctive relief which Sinclair imposes on federal courts. The sanctioning of this practice, however, is wholly inconsistent with our conclusion in Dowd Box that the congressional purpose embodied in § 301(a) was to supplement, and not to encroach upon, the preexisting jurisdiction of the state courts. [Footnote 12] It is ironic indeed that the very provision that Congress clearly intended to provide additional remedies for breach of collective bargaining agreements has been employed to displace previously existing state remedies. We are not at liberty thus to depart from the clearly expressed congressional policy to the contrary.On the other hand, to the extent that widely disparate remedies theoretically remain available in state, as opposed to federal, courts, the federal policy of labor law Page 398 U. S. 246 uniformity elaborated in Lucas Flour Co., is seriously offended. This policy, of course, could hardly require, as a practical matter, that labor law be administered identically in all courts, for undoubtedly a certain diversity exists among the state and federal systems in matters of procedural and remedial detail, a fact that Congress evidently took into account in deciding not to disturb the traditional jurisdiction of the States. The injunction, however, is so important a remedial device, particularly in the arbitration context, that its availability or nonavailability in various courts will not only produce rampant forum shopping and maneuvering from one court to another, but will also greatly frustrate any relative uniformity in the enforcement of arbitration agreements. Furthermore, the existing scheme, with the injunction remedy technically available in the state courts but rendered inefficacious by the removal device, assigns to removal proceedings a totally unintended function. While the underlying purposes of Congress in providing for federal question removal jurisdiction remain somewhat obscure, [Footnote 13] there has never been a serious contention that Congress intended that the removal mechanism be utilized to foreclose completely remedies otherwise available in the state courts. Although federal question removal jurisdiction may well have been intended to provide a forum for the protection of federal rights where such protection was deemed necessary or to encourage the development of expertise by the federal courts in the Page 398 U. S. 247 interpretation of federal law, there is no indication that Congress intended by the removal mechanism to effect a wholesale dislocation in the allocation of judicial business between the state and federal courts. Cf. City of Greenwood v. Peacock, 384 U. S. 808 (1966).It is undoubtedly true that each of the foregoing objections to Sinclair-Avco could be remedied either by overruling Sinclair or by extending that decision to the States. While some commentators have suggested that the solution to the present unsatisfactory situation does lie in the extension of the Sinclair prohibition to state court proceedings, [Footnote 14] we agree with Chief Justice Traynor of the California Supreme Court that"whether or not Congress could deprive state courts of the power to give such [injunctive] remedies when enforcing collective bargaining agreements, it has not attempted to do so either in the Norris-LaGuardia Act or section 301."McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal. 2d 45, 63, 315 P.2d 322, 332 (1957), cert. denied, 355 U.S. 932 (1958). See, e.g., American Dredging Co. v. Marine Local 25, 338 F.2d 837 (C.A.3d Cir.1964), cert. denied, 380 U.S. 935 (1965); Shaw Electric Co. v. I.B.E.W., 418 Pa. 1, 208 A.2d 769 (1965).An additional reason for not resolving the existing dilemma by extending Sinclair to the States is the devastating implications for the enforceability of arbitration agreements and their accompanying no-strike obligations if equitable remedies were not available. [Footnote 15] As we have Page 398 U. S. 248 previously indicated, a no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. See Textile Workers Union v. Lincoln Mills, supra, at 353 U. S. 455. [Footnote 16] Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated. While it is, of course, true, as respondent contends, that other avenues of redress, such as an action for damages, would remain open to an aggrieved employer, an award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union. [Footnote 17] Page 398 U. S. 249Even if management is not encouraged by the unavailability of the injunction remedy to resist arbitration agreements, the fact remains that the effectiveness of such agreements would be greatly reduced if injunctive relief were withheld. Indeed, the very purpose of arbitration procedures is to provide a mechanism for the expeditious settlement of industrial disputes without resort to strikes, lockouts, or other self-help measures. This basic purpose is obviously largely undercut if there is no immediate, effective remedy for those very tactics that arbitration is designed to obviate. Thus, because Sinclair, in the aftermath of Avco, casts serious doubt upon the effective enforcement of a vital element of stable labor-management relations -- arbitration agreements with their attendant no-strike obligations -- we conclude that Sinclair does not make a viable contribution to federal labor policy.IVWe have also determined that the dissenting opinion in Sinclair states the correct principles concerning the accommodation necessary between the seemingly absolute terms of the Norris-LaGuardia Act and the policy considerations underlying § 301(a). [Footnote 18] 370 U.S. at 370 U. S. 215. Page 398 U. S. 250 Although we need not repeat all that was there said, a few points should be emphasized at this time.The literal terms of § 4 of the Norris-LaGuardia Act must be accommodated to the subsequently enacted provisions of § 301(a) of the Labor Management Relations Act and the purposes of arbitration. Statutory interpretation requires more than concentration upon isolated words; rather, consideration must be given to the total corpus of pertinent law and the policies that inspired ostensibly inconsistent provisions. See Richards v. United States, 369 U. S. 1, 369 U. S. 11 (1962); Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 350 U. S. 285 (1956); United States v. Hutcheson, 312 U. S. 219, 312 U. S. 235 (1941).The Norris-LaGuardia Act was responsive to a situation totally different from that which exists today. In the early part of this century, the federal courts generally were regarded as allies of management in its attempt to prevent the organization and strengthening of labor unions, and, in this industrial struggle, the injunction became a potent weapon that was wielded against the activities of labor groups. [Footnote 19] The result was a large number of sweeping decrees, often issued ex parte, drawn on an ad hoc basis without regard to any systematic elaboration of national labor policy. See Drivers' Union v. Lake Valley Co., 311 U. S. 91, 311 U. S. 102 (1940). Page 398 U. S. 251In 1932, Congress attempted to bring some order out of the industrial chaos that had developed and to correct the abuses that had resulted from the interjection of the federal judiciary into union-management disputes on the behalf of management. See declaration of public policy, Norris-LaGuardia Act, 2, 47 Stat. 70. Congress, therefore, determined initially to limit severely the power of the federal courts to issue injunctions "in any case involving or growing out of any labor dispute. . . ." § 4, 47 Stat. 70. Even as initially enacted, however, the prohibition against federal injunctions was by no means absolute. See Norris-LaGuardia Act, §§ 7, 8, 9, 47 Stat. 71, 72. Shortly thereafter, Congress passed the Wagner Act, [Footnote 20] designed to curb various management activities that tended to discourage employee participation in collective action.As labor organizations grew in strength and developed toward maturity, congressional emphasis shifted from protection of the nascent labor movement to the encouragement of collective bargaining and to administrative techniques for the peaceful resolution of industrial disputes. This shift in emphasis was accomplished, however, without extensive revision of many of the older enactments, including the anti-injunction section of the Norris-LaGuardia Act. Thus, it became the task of the courts to accommodate, to reconcile the older statutes with the more recent ones.A leading example of this accommodation process is Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. Co., 353 U. S. 30 (1957). There, we were confronted with a peaceful strike which violated the statutory duty to arbitrate imposed by the Railway Labor Act. The Court concluded that a strike in violation of a statutory arbitration duty was not the type of situation Page 398 U. S. 252 to which the Norris-LaGuardia Act was responsive, that an important federal policy was involved in the peaceful settlement of disputes through the statutorily mandated arbitration procedure, that this important policy was imperiled if equitable remedies were not available to implement it, and, hence, that Norris-LaGuardia's policy of nonintervention by the federal courts should yield to the overriding interest in the successful implementation of the arbitration process.The principles elaborated in Chicago River are equally applicable to the present case. To be sure, Chicago River involved arbitration procedures established by statute. However, we have frequently noted, in such cases as Lincoln Mills, the Steelworkers Trilogy, and Lucas Flour, the importance that Congress has attached generally to the voluntary settlement of labor disputes without resort to self-help, and more particularly to arbitration as a means to this end. Indeed, it has been stated that Lincoln Mills, in its exposition of § 301(a), "went a long way towards making arbitration the central institution in the administration of collective bargaining contracts." [Footnote 21]The Sinclair decision, however, seriously undermined the effectiveness of the arbitration technique as a method peacefully to resolve industrial disputes without resort to strikes, lockouts, and similar devices. Clearly, employers will be wary of assuming obligations to arbitrate specifically enforceable against them when no similarly efficacious remedy is available to enforce the concomitant undertaking of the union to refrain from striking. On the other hand, the central purpose of the Norris-LaGuardia Act to foster the growth and viability of labor organizations is hardly retarded -- if anything, this goal is advanced -- by a remedial device that merely enforces the obligation that the union freely undertook under Page 398 U. S. 253 a specifically enforceable agreement to submit disputes to arbitration. [Footnote 22] We conclude, therefore, that the unavailability of equitable relief in the arbitration context presents a serious impediment to the congressional policy favoring the voluntary establishment of a mechanism for the peaceful resolution of labor disputes, that the core purpose of the Norris-LaGuardia Act is not sacrificed by the limited use of equitable remedies to further this important policy, and consequently that the Norris-LaGuardia Act does not bar the granting of injunctive relief in the circumstances of the instant case.VOur holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act. We deal only with the situation in which a collective bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate Page 398 U. S. 254 as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair suggested the following principles for the guidance of the district courts in determining whether to grant injunctive relief -- principles that we now adopt:"A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect, and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity -- whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer, and whether the employer will suffer more from the denial of an injunction than will the union from its issuance."370 U.S. at 370 U. S. 228. (Emphasis in original.)In the present case, there is no dispute that the grievance in question was subject to adjustment and arbitration under the collective bargaining agreement, and that the petitioner was ready to proceed with arbitration at the time an injunction against the strike was sought and obtained. The District Court also concluded that, by reason of respondent's violations of its no-strike obligation, petitioner "has suffered irreparable injury and will continue to suffer irreparable injury." Since we now Page 398 U. S. 255 overrule Sinclair, the holding of the Court of Appeals in reliance on Sinclair must be reversed. Accordingly, we reverse the judgment of the Court of Appeals and remand the case with directions to enter a judgment affirming the order of the District Court.It is so ordered

U.S. Supreme CourtBoys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 (1970)Boys Markets, Inc. v. Retail Clerks Union, Local 770No. 768Argued April 21-22, 1970Decided June 1, 1970398 U.S. 235SyllabusPetitioner company and respondent union were parties to a collective bargaining agreement containing a provision that all controversies concerning its interpretation or application should be resolved by arbitration and that there should be no work stoppage, lockout, picketing, or boycotts during the life of the contract. A dispute arose and, when petitioner did not accede to respondent's demand, a strike was called and the union began to picket petitioner's establishment. Petitioner's effort to invoke the contract's arbitration procedures being unsuccessful, it sought injunctive relief in the state court, which issued a temporary restraining order. The union removed the case to the Federal District Court, which ordered arbitration and enjoined the strike and the picketing. The Court of Appeals reversed, considering itself bound by Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962), which held that § 4 of the Norris-LaGuardia Act bars a federal district court from enjoining a strike in breach of a no-strike clause in a collective bargaining agreement, even though that agreement contains binding arbitration provisions enforceable under § 301(a) of the Labor Management Relations Act.Held: In the circumstances of this case -- where the grievance was subject to arbitration under the collective bargaining agreement, petitioner was ready for arbitration when the strike was enjoined, and the District Court concluded that respondent's violations of the no-strike clause were causing petitioner irreparable injury -- the Norris-LaGuardia Act does not bar the granting of injunctive relief. Sinclair Refining Co. v. Atkinson, supra, overruled. Pp. 398 U. S. 240-255.(a) The doctrine of stare decisis, "a principle of policy, and not a mechanical formula," does not bar reexamination of Sinclair. Pp. 398 U. S. 240-241.(b) The mere silence of Congress after Sinclair was decided does not foreclose reconsideration of that decision. Pp. 398 U. S. 241-242.(c) Arbitration is an important instrument of federal policy for resolving labor disputes, and a refusal to arbitrate is not an Page 398 U. S. 236 abuse against which the Norris-LaGuardia Act was aimed. Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957). Pp. 398 U. S. 242-243.(d) This Court's holding in Avco Corp. v. Aero Lodge 75, 390 U. S. 557 (1968), that § 301(a) suits initially brought in state courts are removable to federal courts (a decision which, in conjunction with Sinclair, had the effect of ousting state courts of jurisdiction in such cases where injunctive relief is sought for breach of a no-strike obligation), contravenes the congressional purpose embodied in § 301(a) to supplement, and not encroach upon, the preexisting jurisdiction of state courts. Avco has created an anomalous situation urgently necessitating reconsideration of Sinclair. Pp. 398 U. S. 244-245.(e) Congress did not intend that the removal procedure be used to foreclose completely injunctive and other remedies otherwise available in the state courts. P. 398 U. S. 246.(f) Extending Sinclair to the States would be an unacceptable resolution of the dilemma created by Sinclair and Avco because it would substantially lessen the employers' incentive to agree to submit grievances to arbitration in exchange for the unions' undertakings to refrain from striking and would totally eliminate, contrary to congressional intent, the injunction as the most effective device to enforce no-strike obligations. Pp. 398 U. S. 247-249.(g) The literal terms of § 4 of the Norris-LaGuardia Act must he accommodated to the subsequently enacted provisions of § 301(a) of the Labor Management Relations Act and the purposes of arbitration, equitable remedies to enforce which are essential to further congressional policy for peacefully resolving labor disputes. Pp. 398 U. S. 249-253.(h) The narrow holding in this case comports with the principles of the dissent in Sinclair, supra at 370 U. S. 228, which the Court adopts as guidelines for the district courts in determining whether to grant injunctive relief. Pp. 398 U. S. 253-254.416 F.2d 368, reversed and remanded. Page 398 U. S. 237

1958_2

Pp. 358 U. S. 170-179.(a) The question of the scope of collateral attack upon criminal sentences in the circumstances of this case is not decided, since it does not appear that the Government raised the question in the courts below, and it is not tendered in this Court as a question presented for decision. Pp. 358 U. S. 172-173.(b) It is not clear from the statute, even when read in the light of its legislative history, that Congress intended that a single act of assault affecting two officers should constitute two offenses under the statute. Pp. 358 U. S. 173-177.(c) To hold that there are as many assaults committed as there are officers affected would produce incongruous results. P. 358 U. S. 177. Page 358 U. S. 170(d) The meaning of this criminal statute being ambiguous, the policy of lenity in the construction of criminal statutes requires that the less harsh of two possible meanings be adopted. Pp. 358 U. S. 177-178.(e) Since the District Court did not hold a hearing on petitioner's motion, and the proceedings at petitioner's trial were not transcribed, it will be necessary at the hearing on the motion to reconstruct the trial record in order to determine whether petitioner was properly convicted of more than one offense. Pp. 358 U. S. 178-179.230 F.2d 726 reversed and case remanded for further proceedings.MR. JUSTICE BRENNAN delivered the opinion of the Court.The petitioner was convicted in the United States District Court for the Southern District of Mississippi of assaulting two federal officers with a deadly weapon in violation of former 18 U.S.C. § 254. [Footnote 1] The court sentenced the petitioner to the maximum punishment of 10 years' imprisonment on each conviction of assault, Page 358 U. S. 171 the sentences to run consecutively. [Footnote 2] Upon completion of the first 10-year sentence, the petitioner made a motion in the District Court, under 28 U.S.C. § 2255, to correct the second, and consecutive, sentence. He supported his motion by allegations that the evidence at his trial showed that he fired a single discharge from a shotgun into the front seat of an automobile, and that the pellets wounded the two federal officers, who were transporting an arrested prisoner. He contended that in this circumstance he was guilty of but one "assault" within the meaning of former § 254, and accordingly was subject to only one punishment. The District Court denied his motion, and the Court of Appeals for the Fifth Circuit affirmed. 230 F.2d 726. Both courts held that the wounding of two federal officers by the single discharge of a shotgun would constitute a separate offense against each officer under the statute. We granted certiorari, 352 U.S. 907, to consider the construction of § 254 in light of principles applied to construe the federal criminal statutes involved in Bell v. United States, 349 U. S. 81; United States v. Universal C.I.T. Credit Corp., 344 U. S. 218, and Prince v. United States, 352 U. S. 322. We affirmed the Court of Appeals by an equally divided Court, 355 U. S. 282, but vacated our judgment, and set the case for reargument, when a petition for rehearing was granted. 356 U.S. 969. Reargument was had this Term. Page 358 U. S. 172It is suggested that the remedy under § 2255 is not available to the petitioner in the circumstances of this case. The record does not disclose that the Government raised this question in the District Court or in the Court of Appeals, and the Government does not tender it as a Question Presented for Decision in its brief in this Court. This court has often reached the merits of a case involving questions of statutory construction similar to that presented in this case under former 18 U.S.C. § 254 in proceedings by way of collateral attack upon consecutive sentences. In In re Snow, 120 U. S. 274, the petitioner brought a habeas corpus proceeding after serving seven months of three consecutive six-month sentences. He claimed that the sentencing court had misinterpreted the applicable statute, and that he had committed but a single offense punishable by a single six-month sentence. This Court held that "the objection may be taken on habeas corpus when the sentence on more than one of the convictions is sought to be enforced." Id. at 120 U. S. 285. In Bell v. United States, supra, a case on all fours with the present case, the Court reached the question of statutory construction over objection in the Government's brief in opposition to the petition for certiorari that the question could not be raised on motion under § 2255. Other cases in which the Court reached and decided questions of statutory construction, although the questions were raised by collateral attack on consecutive sentences, include: Tinder v. United States, 345 U. S. 565 (§ 2255); Gore v. United States, 357 U. S. 386 (§ 2255); Prince v. United States, supra (Federal Rule of Criminal Procedure 35); Ebeling v. Morgan, 237 U. S. 625 (habeas corpus); Morgan v. Devine, 237 U. S. 632 (habeas corpus). The fact that the Court has so often reached the merits of the statutory construction issues in such proceedings suggests that the availability of a collateral remedy is not a jurisdictional question in the sense that, if not properly raised, this Page 358 U. S. 173 Court should nevertheless determine it sua sponte. Moreover, there was only meagre argument of the question of the availability of the remedy in this case. The Government submitted only a short discussion of the question in the body of its brief, and made only a passing reference to it toward the close of the oral argument. The question of the scope of collateral attack upon criminal sentences is an important and complex one, judging from the number of decisions discussing it in the District Courts and the Courts of Appeals. We think that we should have the benefit of a full argument before dealing with the question. We therefore proceed to construe former 18 U.S.C. § 254 without, however, intimating any view as to the availability of a collateral remedy in another case where that question is properly raised, and is adequately briefed and argued in this Court.There is no constitutional issue presented. The question for decision is as to the construction to be given former § 254 in the circumstances alleged by the petitioner. Did Congress mean that the single discharge of a shotgun would constitute one assault, and thus only one offense, regardless of the number of officers affected, or did Congress define a separate offense for each federal officer affected by the doing of the act? The congressional meaning is plainly open to question on the face of the statute, which originated as § 2 of the Act of May 18, 1934. 48 Stat. 780. The Government does not seriously contend otherwise, but emphasizes that the legislative history shows that the statute was designed to protect federal officers from personal harm, or the threat of personal harm, in the performance of their duties, or on account of the performance of their duties. From this premise, the Government argues that there must be an offense for each officer who is put in immediate apprehension of personal injury, i.e., assaulted, and that each officer thus defines the unit of prosecution. The position is summed up in Page 358 U. S. 174 the Government's brief as follows:"The legislation was aimed at protecting federal officers, not only to promote the orderly functioning of the federal government (whose efficiency would diminish in proportion to the number of individual officers affected), but also to protect the individual officers, as 'wards' of the federal government, from personal harm. Both of these legislative objectives make the individual officers a separate unit of protection."However, we are unable to read the legislative history as clearly illumining the statute with this meaning. The history is scant, consisting largely of an Attorney General's letter recommending the passage of the legislation, [Footnote 3] Page 358 U. S. 175 and sheds no real light on what Congress intended to be the unit of prosecution. Although the letter mentions the need for legislation for the protection of federal officers, it also speaks of the need for legislation "to further the legitimate purposes of the Federal government." From what appears, an argument at least as plausible as the Government's may be made that the congressional Page 358 U. S. 176 aim was to prevent hindrance to the execution of official duty, and thus to assure the carrying out of federal purposes and interests, and was not to protect federal officers except as incident to that aim. Support for this meaning may be found in the fact that § 254 makes it unlawful not only to assault federal officers engaged on official duty, but also forcibly to resist, oppose, impede, intimidate, or interfere with such officers. Clearly one may resist, oppose, or impede the officers or interfere with the performance of their duties without placing them in personal danger. Such a congressional aim would, of course, be served by considering the act of hindrance as the unit of prosecution without regard to the number of federal officers affected by the act. For example, the locking of the door of a building to prevent the entry of officers intending to arrest a person within would be an act of hindrance denounced by the statute. We cannot find clearly from the statute, even when read in the light of its legislative history, that the Congress intended that the person locking the door might commit as many crimes as there are officers denied entry. And if we cannot find this meaning in the supposed case, we cannot find that Congress intended that a single act of assault affecting two officers constitutes two offenses under the statute. The Government frankly conceded on the oral argument that assault can be treated no differently from the other outlawed activities, [Footnote 4] and that if a single act of hindrance Page 358 U. S. 177 which has an impact on two officers is only one offense when the act is not an assault, an act of assault can be only one offense even though it has an impact on two officers.Moreover, an interpretation that there are as many assaults committed as there are officers affected would produce incongruous results. Punishments totally disproportionate to the act of assault could be imposed, because it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act. For an assault is ordinarily held to be committed merely by putting another in apprehension of harm, whether or not the actor actually intends to inflict or is capable of inflicting that harm. [Footnote 5] Thus, under the meaning for which the Government contends, one who shoots and seriously wounds an officer would commit one offense punishable by 10 years' imprisonment, but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years' imprisonment, even though he does not fire the gun, and no officer actually suffers injury. It is difficult, without a clear indication than the materials before us provide, to find that Congress intended this result.It is therefore apparent that § 254 may as reasonably be read to mean that the single discharge of the shotgun would constitute an "assault" without regard to the number of federal officers affected, as it may be read to mean that as many "assaults" would be committed as there were officers affected. Neither the wording of the statute nor its legislative history points clearly to either meaning. In that circumstance, the Court applies a policy of lenity, and adopts the less harsh meaning."[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose Page 358 U. S. 178 the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication."United States v. Universal C.I.T. Credit Corp., 344 U. S. 218, 344 U. S. 221-222. And in Bell v. United States, 349 U. S. 81, 349 U. S. 83, the Court expressed this policy as follows:"When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity."See also Prince v. United States, supra; Gore v. United States, 357 U. S. 386, 357 U. S. 391. This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended. If Congress desires to create multiple offenses from a single act affecting more than one federal officer, Congress can make that meaning clear. We thus hold that the single discharge of a shotgun alleged by the petitioner in this case would constitute only a single violation of § 254.It follows that the petitioner is entitled to an opportunity to sustain his allegation that his conviction of two assaults rested upon evidence that the wounding of the two officers resulted from a single discharge of the gun. [Footnote 6] The District Court did not hold a hearing on his motion, because of its view that the single discharge admitted by him resulted in two assaults. But the Court of Appeals, in affirming on the same ground, correctly acknowledged that, if this were an erroneous view of the law,"there is a necessity for the determination of such a factual question Page 358 U. S. 179 [and] there must be a hearing [at which] the [petitioner] is entitled to be present."230 F.2d at 726, 728. See United States v. Hayman, 342 U. S. 205, 342 U. S. 219-220; Walker v. Johnston, 312 U. S. 275. Because the proceedings at the petitioner's trial were not transcribed, [Footnote 7] it will be necessary at the hearing on the motion to reconstruct the trial record. We decide only the issue tendered by the parties, and intimate no view as to whether the petitioner may be entitled to correction of the consecutive sentence under any different fact situation which the reconstructed trial record may disclose.The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtLadner v. United States, 358 U.S. 169 (1958)Ladner v. United StatesNo. 2Argued November 19, 1957Affirmed by an equally divided Court January 6, 1958Rehearing granted, judgment vacated and case restoredto the calendar for reargument May 26, 1958Reargued October 22, 1958Decided December 15, 1958.358 U.S. 169SyllabusPetitioner was convicted in a Federal District Court on two different counts of assaulting two federal officers with a deadly weapon in violation of 18 U.S.C. (1940 ed.) § 254 (now 18 U.S.C. § 111). He was sentenced to imprisonment for 10 years on each conviction of assault, the sentences to run consecutively. Upon completion of the first 10-year sentence, he moved in the District Court under 28 U.S.C. § 2255 to correct the second, and consecutive, sentence. He alleged that the evidence at his trial showed that he fired but one discharge from a shotgun, which wounded the two federal officers, and he contended that, in these circumstances, he could be guilty of but one assault. Holding that the wounding of two officers by a single discharge of a shotgun would constitute a separate offense against each officer under the statute, the District Court denied his motion, and the Court of Appeals affirmed.Held: the single discharge of a shotgun alleged by petitioner in this case would constitute only a single violation of § 254; petitioner is entitled to an opportunity to sustain his allegation that his conviction of two assaults rested upon evidence that the wounding of the two officers resulted from the single discharge of the gun, and the judgment is reversed, and the cause remanded for further proceedings. Pp. 358 U. S. 170-179.(a) The question of the scope of collateral attack upon criminal sentences in the circumstances of this case is not decided, since it does not appear that the Government raised the question in the courts below, and it is not tendered in this Court as a question presented for decision. Pp. 358 U. S. 172-173.(b) It is not clear from the statute, even when read in the light of its legislative history, that Congress intended that a single act of assault affecting two officers should constitute two offenses under the statute. Pp. 358 U. S. 173-177.(c) To hold that there are as many assaults committed as there are officers affected would produce incongruous results. P. 358 U. S. 177. Page 358 U. S. 170(d) The meaning of this criminal statute being ambiguous, the policy of lenity in the construction of criminal statutes requires that the less harsh of two possible meanings be adopted. Pp. 358 U. S. 177-178.(e) Since the District Court did not hold a hearing on petitioner's motion, and the proceedings at petitioner's trial were not transcribed, it will be necessary at the hearing on the motion to reconstruct the trial record in order to determine whether petitioner was properly convicted of more than one offense. Pp. 358 U. S. 178-179.230 F.2d 726 reversed and case remanded for further proceedings.

1978_77-1829

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Over the past five Terms, this Court has in several decisions considered constitutional challenges to prison conditions or practices by convicted prisoners. [Footnote 1] This case requires us to examine the constitutional rights of pretrial detainees -- those persons who have been charged with a crime but who have not yet been tried on the charge. The parties concede that, to ensure their presence at trial, these persons legitimately may be incarcerated by the Government prior to a determination of their guilt or innocence, infra at 441 U. S. 533-535, and n 15; see 18 U.S.C. §§ 3146, 3148, and it is the scope of their rights during this period of confinement prior to trial that is the primary focus of this case.This lawsuit was brought as a class action in the United States District Court for the Southern District of New York to challenge numerous conditions of confinement and practices at the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees. The District Court, in the words of the Court of Appeals for the Second Circuit, "intervened broadly into almost every facet of the institution" and enjoined no fewer than 20 MCC practices on constitutional and statutory grounds. The Court of Appeals largely affirmed the District Court's constitutional rulings and in the process held that under the Due Process Clause of the Fifth Amendment, pretrial detainees may"be subjected to only those 'restrictions and privations' which 'inhere in their confinement itself or which are justified by Page 441 U. S. 524 compelling necessities of jail administration.'"Wolfish v. Levi, 573 F.2d 118, 124 (1978), quoting Rhem v. Malcolm, 507 F.2d 333, 336 (CA2 1974). We granted certiorari to consider the important constitutional question's raised by these decisions and to resolve an apparent conflict among the Circuits. [Footnote 2] 439 U.S. 816 (1978). We now reverse.IThe MCC was constructed in 1975 to replace the converted waterfront garage on West Street that had served as New York City's federal jail since 1928. It is located adjacent to the Foley Square federal courthouse, and has as its primary objective the housing of persons who are being detained in custody prior to trial for federal criminal offenses in the United States District Courts for the Southern and Eastern Districts of New York and for the District of New Jersey. Under the Bail Reform Act, 18 U.S.C. § 3146, a person in the federal system is committed to a detention facility only because no other less drastic means can reasonably ensure his presence at trial. In addition to pretrial detainees, the MCC also houses some convicted inmates who are awaiting sentencing or transportation to federal prison or who are serving generally relatively short sentences in a service capacity at the MCC, convicted prisoners who have been lodged at the facility under writs of habeas corpus ad prosequendum or ad testificandum issued to ensure their presence at upcoming trials, witnesses in protective custody, and persons incarcerated for contempt. [Footnote 3] Page 441 U. S. 525The MCC differs markedly from the familiar image of a jail; there are no barred cells, dank, colorless corridors, or clanging steel gates. It was intended to include the most advanced and innovative features of modern design of detention facilities. As the Court of Appeals stated: "[I]t represented the architectural embodiment of the best and most progressive penological planning." 573 F.2d at 121. The key design element of the 12-story structure is the "modular" or "unit" concept, whereby each floor designed to house inmates has one or two largely self-contained residential units that replace the traditional cellblock jail construction. Each unit, in turn, has several clusters or corridors of private rooms or dormitories radiating from a central 2-story "multipurpose" or common room, to which each inmate has free access approximately 16 hours a day. Because our analysis does not turn on the particulars of the MCC concept or design, we need not discuss them further.When the MCC opened in August, 1975, the planned capacity was 449 inmates, an increase of 50% over the former West Street facility. Id. at 122. Despite some dormitory accommodations, the MCC was designed primarily to house these inmates in 389 rooms, which originally were intended for single occupancy. While the MCC was under construction, however, the number of persons committed to pretrial detention began to rise at an "unprecedented" rate. Ibid. The Bureau of Prisons took several steps to accommodate this unexpected flow of persons assigned to the facility, but, despite these efforts, the inmate population at the MCC rose above its planned capacity within a short time after its opening. To provide sleeping space for this increased population, the MCC Page 441 U. S. 526 replaced the single bunks in many of the individual rooms and dormitories with double bunks. [Footnote 4] Also, each week, some newly arrived inmates had to sleep on cots in the common areas until they could be transferred to. residential rooms as space became available. See id. at 127-128.On November 28, 1975, less than four months after the MCC had opened, the named respondents initiated this action by filing in the District Court a petition for a writ of habeas corpus. [Footnote 5] The District Court certified the case as a class action on behalf of all persons confined at the MCC, pretrial detainees and sentenced prisoners alike. [Footnote 6] The petition served Page 441 U. S. 527 up a veritable potpourri of complaints that implicated virtually every facet of the institution's conditions and practices. Respondents charged, inter alia, that they had been deprived of their statutory and constitutional rights because of overcrowded conditions, undue length of confinement, improper searches, inadequate recreational, educational, and employment opportunities, insufficient staff, and objectionable restrictions on the purchase and receipt of personal items and books. [Footnote 7]In two opinions and a series of orders, the District Court enjoined numerous MCC practices and conditions. With respect to pretrial detainees, the court held that, because they Page 441 U. S. 528 are"presumed to be innocent and held only to ensure their presence at trial, 'any deprivation or restriction of . . . rights beyond those which are necessary for confinement alone must be justified by a compelling necessity.'"United Sates ex rel. Wolfish v. Levi, 439 F. Supp. 114, 124 (1977), quoting Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (CA2 1975). And while acknowledging that the rights of sentenced inmates are to be measured by the different standard of the Eighth Amendment, the court declared that to house "an inferior minority of persons . . . in ways found unconstitutional for the rest" would amount to cruel and unusual punishment. United States ex rel. Wolfish v. United States, 428 F. Supp. 333, 339 (1977). [Footnote 8]Applying these standards on cross-motions for partial summary judgment, the District Court enjoined the practice of housing two inmates in the individual rooms and prohibited enforcement of the so-called "publisher only" rule, which, at the time of the court's ruling, prohibited the receipt of all books and magazines mailed from outside the MCC except those sent directly from a publisher or a book club. [Footnote 9] After a trial on the remaining issues, the District Court enjoined, inter alia, the doubling of capacity in the dormitory areas, the use of the common rooms to provide temporary sleeping accommodations, the prohibition against inmates' receipt of packages containing food and items of personal property, and the practice of requiring inmates to expose their body cavities for visual inspection following contact visits. The court also Page 441 U. S. 529 granted relief in favor of pretrial detainees, but not convicted inmates, with respect to the requirement that detainees remain outside their rooms during routine inspections by MCC officials. [Footnote 10]The Court of Appeals largely affirmed the District Court's rulings, although it rejected that court's Eighth Amendment analysis of conditions of confinement for convicted prisoners because the "parameters of judicial intervention into . . . conditions . . . for sentenced prisoners are more restrictive than in the case of pretrial detainees." 573 F.2d at 125. [Footnote 11] Accordingly, Page 441 U. S. 530 the court remanded the matter to the District Court for it to determine whether the housing for sentenced inmates at the MCC was constitutionally "adequate." But the Court of Appeals approved the due process standard employed by the District Court in enjoining the conditions of pretrial confinement. It therefore held that the MCC had failed to make a showing of "compelling necessity" sufficient to justify housing two pretrial detainees in the individual rooms. Id. at 126-127. And for purposes of our review (since petitioners challenge only some of the Court of Appeals' rulings), the court affirmed the District Court's granting of relief against the "publisher only" rule, the practice of conducting body cavity searches after contact visits, the prohibition against receipt of packages of food and personal items from outside the institution, and the requirement that detainees remain outside their rooms during routine searches of the rooms by MCC officials. Id. at 129-132. [Footnote 12]IIAs a first step in our decision, we shall address "double-bunking," as it is referred to by the parties, since it is a condition of confinement that is alleged only to deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment. We will treat in order the Court of Appeals' standard of review, the analysis which we believe the Court of Appeals should have employed, Page 441 U. S. 531 and the conclusions to which our analysis leads us in the case of "double-bunking."AThe Court of Appeals did not dispute that the Government may permissibly incarcerate a person charged with a crime but not yet convicted to ensure his presence at trial. However, reasoning from the "premise that an individual is to be treated as innocent until proven guilty," the court concluded that pretrial detainees retain the "rights afforded unincarcerated individuals," and that therefore it is not sufficient that the conditions of confinement for pretrial detainees "merely comport with contemporary standards of decency prescribed by the cruel and unusual punishment clause of the eighth amendment." 573 F.2d at 124. Rather, the court held, the Due Process Clause requires that pretrial detainees"be subjected to only those 'restrictions and privations' which 'inhere in their confinement itself or which are justified by compelling necessities of jail administration.'"Ibid., quoting Rhem v. Malcolm, 507 F.2d at 336. Under the Court of Appeals' "compelling necessity" standard, "deprivation of the rights of detainees cannot be justified by the cries of fiscal necessity, . . . administrative convenience, . . . or by the cold comfort that conditions in other jails are worse." 573 F.2d at 124. The court acknowledged, however, that it could not "ignore" our admonition in Procunier v. Martinez, 416 U. S. 396, 416 U. S. 405 (1974), that "courts are ill-equipped to deal with the increasingly urgent problems of prison administration," and concluded that it would "not [be] wise for [it] to second-guess the expert administrators on matters on which they are better informed." 573 F.2d at 124. [Footnote 13] Page 441 U. S. 532Our fundamental disagreement with the Court of Appeals is that we fail to find a source in the Constitution for its "compelling necessity" standard. [Footnote 14] Both the Court of Appeals and the District Court seem to have relied on the "presumption of innocence" as the source of the detainee's substantive right to be free from conditions of confinement that are not justified by compelling necessity. 573 F.2d at 124; 439 F. Supp. at 124; accord, Campbell v. McGruder, 188 U.S.App.D.C. 258, 266, 50 F.2d 521, 529 (1978); Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (CA2 1975); Rhem v. Malcolm, supra at 336. But see Feeley v. Sampson, 570 F.2d 364, 369 n. 4 (CA1 1978); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1080 n. 1 (CA3 1976). But the presumption of innocence provides no support for such a rule. Page 441 U. S. 533The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused's guilt or innocence solely on the evidence adduced at trial, and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial. Taylor v. Kentucky, 436 U. S. 478, 436 U. S. 485 (1978); see Estelle v. Williams, 425 U. S. 501 (1976); In re Winship, 397 U. S. 358 (1970); 9 J. Wigmore, Evidence § 2511 (3d ed.1940). It is"an inaccurate, shorthand description of the right of the accused to 'remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; . . . ' an 'assumption' that is indulged in the absence of contrary evidence."Taylor v. Kentucky, supra at 436 U. S. 484 n. 12. Without question, the presumption of innocence plays an important role in our criminal justice system."The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."Coffin v. United States, 156 U. S. 432, 156 U. S. 453 (1895). But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.The Court of Appeals also relied on what it termed the "indisputable rudiments of due process" in fashioning its "compelling necessity" test. We do not doubt that the Due Process Clause protects a detainee from certain conditions and restrictions of pretrial detainment. See infra at 441 U. S. 535-540. Nonetheless, that Clause provides no basis for application of a "compelling necessity" standard to conditions of pretrial confinement that are not alleged to infringe any other, more specific guarantee of the Constitution.It is important to focus on what is at issue here. We are not concerned with the initial decision to detain an accused and the curtailment of liberty that such a decision necessarily Page 441 U. S. 534 entails. See Gerstein v. Pugh, 420 U. S. 103, 420 U. S. 114 (1975); United States v. Maron, 404 U. S. 307, 404 U. S. 320 (1971). Neither respondents nor the courts below question that the Government may permissibly detain a person suspected of committing a crime prior to a formal adjudication of guilt. See Gerstein v. Pugh, supra at 420 U. S. 111-114. Nor do they doubt that the Government has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, or that confinement of such persons pending trial is a legitimate means of furthering that interest. Tr. of Oral Arg. 27; see Stack v. Boyle, 342 U. S. 1, 342 U. S. 4 (1951). [Footnote 15] Instead, what is at issue when an aspect of pretrial detention that is not alleged to violate any express guarantee of the Constitution is challenged is the detainee's right to be free from punishment, see infra at 441 U. S. 535-537, and his understandable desire to be as comfortable as possible during his confinement, both of which may conceivably coalesce at some point. It seems clear that the Court of Appeals did not rely on the detainee's right to be free from punishment, but even if it had, that right does not warrant adoption of that court's "compelling necessity" test. See infra at 441 U. S. 535-540. And to the extent the court relied on the detainee's desire to be free from discomfort, it suffices to say that this desire simply does not rise to the level of those fundamental liberty interests delineated in cases such as Roe v. Wade, 410 U. S. 113 (1973); Page 441 U. S. 535 Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Illinois, 405 U. S. 645 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); Meyer v. Nebraska, 262 U. S. 390 (1923).BIn evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. [Footnote 16] For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. [Footnote 17] Page 441 U. S. 536 See Ingraham v. Wright, 430 U. S. 651, 430 U. S. 671-672 n. 40, 674 (1977); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 372 U. S. 165-167, 186 (193); Wong Wing v. United States, 163 U. S. 22, 163 U. S. 237 (1896). A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a "judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest." Gerstein v. Pugh, supra at 420 U. S. 114; see Virginia v. Paul, 148 U. S. 107, 148 U. S. 119 (1893). And, if he is detained for a suspected violation of a federal law, he also has had a bail hearing. See 18 U.S.C. §§ 3146, 3148. [Footnote 18] Under such circumstances, the Government concededly may detain him to ensure his presence at trial, and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions Page 441 U. S. 537 do not amount to punishment, or otherwise violate the Constitution.Not every disability imposed during pretrial detention amounts to "punishment" in the constitutional sense, however. Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Traditionally, this has meant confinement in a facility which, no matter how modern or how antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. Whether it be called a jail, a prison, or a custodial center, the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into "punishment."This Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may. See, e.g., Kennedy v. Mendoza-Martinez, supra, at 372 U. S. 168; Flemming v. Nestor, 363 U. S. 603, 363 U. S. 613-614 (1960); cf. De Veau v. Braisted, 363 U. S. 144, 363 U. S. 160 (1960). In Kennedy v. Mendoza-Martinez, supra, the Court examined the automatic forfeiture of citizenship provisions of the immigration laws to determine whether that sanction amounted to punishment or a mere regulatory restraint. While it is all but impossible to compress the distinction into a sentence or a paragraph, the Court there described the tests traditionally applied to determine whether a governmental act is punitive in nature:"Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding Page 441 U. S. 538 of scienter, whether its operation will promote the traditional aims of punishment -- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions."372 U.S. at 372 U. S. 168-169 (footnotes omitted). Because forfeiture of citizenship traditionally had been considered punishment and the legislative history of the forfeiture provisions "conclusively" showed that the measure was intended to be punitive, the Court held that forfeiture of citizenship in such circumstances constituted punishment that could not constitutionally be imposed without due process of law. Id. at 372 U. S. 167-170, 372 U. S. 186.The factors identified in Mendoza-Martinez provide useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word. A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. See Flemming v. Nestor, supra at 363 U. S. 613-617. [Footnote 19] Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on"whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]."Kennedy v. Mendoza-Martinez, supra, at 372 U. S. 168-169; see Flemming v. Page 441 U. S. 539 Nestor, supra at 363 U. S. 617. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." [Footnote 20] Conversely, if a restriction or condition is not reasonably related to a legitimate goal -- if it is arbitrary or purposeless -- a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. See ibid. [Footnote 21] Courts must be mindful that these inquiries spring from constitutional requirements, and that judicial answers to them must reflect that fact, rather than a court's idea of how best to operate a detention facility. Cf. United States v. Lovasco, 431 U. S. 783, 431 U. S. 790 (1977); United States v. Russell, 411 U. S. 423, 411 U. S. 435 (1973).One further point requires discussion. The petitioners assert, and respondents concede, that the "essential objective of pretrial confinement is to insure the detainees' presence at trial." Brief for Petitioners 43; see Brief for Respondents 33. While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept Page 441 U. S. 540 respondents' argument that the Government's interest in ensuring a detainee's presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person."If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention."Campbell v. McGruder, 188 U.S.App.D.C. at 266, 580 F.2d at 529. The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. [Footnote 22] Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that, in addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment. [Footnote 23] Page 441 U. S. 541CJudged by this analysis, respondents' claim that "double-bunking" violated their due process rights fails. Neither the District Court nor the Court of Appeals intimated that it considered "double-bunking" to constitute punishment; instead, they found that it contravened the "compelling necessity" test, which today we reject. On this record, we are convinced as a matter of law that "double-bunking" as practiced at the MCC did not amount to punishment, and did not, therefore, violate respondents' rights under the Due Process Clause of the Fifth Amendment. [Footnote 24]Each of the rooms at the MCC that house pretrial detainees has a total floor space of approximately 75 square feet. Each of them designated for "double-bunking," see n 4, supra, contains a double bunk-bed, certain other items of furniture, a wash basin, and an uncovered toilet. Inmates generally are locked into their rooms from 11 p.m. to 6:30 a.m. and for brief periods during the afternoon and evening head counts. During the rest of the day, they may move about freely between their rooms and the common areas.Based on affidavits and a personal visit to the facility, the District Court concluded that the practice of "double-bunking" was unconstitutional. The court relied on two factors for its conclusion: (1) the fact that the rooms were designed to house only one inmate, 428 F. Supp. at 33337; and (2) its judgment Page 441 U. S. 542 that confining two persons in one room or cell of this size constituted a "fundamental denia[l] of decency, privacy, personal security, and, simply, civilized humanity. . . ." Id. at 339. The Court of Appeals agreed with the District Court. In response to petitioners' arguments that the rooms at the MCC were larger and more pleasant than the cells involved in the cases relied on by the District Court, the Court of Appeals stated:"[W]e find the lack of privacy inherent in double-celling in rooms intended for one individual a far more compelling consideration than a comparison of square footage or the substitution of doors for bars, carpet for concrete, or windows for walls. The government has simply failed to show any substantial justification for double-celling."573 F.2d at 127.We disagree with both the District Court and the Court of Appeals that there is some sort of "one man, one cell" principle lurking in the Due Process Clause of the Fifth Amendment. While confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process Clause as to whether those conditions amounted to punishment, nothing even approaching such hardship is shown by this record. [Footnote 25] Page 441 U. S. 543IIIDetainees are required to spend only seven or eight hours each day in their rooms, during most or all of which they presumably are sleeping. The rooms provide more than adequate space for sleeping. [Footnote 26] During the remainder of the time, the detainees are free to move between their rooms and the common area. While "double-bunking" may have taxed some of the equipment or particular facilities in certain of the common areas, United States ex rel. Wolfish v. United States, 428 F. Supp. at 337, this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution. Our conclusion in this regard is further buttressed by the detainees' length of stay at the MCC. See Hutto v. Finney, 437 U. S. 678, 437 U. S. 686-687 (1978). Nearly all of the detainees are released within 60 days. See n 3, supra. We simply do not believe that requiring a detainee to share toilet facilities and this admittedly rather small sleeping place with another person for generally a maximum period of 60 days violates the Constitution. [Footnote 27] Page 441 U. S. 544IIIRespondents also challenged certain MCC restrictions and practices that were designed to promote security and order at the facility on the ground that these restrictions violated the Due Process Clause of the Fifth Amendment, and certain other constitutional guarantees, such as the First and Fourth Amendments. The Court of Appeals seemed to approach the challenges to security restrictions in a fashion different from the other contested conditions and restrictions. It stated that,"once it has been determined that the mere fact of confinement of the detainee justifies the restrictions, the institution must be permitted to use reasonable means to insure that its legitimate interests in security are safeguarded."573 F.2d at 124. The court might disagree with the choice of means to effectuate those interests, but it should not"second-guess the expert administrators on matters on which they are better informed. . . . Concern with minutiae of prison administration can only distract the court from detached consideration of the one overriding question presented to it: does the practice or condition violate the Constitution?"Id. at 124-125. Nonetheless, the court affirmed the District Court's injunction Page 441 U. S. 545 against several security restrictions. The court rejected the arguments of petitioners that these practices served the MCC's interest in security and order and held that the practices were unjustified interferences with the retained constitutional rights of both detainees and convicted inmates. Id. at 129-132. In our view, the Court of Appeals failed to heed its own admonition not to "second-guess" prison administrators.Our cases have established several general principles that inform our evaluation of the constitutionality of the restrictions at issue. First, we have held that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. See Jones v. North Carolina Prisoners' Labor Union, 433 U. S. 119, 433 U. S. 129 (1977); Meachum v. Fano, 427 U. S. 215, 427 U. S. 225 (1976); Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 555-556 (1974); Pell v. Procunier, 417 U. S. 817, 417 U. S. 822 (1974). "There is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, supra at 418 U. S. 555-556. So, for example, our cases have held that sentenced prisoners enjoy freedom of speech and religion under the First and Fourteenth Amendments, see Pell v. Procunier, supra; Cruz v. Beto, 405 U. S. 319 (1972); Cooper v. Pate, 378 U. S. 546 (1964); that they are protected against invidious discrimination on the basis of race under the Equal Protection Clause of the Fourteenth Amendment, see Lee v. Washington, 390 U. S. 333 (1968); and that they may claim the protection of the Due Process Clause to prevent additional deprivation of life, liberty, or property without due process of law, see Meachum v. Fano, supra; Wolff v. McDonnell, supra. A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.But our cases also have insisted on a second proposition: simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations."Lawful incarceration brings Page 441 U. S. 546 about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."Price v. Johnston, 334 U. S. 266, 334 U. S. 285 (1948); see Jones v. North Carolina Prisoners' Labor Union, supra at 433 U. S. 125; Wolff v. McDonnell, supra at 418 U. S. 555; Pell v. Procunier, supra at 417 U. S. 822. The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights. Jones v. North Carolina Prisoners' Labor Union, supra at 433 U. S. 125; Pell v. Procunier, supra at 417 U. S. 822. There must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Wolff v. McDonnell, supra at 418 U. S. 556. This principle applies equally to pretrial detainees and convicted prisoners. A detainee simply does not possess the full range of freedoms of an unincarcerated individual.Third, maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. [Footnote 28] "[C]entral to all other corrections goals is the institutional Page 441 U. S. 547 consideration of internal security within the corrections facilities themselves." Pell v. Procunier, supra at 417 U. S. 823; see Jones v. North Carolina Prisoners' Labor Union, supra at 433 U. S. 129; Procunier v. Martinez, 416 U. S. 396, 416 U. S. 412 (1974). Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that, even when an institutional restriction infringes a specific constitutional guarantee such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security. Jones v. North Carolina Prisoners' Labor Union, supra at 433 U. S. 129; Pell v. Procunier, supra at 417 U. S. 822, 417 U. S. 826; Procunier v. Martinez, supra at 416 U. S. 412-414.Finally, as the Court of Appeals correctly acknowledged, the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Jones v. North Carolina Prisoners' Labor Union, supra at 433 U. S. 128; Procunier v. Martinez, supra at 416 U. S. 404-405; Cruz v. Beto, supra at 405 U. S. 321; see Meachum v. Fano, 427 U.S. at 427 U. S. 228-229. [Footnote 29]"Such Page 441 U. S. 548 considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."Pell v. Procunier, 417 U.S. at 417 U. S. 827. [Footnote 30] We further observe that, on occasion, prison administrators may be "experts" only by Act of Congress or of a state legislature. But judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial. Procunier v. Martinez, supra, at 416 U. S. 405; cf. Meachum v. Fano, supra, at 427 U. S. 229. With these teachings of our cases in mind, we turn to an examination of the MCC security practices that are alleged to violate the Constitution.AAt the time of the lower courts' decisions, the Bureau of Prisons' "publisher only" rule, which applies to all Bureau Page 441 U. S. 549 facilities, permitted inmates to receive books and magazines from outside the institution only if the materials were mailed directly from the publisher or a book club. 573 F.2d at 129-130. The warden of the MCC stated in an affidavit that "serious" security and administrative problems were caused when bound items were received by inmates from unidentified sources outside the facility. App. 24. He noted that in order to make a "proper and thorough" inspection of such items, prison officials would have to remove the covers of hardback books and to leaf through every page of all books and magazines to ensure that drugs, money, weapons, or other contraband were not secreted in the material. "This search process would take a substantial and inordinate amount of available staff time." Ibid. However,"there is relatively little risk that material received directly from a publisher or book club would contain contraband, and therefore, the security problems are significantly reduced without a drastic drain on staff resources."Ibid.The Court of Appeals rejected these security and administrative justifications and affirmed the District Court's order enjoining enforcement of the "publisher only" rule at the MCC. The Court of Appeals held that the rule "severely and impermissibly restricts the reading material available to inmates," and therefore violates their First Amendment and due process rights. 573 F.2d at 130.It is desirable at this point to place in focus the precise question that now is before this Court. Subsequent to the decision of the Court of Appeals, the Bureau of Prisons amended its "publisher only" rule to permit the receipt of books and magazines from bookstores as well as publishers and book clubs. 43 Fed.Reg. 30576 (1978) (to be codified in 28 CFR § 540.71). In addition, petitioners have informed the Court that the Bureau proposes to amend the rule further to allow receipt of paperback books, magazines, and other soft-covered materials from any source. Brief for Petitioners 66 n. 49, 69, and n. 51. The Bureau regards hardback books as Page 441 U. S. 550 the "more dangerous source of risk to institutional security," however, and intends to retain the prohibition against receipt of hardback books unless they are mailed directly from publishers, book clubs, or bookstores. Id. at 69 n. 51. Accordingly, petitioners request this Court to review the District Court's injunction only to the extent it enjoins petitioners from prohibiting receipt of hard-cover books that are not mailed directly from publishers, book clubs, or bookstores. Id. at 69; Tr. of Oral Arg. 59-60. [Footnote 31]We conclude that a prohibition against receipt of hard-back books unless mailed directly from publishers, book clubs, or bookstores does not violate the First Amendment rights of MCC inmates. That limited restriction is a rational response by prison officials to an obvious security problem. It hardly Page 441 U. S. 551 needs to be emphasized that hardback books are especially serviceable for smuggling contraband into an institution; money, drugs, and weapons easily may be secreted in the bindings. E.g., Woods v. Daggett, 541 F.2d 37 (CA10 1976). [Footnote 32] They also are difficult to search effectively. There is simply no evidence in the record to indicate that MCC officials have exaggerated their response to this security problem and to the administrative difficulties posed by the necessity of carefully inspecting each book mailed from unidentified sources. Therefore, the considered Judgment of these experts must control in the absence of prohibitions far more sweeping than those involved here. See Jones v. North Carolina Prisoners' Labor Union, 433 U.S. at 433 U. S. 128; Pell v. Procunier, 417 U.S. at 417 U. S. 827.Our conclusion that this limited restriction on receipt of hardback books does not infringe the First Amendment rights of MCC inmates is influenced by several other factors. The rule operates in a neutral fashion, without regard to the content of the expression. Id. at 417 U. S. 828. And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient."[W]e regard the Page 441 U. S. 552 available 'alternative means of [communication as] a relevant factor' in a case such as this, where 'we [are] called upon to balance First Amendment rights against [legitimate] governmental . . . interests.'"Id. at 417 U. S. 824, quoting Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 765 (1972); see Cruz v. Beto, 405 U.S. at 405 U. S. 321, 405 U. S. 322 n. 2. The restriction, as it is now before us, allows soft-bound books and magazines to be received from any source and hardback books to be received from publishers, bookstores, and book clubs. In addition, the MCC has a "relatively large" library for use by inmates. United States ex rel. Wolfish v. United States, 428 F. Supp. at 340. [Footnote 33] To the limited extent the rule might possibly increase the cost of obtaining published materials, this Court has held that, where "other avenues" remain available for the receipt of materials by inmates, the loss of "cost advantages does not fundamentally implicate free speech values." See Jones v. North Carolina Prisoners' Labor Union, supra at 433 U. S. 130-131. We are also influenced in our decision by the fact that the rule's impact on pretrial detainees is limited to a maximum period of approximately 60 days. See n 3, supra. In sum, considering all the circumstances, we view the rule, as we now find it, to be a "reasonable time, place and manner' regulatio[n that is] necessary to further significant governmental interests. . . ." Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 115 (1972); see Cox v. New Hampshire, 312 U. S. 569, 312 U. S. 575-576 (1941); Cox v. Louisiana, 379 U. S. 536, 379 U. S. 554-555 (1965); Adderley v. Florida, 385 U. S. 39, 385 U. S. 46-48 (1966). Page 441 U. S. 553BInmates at the MCC were not permitted to receive packages from outside the facility containing items of food or personal property, except for one package of food at Christmas. This rule was justified by MCC officials on three grounds. First, officials testified to "serious" security problems that arise from the introduction of such packages into the institution, the "traditional file in the cake kind of situation" as well as the concealment of drugs "in heels of shoes [and] seams of clothing." App. 80; see id. at 24, 81 85. As in the case of the "publisher only" rule, the warden testified that, if such packages were allowed, the inspection process necessary to ensure the security of the institution would require a "substantial and inordinate amount of available staff time." Id. at 24. Second, officials were concerned that the introduction of personal property into the facility would increase the risk of thefts, gambling, and inmate conflicts, the "age-old problem of you have it and I don't." Id. at 80; see id. at 85. Finally, they noted storage and sanitary problems that would result from inmates' receipt of food packages. Id. at 67, 80. Inmates are permitted, however, to purchase certain items of food and personal property from the MCC commissary. [Footnote 34]The District Court dismissed these justifications as "dire predictions." It was unconvinced by the asserted security problems because other institutions allow greater ownership of personal property and receipt of packages than does the MCC. And because the MCC permitted inmates to purchase items in the commissary, the court could not accept official fears of increased theft, gambling, or conflicts if packages were allowed. Finally, it believed that sanitation could be assured by proper housekeeping regulations. Accordingly, it ordered the MCC to promulgate regulations to permit receipt of at least items of the kind that are available in the commissary. Page 441 U. S. 554 439 F. Supp. at 152-153. The Court of Appeals accepted the District Court's analysis and affirmed, although it noted that the MCC could place a ceiling on the permissible dollar value of goods received and restrict the number of packages. 573 F.2d at 132.Neither the District Court nor the Court of Appeals identified which provision of the Constitution was violated by this MCC restriction. We assume, for present purposes, that their decisions were based on the Due Process Clause of the Fifth Amendment, which provides protection for convicted prisoners and pretrial detainees alike against the deprivation of their property without due process of law. See supra at 441 U. S. 545. But as we have stated, these due process rights of prisoners and pretrial detainees are not absolute; they are subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution.We think that the District Court and the Court of Appeals have trenched too cavalierly into areas that are properly the concern of MCC officials. It is plain from their opinions that the lower courts simply disagreed with the judgment of MCC officials about the extent of the security interests affected and the means required to further those interests. But our decisions have time and again emphasized that this sort of unguided substitution of judicial judgment for that of the expert prison administrators on matters such as this is inappropriate. See Jones v. North Carolina Prisoners' Labor Union; Pell v. Procunier; Procunier v. Martinez. We do not doubt that the rule devised by the District Court and modified by the Court of Appeals may be a reasonable way of coping with the problems of security, order, and sanitation. It simply is not, however, the only constitutionally permissible approach to these problems: certainly, the Due Process Clause does not mandate a "lowest common denominator" security standard, whereby a practice permitted at one penal institution must be permitted at all institutions. Page 441 U. S. 555Corrections officials concluded that permitting the introduction of packages of personal property and food would increase the risks of gambling, theft, and inmate fights over that which the institution already experienced by permitting certain items to be purchased from its commissary. "It is enough to say that they have not been conclusively shown to be wrong in this view." Jones v. North Carolina Prisoners' Labor Union, 433 U.S. at 433 U. S. 132. It is also all too obvious that such packages are handy devices for the smuggling of contraband. There simply is no basis in this record for concluding that MCC officials have exaggerated their response to these serious problems, or that this restriction is irrational. It does not, therefore, deprive the convicted inmates or pretrial detainees [Footnote 35] of the MCC of their property without due process of law in contravention of the Fifth Amendment.CThe MCC staff conducts unannounced searches of inmate living areas at irregular intervals. These searches generally are formal unit "shakedowns" during which all inmates are cleared of the residential units, and a team of guards searches each room. Prior to the District Court's order, inmates were not permitted to watch the searches. Officials testified that permitting inmates to observe room inspections would lead to friction between the inmates and security guards, and would allow the inmates to attempt to frustrate the search by distracting personnel and moving contraband from one room to another ahead of the search team. [Footnote 36] Page 441 U. S. 556The District Court held that this procedure could not stand as applied to pretrial detainees because MCC officials had not shown that the restriction was justified by "compelling necessity." [Footnote 37] The court stated that,"[a]t least until or unless [petitioners] can show a pattern of violence or other disruptions taxing the powers of control -- a kind of showing not remotely approached by the Warden's expressions -- the security argument for banishing inmates while their rooms are searched must be rejected."439 F. Supp. at 149. It also noted that, in many instances, inmates suspected guards of thievery. Id. at 148-149. The Court of Appeals agreed with the District Court. It saw "no reason whatsoever not to permit a detainee to observe the search of his room and belonging from a reasonable distance," although the court permitted the removal of any detainee who became "obstructive." 573 F.2d at 132.The Court of Appeals did not identify the constitutional provision on which it relied in invalidating the room search rule. The District Court stated that the rule infringed the detainee's interest in privacy and indicated that this interest in privacy was founded on the Fourth Amendment. 439 F. Supp. at 149-150. It may well be argued that a person confined in a detention facility has no reasonable expectation of privacy with respect to his room or cell, and that therefore the Fourth Amendment provides no protection for such a Page 441 U. S. 557 person. Cf. Lanza v. New York, 370 U. S. 139, 370 U. S. 143-144 (1962). In any case, given the realities of institutional confinement, any reasonable expectation of privacy that a detainee retained necessarily would be of a diminished scope. Id. at 370 U. S. 143. Assuming, arguendo, that a pretrial detainee retains such a diminished expectation of privacy after commitment to a custodial facility, we nonetheless find that the room search rule does not violate the Fourth Amendment.It is difficult to see how the detainee's interest in privacy is infringed by the room search rule. No one can rationally doubt that room searches represent an appropriate security measure, and neither the District Court nor the Court of Appeals prohibited such searches. And even the most zealous advocate of prisoners' rights would not suggest that a warrant is required to conduct such a search. Detainees' drawers, beds, and personal items may be searched, even after the lower courts' rulings. Permitting detainees to observe the searches does not lessen the invasion of their privacy; its only conceivable beneficial effect would be to prevent theft or misuse by those conducting the search. The room search rule simply facilitates the safe and effective performance of the search which all concede may be conducted. The rule itself, then, does not render the searches "unreasonable" within the meaning of the Fourth Amendment. [Footnote 38] Page 441 U. S. 558DInmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. [Footnote 39] Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. App. 772, 83-84. The District Court upheld the strip-search procedure but prohibited the body cavity searches, absent probable cause to believe that the inmate is concealing contraband. 439 F. Supp. at 147-148. Because petitioners proved only one instance in the MCC's short history where contraband was found during a body cavity search, the Court of Appeals affirmed. In its view, the"gross violation of personal privacy inherent in such a search cannot be outweighed by the government's security interest in maintaining a practice of so little actual utility."573 F.2d at 131.Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, see Lanza v. New York, supra; Stroud v. United States, 251 U. S. 15, 251 U. S. 21 (1919), we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, Carroll v. United States, 267 U. S. 132, 267 U. S. 147 (1925), and, under the circumstances, we do not believe that these searches are unreasonable. Page 441 U. S. 559The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case, it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. E.g., United States v. Ramsey, 431 U. S. 606 (1977); United States v. Martinez-Fuerte, 428 U. S. 543 (1976); United States v. Brignoni-Ponce, 422 U. S. 873 (1975); Terry v. Ohio, 392 U. S. 1 (1968); Katz v. United States, 389 U. S. 347 (1967); Schmerber v. California, 384 U. S. 757 (1966). A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, App. 71-76, and in other cases. E.g., Ferraro v. United States, 590 F.2d 335 (CA6 1978); United States v. Park, 521 F.2d 1381, 1382 (CA9 1975). That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person may be more a testament to the effectiveness of this search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises. [Footnote 40] Page 441 U. S. 560We do not underestimate the degree to which these searches may invade the personal privacy of inmates. Nor do we doubt, as the District Court noted, that, on occasion, a security guard may conduct the search in an abusive fashion. 439 F. Supp. at 147. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner. Schmerber v. California, supra at 384 U. S. 771-772. But we deal here with the question whether visual body cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can. [Footnote 41]IVNor do we think that the four MC security restrictions and practices described in 441 U. S. supra, constitute "punishment" Page 441 U. S. 561 in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment. [Footnote 42] Neither the District Court nor the Court of Appeals suggested that these restrictions and practices were employed by MCC officials with an intent to punish the pretrial detainees housed there. [Footnote 43] Respondents do not even make such a suggestion; they simply argue that the restrictions were greater than necessary to satisfy petitioners' legitimate interest in maintaining security. Brief for Respondents 51-53. Therefore, the determination whether these restrictions and practices constitute punishment in the constitutional sense depends on whether they are rationally related to a legitimate nonpunitive governmental purpose and whether they appear excessive in relation to that purpose. See supra at 441 U. S. 538-539. Ensuring security and order at the institution is a permissible nonpunitive objective, whether the facility houses pretrial detainees, convicted inmates, or both. Supra at 441 U. S. 539-540; see supra at 441 U. S. 546-547, and n. 28. For the reasons set forth in 441 U. S. supra, we think that these particular restrictions and practices were reasonable responses by MCC officials to legitimate security concerns. Respondents simply have not met their heavy Page 441 U. S. 562 burden of showing that these officials have exaggerated their response to the genuine security considerations that actuated these restrictions and practices. See n 23, supra. And as might be expected of restrictions applicable to pretrial detainees, these restrictions were of only limited duration so far as the MCC pretrial detainees were concerned. See n 3, supra.VThere was a time not too long ago when the federal judiciary took a completely "hands-off" approach to the problem of prison administration. In recent years, however, these courts largely have discarded this "hands-off" attitude and have waded into this complex arena. The deplorable conditions and Draconian restrictions of some of our Nation's prisons are too well known to require recounting here, and the federal courts rightly have condemned these sordid aspects of our prison systems. But many of these same courts have, in the name of the Constitution, become increasingly enmeshed in the minutiae of prison operations. Judges, after all, are human. They, no less than others in our society, have a natural tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. But under the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however, that the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution or, in the case of a federal prison, a statute. The wide range of "judgment calls" that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government. Page 441 U. S. 563The judgment of the Court of Appeals is, accordingly, reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBell v. Wolfish, 441 U.S. 520 (1979)Bell v. WolfishNo. 77-1829Argued January 16, 1979Decided May 14, 1979441 U.S. 520SyllabusRespondent inmates brought this class action in Federal District Court challenging the constitutionality of numerous conditions of confinement and practices in the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees. The District Court, on various constitutional grounds, enjoined, inter alia, the practice of housing, primarily for sleeping purposes, two inmates in individual rooms originally intended for single occupancy ("double-bunking"); enforcement of the so-called "publisher only" rule prohibiting inmates from receiving hard-cover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates' receipt of packages of food and personal items from outside the institution; the practice of body cavity searches of inmates following contact visits with persons from outside the institution; and the requirement that pretrial detainees remain outside their rooms during routine inspections by MCC officials. The Court of Appeals affirmed these rulings, holding with respect to the "double-bunking" practice that the MCC had failed to make a showing of "compelling necessity" sufficient to justify such practice.Held:1. The "double-bunking" practice does not deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment. Pp. 441 U. S. 530-543.(a) There is no source in the Constitution for the Court of Appeals' "compelling necessity" standard. Neither the presumption of innocence, the Due Process Clause of the Fifth Amendment, nor a pretrial detainee's right to be free from punishment provides any basis for such standard. Pp. 441 U. S. 531-535.(b) In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, the proper inquiry is whether those conditions or restrictions amount to punishment of the detainee. Absent a showing of an expressed intent to punish, if a particular condition or restriction is reasonably related to a legitimate nonpunitive governmental objective, it does not, without more, amount to "punishment," but, conversely, if a condition or restriction is arbitrary or purposeless, Page 441 U. S. 521 a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. In addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such conditions and restrictions are intended as punishment. Pp. 441 U. S. 535-540.(c) Judged by the above analysis and on the record, "double-bunking" as practiced at the MCC did not, as a matter of law, amount to punishment, and hence did not violate respondents' rights under the Due Process Clause of the Fifth Amendment. While "double-bunking" may have taxed some of the equipment or particular facilities in certain of the common areas in the MCC, this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution, particularly where it appears that nearly all pretrial detainees are released within 60 days. Pp. 441 U. S. 541-543.2. Nor do the "publisher only" rule, body cavity searches, the prohibition against the receipt of packages, or the room search rule violate any constitutional guarantees. Pp. 441 U. S. 544-562.(a) Simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. There must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application," Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 556, and this principle applies equally to pretrial detainees and convicted prisoners. Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that, in their judgment, are needed to preserve internal order and discipline and to maintain institutional security. Pp. 441 U. S. 544-548.(b) The "publisher only" rule does not violate the First Amendment rights of MCC inmates but is a rational response by prison officials to the obvious security problem of preventing the smuggling of contraband in books sent from outside. Moreover, such rule operates in a neutral fashion, without regard to the content of the expression, there are alternative means of obtaining reading material, and the rule's impact on pretrial detainees is limited to a maximum period of approximately 60 days. Pp. 441 U. S. 548-552. Page 441 U. S. 522(c) The restriction against the receipt of packages from outside the facility does not deprive pretrial detainees of their property without due process of law in contravention of the Fifth Amendment, especially in view of the obvious fact that such packages are handy devices for the smuggling of contraband. Pp. 441 U. S. 553-555.(d) Assuming that a pretrial detainee retains a diminished expectation of privacy after commitment to a custodial facility, the room search rule does not violate the Fourth Amendment, but simply facilitates the safe and effective performance of the searches, and thus does not render the searches "unreasonable" within the meaning of that Amendment. Pp. 441 U. S. 555-557.(e) Similarly, assuming that pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility, the body cavity searches do not violate that Amendment. Balancing the significant and legitimate security interests of the institution against the inmates' privacy interests, such searches can be conducted on less than probable, cause and are not unreasonable. Pp. 441 U. S. 558-560.(f) None of the security restrictions and practices described above constitute "punishment" in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment. These restrictions and practices were reasonable responses by MCC officials to legitimate security concerns, and, in any event, were of only limited duration so far as the pretrial detainees were concerned. Pp. 560-562.573 F.2d 118, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 441 U. S. 563. MARSHALL, J., filed a dissenting opinion, post, p. 441 U. S. 563. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 441 U. S. 579. Page 441 U. S. 523

1977_76-695

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent, a student at the University of Missouri-Kansas City Medical School, was dismissed by petitioner officials of the school during her final year of study for failure to meet academic standards. Respondent sued petitioners under 42 Page 435 U. S. 80 U.S.C. § 1983 in the United States District Court for the Western District of Missouri alleging, among other constitutional violations, that petitioners had not accorded her procedural due process prior to her dismissal. The District Court, after conducting a full trial, concluded that respondent had been afforded all of the rights guaranteed her by the Fourteenth Amendment to the United States Constitution, and dismissed her complaint. The Court of Appeals for the Eighth Circuit reversed, 538 F.2d 1317 (1976), and a petition for rehearing en banc was denied by a divided court. 542 F.2d 1335 (1976). We granted certiorari, 430 U.S. 964, to consider what procedures must be accorded to a student at a state educational institution whose dismissal may constitute a deprivation of "liberty" or "property" within the meaning of the Fourteenth Amendment. We reverse the judgment of the Court of Appeals.IRespondent was admitted with advanced standing to the Medical School in the fall of 1971. During the final years of a student's education at the school, the student is required to pursue in "rotational units" academic and clinical studies pertaining to various medical disciplines such as obstetrics-gynecology, pediatrics, and surgery. Each student's academic performance at the School is evaluated on a periodic basis by the Council on Evaluation, a body composed of both faculty and students, which can recommend various actions, including probation and dismissal. The recommendations of the Council are reviewed by the Coordinating Committee, a body composed solely of faculty members, and must ultimately be approved by the Dean. Students are not typically allowed to appear before either the Council or the Coordinating Committee on the occasion of their review of the student's academic performance.In the spring of respondent's first year of study, several faculty members expressed dissatisfaction with her clinical Page 435 U. S. 81 performance during a pediatrics rotation. The faculty members noted that respondent's "performance was below that of her peers in all clinical patient-oriented settings," that she was erratic in her attendance at clinical sessions, and that she lacked a critical concern for personal hygiene. Upon the recommendation of the Council on Evaluation, respondent was advanced to her second and final year on a probationary basis.Faculty dissatisfaction with respondent's clinical performance continued during the following year. For example, respondent's docent, or faculty adviser, rated her clinical skills as "unsatisfactory." In the middle of the year, the Council again reviewed respondent's academic progress and concluded that respondent should not be considered for graduation in June of that year; furthermore, the Council recommended that, absent "radical improvement," respondent be dropped from the school.Respondent was permitted to take a set of oral and practical examinations as an "appeal" of the decision not to permit her to graduate. Pursuant to this "appeal," respondent spent a substantial portion of time with seven practicing physicians in the area who enjoyed a good reputation among their peers. The physicians were asked to recommend whether respondent should be allowed to graduate on schedule and, if not, whether she should be dropped immediately or allowed to remain on probation. Only two of the doctors recommended that respondent be graduated on schedule. Of the other five, two recommended that she be immediately dropped from the school. The remaining three recommended that she not be allowed to graduate in June, and be continued on probation pending further reports on her clinical progress. Upon receipt of these recommendations, the Council on Evaluation reaffirmed its prior position.The Council met again in mid-May to consider whether respondent should be allowed to remain in school beyond June Page 435 U. S. 82 of that year. Noting that the report on respondent's recent surgery rotation rated her performance as "low-satisfactory," the Council unanimously recommended that, "barring receipt of any reports that Miss Horowitz has improved radically, [she] not be allowed to reenroll in the . . . School of Medicine." The Council delayed making its recommendation official until receiving reports on other rotations; when a report on respondent's emergency rotation also turned out to be negative, the Council unanimously reaffirmed its recommendation that respondent be dropped from the school. The Coordinating Committee and the Dean approved the recommendation and notified respondent, who appealed the decision in writing to the University's Provost for Health Sciences. The Provost sustained the school's actions after reviewing the record compiled during the earlier proceedings.IIATo be entitled to the procedural protections of the Fourteenth Amendment, respondent must, in a case such as this, demonstrate that her dismissal from the school deprived her of either a "liberty" or a "property" interest. Respondent has never alleged that she was deprived of a property interest. Because property interests are creatures of state law, Perry v. Sindermann, 408 U. S. 593, 408 U. S. 599-603 (1972), respondent would have been required to show at trial that her seat at the Medical School was a "property" interest recognized by Missouri state law. Instead, respondent argued that her dismissal deprived her of "liberty" by substantially impairing her opportunities to continue her medical education or to return to employment in a medically related field.The Court of Appeals agreed, citing this Court's opinion in Board of Regents v. Roth, 408 U. S. 564 (1972). [Footnote 1] In that case, Page 435 U. S. 83 we held that the State had not deprived a teacher of any liberty or property interest in dismissing the teacher from a nontenured position, but noted:"[T]here is no suggestion that the State, in declining to reemploy the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities."Id. at 408 U. S. 573.We have recently had an opportunity to elaborate upon the circumstances under which an employment termination might infringe a protected liberty interest. In Bishop v. Wood, 426 U. S. 341 (1976), we upheld the dismissal of a policeman without a hearing; we rejected the theory that the mere fact of dismissal, absent some publicizing of the reasons for the action, could amount to a stigma infringing one's liberty:"In Board of Regents v. Roth, 408 U. S. 564, we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would Page 435 U. S. 84 stretch the concept too far "to suggest that a person is deprived of liberty' when he simply is not rehired in one job, but remains as free as before to seek another." Id. at 408 U. S. 575. This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge." "In this case, the asserted reasons for the City Manager's decision were communicated orally to the petitioner in private, and also were stated in writing in answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner's interest in his 'good name, reputation, honor, or integrity' was thereby impaired."Id. at 426 U. S. 348 (footnote omitted).The opinion of the Court of Appeals, decided only five weeks after we issued our opinion in Bishop, does not discuss whether a state university infringes a liberty interest when it dismisses a student without publicizing allegations harmful to the student's reputation. Three judges of the Court of Appeals for the Eighth Circuit dissented from the denial of rehearing en banc on the ground that "the reasons for Horowitz's dismissal were not released to the public, but were communicated to her directly by school officials." Citing Bishop, the judges concluded that, "[a]bsent such public disclosure, there is no deprivation of a liberty interest." 542 F.2d at 1335. Petitioners urge us to adopt the view of these judges and hold that respondent has not been deprived of a liberty interest.BWe need not decide, however, whether respondent's dismissal deprived her of a liberty interest in pursuing a medical career. Nor need we decide whether respondent's dismissal infringed any other interest constitutionally protected against deprivation without procedural due process. Assuming the Page 435 U. S. 85 existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires. The school fully informed respondent of the faculty's dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate. These procedures were sufficient under the Due Process Clause of the Fourteenth Amendment. We agree with the District Court that respondent"was afforded full procedural due process by the [school]. In fact, the Court is of the opinion, and so finds, that the school went beyond [constitutionally required] procedural due process by affording [respondent] the opportunity to be examined by seven independent physicians in order to be absolutely certain that their grading of the [respondent] in her medical skills was correct."App. 47.In Goss v. Lopez, 419 U. S. 565 (1975), we held that due process requires, in connection with the suspension of a student from public school for disciplinary reasons,"that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story."Id. at 419 U. S. 581. The Court of Appeals apparently read Goss as requiring some type of formal hearing at which respondent could defend her academic ability and performance. [Footnote 2] All Page 435 U. S. 86 that Goss required was an "informal give-and-take" between the student and the administrative body dismissing him that would, at least, give the student "the opportunity to characterize his conduct and put it in what he deems the proper context." Id. at 419 U. S. 584. But we have frequently emphasized that "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961). The need for flexibility is well illustrated by the significant difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct. This difference calls for far less stringent procedural requirements in the case of an academic dismissal. [Footnote 3] Page 435 U. S. 87Since the issue first arose 50 years ago, state and lower federal courts have recognized that there are distinct differences between decisions to suspend or dismiss a student for disciplinary purposes and similar actions taken for academic reasons which may call for hearings in connection with the former, but not the latter. Thus, in Barnard v. Inhabitants of Shelburne, 216 Mass.19, 102 N.E. 1095 (1913), the Supreme Judicial Court of Massachusetts rejected an argument, based on several earlier decisions requiring a hearing in disciplinary contexts, that school officials must also grant a hearing before excluding a student on academic grounds. According to the court, disciplinary cases have"no application. . . . Misconduct is a very different matter from failure to attain a standard of excellence in studies. A determination as to the fact involves investigation of a quite different kind. A public hearing may be regarded as helpful to the ascertainment of misconduct, and useless or harmful in finding out the truth as to scholarship."Id. at 22-23, 102 N.E. at 1097. A similar conclusion has been reached by the other state courts to consider the issue. See, e.g., Mustell v. Rose, 282 Ala. 358, 367, 211 So. 2d 489, 498, cert. denied, 393 U.S. 936 (1968); cf. Foley v. Benedict, 122 Tex.193, 55 S.W.2d 805 (1932). Indeed, until the instant decision by the Court of Appeals for the Eighth Circuit, the Courts of Appeals were also unanimous in concluding that dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school's decisionmaking body. See Mahavongsanan v. Hall, 529 F.2d 448 (CA5 1976); [Footnote 4] Gaspar v. Bruton, 513 Page 435 U. S. 88 F.2d 843 (CA10 1975). [Footnote 5] These prior decisions of state and federal courts, over a period of 60 years, unanimously holding that formal hearings before decisionmaking bodies need not be held in the case of academic dismissals, cannot be rejected lightly. Cf. Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 118-119, 291 U. S. 131-132 (1934); Powell v. Alabama, 287 U. S. 45, 287 U. S. 69-71 (1932); Jackman v. Rosenbaum Co., 260 U. S. 22, 260 U. S. 31 (1922). Reason, furthermore, clearly supports the perception of these decisions. A school is an academic institution, not a courtroom or administrative hearing room. In Goss, this Court felt that suspensions of students for disciplinary reasons have a sufficient resemblance to traditional judicial and administrative Page 435 U. S. 89 factfinding to call for a "hearing" before the relevant school authority. While recognizing that school authorities must be afforded the necessary tools to maintain discipline, the Court concluded:"[I]t would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done.""* * * *" "[R]equiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect."419 U.S. at 419 U. S. 580, 419 U. S. 583-584. Even in the context of a school disciplinary proceeding, however, the Court stopped short of requiring a formal hearing, since"further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool, but also destroy its effectiveness as a part of the teaching process."Id. at 419 U. S. 583.Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative factfinding proceedings to which we have traditionally attached a full hearing requirement. In Goss, the school's decision to suspend the students rested on factual conclusions that the individual students had participated in demonstrations that had disrupted classes, attacked a police officer, or caused physical damage to school property. The requirement of a hearing, where the student could present his side of the factual issue, could, under such circumstances "provide a meaningful hedge against erroneous action." Ibid. The decision to dismiss respondent, by comparison, rested on the academic judgment of school officials that she did not have Page 435 U. S. 90 the necessary clinical ability to perform adequately as a medical doctor, and was making insufficient progress toward that goal. Such a judgment is, by its nature, more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information, and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.Under such circumstances, we decline to ignore the historic judgment of educators, and thereby formalize the academic dismissal process by requiring a hearing. The educational process is not. by nature. adversary; instead, it centers around a continuing relationship between faculty and students, "one in which the teacher must occupy many roles -- educator, adviser, friend, and, at times, parent substitute." Goss v. Lopez, 419 U.S. at 419 U. S. 594 (POWELL, J., dissenting). This is especially true as one advances through the varying regimes of the educational system and the instruction becomes both more individualized and more specialized. In Goss, this Court concluded that the value of some form of hearing in a disciplinary context outweighs any resulting harm to the academic environment. Influencing this conclusion was clearly the belief that disciplinary proceedings, in which the teacher must decide whether to punish a student for disruptive or insubordinate behavior, may automatically bring an adversary flavor to the normal student-teacher relationship. The same conclusion does not follow in the academic context. We decline to further enlarge the judicial presence in the academic community, and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. We recognize, as did the Massachusetts Supreme Judicial Court over 60 years ago, that a hearing may be "useless or harmful in finding out the truth as to scholarship." Barnard v. Inhabitants of Shelburne, 216 Mass. at 23, 102 N.E. at 1097. Page 435 U. S. 91"Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities."Epperson v. Arkansas, 393 U. S. 97, 393 U. S. 104 (1968). We see no reason to intrude on that historic control in this case. [Footnote 6]IIIIn reversing the District Court on procedural due process grounds, the Court of Appeals expressly failed to "reach the substantive due process ground advanced by Horowitz." 538 F.2d at 1321 n. 5. Respondent urges that we remand the cause to the Court of Appeals for consideration of this additional claim. In this regard, a number of lower courts have implied in dictum that academic dismissals from state institutions can be enjoined if "shown to be clearly arbitrary or capricious." Mahavongsanan v. Hall, 529 F.2d at 449. See Gaspar v. Bruton, 513 F.2d at 850, and citations therein. Even assuming that the courts can review under such a standard an academic decision of a public educational Page 435 U. S. 92 institution, we agree with the District Court that no showing of arbitrariness or capriciousness has been made in this case. [Footnote 7] Courts are particularly ill-equipped to evaluate academic performance. The factors discussed in 435 U. S. and warn against any such judicial intrusion into academic decisionmaking. [Footnote 8]The judgment of the Court of Appeals is thereforeReversed

U.S. Supreme CourtBoard of Curators, Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978)Board of Curators of the University of Missouri v. HorowitzNo. 76-695Argued November 7, 1977Decided March 1, 1978435 U.S. 78SyllabusThe academic performance of students at the University of Missouri-Kansas City Medical School is periodically assessed by the Council of Evaluation, a faculty-student body that can recommend various actions, including probation and dismissal; its recommendations are reviewed by the faculty Coordinating Committee, with ultimate approval by the Dean. After several faculty members had expressed dissatisfaction with the clinical performance of respondent medical student during a pediatrics rotation, the Council recommended that she be advanced to her final year on a probationary basis. Following further faculty dissatisfaction with respondent's clinical performance that year, the Council, in the middle of the year, again evaluated her academic progress, and concluded that she should not be considered for graduation in June of that year, and that, absent "radical improvement," she be dropped as a student. As an "appeal" of that decision, respondent was allowed to take examinations under the supervision of seven practicing physicians, only two of whom thereafter recommended that respondent be allowed to graduate on schedule. Two others recommended that she be dropped from the school immediately; and three recommended that she not be allowed to graduate as scheduled, but that she be continued on probation. The Council then reaffirmed its prior position. At a subsequent meeting, having noted that respondent's recent surgery rotation had been rated "low-satisfactory," the Council concluded that, barring reports of radical improvement, respondent should not be allowed to reenroll; and when a report on another rotation turned out to be negative, the Council recommended that respondent be dropped. When notified of that decision, which the Coordinating Committee and Dean had approved, respondent appealed to the Provost, who, after review, sustained the decision. Respondent thereafter brought this action against petitioner officials under 42 U.S.C. § 1983, contending, inter alia, that she had not been accorded due process prior to her dismissal. The District Court, after a full trial, concluded that respondent had been afforded all rights guaranteed by the Fourteenth Amendment. The Court of Appeals reversed.Held: Page 435 U. S. 791. The procedures leading to respondent's dismissal for academic deficiencies, under which respondent was fully informed of faculty dissatisfaction with her clinical progress and the consequent threat to respondent's graduation and continued enrollment, did not violate the Due Process Clause of the Fourteenth Amendment. Dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school's decisionmaking body. Goss v. Lopez, 419 U. S. 565, distinguished. Pp. 435 U. S. 84-91.2. Though respondent contends that the case should be remanded to the Court of Appeals for consideration of her claim of deprivation of substantive due process, this case, as the District Court correctly concluded, reveals no showing of arbitrariness or capriciousness that would warrant such a disposition, even if it were deemed appropriate for courts to review under an arbitrariness standard an academic decision of a public educational institution. Pp. 435 U. S. 91-92.538 F.2d 1317, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, and STEVENS, JJ., joined, and in Parts I, II-A, and III of which WHITE, J., joined. POWELL, J., filed a concurring opinion, post, p. 435 U. S. 92. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 435 U. S. 96. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 435 U. S. 97. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 435 U. S. 108.

1967_43

MR. JUSTICE WHITE delivered the opinion of the Court.A jury returned a verdict for respondent in petitioner's suit for treble damages for violation of § 1 of the Sherman Act. [Footnote 1] Judgment was entered on the verdict, and the Court of Appeals for the Eighth Circuit affirmed. 367 F.2d 517 (1966). The question is whether the denial of petitioner's motion for judgment notwithstanding the verdict was correctly affirmed by the Court of Appeals. Because this case presents important issues under the antitrust laws, we granted certiorari. 386 U.S. 941 (1967). Page 390 U. S. 147We take the facts from those stated by the Court of Appeals. Respondent publishes the Globe-Democrat, a morning newspaper distributed in the St. Louis metropolitan area by independent carriers who buy papers at wholesale and sell them at retail. There are 172 home delivery routes. Respondent advertises a suggested retail price in its newspaper. Carriers have exclusive territories which are subject to termination if prices exceed the suggested maximum. Petitioner, who had Route 99, adhered to the advertised price for some time, but, in 1961, raised the price to customers. [Footnote 2] After more than once objecting to this practice, respondent wrote petitioner on May 20, 1964, that, because he was overcharging, and because respondent had reserved the right to compete should that happen, subscribers on Route 99 were being informed by letter that respondent would itself deliver the paper to those who wanted it at the lower price. In addition to sending these letters to petitioner's customers, respondent hired Milne Circulation Sales, Inc., which solicited readers for newspapers, to engage in telephone and house-to-house solicitation of all residents on Route 99. As a result, about 300 of petitioner's 1,200 customers switched to direct delivery by respondent. Meanwhile, respondent continued to sell papers to petitioner, but warned him that, should he continue to overcharge, respondent would not have to do business with him. Since respondent did not itself want to engage in home delivery, it advertised a new route of 314 customers as available without cost. Another carrier, George Kroner, took over the route, knowing that respondent would not tolerate overcharging and understanding that he might have to return the Page 390 U. S. 148 route if petitioner discontinued his pricing practice. [Footnote 3] On July 27, respondent told petitioner that it was not interested in being in the carrier business, and that petitioner could have his customers back as long as he charged the suggested price. Petitioner brought this lawsuit on August 12. In response, petitioner's appointment as a carrier was terminated, and petitioner was given 60 days to arrange the sale of his route to a satisfactory replacement. Petitioner sold his route for $12,000, $1,000 more than he had paid for it but less than he could have gotten had he been able to turn over 1,200 customers instead of 900. [Footnote 4]Petitioner's complaint charged a combination or conspiracy in restraint of trade under § 1 of the Sherman Act. [Footnote 5] At the close of the evidence, the complaint was amended to charge only a combination between respondent and "plaintiff's customers and/or Milne Circulation Sales, Inc. and/or George Kroner." The case went to the jury on this theory, the jury found for respondent, and judgment in its favor was entered on the verdict. The court denied petitioner's motion for judgment notwithstanding the verdict, which asserted that, under United States v. Parke, Davis & Co., 362 U. S. 29 (1960), and like cases, the undisputed facts showed as a matter of law a combination to fix resale prices of newspapers which was per se illegal under the Sherman Act. The Court of Appeals affirmed. In its view, "the Page 390 U. S. 149 undisputed evidence fail[ed] to show a Sherman Act violation," because respondent's conduct was wholly unilateral, and there was no restraint of trade. The previous decisions of this Court were deemed inapposite to a situation in which a seller establishes maximum prices to be charged by a retailer enjoying an exclusive territory and in which the seller, who would be entitled to refuse to deal, simply engages in competition with the offending retailer. We disagree with the Court of Appeals, and reverse its judgment.On the undisputed facts recited by the Court of Appeals, respondent's conduct cannot be deemed wholly unilateral and beyond the reach of § 1 of the Sherman Act. That section covers combinations in addition to contracts and conspiracies, express or implied. The Court made this quite clear in United States v. Parke, Davis & Co., 362 U. S. 29 (1960), where it held that an illegal combination to fix prices results if a seller suggests resale prices and secures compliance by means in addition to the "mere announcement of his policy and the simple refusal to deal. . . ." Id. at 362 U. S. 44. Parke Davis had specified resale prices for both wholesalers and retailers, and had required wholesalers to refuse to deal with noncomplying retailers. It was found to have created a combination "with the retailers and the wholesalers to maintain retail prices. . . ." Id. at 362 U. S. 45. The combination with retailers arose because their acquiescence in the suggested prices was secured by threats of termination; the combination with wholesalers arose because they cooperated in terminating price-cutting retailers.If a combination arose when Parke Davis threatened its wholesalers with termination unless they put pressure on their retail customers, then there can be no doubt that a combination arose between respondent, Milne, and Kroner to force petitioner to conform to the advertised retail price. When respondent learned that Page 390 U. S. 150 petitioner was overcharging, it hired Milne to solicit customers away from petitioner in order to get petitioner to reduce his price. It was through the efforts of Milne, as well as because of respondent's letter to petitioner's customers, that about 300 customers were obtained for Kroner. Milne's purpose was undoubtedly to earn its fee, but it was aware that the aim of the solicitation campaign was to force petitioner to lower his price. Kroner knew that respondent was giving him the customer list as part of a program to get petitioner to conform to the advertised price, and he knew that he might have to return the customers if petitioner ultimately complied with respondent's demands. He undertook to deliver papers at the suggested price, and materially aided in the accomplishment of respondent's plan. Given the uncontradicted facts recited by the Court of Appeals, there was a combination within the meaning of § 1 between respondent, Milne, and Kroner, and the Court of Appeals erred in holding to the contrary. [Footnote 6] Page 390 U. S. 151The Court of Appeals also held there was no restraint of trade, despite the long-accepted rule in § 1 cases that resale price-fixing is a per se violation of the law, whether done by agreement or combination. [Footnote 7] United States v. Page 390 U. S. 152 Trenton Potteries Co., 273 U. S. 392 (1927); United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940); Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211 (1951); United States v. McKesson & Robbins, Inc., 351 U. S. 305 (1956).In Kiefer-Stewart, supra, liquor distributors combined to set maximum resale prices. The Court of Appeals held the combination legal under the Sherman Act because, in its view, setting maximum prices ". . . constituted no restraint on trade and no interference with plaintiff's right to engage in all the competition it desired." 182 F.2d 228, 235 (C.A. 7th Cir.1950). This Court rejected that view and reversed the Court of Appeals, holding that agreements to fix maximum prices "no less than those to fix minimum prices, cripple the freedom of traders, and thereby restrain their ability to sell in accordance with their own judgment." [Footnote 8] 340 U. S. 211, 340 U. S. 213.We think Kiefer-Stewart was correctly decided, and we adhere to it. Maximum and minimum price-fixing may have different consequences in many situations. But schemes to fix maximum prices, by substituting the perhaps erroneous judgment of a seller for the forces of the competitive market, may severely intrude upon the ability of buyers to compete and survive in that market. Competition, even in a single product, is not cast in a single mold. Maximum prices may be fixed too low for Page 390 U. S. 153 the dealer to furnish services essential to the value which goods have for the consumer or to furnish services and conveniences which consumers desire and for which they are willing to pay. Maximum price-fixing may channel distribution through a few large or specifically advantaged dealers who otherwise would be subject to significant nonprice competition. Moreover, if the actual price charged under a maximum price scheme is nearly always the fixed maximum price, which is increasingly likely as the maximum price approaches the actual cost of the dealer, the scheme tends to acquire all the attributes of an arrangement fixing minimum prices. [Footnote 9] It is our view, therefore, that the combination formed by the respondent in this case to force petitioner to maintain a specified price for the resale of the newspapers which he had purchased from respondent constituted, without more, an illegal restraint of trade under § 1 of the Sherman Act.We also reject the suggestion of the Court of Appeals that Kiefer-Stewart is inapposite, and that maximum price-fixing is permissible in this case. The Court of Appeals reasoned that, since respondent granted exclusive territories, a price ceiling was necessary to protect the public from price gouging by dealers who had monopoly power in their own territories. But neither the existence of exclusive territories nor the economic power they might place in the hands of the dealers was at issue before the jury. Likewise, the evidence taken was not directed to the question of whether exclusive territories had been granted or imposed as the result of an illegal combination in violation of the antitrust laws. Certainly on the record before us, the Court of Appeals was not entitled to assume, as its reasoning necessarily did, that the Page 390 U. S. 154 exclusive rights granted by respondent were valid under § 1 of the Sherman Act, either alone or in conjunction with a price-fixing scheme. See United States v. Arnold, Schwinn & Co., 388 U. S. 365, 388 U. S. 373, 379 (1967). The assertion that illegal price-fixing is justified because it blunts the pernicious consequences of another distribution practice is unpersuasive. If, as the Court of Appeals said, the economic impact of territorial exclusivity was such that the public could be protected only by otherwise illegal price-fixing itself injurious to the public, the entire scheme must fall under § 1 of the Sherman Act.In sum, the evidence cited by the Court of Appeals makes it clear that a combination in restraint of trade existed. Accordingly, it was error to affirm the judgment of the District Court which denied petitioner's motion for judgment notwithstanding the verdict. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinionReversed

U.S. Supreme CourtAlbrecht v. Herald Co., 390 U.S. 145 (1968)Albrecht v. Herald Co.No. 43Argued November 9, 1967Decided March 4, 1968390 U.S. 145SyllabusPetitioner, an independent newspaper carrier, bought from respondent at wholesale and sold at retail copies of respondent's morning newspaper under an exclusive territory arrangement which was terminable if a carrier exceeded the maximum retail price advertised by respondent. When petitioner exceeded that price, respondent protested to petitioner, and then informed petitioner's subscribers that it would itself deliver the paper at the lower price. Respondent engaged an agency (Milne) to solicit petitioner's customers. About 300 of petitioner's 1200 subscribers switched to direct delivery by respondent. Respondent later turned these customers over, without cost, to another carrier (Kroner), who was aware of respondent's purpose and who knew that he might have to return the route if petitioner discontinued his pricing practice. Respondent told petitioner that he could have his customers back if he adhered to the suggested price. Petitioner filed a treble damage complaint which, as later amended, charged a combination in restraint of trade in violation of § 1 of the Sherman Act, between respondent, petitioner's customers, Milne, and Kroner. Petitioner's appointment as carrier was terminated, and petitioner sold his route. The jury found for respondent and the trial court denied petitioner's motion for judgment n.o.v. which asserted that the undisputed facts showed, as a matter of law, a combination to fix a resale price which was per se illegal under United States v. Parke, Davis & Co., 362 U. S. 29 (1960), and like cases. The Court of Appeals affirmed, holding that respondent's conduct was wholly unilateral, and not in restraint of trade.Held:1. The uncontroverted facts showed a combination within § 1 of the Sherman Act between respondent, Milne, and Kroner, to force petitioner to conform to respondent's advertised retail price. United States v. Parke, Davis & Co., supra, followed. Pp. 390 U. S. 149-150.2. Since fixing maximum, as well as minimum, resale prices by agreement or combination is a per se violation of § 1 of the Page 390 U. S. 146 Act, the Court of Appeals erred in holding that there was no restraint of trade. Kiefer-Stewart Co. v. Seagram & Sons, Inc., 340 U. S. 211 (1951), followed. Pp. 390 U. S. 151-153.3. The Court of Appeals also erred in assuming on the record here that it was necessary to permit respondent to impose a price ceiling to prevent the price gouging made possible by exclusive territories, for neither the existence of exclusive territories nor the dealers' resultant economic power was in issue, and the court was not entitled to assume that the exclusive rights granted by respondent were valid under § 1 of the Act, either alone or in conjunction with a price-fixing scheme. Pp. 390 U. S. 153-154.367 F.2d 517, reversed and remanded.

1984_83-728

JUSTICE WHITE delivered the opinion of the Court.The Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., provides compensation for the death or disability of any person engaged in "maritime employment," § 902(3), if the disability or death results from an injury incurred upon the navigable waters of the United States or any adjoining pier or other area customarily used by an employer in loading, unloading, repairing, or building a vessel, § 903(a). [Footnote 1] Thus, a worker claiming under the Act must satisfy Page 470 U. S. 416 both a "status" and a "situs" test. The court below held that respondent Robert Gray, a welder working on a fixed offshore oil-drilling platform in state territorial waters, was entitled to benefits under the Act. We reverse for the reason that Gray was not engaged in maritime employment.IRespondent Gray worked for Herb's Welding, Inc., in the Bay Marchand oil and gas field off the Louisiana coast. Herb's Welding provided welding services to the owners of drilling platforms. The field was located partly in Louisiana territorial waters, i.e., within three miles of the shore, and partly on the Outer Continental Shelf. Gray ate and slept on a platform situated in Louisiana waters. He spent roughly three-quarters of his working time on platforms in state waters and the rest on platforms on the Outer Continental Shelf. He worked exclusively as a welder, building and replacing pipelines and doing general maintenance work on the platforms.On July 11, 1975, Gray was welding a gas flow line on a fixed platform [Footnote 2] located in Louisiana waters. He burnt Page 470 U. S. 417 through the bottom of the line, and an explosion occurred. Gray ran from the area, and, in doing so, hurt his knee. He sought benefits under the LHWCA for lost wages, disability, and medical expenses. [Footnote 3] When petitioner United States Fidelity & Guaranty Co., the workers' compensation carrier for Herb's Welding, denied LHWCA benefits, Gray filed a complaint with the Department of Labor. The Administrative Law Judge (ALJ), relying on our decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352 (1969), ruled that, because Gray's work was totally involved in the exploration for, and development and transmission of, oil and gas from submerged lands, it was not relevant to traditional maritime law, and lacked any significant maritime connection. Gray therefore did not satisfy the LHWCA's status requirement.The Benefits Review Board reversed on other grounds. 12 BRBS 752 (1980). By a vote of 2-1, it concluded that, irrespective of the nature of his employment, Gray could recover by virtue of a provision of the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. § 1331 et seq. (Lands Act), that Page 470 U. S. 418 grants LHWCA benefits to offshore oil workers injured on the Outer Continental Shelf. [Footnote 4] Although Gray had been injured in state waters, the Board felt that his injury nonetheless could be said to have occurred, in the words of the statute, "as a result of" operations on the outer shelf. It considered his work "integrally related" to such operations. 12 BRBS, at 757. The dissenting Board member argued that the Lands Act provides LHWCA benefits only for injuries actually occurring in the geographic area of the outer shelf. Id. at 761-763.The Board reaffirmed its position after the case was remanded to the ALJ for entry of judgment and calculation of benefits, and petitioners sought review in the Court of Appeals for the Fifth Circuit. That court affirmed, relying directly on the LHWCA, rather than on the Lands Act. 703 F.2d 176 (1983). With regard to the Act's situs requirement, it noted that this Court had compared drilling platforms to wharves in Rodrigue v. Aetna Casualty & Surety Co., supra. Given that the 1972 Amendments to the LHWCA extended coverage to accidents occurring on wharves, it would be incongruous if they did not also reach accidents occurring on drilling platforms. Also, since workers injured on movable barges, on fixed platforms on the Outer Continental Shelf, or en route to fixed platforms, are all covered, there would be a "curious hole" in coverage if someone in Gray's position was not. 703 F.2d at 177-178. As for Gray's status, the Court of Appeals, differing with the ALJ, held that Gray's work bore "a realistically significant Page 470 U. S. 419 relationship to traditional maritime activity involving navigation and commerce on navigable waters," id. at 179-180, because it was an integral part of the offshore drilling process, which, the court had held in Pippen v. Shell Oil Co., 661 F.2d 378 (1981), was itself maritime commerce. We granted certiorari. 465 U.S. 1098 (1984).IIAWhen extractive operations first moved offshore, all claims for injuries on fixed platforms proceeded under state workers' compensation schemes. See Hearings, at 396, 409, 411. See also Robertson 993. With the 1953 passage of the Lands Act, Congress extended LHWCA coverage to oil workers more than three miles offshore. 43 U.S.C. § 1333(b). Because until 1972 the LHWCA itself extended coverage only to accidents occurring on navigable waters, 33 U.S.C. § 903 (1970 ed.), and because stationary rigs were considered to be islands, Rodrigue v. Aetna Casualty & Surety Co., supra, oil rig workers inside the 3-mile limit were left to recover under state schemes. See, e.g., Freeman v. Chevron Oil Co., 517 F.2d 201 (CA5 1975); Gifford v. Aurand Mfg. Co., 207 So. 2d 160 (La.App.1968). Any worker, inside or outside the 3-mile limit, who qualified as a seaman was not covered by the LHWCA, but could sue under the Jones Act, 46 U.S.C. § 688, the Death on the High Seas Act, 46 U.S.C. § 761 et seq., and the general maritime law. Hearings, at 411-414, 450-459, 487; see n 1, supra. See also Wright, Jurisdiction in the Tidelands, 32 Tulane L.Rev. 175, 186 (1958).So matters stood when Congress amended the LHWCA in 1972. What is known about the congressional intent behind that legislation has been amply described in our prior opinions. See, e.g., Director, OWCP v. Perini North River Associates, 459 U. S. 297 (1983); Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715, 447 U. S. 717-722 (1980); Northeast Marine Page 470 U. S. 420 Terminal Co. v. Caputo, 432 U. S. 249, 432 U. S. 256-265 (1977). The most important of Congress' concerns, for present purposes, was the desire to extend coverage to longshoremen, harborworkers, and others who were injured while on piers, docks, and other areas customarily used to load and unload ships or to repair or build ships, rather than while actually afloat. Whereas, prior to 1972, the Act reached only accidents occurring on navigable waters, the amended 33 U.S.C. § 903 expressly extended coverage to "adjoining area[s]." At the same time, the amended definition of an "employee" limited coverage to employees engaged in "maritime employment."The Act, as amended, does not mention offshore drilling rigs or the workers thereon. The legislative history of the amendments is also silent, although early in the legislative process, a bill was introduced to extend the Act to all offshore oil workers. The bill died in Committee. While hardly dispositive, it is worth noting that the same Committee considered the 1972 Amendments to the LHWCA, and the possible extension of the Lands Act's application of the LHWCA to drilling platforms, apparently without it's ever occurring to anyone that the two might have been duplicative. The concurrent but independent reconsideration of both the Lands Act and the LHWCA, the congressional view that the amendments to the latter involved the "[e]xtension of [c]overage to [s]horeside [a]reas," H.R.Rep. No 92-1441, p. 10 (1972), and the absence of any mention of drilling platforms in the discussion of the LHWCA combine to suggest that the 1972 Congress at least did not intentionally extend the LHWCA to workers such as Gray. [Footnote 5] Page 470 U. S. 421BThe rationale of the Court of Appeals was that offshore drilling is maritime commerce, and that anyone performing any task that is part and parcel of that activity is in maritime employment for LHWCA purposes. Since it is doubtful that an offshore driller will pay and maintain a worker on an offshore rig whose job is unnecessary to the venture, this approach would extend coverage to virtually everyone on the stationary platform. We think this construction of the Act is untenable.The Act does not define the term "maritime employment," but our cases and the legislative history of the amendments foreclose the Court of Appeals' reading. Rodrigue involved two men killed while working on an offshore drilling rig on the Outer Continental Shelf. Their families brought third-party negligence suits in federal court, claiming recovery under both the Death on the High Seas Act and the state law of Louisiana. The District Court ruled that resort could not be had to state law, and that the High Seas Act provided the exclusive remedy. The Court of Appeals for the Fifth Circuit affirmed, holding that the men had been engaged in maritime activity on the high seas, and that maritime law was the exclusive source of relief. We reversed. First, the platforms involved were artificial islands, and were to be treated as though they were federal enclaves in an upland State. Federal law was to govern accidents occurring on these islands; but, contrary to the Court of Appeals, we held that the Lands Act and borrowed state law, not the maritime law, constituted the controlling federal law. The platforms"were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do Page 470 U. S. 422 accidents on piers. [Footnote 6]"395 U.S. at 395 U. S. 360. Indeed, observing that the Court had previously "held that drilling platforms are not within admiralty jurisdiction," we indicated that drilling platforms were not even suggestive of traditional maritime affairs. Id. at 395 U. S. 360-361.We also went on to examine the legislative history of the Lands Act, and noted (1) that Congress was of the view that maritime law would not apply to fixed platforms unless a statute expressly so provided; and (2) that Congress had seriously considered applying maritime law to these platforms, but had rejected that approach because it considered maritime law to be inapposite, a view that would be untenable if drilling from a fixed platform is a maritime operation. The history of the Lands Act at the very least forecloses the Court of Appeals' holding that offshore drilling is a maritime activity, and that any task essential thereto is maritime employment for LHWCA purposes. [Footnote 7]We cannot assume that Congress was unfamiliar with Rodrigue and the Lands Act when it referred to "maritime employment" in defining the term "employee" in 1972. [Footnote 8] It Page 470 U. S. 423 would have been a significant departure from prior understanding to use that phrase to reach stationary drilling rigs generally.The Fifth Circuit's expansive view of maritime employment is also inconsistent with our prior cases under the 1972 Amendments to the LHWCA. The expansion of the definition of navigable waters to include rather large shoreside areas necessitated an affirmative description of the particular employees working in those areas who would be covered. This was the function of the maritime employment requirement. But Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is "clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered." Northeast Marine Terminal Co. v. Caputo, 432 U.S. at 432 U. S. 267. While "maritime employment" is not limited to the occupations specifically mentioned in § 2(3), [Footnote 9] neither can it be read to eliminate any requirement Page 470 U. S. 424 of a connection with the loading or construction of ships. As we have said, the "maritime employment" requirement is "an occupational test that focuses on loading and unloading." P. C. Pfeiffer Co. v. Ford, 444 U. S. 69, 444 U. S. 80 (1979). The Amendments were not meant"to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity."H.R.Rep. No. 92-1441, p. 11 (1972); S.Rep. No. 92-1125, p. 13 (1972). We have never read "maritime employment" to extend so far beyond those actually involved in moving cargo between ship and land transportation. Both Caputo and P. C. Pfeiffer Co. make this clear, and lead us to the conclusion that Gray was not engaged in maritime employment for purposes of the LHWCA. [Footnote 10] Page 470 U. S. 425 Gray was a welder. His work had nothing to do with the loading or unloading process, nor is there any indication that he was even employed in the maintenance of equipment used in such tasks. Gray's welding work was far removed from traditional LHWCA activities, notwithstanding the fact that he unloaded his own gear upon arriving at a platform by boat. Tr. of Oral Arg. 56. He built and maintained pipelines and the platforms themselves. There is nothing inherently maritime about those tasks. They are also performed on land, and their nature is not significantly altered by the marine environment, [Footnote 11] particularly since exploration and development of the Continental Shelf are not themselves maritime commerce.The dissent emphasizes that Gray was generally on or near the water and faced maritime hazards. Post at 470 U. S. 445-449. To the extent this is so, it is relevant to "situs," not "status." To hold that Gray was necessarily engaged in maritime employment because he was on a drilling platform would ignore Congress' admonition that not everyone on a covered situs automatically satisfies the status test. See S.Rep. No. 92-1125, p. 13 (1972). The dissent considers"[t]he maritime nature of the occupation . . . apparent from examining Page 470 U. S. 426 its location in terms of the expanded situs coverage of the 1972 Amendments."Post at 470 U. S. 446. We recognize that the nature of a particular job is defined in part by its location. But to classify Gray's employment as maritime because he was on a covered situs, post at 470 U. S. 448, or in a "maritime environment," post at 470 U. S. 450, would blur together requirements Congress intended to be distinct. We cannot thus read the status requirement out of the statute. [Footnote 12]IIIRespondents, and the dissenters, object that denying coverage to someone in Gray's position will result in exactly the sort of inconsistent, checkered coverage that Congress sought to eliminate in 1972. In the words of the court below, it creates a "curious hole" in coverage, 703 F.2d at 178, because Gray would have been covered had he been injured on navigable waters or on the outer shelf.We do not find the argument compelling. First, this submission goes far beyond Congress' undoubted desire to treat equally all workers engaged in loading or unloading a ship, whether they were injured on the ship or on an adjoining pier or dock. The former were covered prior to 1972; the latter were not. Both are covered under the 1972 Amendments. Second, there will always be a boundary to coverage, and there will always be people who cross it during their employment. Nacirema Operating Co. v. Johnson, 396 U. S. 212, 396 U. S. 223-224 (1969). If that phenomenon was enough to require coverage, the Act would have to reach much further than Page 470 U. S. 427 anyone argues that it does or should. Third, the inconsistent coverage here results primarily from the explicit geographic limitation to the Lands Act's incorporation of the LHWCA. Gray would indeed have been covered for a significant portion of his work-time, but because of the Lands Act, not because he fell within the terms of the LHWCA. [Footnote 13] Congress' desire to make LHWCA coverage uniform reveals little about the position of those for whom partial coverage results from a separate statute. This is especially true because that statute draws a clear geographical boundary that will predictably result in workers moving in and out of coverage.As we have said before in this area, if Congress' coverage decisions are mistaken as a matter of policy, it is for Congress to change them. We should not legislate for them. See Victory Carriers, Inc. v. Law, 404 U. S. 202, 404 U. S. 216 (1971).IVBecause Gray's employment was not "maritime," he does not qualify for benefits under the LHWCA. We need not determine whether he satisfied the Act's situs requirement. We express no opinion on his argument that he is covered by 43 U.S.C. § 1333(b). The judgment is reversed, and the Page 470 U. S. 428 case is remanded to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtHerb's Welding, Inc. v. Gray, 470 U.S. 414 (1985)Herb's Welding, Inc. v. GrayNo. 83-728Argued October 3, 1984Decided March 18, 1985470 U.S. 414SyllabusThe Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972, provides compensation for the death or disability of any person engaged in "maritime employment" (status requirement), if the disability or death results from an injury incurred upon the navigable waters of the United States or any adjoining pier or other area customarily used by an employer in loading, unloading, repairing, or building a vessel (situs requirement). Respondent Gray (hereinafter respondent), who worked for petitioner Herb's Welding, Inc., was injured while welding a gas flow line on a fixed offshore oil-drilling platform in Louisiana territorial waters. When petitioner United States Fidelity & Guaranty Co., the workers' compensation carrier for Herb's Welding, Inc., denied LHWCA benefits, respondent filed a complaint with the Department of Labor. Administrative proceedings ultimately resulted in the conclusion that respondent could recover by virtue of a provision of the Outer Continental Shelf Lands Act (Lands Act) that grants LHWCA benefits to offshore oil workers injured on the Outer Continental Shelf, since, even though respondent had been injured in state waters, rather than on the shelf, his injury could be said to have occurred "as a result of" operations on the shelf. The Court of Appeals affirmed, but relied directly on the LHWCA, rather than on the Lands Act, concluding that both the status and the situs requirements of the LHWCA were met.Held: Because respondent's employment was not "maritime," he does not qualify for benefits under the LHWCA. Pp. 470 U. S. 419-427.(a) The Court of Appeals' construction of the LHWCA -- that offshore drilling is maritime commerce and that anyone performing any task that is part and parcel of that activity is in maritime employment for LHWCA purposes -- is foreclosed by earlier decisions of this Court, and the legislative history of both the 1972 Amendments to the LHWCA and the Lands Act. Congress' purpose under the 1972 Amendments to the LHWCA was to cover those workers on a covered situs who are involved in the essential elements of the loading or unloading, or construction, of vessels. Respondent's welding work was far removed from such traditional LHWCA activities. Pp. 470 U. S. 421-426.(b) The argument that to deny coverage to someone in respondent's position would result in the sort of inconsistent, checkered coverage that Congress sought to avoid in 1972 is not compelling. The inconsistent Page 470 U. S. 415 coverage here results primarily from the explicit geographic limitations to the Lands Act's incorporation of the LHWCA. If Congress' coverage decisions are mistaken as a matter of policy, it is for Congress to change them. 470 U. S. 426-427.703 F.2d 176 and 711 F.2d 666, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and O'CONNOR, JJ., joined, post p. 470 U. S. 428.

1996_96-6133

role in an execution-style triple murder.1 Maloney was later convicted of taking bribes from defendants in criminal cases. Although he was not bribed in this case, he "fixed" other murder cases during and around the time of petitioner's trial. Petitioner contends that Maloney therefore had an interest in a conviction here to deflect suspicion that he was taking bribes in other cases, and that this interest violated the fairtrial guarantee of the Fourteenth Amendment's Due Process Clause. We hold that petitioner has made a sufficient factual showing to establish "good cause," as required by Habeas Corpus Rule 6(a), for discovery on his claim of actual judicial bias in his case.Maloney was one of many dishonest judges exposed and convicted through "Operation Greylord," a labyrinthine federal investigation of judicial corruption in Chicago. See United States v. Maloney, 71 F.3d 645 (CA7 1995), cert. denied, 519 U. S. 927 (1996); see generally J. Tuohy & R. Warden, Greylord: Justice, Chicago Style (1989). Maloney served as a judge from 1977 until he retired in 1990, and it appears he has the dubious distinction of being the only Illinois judge ever convicted of fixing a murder case.2 Before he was appointed to the bench, Maloney was a criminal defense attorney with close ties to organized crime who often1 People v. Collins, 106 Ill. 2d 237, 478 N. E. 2d 267 (Collins I) (affirming convictions and death sentences), cert. denied, 474 U. S. 935 (1985); People v. Collins, 153 Ill. 2d 130, 606 N. E. 2d 1137 (1992) (Collins II) (affirming denial of petition for postconviction relief), cert. denied, 508 U. S. 915 (1993). Bracy is also under a death sentence for two murders in Arizona. State v. Bracy, 145 Ariz. 520, 703 P. 2d 464 (1985), cert. denied, 474 U. S. 1110 (1986); Bracy v. Arizona, 497 U. S. 1031 (1990) (denying petition for writ of certiorari to Arizona Supreme Court to review denial of Bracy's petition for review of state court's denial of petition for postconviction relief); Bracy v. Arizona, 514 U. S. 1130 (1995) (same).2 Although apparently the first in Illinois, Maloney is not, unfortunately, the first American judge to be convicted of taking bribes in murder cases. See, e. g., Ohio v. McGettrick, 40 Ohio App. 3d 25,531 N. E. 2d 755 (1988); In re Brennan, 65 N. Y. 2d 564, 483 N. E. 2d 484 (1985).902paid off judges in criminal cases. App. 54-66; 81 F.3d 684, 696 (CA7 1996) (Rovner, J., dissenting) ("[B]y the time Maloney ascended to the bench in 1977, he was well groomed in the art of judicial corruption"). Once a judge, Maloney exploited many of the relationships and connections he had developed while bribing judges to solicit bribes for himself. For example, Lucius Robinson, a bailiff through whom Maloney had bribed judges while in practice, and Robert McGee, one of Maloney's former associates, both served as "bag men," or intermediaries, between Maloney and lawyers looking for a fix. Two such lawyers, Robert J. Cooley and William A. Swano, were key witnesses against Maloney at his trial. Maloney, supra, at 650-652.Maloney was convicted in Federal District Court of conspiracy, racketeering, extortion, and obstructing justice in April 1993. Four months later, petitioner filed this habeas petition in the United States District Court for the Northern District of Illinois, claiming, among other things, that he was denied a fair trial because "in order to cover up the fact that [Maloney] accepted bribes from defendants in some cases, [he] was prosecution oriented in other cases." United States ex rel. Collins v. Welborn, 868 F. Supp. 950, 990 (ND Ill. 1994). Petitioner also sought discovery in support of this claim. Specifically, he requested (1) the sealed transcript of Maloney's trial; (2) reasonable access to the prosecution's materials in Maloney's case; (3) the opportunity to depose persons associated with Maloney; and (4) a chance to search Maloney's rulings for a pattern of pro-prosecution bias.3 The District Court rejected petitioner's fair-trial claim and denied his supplemental motion for discovery, concluding that "[petitioner's] allegations contain insufficient3 The Government apparently conducted such research in the Maloney case. See Proffer of the Government's Evidence in Aggravation, App. 67 ("[A] review of computer printouts listing all of [one attorney's] felony cases before Judge Maloney reveals that [the attorney] obtained not guilty results in all six of the cases he had before Judge Maloney").903specificity or good cause to justify further discovery." Id., at 991.The Court of Appeals affirmed by a divided vote. The court conceded the "appearance of impropriety" in petitioner's case but reasoned that this appearance did not require a new trial because it "provide[d] only a weak basis for supposing the original trial an unreliable test of the issues presented for decision in it." 81 F. 3d, at 688-689. Next, the court agreed that petitioner's theory-that Maloney's corruption "permeate[d] his judicial conduct"-was "plausible," id., at 689, but found it not "sufficiently compelling [an] empirical proposition" to justify presuming actual judicial bias in petitioner's case, id., at 690. Finally, the court held that petitioner had not shown "good cause" for discovery to prove his claim, as required by 28 U. s. C. § 2254 Rule 6(a). 81 F. 3d, at 690. This was because, in the court's view, even if petitioner were to uncover evidence that Maloney sometimes came down hard on defendants who did not bribe him, "it would not show that he followed the practice in this case." Id., at 691 (emphasis added). In any event, the court added, because petitioner had failed to uncover any evidence of actual bias without discovery, "the probability is slight that a program of depositions aimed at crooks and their accomplices ... will yield such evidence." Ibid.4 We granted certiorari to address whether, on the basis of the showing made in this particular case, petitioner should have been granted discovery under Habeas Corpus Rule 6(a) to support his judicialbias claim. 519 U. S. 1074 (1997). We now reverse.4 The dissenting judge insisted that petitioner had shown "good cause" for discovery to support his judicial-bias claim, 81 F. 3d, at 696-699 (opinion of Rovner, J.), and went on to state that, in her view, petitioner was entitled to relief whether or not he could prove that Maloney's corruption had any impact on his trial, id., at 699-703. The latter conclusion, of course, would render irrelevant the discovery-related question presented in this case.904A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course. Thus, in Harris v. Nelson, 394 U. S. 286, 295 (1969), we concluded that the "broad discovery provisions" of the Federal Rules of Civil Procedure did not apply in habeas proceedings. We held, however, that the All Writs Act, 28 U. S. C. § 1651, gave federal courts the power to "fashion appropriate modes of procedure," 394 U. S., at 299, including discovery, to dispose of habeas petitions "as law and justice require," id., at 300. We then recommended that "the rulemaking machinery ... be invoked to formulate rules of practice with respect to federal habeas corpus ... proceedings." Id., at 300, n. 7. Accordingly, in 1976, we promulgated and Congress adopted the Rules Governing § 2254 Cases. Of particular relevance to this case is Rule 6(a), which provides:"A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise."Before addressing whether petitioner is entitled to discovery under this Rule to support his judicial-bias claim, we must first identify the "essential elements" of that claim. See United States v. Armstrong, 517 U. S. 456, 468 (1996). Of course, most questions concerning a judge's qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 828 (1986). Instead, these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar. See, e. g., id., at 820-821; Tumey v. Ohio, 273 U. S. 510, 523 (1927); 28 u. S. C. §§ 144,455; ABA Code of Judicial Conduct, Canon 3C(1)(a) (1980). But the floor established by the Due Process Clause clearly requires a "fair trial in a fair tribunal,"905Withrow v. Larkin, 421 U. S. 35, 46 (1975), before a judge with no actual bias against the defendant or interest in the outcome of his particular case. See, e. g., Aetna, supra, at 821-822; Tumey, supra, at 523.The facts of this case are, happily, not the stuff of typical judicial-disqualification disputes. A judge who accepts bribes from a criminal defendant to fix that defendant's case is "biased" in the most basic sense of that word, but his bias is directed against the State, not the defendant. Petitioner contends, however, that Maloney's taking of bribes from some criminal defendants not only rendered him biased against the State in those cases, but also induced a sort of compensatory bias against defendants who did not bribe Maloney. Maloney was biased in this latter, compensatory sense, petitioner argues, to avoid being seen as uniformly and suspiciously "soft" on criminal defendants. The Court of Appeals, in its opinion, pointed out that this theory is quite speculative; after all, it might be equally likely that a judge who was "on the take" in some criminal cases would be careful to at least appear to favor all criminal defendants, so as to avoid apparently wild and unexplainable swings in decisions and judicial philosophy. 81 F. 3d, at 689-690.5 In any event, difficulties of proof aside, there is no question that, if it could be proved, such compensatory, camouflaging bias on Maloney's part in petitioner's own case would violate the Due Process Clause of the Fourteenth Amendment. We now turn to the question whether petitioner has shown "good5 At Maloney's trial, however, attorney William Swano provided testimony that lends some support to petitioner's compensatory-bias theory. See 81 F. 3d, at 697 (Rovner, J., dissenting). According to Swano, Maloney retaliated against one of Swano's clients in one of the rare cases when Swano failed to offer Maloney a bribe and, in bribe negotiations in a later case, Maloney's bag man Robert McGee admitted as much. Swano testified that he learned that in order" 'to practice in front of Judge Maloney ... we had to pay.' " Ibid.906cause" for appropriate discovery to prove his judicial-bias claim.In the District Court, petitioner contended that he was "deprived of his right to a fair trial" because "[t]here is cause to believe that Judge Maloney's discretionary rulings in this case may have been influenced by a desire on his part to allay suspicion of his pattern of corruption and dishonesty." App.5.6 In support, he submitted a copy of Maloney's 1991 indictment, App. 16-35, and a newspaper article describing testimony from Maloney's trial, in which attorney William Swano described an additional, uncharged incident where he bribed Maloney to fix a murder case. App. 12, n. 1, 36-38. In a supplemental motion for discovery, petitioner's codefendant Roger Collins alleged that "[a] Government witness in the Maloney case has advised ... that co-defendant Bracy's trial attorney was a former partner of Thomas Maloney." App. 51. Collins attached to that motion a copy of the United States' proffer of evidence in aggravation in Maloney's case, which describes in considerable detail Maloney's corruption both before and after he became a judge. See App. 54 ("Although [it is] difficult to imagine, Thomas Maloney's life of corruption was considerably more expansive than proved at trial"). The United States' proffer asserts, for example, that Maloney fixed serious felony cases regularly while a practicing criminal defense attorney; 7 that, as a judge, he continued to corrupt justice through the same6We express no opinion on the correctness of the various discretionary rulings cited by petitioner as examples of Maloney's bias. See Brief for Petitioner 5-6. We note, however, that many of these rulings have been twice upheld, and that petitioner's convictions and sentence have been twice affirmed, by the Illinois Supreme Court. See n. 1, supra.7 The Government introduced evidence that Maloney regularly bribed Judge Maurice Pompey and Cook County Deputy Sheriff Lucius Robinson (who would later serve as Maloney's "bag man"); that on numerous occasions, using his organized-crime connections, Maloney fixed cases for his client Michael Bertucci; and that Maloney helped orchestrate the fix in the murder case of underworld hit man Harry Aleman. App. 54-66.907political relationships and organized-crime connections he had exploited as a lawyer; 8 and that at least one attorney from Maloney's former law firm, Robert McGee, was actively involved in assisting Maloney's corruption, both before and after he became a judge, and also bribed Maloney himself, App. 55, 68-72. In addition, the proffer confirms that petitioner's murder trial was sandwiched tightly between other murder trials that Maloney fixed.9As just noted above, petitioner's attorney at trial was a former associate of Maloney's, App. 51, and Maloney appointed him to defend this case in June 1981. The lawyer announced that he was ready for trial just a few weeks later. He did not request additional time to prepare penalty-phase evidence in this death penalty case even when the State an-8 For example, Lucius Robinson and Robert McGee, who were involved in Maloney's corruption as a lawyer, later facilitated his bribe taking when he became a judge. United States v. Maloney, 71 F.3d 645, 650-652 (CA7 1995), cert. denied, 519 U. S. 927 (1996); App. 22-24; 54-55. As the Government alleged in its proffer: "Maloney was closely tied to the [sic] La Cosa Nostra prior to his appointment to the bench and ... major organized crime figures looked forward to [his] appointment as an opportunity to have a 'good friend' on the bench ... [and] after his elevation to the bench, Maloney continued his close First Ward/organized crime connections, fixing the results of several murder cases of import to organized crime." App.54-55.9Petitioner was tried in July 1981. William Swano testified at Maloney's trial that, in October 1980, he bribed Maloney in the murder case of Swano's client, Wilfredo Rosario. Maloney excluded Rosario's confession and, in May 1981, acquitted Rosario after a bench trial. Maloney, supra, at 650; App. 12, n. 1, 53, n. 1. Also in May 1981, Maloney took a bribe to throw the murder case of Lenny Chow, a hit man for a Chinatown crime organization. At a bench trial that August, Maloney admitted a dying declaration, but found it unreliable, and acquitted Chow. Maloney, supra, at 650; App. 20-22, 27. In 1982, Maloney and Swano fixed another murder case in which one Owen Jones was charged with beating a man to death with a lead pipe. Maloney took $4,000-$5,000 from Jones' mother, using his former associate Robert McGee as a "bag man," to acquit Jones on the felony-murder charge, and to convict him of voluntary manslaughter only. Maloney, supra, at 651; App. 20,22,28.908nounced at the outset that, if petitioner were convicted, it would introduce petitioner's then-pending Arizona murder charges as evidence in aggravation. Tr. of Oral Arg. 43.10 At oral argument before this Court, counsel for petitioner suggested, given that at least one of Maloney's former law associates-Robert McGee-was corrupt and involved in bribery, see supra, at 907, that petitioner's trial lawyer might have been appointed with the understanding that he would not object to, or interfere with, a prompt trial, so that petitioner's case could be tried before, and camouflage the bribe negotiations in, the Chow murder case. Tr. of Oral Arg. 17-18, 43-44.11 This is, of course, only a theory at this point; it is not supported by any solid evidence of petitioner's trial lawyer's participation in any such plan. It is true, however, that McGee was corrupt and that petitioner's trial coincided with bribe negotiations in the Chow case and closely followed the Rosario murder case, which was also fixed. See n. 9, supra.We conclude that petitioner has shown "good cause" for discovery under Rule 6(a). In Harris, we stated that "where specific allegations before the court show reason to10 Petitioner's lawyer did request a continuance after petitioner was convicted, on July 29, 1981, and again on July 30. Maloney denied these requests, however, and the sentencing hearing was conducted the next day. See People v. Collins, 106 Ill., at 280-281, 478 N. E. 2d, at 286; 81 F. 3d, at 694-695 ("Defense lawyers know ... [that] if they wish to gather evidence of mitigating circumstances they must do so before the trial ends, because they will have no time to do so after the trial ends. But in this case the defendants' lawyers dropped the ball"); United States ex rel. Collins v. Welborn, 868 F. Supp. 950,986-987 (ND Ill. 1994) (noting that "no witnesses were presented by [petitioner or his codefendant]").11 Petitioner's counsel admitted that he "ha[d] not made this exact same argument on a previous occasion, but it is supported by the record." Tr. of Oral Arg. 43. Cf. Reply Brief for Petitioner 6 ("[I]t is impossible to say with confidence that Judge Maloney did not deliberately select a less experienced lawyer to represent Petitioner due to a corrupt motive, such as a desire to insure a guilty verdict and a death sentence in a high profile case").909believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." 394 U. S., at 300. Habeas Corpus Rule 6 is meant to be "consistent" with Harris. Advisory Committee's Note on Habeas Corpus Rule 6, 28 U. S. C., p. 479. Ordinarily, we presume that public officials have" 'properly discharged their official duties.'" Armstrong, 517 U. S., at 464 (quoting United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926)). Were it possible to indulge this presumption here, we might well agree with the Court of Appeals that petitioner's submission and his compensatory-bias theory are too speculative to warrant discovery. But, unfortunately, the presumption has been soundly rebutted: Maloney was shown to be thoroughly steeped in corruption through his public trial and conviction. We emphasize, though, that petitioner supports his discovery request by pointing not only to Maloney's conviction for bribe taking in other cases, but also to additional evidence, discussed above, that lends support to his claim that Maloney was actually biased in petitioner's own case. That is, he presents "specific allegations" that his trial attorney, a former associate of Maloney's in a law practice that was familiar and comfortable with corruption, may have agreed to take this capital case to trial quickly so that petitioner's conviction would deflect any suspicion the rigged Rosario and Chow cases might attract. It may well be, as the Court of Appeals predicted, that petitioner will be unable to obtain evidence sufficient to support a finding of actual judicial bias in the trial of his case, but we hold that he has made a sufficient showing, as required by Habeas Corpus Rule 6(a), to establish "good cause" for discovery. Although, given the facts of this particular case, it would be an abuse of discretion not to permit any discovery, Rule 6(a) makes it clear that the scope and extent of such discovery is a matter confided to the discretion of the District Court.910Accordingly, 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

OCTOBER TERM, 1996SyllabusBRACY v. GRAMLEY, WARDENCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 96-6133. Argued April 14, 1997-Decided June 9, 1997Petitioner was tried, convicted, and sentenced to death before then-Judge Thomas J. Maloney, an Illinois judge who was later convicted on federal charges of taking bribes from criminal defendants. In this federal habeas petition, petitioner claims that Maloney had an interest in his conviction to deflect suspicion that the judge was taking bribes in other murder cases during and around the time of petitioner's trial, and that this interest violated the fair-trial guarantee of the Due Process Clause. The District Court denied both the claim and a supplemental discovery motion. In affirming, the Seventh Circuit held, inter alia, that petitioner had not shown "good cause" for discovery to prove his claim, as required by Rule 6(a) of the Rules Governing § 2254 Cases.Held: Petitioner has made a sufficient factual showing, under Habeas Corpus Rule 6(a), to establish "good cause" for discovery on his claim of actual judicial bias in his case. Pp. 904-910.(a) Before addressing whether petitioner is entitled to discovery, his claim's essential elements must be identified. See United States v. Armstrong, 517 U. S. 456, 468. Due process requires a fair trial before a judge without actual bias against the defendant or an interest in the outcome of his particular case. Petitioner claims that Maloney's acceptance of bribes from criminal defendants not only rendered him biased against the State in those cases, but also induced a compensatory bias against defendants who did not bribe him, since he did not want to appear "soft" on criminal defendants. There is no question that, if proved, such compensatory, camouflaging bias in petitioner's own case would violate due process. Pp. 904-905.(b) Petitioner has shown good cause for appropriate discovery to prove his claim. The usual presumption that public officials have properly discharged their official duties has been soundly rebutted here. Maloney's public trial and conviction show that he was thoroughly corrupt. A Government proffer in that case details his corruption as both a trial attorney and a judge. Additional evidence supports the claim that Maloney was biased in petitioner's own case. His trial attorney was a former associate of Maloney's in a law practice that was familiar and comfortable with corruption, who announced that he was ready for trial just a few weeks after his appointment and requested no additional900time before trial to prepare for the penalty phase of the case. Petitioner alleges that Maloney appointed the attorney with the understanding that he would not object to, or interfere with, a prompt trial, so that petitioner's case could camouflage bribe negotiations being conducted in another murder case. The Government's proffer confirms that petitioner's murder trial was sandwiched tightly between other murder trials that Maloney fixed. Although petitioner may be unable to obtain evidence sufficient to support a finding of actual judicial bias in his trial, he has made a sufficient showing to establish "good cause" for discovery. Although, given the facts of this particular case, it would be an abuse of discretion not to permit any discovery, Habeas Corpus Rule 6(a) provides that the scope and extent of discovery is a matter confided to the District Court's discretion. Pp. 906-909.81 F.3d 684, reversed and remanded.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Gilbert H. Levy, by appointment of the Court, 519 U. S. 1106, argued the cause for petitioner. With him on the briefs was Martin S. Carlson.Barbara A. Preiner, Solicitor General of Illinois, argued the cause for respondent. With her on the brief were James E. Ryan, Attorney General, and Arleen C. Anderson and Steven J. Zick, Assistant Attorneys General. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner William Bracy was tried, convicted, and sentenced to death before then-Judge Thomas J. Maloney for his*Thomas F. Geraghty filed a brief for Concerned Illinois Lawyers and Law Professors as amicus curiae urging reversal.A brief of amicus curiae urging affirmance was filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Donald E. DeNicola, Supervising Deputy Attorney General, and David F. Glassman, Deputy Attorney General, joined by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, M. Jane Brady of Delaware, Dennis C. Vacco of New York, James S. Gilmore III of Virginia, Grant Woods of Arizona, Frankie Sue Del Papa of Nevada, and W A. Drew Edmondson of Oklahoma.901Full Text of Opinion